PONOMAROVA OLENA v. JUDGE OF THE COURT OF FIRST INSTANCE WILSON CHAN HIGH COURT

HCAL 1163/2023

[2023] HKCFI 3020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1163 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is no stranger to the Court. On this occasion, by her Form 86 dated 11 July 2023, the Applicant seeks leave to apply for judicial review so as to challenge (as set out by her):

Hearing on 31 of March 2023 in the HCA 156/2022 and the Decision dated 13.04.2023 and the Order dated 31.03.2023 the order dated 13.4.2023

2.  By an Amended Form 86 dated 18 September 2023 (amended with my permission), the Applicant has sought to widen the intended challenge to include:

the Decision dated 05.09.2023 and the Order dated 05.09.2023

3.  The background to the proceedings in HCA 156/2022 can be found as set out by me at §§27-45 of my 22 November 2023 Judgment in Ponomarova Olena v Master Phoebe Man, Deputy Registrar of the High Court [2023] HKCFI 1372. That background can be read and need not be repeated here. (I shall adopt in this Decision the definitions and abbreviations used in that Judgment.)

4.  The particular hearing in the proceedings HCA 156/2022 held on 31 March 2023 before Wilson Chan J was the hearing of Northcroft’s appeal from Master D To’s refusal of Northcroft’s application for security for costs. At the end of the hearing Wilson Chan J reserved his decision, which was given later by a Judgment dated 13 April 2023 [2023] HKCFI 956.

5.  By that Judgment, Wilson Chan J:

(1)  allowed Northcroft’s appeal,

(2)  ordered the Applicant (as plaintiff in those proceedings) to pay the sum of $250,000 within 28 days as security for Northcroft’s costs of that action up to and including trial,

(3)  stayed the proceedings until the provision of the security, and

(4)  ordered that, in default of the security being provided, the action should stand dismissed without further order, with the costs of the action to be paid by the Applicant (as plaintiff) to Northcroft (as defendant) to be taxed if not agreed.

6.  The Order dated 31 March 2023 related to Wilson Chan J’s refusal to receive a further affidavit from the Applicant at the hearing of the appeal. The Order dated 13 April 2023 is the order drawn up to reflect the result of the Judgment of that date.

7.  The Decision dated 5 September 2023 was Wilson Chan J’s refusal to grant leave to appeal from his Judgment of 31 March 2023. The Order dated 5 September 2023 is the order drawn up to reflect the result of that decision.

8.  Those are the various judgments/orders the subject of the intended judicial review.

9.  Though not subject to any further amendment to the Form 86, the Applicant also mentioned a costs order or assessment made on 11 October 2023. But, in light of my conclusions below, I need not make further reference to that.

10.  Though, with respect, this application for leave to apply for judicial review appeared to be simply misconceived (see below), the Amended Form 86 requested an oral hearing if leave were not to be granted on the papers. Therefore, I fixed an oral hearing for 27 November 2023, at which the Applicant appeared in person.

11.  At the end of the hearing, I reserved my decision to be handed down later. This is my Decision.

B.  No Recusal

12.  First, I need to address the Applicant’s summons dated 19 October 2023 (“Recusal Summons”), by which the Applicant sought my recusal from handling and/or adjudicating and/or presiding in these proceedings – though she did not push this at the hearing.

13.  The basis of the application as set out in the Recusal Summons was materially identical to a similar application made in HCAL 190/2023. I dealt with that application in my Judgment [2023] HKCFI 1372 at §§10-26.

14.  For the same reasons as there set out – which I adopt, but do not rehearse, in this Decision – the Recusal Summons has no merit and I dismiss it, with no order as to costs.

C.  Application Misconceived

15.  By these proceedings, the Applicant seeks leave to apply for judicial review to challenge the interlocutory decisions of a Court of First Instance (“CFI”) Judge – and the manner in which, and his conduct of the hearing by which, he reached those decisions – made in other High Court proceedings.

16.  Such decisions of a CFI Judge are not amenable to judicial review by the Court exercising its supervisory judicial review jurisdiction.

17.  At the hearing, the Applicant herself agreed that these proceedings conducted by one CFI Judge are not the proper venue to challenge the decision of another CFI Judge – though she also sought to raise procedural or systemic issues, which, she said, were not really in terms of the merits of the application (see below).

18.  Rather, the Applicant could seek to exercise her right of appeal (or of seeking leave to appeal), to take the matter to the Court of Appeal. All of the matters of criticism raised by the Applicant might be addressed on any such appeal process. In other words, the Applicant can seek to address not just why she might say the Judge’s decisions were wrong, she can in that context address the manner in which, and his conduct of the hearing by which, he reached or wrote those decisions.

19.  Indeed, the fact that there is an alternative remedy also identifies another reason why this application for leave to apply for judicial review should fail. Similarly, there is also an established administrative route for pursuing complaints about judicial conduct.

20.  In fact, as she acknowledged, the Applicant has exercised her right to follow the route of an intended appeal challenge. Because of the nature of the security for costs order, the Applicant requires leave to appeal, for which she first applied to Wilson Chan J. He dismissed that application on the papers by his Decision dated 5 September 2023 [2023] HKCFI 2271. That Decision became an intended target of this application upon the Amended Form 86.

21.  The Applicant has renewed her application for leave to appeal, to the Court of Appeal itself, in CAMP 314/2023. As I understand it, that application is yet to be determined.

22.  In the circumstances, there is no need for me to traverse the lengthy affidavits filed by the Applicant in which she seeks to explain the background to, and to give a ‘blow by blow’ account of what happened at, the hearing on 31 March 2023 and on the application for leave to appeal.

23.  The Applicant also submitted that there is no appropriate venue in the Hong Kong legal system to cater matters about suggested systemic flaws in that system. She sought to raise matters about the organisation, and the rank and hierarchy of judicial decision-makers, as well as “information hygiene”. She also argued that, whilst in theory systemic issues might be addressed in a judicial review, such a review should not be conducted in a competitive way but in a collaborative manner.

24.  But, with respect, that does not change the analysis on the present application. The targets of the intended challenge are not amenable to judicial review, there is an alternative remedy being pursued, and the Court does not generally engage in academic or hypothetical questions.

D.  Updating Affidavits

25.  At the hearing, the Applicant asked for leave to amend or update her affidavits filed in support of the original Form 86 and the Amended Form 86. The basis of the application was that a third party reader not fully familiar with the underlying history and materials might not see with clarity which aspect of the affidavits was directed at any particular point. She gave one particular example where she had not expressed herself with the clarity that she would have preferred.

26.  Indeed, the Applicant expressly stated that where she was seeking to hold the Court and Judges to high standards, so should she attempt to meet those standards.

27.  Nevertheless, on the basis that the Applicant’s application was itself misconceived, so that there was no need to traverse the affidavits, there was also no need (and no prejudice to the Applicant in not giving the opportunity) to amend or update her affidavit material.

28.  These are the reasons why I stated at the hearing that I would not grant her the time or the opportunity to amend or update her affidavits.

E.  Result

29.  This application is misconceived. There are no reasonably arguable grounds of review with any reasonable prospect of success. The Applicant also has and is pursuing an alternative remedy.

30.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.