Director of Public Works v. Kwan Ngok-lun and Others

Case No.CACV 2/1977

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000002/1977

IN THE COURT OF APPEAL
On appeal from the Lands Tribunal

	1977 No. 2

-----------------

BETWEEN
	Director of Public Works	Appellant
	and
	Kwan Ngok-lun
	Yuen Moon-chor and others
	Yeung Tsiu-ha	Respondents

-----------------

Coram: Briggs, C.J., Huggins, J.A. and Leonard, J.

Date of Judgment: 27th June 1977.

-----------------

JUDGMENT

-----------------

Huggins, J.A.:

1. Counsel for the Appellant has sought the guidance of the court as to the practice to be followed in appeals from the Lands Tribunal. When the present appeal was embarked upon he took the view that the tribunal was required, upon receiving notice of a party's intention to appeal, to state a case. Mr. Airey points out that an appeal can be brought only upon a point of law and he submits that, as there is no provision in the Ordinance or in the Lands Tribunal Rules which calls for the filing of documents by the Appellant in this court, the proper inference is that a case will be stated. Section 11(2) is in these terms:

"Any person who alleges that the Tribunal in arriving at its decision under subsection (1), erred in any point of law in arriving at that decision, may apply, with in 14 days after the decision has been given, in writing to the registrar requesting the President, or the member of the Tribunal presiding over the proceedings in question -

	(a)	to state in writing the decision of the Tribunal and the reasons therefor; and
	(b)	to submit these documents to the Court of Appeal for its decision on the alleged error of law."

and if that were the only relevant provision it would certainly be arguable that the Legislature intended this court to decide the appeal upon those documents alone.

2. It is, however, to be noted that in subs. (4) the Legislature made express reference to a case stated:

"Without prejudice to subsection (2), the President may, of his own motion, refer a matter to the Court of Appeal by way of case stated."

Mr. Bunting, for the Respondents, places greater reliance upon 0.59 rr.1 and 3(1) and submits that there is nothing in the Lands Tribunal Ordinance which shows that s.11 was intended to provide a complete appellate procedure and nothing in the Rules of the Supreme Court which would exclude the operation of 0.59 in such a case as this. Rules 1 and 3(1) are explicit:

"	1. This Order applies, subject to the provisions of these rules with respect to particular appeals, to every appeal to the Court of Appeal not being an appeal for which other provision is made by these rules."
"	3. (1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by motion......"

3. I think Mr. Bunting is right. When I first read these papers it appeared to me that the letter to the Clerk of the Lands Tribunal which the Appellant has relied upon as instituting the appeal was a very unsatisfactory document, but I had assumed that this was one of those informal procedures so beloved of legislators at the present day and that it had been expressly provided for. Happily I was wrong. 0.3 r.2, coupled with 0.59 r.3(1), requires service of a notice of appeal and 0.59 r.9 requires the lodgment of other necessary papers. It is not every point of law which can conveniently be decided upon a case stated and there may well be cases - this appears to be one of them - where it will be necessary for this court to see a transcript of at least part of the note of evidence.

4. In my judgment 0.59 applies to appeals from the Lands Tribunal and it is conceded that if the court so holds the present proceedings are not properly constituted. I would dismiss these proceedings with costs.

27th June 1977.

Representation: