William Henry Cowie v. Attorney General
Read the full judgment text of on BabelCite. was delivered on 7 October 1948.
1. In this case I have already decided in favour of the defendant the question whether, assuming the proceedings by the Board of Enquiry to have been regularly conducted in accordance with the regulations, the defendant's plea that the finding of the Board was res judicata, was prima facie valid. That decision left open the question whether the irregularities alleged by the plaintiff in his statement of claim and the further particulars delivered, if established, would afford him an affirmative
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION No.336 of 1947 -----------------
Coram: Mr. Justice T.J. Gould. Date of Judgment: 7 October 1948 --------------------------------------------------- DECISION ON QUESTION OF LAW --------------------------------------------------- 1. In this case I have already decided in favour of the defendant the question whether, assuming the proceedings by the Board of Enquiry to have been regularly conducted in accordance with the regulations, the defendant's plea that the finding of the Board was res judicata, was prima facie valid. That decision left open the question whether the irregularities alleged by the plaintiff in his statement of claim and the further particulars delivered, if established, would afford him an affirmative answer to that plea. This further point was set down for argument in what I now consider to be an unfortunate form:
2. The question being in this form, I think the only matter I can usefully decide having regard to the pleadings and the argument as it developed is whether the plaintiff is entitled to rely as an affirmative answer upon any matter not involving some form of dishonesty or fraud. Matters involving the latter have frequently been described as breaches of natural justice and admittedly provide an affirmative answer to a plea of res judicata but they are not alleged in this action. In order to ascertain what further affirmative answers may be relied upon after matters involving mala fides are eliminated, it is convenient to refer to Spencer Bower on Res Judicata at page 153 where he expresses the view that all matters affording an affirmative answer to such a plea, prima facie good, fall into one or other of two main classes. The first class comprises cases where there is an allegation of fraud in its widest sense, and the second are cases of cross estoppel. The latter is not relied upon in this case and, as I have said, there is no allegation of fraud in its ordinary sense. Counsel for the plaintiff however relies upon the very wide meaning given to the term for this purpose by Spencer Bower. At page 154 he states:-
and at page 159 :-
3. Counsel for the plaintiff claims that this view of judicial misconduct is wide enough to include the irregularities he seeks to set up in this case. No one will dispute that mala fides of any sort in the tribunal, corruption, bias, or any form of pecuniary interest will afford an affirmative answer, and in fact the authorities quoted for the above passages by the learned author in respect of the passages quoted above go no further than this. Doe d. Davy v. Haddon (1783) 3 Dougl. (K.B.) 310 was a case of a criminal charge of corruption against one of the judges: Price v. Dewhurst (1837), 8 Sim.279, a case of "gross judicial misconduct"; Cammell v. Sewell (1858) 3 H. & N. 617 in which the word "fraud" is used in its ordinary sense, importing mala fides. 4. In dealing with matters which do not constitute affirmative answers Spencer Bower points out that the phrase "breach of natural justice" has frequently been used in cases where a foreign court has not properly summoned a party before it, or where there has been "judicial misconduct in a foreign, or in an English arbitral, tribunal, which may, no doubt, be described as contrary to natural equity, in the spirit of Seneca's "Qui statuit aliquid, parte inaudite altera, Aequum licet statuerit, haud aequus fuit". The learned author concedes that both of these classes of cases will negative the estoppel but in the first case on the ground that the tribunal concerned had no jurisdiction and in the second that it falls within his wide definition of fraud. 5. Counsel for the defendant has argued that only that type of misconduct which contains an element of mala fides is available as an affirmative answer to res judicata. It is true that in some cases such as Leeson v. General Medical Council 43 Ch. D. 366 certain dicta tend to support this view. At page 378 of the judgment of Cotton L.J. it is said:-
6. This passage appears to convey that if, though there were no evidence upon which the Council could act, the Council nevertheless did act through some honest misconception the position would be different from that which would arise if the Council acted from an improper motive. In Allinson v. General Medical Council (1894) 1 Q.B.D. 750 at p.760 the same position was dealt with on the basis that the Council would be deprived of jurisdiction :-
7. This puts the question of honesty of conduct on one side though it must be conceded that in Maclean v. The Workers' Union (1929) 1 Ch at p. 621 Maugham J. expressed the view that the language used in Leeson's case was the more accurate. Moreover in R. v. Nat Bell Liquors Ltd. (1922) 2 A.C. 128 it was held that a conviction upon no evidence on a charge within the jurisdiction of a magistrate was not proceeding without jurisdiction but the wrongful exercise of an existing jurisdiction and could not be challenged on certiorari. The authorities quoted by Spencer Bower on the subject of misconduct by English arbitral tribunals make it clear that mala fides is not an essential element of the type of misconduct under consideration. For example in Morgan v. Mather 2 Ves. at page 18 it was stated by the Lord Commissioner - "The only grounds for that (setting aside an award) are, first, that the arbitrators have awarded what was out of their power; secondly corruption, or that they have proceeded contrary to the principles of natural justice; though there is no corruption, as if without reason they will not hear a witness; thirdly that they have proceeded upon mere mistake, which they themselves admit." In Brook, Delcomyn &Badart 33 L.J.C.P.246 the arbitrators had failed to hear a party and the award was set aside although there was evidence that their proceedings were in accordance with a trade custom. It was held that such a usage was contrary to the principles of equity and justice. It is true that these are arbitration cases but the same principle has been applied in other types of cases. Stafford v. Minister of Health (1946) 1 K.B. 621 was an appeal under the Housing Acts where no mala fides on the part of the Minister of Health was alleged. The same principle was applied in Fisher v. Keane 11 Ch. D. 353 in connection with the action without mala fides of a club committee. In the arbitration cases, the award can only be attacked by motion to set aside and invalidity cannot be relied upon as an affirmative defence but this is a special practice peculiar to awards and applies even where mala fides is present. Spencer Bower points this out (at page 155) and says :-
8. As far as this case is concerned the reason is not material; what is important is that the distinction is firmly established. I must refer to one further case which points the fact that a distinction is to be drawn between cases in which a tribunal has made a decision where there is said to be no evidence to support it (E.g. R. v. Nat Bell Liquors Ltd.) and cases in which a party has been denied a hearing. In R. v. Wandsworth JJ. Ex parte Read (1942) 1 A.E.R. 56 a defendant was convicted by an admitted mistake without having been given an opportunity of answering the charge. There was no question of mala fides. After quoting a passage from R. v. Nat Bell Liquors Ltd. containing the essence of the decision in that case on the question of the jurisdiction Viscount Caldecote L. C.J. continued -
9. This was a case of certiorari, which was granted. 10. In support of his argument on this point counsel for the defendant submitted that the form of proceedings proper to be taken by the plaintiff in any case where mala fides was not involved was by certiorari. He based his submission on the special position given to fraud in our law. A judgment obtained by fraud can be set aside in a subsequent action and this is relied upon as the reason for allowing it alone to be set up as an affirmative defence. I see no great force in this argument. A departure from the procedure laid down for a quasi judicial body by its authorising enactment will support an action to have an order of that body declared invalid. Li Hong Mi v. Attorney General of Hong Kong 1920 A.C. 735 is a case in point. A similar action will lie to have a resolution for the expulsion of a club member declared invalid where he has not had an opportunity of presenting his defence Fisher v. Keane (supra). In neither of those cases was there mala fides and in each case a declaration and injunction was granted. I am unable to see why in principle the grounds upon which a decision of a quasi judicial tribunal might be quashed upon certiorari should not provide an affirmative answer to a plea of res judicata on the same decision if that is the more convenient procedure: the grounds set out for certiorari to quash generally at pp.880-887 of Hailsham Vol. IX are in fact strikingly similar to the affirmative answers discussed by Spencer Bower. 11. I hold therefore that the affirmative answers which the plaintiff may rely upon are not limited to those involving an element of mala fides but that if anything he alleges amounts to the plea that he has been denied a hearing to the extent which has been held in decided cases to amount to a breach of natural justice, he is entitled to rely upon it in these proceedings. Nothing less will suffice and no other answer is open to the plaintiff save any question of jurisdiction not already determined against him. The question for my determination being in the form it is, it is not open to me, without giving counsel an opportunity for further argument, to consider whether any of the irregularities claimed by the plaintiff, if established, could possibly amount to such a denial.
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