The Association of Expatriate Civil Servants of Hong Kong v. The Secretary for The Civil Service and The Secretary for Justice

IN THE COURT OF APPEAL

1995, No. 260
(Civil)

_______________

______________

Coram : Power, V-P, Mortimer, V-P and Sears, J. in Court

Date of Judgment : 28 November 1997

______________

J U D G M E N T

______________

Mortimer, V.-P. :

1. In this matter the Court of Appeal handed down judgment on 22 November 1996. Unfortunately for reasons which now or are of no moment, the order of the court consequent upon that judgment was never perfected. The carriage of the order was with the appellant, the Association of Expatriate Civil Services of Hong Kong, and it was hoped that the order might be agreed between the parties. What happened I know not. The result was that the respondents to the appeal presented an order for perfection but it was objected to by the appellant. The appellant thereupon took out the two Notices of Motion which are before us.

The Notices of Motion

2. The main matter the appellant wishes to raise on the first Notice is one of great importance. The appellant says that it is clear upon further evidence which is now available, the judgment at first instance - a judgment handed down by Keith J on 31 October 1995 - was obtained by fraud. In the sense that the opening up scheme upon which the appellant had lost at first instance and on appeal - was a scheme which, although it was said was simply to ensure that the best officer should fulfil the post, was in fact a sham. The reason behind the scheme was to localise those posts.

3. At first instance, the appellant's case failed in limine because the civil servants concerned particularly with the scheme and who had submitted affidavit evidence were not required to attend by the appellant for cross-examination. The consequence was that the judge did not feel able - one would think rightly - to make findings against the respondents in the absence of such cross-examination. The appellant's appeal failed basically on the same point. There was an application to the Court of Appeal for further evidence but this Court rejected that application because there had been no cross-examination below. That application failed but the appellant still pursues this matter in the second Notice applying to adduce further evidence again.

4. Its clear from the material that has been put before us on these notices of motion that a huge amount of work has been done to prepare for this hearing. The submission by Mr Scott - who presents the case for the Association - is that this Court has the power to hear him and open up the judgment both in this Court and below for further consideration. The point taken is that the judgment of this Court has not been perfected and therefore it is open to him to make such an application. Let me say at once that there is no doubt whatsoever that the court has such a power. The court has power to hear a party before the judgment is perfected as it is not functus. However, the circumstances in which a court will entertain such an application are very limited indeed. It is unnecessary to go into the matter in great detail but the point was made in re Barrell Enterprises [1973] 1 WLR 19. Russell LJ said at p.23H:

"We now turn to the question whether in any event it would be open to Miss Barrell to continue with fresh argument. Her original appeal from Pennycuick VC on the ground that the order dismissing it had not been passed and entered. Now that the matter has been looked into, we are of the opinion that there were in this case no grounds on which the argument on the appeal could properly be reopened. The oral judgments have been given, either in the Court of First Instance or on appeal, the successful party ought to, save in most exceptional circumstances, be able to assume that the judgment is a valid and effective one. The cases to which we are referred in which judgments in civil courts have been valid after delivery apart from the correction of slips were all cases in which some most unusual element was present."

5. The judge cited a number of cases that reflect the law and the practice. The question arises, therefore, whether Mr Scott has demonstrated after his huge industry, that such wholly exceptional circumstances exist here as would allow this Court to reopen the submissions he wishes to make. Where fraud is alleged, perhaps it is even more difficult for an applicant to reopen a case such as this because there are further considerations. The same as were present when the judge at first instance found it impossible to decide disputed facts in the absence of cross-examination.

6. The key to the application is said to be a statement made by a government officer on the effect of the judgment given by this Court on 23 December 1996. Mr Scott says this amounts to an admission of fraud. The main point he makes is that under the heading "Impact of the Judgment" and the subheading "The Localisation Policy", there appears the sentence

"Third, it has upheld the opening up arrangements currently in place for renewal of agreements on local terms, a mechanism which requires officers to compete for further employment on the principle of 'best person for the job'."

Because that reference to the "opening up scheme" appears under the heading of "The Localisation Policy" it is said - to use a colloquial phrase - that let the cat out of the bag; that it was the intent of the government all along to further the localisation policy. Mr Scott has put in front of the Court many other documents but that is the key. The question arises whether it is possible, as he submits, for this Court to look at the documents and reach the conclusion which he says can be drawn from them. It would, of course, be quite impossible to reach a concluded decision on bona fides or fraud from such a document - and other documents which may be inconsistent - without hearing oral evidence from the people concerned if they wish to appear and give an explanation.

7. So in my judgment, there are no wholly exceptional circumstances which could possibly require this Court to take the exception course of allowing these matters to be argued and determined at this stage.

8. That is not to say that the appellant in the case is shut out. The usual and normal procedure for a party who alleges that a judgment has been obtained by fraud is for that party to take fresh proceedings to set the judgment aside. There are good reasons for that. When allegations of fraud are made, those allegations must be specific, they be carefully particularised and they must only be made by parties who have the material upon which to make them. Those specific allegations can then be answered and the issues can be tried and determined. Also, as was pointed out in argument, there is the usual right of appeal to both parties.

9. Those circumstances lead me to the conclusion that I would not entertain the main thrust of the Notice of Motion which applies for part of the judgment to be set aside nor would I entertain the consequential Notice of Motion to admit further evidence.

The order on the cross appeal

10. There is a second matter raised by Mr Scott on the first Notice. He seeks to have further orders of this Court to clarify the terms in which the judgment was given on the cross appeal. The appellant won on the cross appeal and so the orders of the judge below must stand. Mr Scott says he is quite happy with the orders of the judge below but fears that there may be some misunderstanding of their effect because the certain things which were said in the judgment of the Court of Appeal. Well, he need not worry on that score. He has the orders. He can do no better. The terms of the orders were not challenged by the appellant at the hearing and they must stand.

11. Finally, he asks for an order of mandamus to clarify the judgment. There is no basis upon which he could possibly have such an order at this stage.

12. In those circumstances the Notices of Motion must be dismissed.

The perfected order

13. That leaves the question what orders the Court should make - the main purpose for this hearing. Fortunately, the parties have been very helpful in this respect. An agreed order on the appeal has been submitted. For my part, I would approve it and make the order in the terms put before us. Similarly, the order on the cross appeal put before us is simply that the cross appeal is dismissed. This should be made. That as far as I can see concludes the matter.

Power, V.-P.:

14. I concur with all that has fallen from my brother Mortimer V-P.

Sears, J.:

15. I agree.

Power, V.-P.:

16. We are satisfied that the ordinary rule of costs follow the event must apply and for the respondents to the days of the case will have its costs of today and of the hearing before Mortimer V-P.

Representation:

Mr M.R. Scott, representative of the Appellant

Mr Joseph Fok (M/s Wilkinson & Grist) for the Respondents

Appeal to Court of Final Appeal by the applicant. Appeal dismissed. Please refer to the appeal judgment of FAMV4/1998.