Re The University of Hong Kong

HCMP002332A/1990

[The court, on an application for judicial review, has jurisdiction to grant a stay of  the "proceedings" to which the application for a judicial review relate; the discretion whether or not to exercise the jurisdiction is unfettered]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Godfrey, J.

Date of Judgment: 3 October 1990 (in Chambers)

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JUDGMENT

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1. This is an application for a stay of the "proceedings" to which the substantive application, for a judicial review, relates. The proceedings in question are proceedings under which the respondent has purported to terminate the applicant's appointment as a senior lecturer.

2. On 27th July 1990, after lengthy (and perhaps over-lengthy) inquiry, the respondent terminated the applicant's appointment. She, was then occupying university accommodation and she continues to occupy it. She wants to go on occupying this accommodation until the determination of her application for a judicial review of the respondent's domestic proceedings against her. This is why she now applies for a stay of those proceedings. (She originally sought leave to apply for a judicial review as long ago as 1st August 1990.)

3. In my judgment, an applicant for a judicial review who has satisfied the Court that his or her application ought not to be stifled at the threshold will usually be entitled to expect that the Court will protect his or her position until the case is finally determined by the Court.

4. In the present case, the applicant should have applied to the Court for this relief as soon as she lodged her application for leave to apply for a judicial review. She did not do so. For some time thereafter the matter was held up. The applicant was waiting for advice as to whether she should or should not prosecute her application for a judicial review. (The reason for this was that I had indicated on 7th August 1990 that I was doubtful whether the case was a suitable one for the grant of that remedy; but I stated that the point could be considered further at a hearing, if so requested.)

5. On 20th September 1990 I decided to grant leave to the applicant to apply for a judicial review, having been satisfied on further material put before me that I ought to do so. Since then the applicant has diligently prosecuted this application for a stay.

6. I have no doubt (and the contrary is not suggested) that the Court has jurisdiction to grant the stay under Order 53 rule 3(10) of the Rules of the Supreme Court:' Should it do so? If it does not do so, the applicant will be placed in considerable difficulties. She has been allowed to continue in occupation of her accommodation. until 27th September 1990, but that date is now past. She lives there with an unmarried daughter in her twenties, and with two dogs; and she keeps there the books and papers and other paraphernalia which she took there when her appointment was terminated. She has done nothing, since then to find other accommodation; and she has not been in contact with the respondent about the matter, which would have been the sensible thing to do absent any application to the Court to protect her position in the meantime; but, if the stay requested is refused, the applicant will shortly be out on the street. She may succeed in her application, in which case she would have been, as it seems to me, seriously prejudiced by the refusal of a stay.

7. The respondent's position is that the accommodation is to be made available in November 1990 for the use of an incoming member of the staff, unless pre-empted by some senior member. The respondent, therefore, will be prejudiced if the application eventually fails and it has been placed in the position where it has had to obtain other accommodation for an incoming member of the staff by going into the commercial sector in order to replace the accommodation occupied by the applicant.

8. If this was a master and servant case, it would have been difficult to justify an order for the applicant to retain the accommodation after the employment had ceased for whatever reason (even a bad one); see for example Ivory v. Palmer [1975]   Industrial Cases Reports 340. On the other hand, if this had been a landlord and tenant case, about, say, a disputed notice to quit, it would have been difficult to see how a judge, having found for the landlord, would find it right to refuse the tenant a stay pending the appeal, if the appeal was genuine rather than frivolous.

9. But this is not a private law case. Those two analogies are not really helpful. I think I have an unfettered discretion to exercise, and I must decide which is the least detrimental  of the two alternatives, that is to say, to cause the applicant a certain degree of disruption by refusing the stay, or to cause the respondent a certain degree of disruption by granting it. I come down in the end in favour of granting the stay.

10. I know this is not an application for an injunction; and I have not overlooked what was said by Lord Bridge of Harwich in this connection in Reg. v. Transport Secretary, ex parte Faclorlame Ltd. [1989]2 WLR 997, at p.1011. But at my suggestion the applicant is prepared to offer the Court an undertaking comparable to the usual undertaking in damages upon which the Court insists as the price. of an interim injunction; and by the applicant's undertaking to abide by any order of the Court as to damages should the respondent suffer any by reason of the stay, the respondent's economic position will be (at any rate, to some extent) safeguarded, though it will still have the difficulty of having to find commercial accomodation for the incoming member of staff, if no accommodation can be found for him in the pool of accommodation which the respondent currently has.

11. I think that, in these circumstances, the detriment which. would be suffered by the applicant will be greater if I refuse a stay than that which would be suffered by the respondent if I grant it. Approaching the matter in this way, as I think I am entitled to do, I will grant the stay. Counsel for the applicant must draw up a form of order   intended to give effect to the decision I have just pronounced, and must submit a draft or minute of that order to counsel for the respondent for his approval. When counsel have respectively signed and approved the draft order or a minute of it, it should be lodged at Chambers for my own approval. The costs will be costs in the cause.

Representation:

Mr Christopher Smith, Tim Kwok, instructed by Herbet Smith for the Applicant.

Mr Winston Poon, instructed by J.S.M. for the Respondent.