Building Authority v. Appeal Tribunal (Buildings)

HCAL 11/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2014

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Before: Hon Au J in Chambers

Dates of Written Submissions: 12 October, 2 and 9 November 2015

Date of Decision on Costs: 25 September 2017

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DECISION ON COSTS

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A.   INTRODUCTION

1.On 4 September 2015, this court handed down judgment (“the Judgment”) allowing the applicant’s judicial review and quashing the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 7 November 2013, which allowed with certain conditions the appeal by the Methodist Church, Hong Kong (“the Church”) against the disapproval by the Building Authority (“the BA”) of the Church’s general building plans submitted for the redevelopment of its site located at around the junction of Kennedy Road and Queen’s Road East.  In the Judgment, the court found that the Decision was tainted with a number of errors of law and that the various conclusions therein were irrational.  It remitted the building appeal back to a differently constituted Tribunal for reconsideration.

2.The Tribunal as the respondent remained neutral and had not taken any steps in the judicial review.  The Church (as the interested party) opposed the application.

3.This court made a costs order nisi in the Judgment that costs of the judicial review be borne by the Church, to be taxed if not agreed, with certificate for two counsel.

4.The Church applies to vary the costs order nisi to the extent that it should not bear the BA’s costs prior to:

(1) when the Church’s solicitors filed a Notice to Act on behalf of the Church on 19 February 2015; or

(2) when the solicitors were notified that leave to apply for judicial review was granted by this court on 5 February 2014.

5.The parties have agreed to deal with this costs variation application on papers by written submissions.

6.This is the decision of the court, which should be read together with the Judgment.

7.The Church’s arguments in support of the application to vary the costs order nisi are in substance as follows:

(1) The BA was legally required to take out the ex parte leave application in the first place in order to challenge the Decision.

(2) The Church was only joined as an interested party, but not as the respondent.  The Church had no involvement at all at that leave stage.  It was only after leave was granted by the court, and that the Church’s solicitors had formally filed a Notice to Act that the Church had any active participation in these proceedings.

(3) As it turned out, the Decision was quashed by reasons of errors committed by the Tribunal as found by the court, which were not the fault of the Church.

(4) In the premises, it is unjust and unfair to require the Church to bear the costs of the BA before the Church’s active participation in the application.  It is particularly so if the court further takes into account that the Church’s redevelopment plan (which eventually led to the appeal before the Tribunal) was to further not its own private interest but its objectives to serve the public community.

8.In support of the submissions that the court should exercise its discretion not to require the Church to bear the BA’s costs before the Church actively participated in the judicial review and before leave was granted, Mr Ismail for the Church relies principally on this court’s decision in Chan Chi Shing v The Revising Officer, Mr Symon Wong (HCAL 132/2010, 24 June 2011, Au J).  In that case, the court required the 100^th interested party, who was the only active opponent to the judicial review, to bear only the costs of the applicant after the 100^th interested party had actively participated in opposing the judicial review, which happened only after leave was granted and that interested party was given legal aid.

9.With respect to Mr Ismail, I am unable to accept his submissions.  My reasons are these.

10.It is common ground that the court in public law cases as in private law disputes retains a wide discretion in costs and is to make an order which is just and fair in all the circumstances.  The starting position however is still the general principle that costs should follow the event.

11.Hence, in the present case, the real question that I have to determine is whether the Church, albeit joined as an interested party, should be regarded effectively as the respondent in resisting the judicial review.  See: Ming Pao Newspapers Ltd v Obscene Articles Tribunal and Commissioner for Television and Entertainment Licensing (HCAL 96 & 101/2007, 9 January 2009), paragraphs 3 - 6, per Lam J (as the learned VP then was).

12.In my view, the Church was effectively the respondent and the real protagonist in resisting the judicial review.  As considered in the Judgment, the Church had made extensive submissions in the judicial review seeking to positively contend that the Decision was not tainted by any of the public law errors as advanced by the BA.  The Church therefore went beyond merely seeking to assist the court to enable it to come to the correct determination in this judicial review.  The Church was effectively associating itself with the same position of the Tribunal in relation to the Decision.  It therefore also does not matter that the Decision challenged was that of the Tribunal and that the errors were committed by the Tribunal.  See: Orrico, Philippe v Municipal Services Appeals Board and Liquor Licensing Board [2015] 4 HKLRD 111, paragraph 52.

13.In the premises, absent other valid considerations, I cannot see why the Church should not be liable for all the BA’s costs in this judicial review, including the costs incurred at the ex parte stage, which is part of the costs of the judicial review as a whole.  That is in principle no different from the costs incurred in issuing the writ in private law proceedings.

14.In this respect, I also see no other considerations that would justify a departure from the general costs follow the event principle.

15.First, Chan Chi Shing does not assist the Church in the present case, as it is distinguishable.

16.It is important to note that the judicial review in that case was issued ancillary to and heard together with the primary election petition issued by the same applicant, challenging the election result on the basis that it was wrong for the electoral registration officer to include some 116 persons as relevant indigenous inhabitants in the subject electors register.  The court allowed the election petition on the basis, looking at the evidence, that the 116 persons were not indigenous inhabitants of the relevant village and hence it was wrong to have included them in the electors register.  It was based on this same very conclusion made in the election petition that the court allowed the same applicant’s judicial review in challenging the revising officer’s decision to reject the applicant’s appeal against the electoral registration officer’s inclusion of the 116 persons in the register.  The court rejected the other grounds of the judicial review.  See: paragraphs 63 - 78 of the judgment.  It is pertinent also to note that it was on the court’s direction that these 116 persons were joined as the interested parties in the judicial review (but not in the election petition).  Of these 116 interested parties, only the 100^th interested party participated in the judicial review and opposed it.

17.In other words, the real and substantive contentions and arguments were raised and determined in the election petition (where the 100^th interested party in the judicial review was not a party there), which led to the success of the judicial review.

18.It is in those special circumstances that the court found it just to make the costs order requiring only the 100^th interested to bear the costs of the applicant in the judicial review after he was granted legal aid and actively participated in the proceedings.  There are no similar considerations in the present case.

19.Second, short of what could be properly regarded as public interest litigation[1] (which is clearly not the case here), the fact that the Church in pursuing the redevelopment plan (which led to the appeal before the Tribunal and hence the judicial review) is pursing some form of public service and interest alone cannot generally be regarded as a compelling reason to reduce or avoid its costs liability in resisting a successful challenge of an administrative decision.  Otherwise, almost all public authority respondents in failing to resist a successful judicial review would not be required to bear the costs or the full costs of the successful applicant in a judicial review, which cannot be right as a matter of general principle.  See: Ming Pao, supra, paragraph 4.

20.For all the above reasons, I am not persuaded that I should vary the costs order nisi to the extent as submitted by the Church.  I would therefore dismiss the costs variation application, and the costs order nisi shall hereby become absolute.  The costs of this variation application shall form part of the costs of the judicial review.

Mr Abraham Chan, instructed by Department of Justice, for the applicant

Mr Anthony Ismail, instructed by Mayer Brown JSM, for the interested party