Hang Kin Co Ltd v. The Director of Engineering Development

LDMT000001/1983

Lands Tribunal - procedure - application for hearing of preliminary point of law - application for stay of proceedings pending declarations relating to jurisdiction being obtained in High Court - concurrent jurisdiction of High Court and Lands Tribunal - principles on which Lands Tribunal should exercise discretion - Held: Lands Tribunal proceedings stayed pending declarations being obtained in High Court - Rule 16 Lands Tribunal Rules, Cap. 17, Parts III & IV Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276.

IN THE LANDS TRIBUNAL OF HONG KONG

Mass Transit Reference No. 1 of 1983

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Coram: TRIBUNAL: His Honour judge Cruden, Presiding Officer.

Date: 19th day of August 1983

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JUDGMENT

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1. On the 20th day of January 1983 the applicant filed an application to the lands Tribunal pursuant to Section 21(7) of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276, for com- pensation in the sum of $4,265,765.46 made up as follows:

2. The application recited that the respondent had earlier, under Section 21(5), rejected the applicant's notice of claim.  The reasons for rejection included the ground that the subject property is claimed to fall within Stage 9 of the Mass Transit Railway.  The rights to compensation under the Ordinance are set forth in Sections 17 and 18.   Section 18 provides that the rights to compensation are those set out in the first . Column of Part I of the First Schedule to the Ordinance.

3. The application expressly claims that its right to compensation is provided under Item 12 of Part I of the First Schedule.  Item 12 restricts the payment of compensation to "works or proposed or likely works for the construction of stages 1 to 6 and 8 of the railway".  Section 2 defines both "railway" and "stages 1 to 6 and stage 8 of the railway".  On the  one hand "railway" is widely defined :-

4. On the other hand the statutory definition of stages 1 to 6 and stage 8 restricts those stages within precise geographical limits. It is common ground that the Ordinance does not expressly refer to a Stage 9 in any of its provisions.  Hence, no doubt, the respondent's rejection of the applicant's notice of claim.

5. On the 9th day of February 1983 the respondent informed the Tribunal by letter that pursuant to Rule 16(1) of the Lands Tribunal Rules, Cap. 17, it wished to have a point of law disposed of at a preliminary hearing.  On the 30th day of June, 1983 the respondent particularised the point of law as follows:

"Namely, is your Honourable Tribunal empowered under the provisions of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance, Cap. 276 to entertain the claim for compensation ..."

6. That letter very helpfully listed the factors in favour of a preliminary hearing, including the specific power under Rule 16 and the principles set out in Everett v. Richards (1952) 1 .All E.R. 827, Carl-Zeiss - Stifftung v. Herbert Smith & Co. (1968) 2 All E.R. 1002, Leung Chui Yung v. Chow Cui Kwan Civil Appeal No. 38/82, London Chatham & Dover Railway Co. v. S.E Railway Co. (1885) 53 L.T. 109, Tilling v. Whiteman (1979) 2 W.L.R. 401 and our own prior decision in Hui Sui Sam v. Director of Public Works M.T.R. No. 3/82.

7. The applicant, by letter, indicated that it was opposed to a preliminary hearing.   The parties therefore appeared before the Tribunal on the 19th day of August 1983 to enable the Tribunal to determine whether there should be a preliminary hearing under Rule 16 in terms of the respondent's application.

8. At the beginning of this hearing the applicant orally applied for a stay of the proceedings.  The respondent did not object to the Tribunal hearing this oral application but indicated that it opposed any application for stay.  The applicant informed the Tribunal that its application for stay was wide enough to include a stay of all proceedings which necessarily extended to a stay of the respondent's present inter-locutory application under Rule 16 for a preliminary hearing on the jurisdictional point.

9. In the circumstances, I first invited the applicant to make submissions on the oral application for stay, for only if it were unsuccessful, would it be necessary for the Tribunal to go on to con-sider the written application under Rule 16.

10. Counsel for the applicant then disclosed that a stay of pro-ceedings was sought to enable the applicant to initiate proceedings in the High Court to obtain declarations on three issues :

11. Counsel for the applicant submitted that these were major and important issues on which it was desirable to obtain a ruling of the High Court. The applicant conceded that there was no express reference in Part IV to compensation being payable in respect of land not falling within stages 1 to 6 and stage 8.  However, it was submitted that the powers of the Crown under Part III, which includes the control of building plans and commencement of work, is not so limited but is in respect of the "railway" and it was under those powers that the respondent had required the applicant to amend its plans in order to achieve compatibility with the railway.  The applicant submitted that a substantial issue arose whether even though there was no express reference to Stage 9 in Part IV, the exercise of the respondent's powers under Part III, nevertheless gave rise to a right to compensation.

12. The respondent further submitted that independently of any statutory right to compensation before the Tribunal, the representations made by the Crown, as evidenced by a Bundle of Correspondence, produced by consent, created a prima facie right to damages for the loss suffered by the applicant.  This loss was stated to be twofold.  There was the alleged less being the costs incurred to achieve compatibility.  Further, the delays resulting from the necessity to achieve compatibility, caused additional premium to be charged by the Crown and this sum too, it was submitted, was recoverable from the Crown, by way of damages in the High Court.

13. The applicant recognised that on each of these three issues there were substantial contrary arguments.  It was for this reason that the applicant wished to obtain declarations from the High Court upon them before embarking on the trial of these issues when substantial and complex factual evidence would have to be adduced.

14. In opposing the application for stay, the respondent reminded the Tribunal that it was the applicant who had brought the application before this Tribunal which now sought to have proceedings stayed.   It was unusually seeking to stay its own proceedings.   The respondent submitted that the Lands Tribunal was the proper forum for proceedings under the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance.  Now the applicant was seeking to bring additional common law claims in the High Court.  Whatever the result of the present substantive applica- tion before the Tribunal, its disposal would not prejudice any other claims the applicant might think it had before the High Court.  The applicant had brought the present claim some months previously and the respondent was anxious that it be proceeded with without delay.   If the stay were not granted, then the respondent wished to proceed with its Rule 16 application, for it was confident that the substantive application could finally be disposed of at a preliminary hearing.

15. After hearing argument, I was in no doubt that if the only issue raised by the applicant at this stage was whether the Tribunal had juris-diction to hear a claim under Stage 9, the stay should be refused and that issue determined by this Tribunal at a preliminary hearing.  The at times concurrent jurisdiction of the High Court to make declarations and of the Lands Tribunal to make rulings under Rule 16 or final judgment on a sub-stantive issue, has been considered by the High Court on a number of occasions. Hong Kong United Dockyards & Ors. v. Attorney-General M.P. No. 179/80 is one example of where the High Court held that although there was in that case concurrent jurisdiction:-

"From every point of view, it seems to me that the advantage lies in leaving. the Lands Tribunal to deal with the whole matter. For these reasons, I am of the opinion that the declarations should net be granted."

16. For the same reasons set out in that judgment, if the first issue propounded by the applicant, ware the only issue between the parties, then the better course here too, would be for the Lands Tribunal to determine the preliminary question of jurisdiction.  The facts in favour of that course are stronger in this case than they were in Hong Kong United Dockyards & Ors. v. Attorney-General.

17. The complications in this case, however, are the second and third issues new today orally raised by the applicant.  Both of those issues are clearly outside the jurisdiction of the Lands Tribunal to determine and would in any event, if pursued, have to the subject of substantive proceed-ings in the High Court.

18. In any event, although the applicant has maintained its opposi-tion to the respondent's application under Rule 16, both parties basically agree that certain preliminary issues should be determined before the parties can proceed to the substantive issue, if it were to survive rulings on the preliminary issues.  There is therefore far less disagreement between the parties that might otherwise appear.

19. I confirm that if only the first issue separated the parties, I would reject the applicant's application for stay, grant the respondent's application under Rule 16 and set that preliminary issue down for hearing before the Tribunal.  The crucial question is whether in the light of the second and third issues now at this late stage raised for the first time, should I still de so and leave it to the applicant to bring separate High Court proceedings limited to those two latter issues only? To avoid multiplicity of proceedings with the additional expense and time they would necessarily involve, the balance of convenience clearly argues for all these issues being disposed of at the one hearing.  That could only occur if all three issues are heard by the High Court for this Tribunal has no jurisdiction in respect of the second and third issues.

20. For this reason, I am prepared to grant a stay to allow all three issues to be brought before the High Court.  I accept the respondent's proper concern that the applicant should initiate and pursue the High Court proceedings expeditiously and will attempt to protect the respondent's position in the orders I will now make.

21. The present proceedings are stayed until further order.  Leave is reserved to both parties to apply.  Costs are reserved.  I confirm that having first favourably ruled on the application for stay, the respondent's application under Rule 16 is accordingly subject to that stay and remains undisposed of at this stage.

22. DATED this 19th day of August 1983.

Representation:

Mr. A. Allman-Brown instructed by Oscar Lai & Co. for the applicant.

Mr. R.A. Osborne, Senior Crown Counsel, for the respondent.