Peter Joseph Wyatt and Another v. The Marine Court

HCMP001317/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

Coram: Hon. Liu J. in Court

Dates of hearing: 19th - 21st, 24th - 28th, November and 1st December,1986

Date of delivery of judgment: 7th January 1987

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JUDGMENT

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1. Peter Joseph Wyatt, a superintendent of the Royal Hong Kong Police, and Duncan Macintyre Drummond, a ship surveyor of the Marine Department were personally criticised by the Marine Court beyond permissible judicial evaluatin of their expert evidence. These harsh criticisms were made unfairly in disregard of the basic principles of natural justice. The applicants' complaints are justified. Their reputation is now wholly vindicated.

2. The vessel "Barquentine Osprey'' was lost at the height of Typhoon Ellen, with all hands on board except one Mr. Ogura. It sank at about 6 a.m. on the 9th September 1983. The sole surviver Mr. Ogura was rescued in the morning of the 11th September. On the 9th February 1984, pursuant to the provisions of the Merchant Shipping Ordinance, the Governor appointed by warrant a Marine Court for the purpose of investigating into a casualty, namely the foundering of Osprey with resultant loss of life and injury to the survivor. The Marine Court made findings in a report dated the 30th July 1984, and in accordance with Section 55(4), the Marine Court sent a full report on the case with the evidence to the Governor. I shall call that "the first hearing".

3. After the first hearing, a wreck was detected by fishermen and two dives were made, one in October 1985 and the other in January 1986. Only in the second dive was it confirmed as the wreck of Osprey. It rested on the bottom of the sea, some 34 nautical miles from Repulse Bay, and 27 miles from where it was held at the first hearing to have sunk. That finding was based, inter alia, on Mr. Ogura's evidence which had been well received and acted upon previously. The position of the wreck was so drastically different from the finding of the Marine Court as to where Osprey must have sunk that a need was felt for re-opening part of the first hearing.

4. In addition, the Director of Marine had obtained proofs of evidence from the Dinnens, residents of Repulse Bay on the night or rather the early morning in question. Mr. and Mrs. Dinnen claimed to have seen Osprey in Repulse Bay until 3:30 a.m. Osprey's departure time from Repulse Bay as given by the Dinnens contradicted that testified to by Mr. Ogura who claimed to have left Repulse Bay at about 1 a.m., not 3:30 a.m.

5. The fact that Osprey's rubber dinghy was retrieved on the 13th September 1983 had not formerly been ventilated before the Marine Court. At this juncture, consideration of that discovery was suggested.

6. By a further warrant dated the 10th October, 1985, the Governor ordered a part re-hearing and re-appointed the Marine Court for that purpose. The re-hearing, though in part only, was expected to be far-reaching. The Marine Court was to receive and consider new evidence regarding the wreck, the departure time from Repulse Bay, the recovery of the rubber dinghy, and any further evidence as might be relevant for determining its effect on any of the original findings of the Marine Court at the first hearing. Judge Wane was re-appointed as the Marine Court to be assisted by the same two assessors, Dr. Cheng, a naval architect and Captain Wagg, a Master Mariner.

7. The Marine Court sat from the 20th January to the 3rd February in 1986. After the Report of the re-hearing had been sent to the Governor, it was published on the 18th March 1986. I shall call it "the Report.". These applicants sought ex parte leave by notice dated the 17th June 1986. Pursuant to leave given on the 20th June 1986, this Court is now moved to grant judicial review by certiorari for quashing certain parts of the Annex to the Report.

8. On the last day of these proceedings, counsel for the applicants sought leave to amend the statement filed pursuant to Order 53 of the Rules of Supreme Court. The proposed amendments were not objected to and leave was accordingly granted. In essence, the amendments introduced a prayer, in the alternative, for a declaration that the parts of the Annex to the Report under complaint "are null and void, of no effect and/or reached in breach of the rules of natural justice without any probative evidence and/or without any notice being given to the applicants."

9. After the re-hearing, the Report of the Marine Court followed the usual form, setting out factual findings in Part I, making decisions by way of answers to set questions in Part II and ending with an Annex in Part III. The primary purpose of the Annex was to explain the findings by giving reasons in detail. See The Corchester ⁽¹⁾.

10. The applicants are not seeking to challenge the findings of fact set out in Part I of the report. They respect the sanctity of these factual conclusions and the Marine Court's prerogative to disregard the expert evidence from the applicants. Complaints are made against the collateral findings as to the conduct and motives of the applicants, which carry with them moral overtones. The applicants were accused of having taken a pre-determined course by their reckless disregard of the Court's previous report and by their failure to consider all the material evidence, that is to say, Mr. Wyatt allegedly acting on Mr. Drummond's instructions to accept the Dinnens' untested statements and reject Mr. Ogura's entire court evidence. In consequence, Mr. Wyatt was condemned for having grossly exaggerated his postulated speed of Osprey to accommodate, "to fit in with" the Dinnens' version. Mr. Drummond was not spared in his use of high speeds allegedly for the same improper purpose. The applicants were both classified as partisan witnesses suffering from a loss of expert impartiality and being progressively driven to fall in line with Mr. Ogura's version. The Marine Court found all this as being regrettable.

11. I should set out the challenged passages in the Annex to the Report :

12. Counsel for the applicants complained that the fault lay in the Marine Court's unformulated charges that the applicants had been organised to conceal the plain truth with one expert instructing the other to adopt a particular stance at the re-hearing, poised to strike out at the credibilty of Mr. Ogura on the "flimsy, unsubstantiated and erroneous assumptions as postulated by the experts." Counsel argued with some force that the conclusions reached in these passages were the result of unjustified collateral assessment of conduct of the experts, that they were arrived at without any or any sufficient evidence and/or that they were based on a great many factual misconceptions. Counsel further complained that these criticisms were made unfairly in breach of the rules of natural justice thus depriving the officers affected of their opportunities of meeting these serious undisclosed charges.

13. The last two sentences in paragraph 6, Part III, B of the Annex to the Report seem to have been intended as counsel of perfection for the role of an expert. By themselves, they are mere expressed views of what the Marine Court would regard as the code of decorum. Proper foundation is often laid for the condemnation to follow. These are sentences which evidently bear upon the alleged lapses of the personalities under scrutiny. These sentences would give to some otherwise innocent passages an objectionable connotation. But conversely, the other passages under complaint, however unjustified, however robust, however unfair in the context of procedural propriety, would not have the effect of turning such advice proffered by the Marine Court into disparaging attacks on the applicants. I do not, therefore, accept Miss Eu's contention that these two sentences in paragraph 6 would by themselves constitute, in the light of the whole Report, findings either that the applicants failed to consider all the facts or that they deliberately ignored certain evidence and decisions in arriving at their conclusions or, worse still, that they adjusted or distorted the facts to fit a pre-conceived situation.

14. Paragraph 7 is prefaced by the word "regrettably". It continues to describe what the Marine Court perceived as the conduct or rather misconduct of the experts. One was said to have been under instructions to prefer the version given by the Dinnens whose evidence had yet to be given and tested, and to brush aside the whole of Mr. Ogura's evidence which had been examined, evaluated and accepted by the Marine Court. These alleged instructions were, therefore, to side with one of the conflicting versions regardless of plausibility. Both applicants were also admonished for having curtly refused to take advantage of any findings previously made by the Marine Court.

15. In paragraph 8, the applicants were accused of having consequently to become "partisan witnesses", shedding their impartiality. Progressively, so it was concluded, as their consciously advanced implausible theories were disintegrating, the applicants had "to shift their ground" and "to accept the need to revise their assumptions", and "to reach a position" compatible with the version of Mr. Ogura. The applicants were condemned for having tailored their expert evidence in support of a time frame which could not bear close examination. That criticism was categorically spelt out in paragraph 9.

16. The last sentence of paragraph 9 charged Mr. Drummond with having to allow himself "for the same reason", being guided by a whole range of unrealistic high speeds.

17. Therefore, Mr. Wyatt was criticised for having to select, on such instructions, a theory to fit the Dinnens' evidence, and in consequence to have to postulate an unbelievably high speed "to fit a pre-conceived theory". In essence, in paragraphs 7, 8 and 9, the experts were accused of having departed from the Marine Court's concept of proper decorum set out in the two sentences in paragraph 6, that is to say "He should consider all the facts before reaching his conclusion. And he should never adjust or distort the facts to fit the pre-conceived theory."

18. Counsel for the respondent accepted that there were no such instructions from Mr. Drummond. Mr. Wyatt has never been a member of the Marine Department. At the request of one Alan Pyrke, the Surveyor-General of Ships in the Marine Department, he agreed to give expert evidence at the re-hearing on Osprey's possible routes, and it was from Mr. Pyrke, not Mr. Drummond that he received instructions. No explanation was sought at the re-hearing as to why the Marine Department invited Mr. Wyatt to theorise on the basis of any particular departure time. But in attempting at a reconstruction, detached observations from uninvolved bystanders would seem, in logic, to be preferable to a sole survivor's account of his traumatic experience.

19. Sufficient justification was apparently provided to the Governor for invoking his power to order a part re-hearing after the law had been suitably amended. In his opening at the re-hearing, the Attorney General informed the Marine Court that the Director of Marine would not support Mr. Ogura's version on the force of fresh evidence from witnesses and expert witnesses. The Attorney sought a re-evaluation on three of the four main aspects in Mr. Ogura's version already accepted at the first hearing, namely the departure time from Repulse Bay at 1 a.m., the course steered by Osprey at 155 degree and the low speed of the vessel. Mr. Ogura's given time of sinking at about 6 a.m. was not challenged. On the additional evidence, the Attorney submitted that Mr. Ogura should not be treated as wholly reliable on a number of matters.

20. Mr. Pyrke's request to and communication with Mr. Wyatt were unknown to the Marine Court. Mr. Neoh, counsel for the respondent, suggested the possibility that with the Marine Department's concept divulged in the opening of the Attorney and with Mr. Drummond serving as the department's investigating officer, from the fact that Mr. Wyatt had been told by the Marine Department to assume a departure time of 3:30 to 5 a.m., the Marine Court could reasonably have inferred Mr. Wyatt's instructions as coming from Mr. Drummond. Mr. Neoh hastened to explain that he was not seeking to justify such a possible inference as a proper or a reasonable one, but counsel argued that it nevertheless was more of an inference of fact than a comment or criticism.

21. As for the "temerity" with which the experts were said to have completely disregarded the previous conclusions of the Marine Court, Mr. Neoh contended that it was again a mere comment, though counsel did not support the Marine Court's view that these experts had been erroneous in their completely objective approach; nor would I.

22. The Marine Court was highly critical of the applicants in their role of expert witnesses. These criticisms flowed from and were based on conclusions which the Marine Court had reached. They highlighted the poor view the Marine Court took of the alleged concerted misconduct of these applicants. They were expressed in terms far beyond the usual assessment of credibility of a witness or a mere evaluation of his evidence. "Grave findings of concerted misconduct in connection with the inquiry ought not to be made without being specifically raised at the inquiry". See the joint judgment of Woodhouse, P. & McMullin, J. in Re Erebus (No. 2) ⁽²⁾.

23. I do not share Mr. Neoh's opinion that there are no findings in these passages. To such contention of counsel, I shall later return.

24. Mr. Noeh also did not seek to support the passages accusing the experts of shifting of ground and revising assumptions. Counsel suggested that the experts' acknowledgement of the other possibilities put to them by Judge Wane and his assessors might have given rise to such a wrong impression.

25. Mr. Neoh was unable to justify the criticism levelled against the experts, in a conspiratorial context, for fitting in with the Dinnens' evidence. Counsel suggested an explanation : Within the time frame of the Dinnens', if the vessel had departed from Repulse Bay at 3:30 a.m., Osprey would have had to travel exceedingly fast, and the Marine Court was merely making an observation that the experts must be incorrect in adopting that time frame. No one, I think, would be more surprised than the learned Judge himself if ever he were told that his severe censure of the experts could be capable of bearing quite as innocuous a meaning as suggested by counsel.

26. The last two sentences in paragraph 25 which refers to a mistaken departure time from Reulse Bay allegedly given by an employee of MacDonald's, cannot be supported. Mr. Drummond had in fact taken a statement from its Manager and Assistant Manager. Those statements were put in at the first hearing in 1984. That criticism by the Marine Court is clearly wrong. Counsel, however, submitted that though based on a wrong appreciation of fact, these sentences carried no innuendoes. If in fact the Marine Department Investigating Officer had not heard of MacDonald's or had failed to interview its staff, it would have been only an occasiional lapse or oversight. I accept that these two sentences, though misconceived and ungenerous, do not amount to plain character assassination.

27. Turning to the two sentences in paragraph 35, the Marine Court cannot be correct in describing Mr. Wyatt's theory of Osprey trying to get back into Repulse Bay as being "an entirely unjustified assumption". There was evidence from the Dinnens that they saw both the red and the blue lights. That is a good enough indicator that Osprey was trying to head back into Repulse Bay. Counsel for the respondent stressed again that "fitting in" with the Dinnens' evidence repeated in this paragraph simply meant postulating or theorizing within their time frame, and could have no conspiratorial implications. I do not indorse that interpretation. In these two sentences, the Marine Court even ventured to suggest such "fitting in" as an improper motive for the "entirely unjustified assumption".

28. The phrase "contrary to the evidence" in paragraph 46 describing Mr. Wyatt's view as to the diameter of the typhoon eye seems to be, whether or not well founded, within the reasonable bounds of a collateral finding in the assessment of credibility and the quality of the evidence. Mr. Neoh maintained that it was a mere comment. Be it a finding or a mere comment as contended by Mr. Neoh, for that reason it would not be relevant.

29. As for paragraph 47, the last sentence is obviously based on a mistaken fact or an erroneous inference of fact. It was almost conceded by Miss Eu that on its own, this paragraph would not appear to be judicially reviewable. This paragraph touches upon the approach of Mr. Drummond, his theory and an aspect in his theory that would shift the departure time back by half an hour from 3:30 to 3.a.m.Mr.Drummond had not defended any given departure time, and there was no question of him trying to modify the Dinnens' 3:30 a.m. Mr. Drummond had his own preference as to the time for departure. The bases for the criticisms in this paragraph are ill-founded. Be they mere comments or findings and however unsound, they do not seem to have fallen outside the parameter of general assessment of a witness' credibility and reliability.

30. The last sentence of paragraph 52 deals with the experts' objection to the theory of a long drift of Osprey in a completely inverted position. One of the assumed facts for that objection of the experts was that the main mast of Osprey was unbroken. The main mast was later clarified as having been damaged, but the objection to this complete inversion theory might still possibly be justified by the third mast, the condition of which remained unknown. In fact, at the time when the experts assumed the main mast as being intact, it was the general misunderstanding that only the foremast was found damaged, probably by a trawler. The clarification came late on the recall of the diver during the re-hearing. On its own, the last sentence in paragraph 52, though clearly incorrect, is not material judicially reviewable. Taken together with the other passages under complaint, it reflects the scepticism of the Marine Court, but either as a mere comment or a finding, in the context it does not imply moral turpitude.

31. I pass then to sub-paragraphs 4 and 5 under the heading "Observations" in paragraph 31, Part III, D. In sub-paragraph 4, the Marine Court and the assessors "deprecated the way in which the expert witnesses were instructed to accept or reject facts as a basis for their opinions". Not only did it disapprove of the applicants' usurpation of the court's role, it also charged them with adopting a pre-determined common front. In the following paragraph, sub-paragraph 5, the applicants were condemned for having to support it with unscrupulous postulations and "a surprising vehemence" against Ogura. These are serious accusations of ill-will and devious manipulation. Counsel for the respondent submitted that these passages were not susceptible of such notions of improprieties and were mere comments. I am constrained to disagree.

32. In conclusion, the applicants have succeeded in establishing paragraphs 7, 8, 9 and 35 as well as the above sub-paragraphs 4 and 5 as charges made of concerted misconduct of a very serious nature.

33. Mr. Neoh, counsel for the respondent, conceded that the Marine Court is a tribunal subject to judicial review. The central issues are two: First, so Mr. Neoh contended, these passages are all mere comments falling short of decisions. Naturally, in the field of administrative law, the Courts are essentially concerned with the decision making process and not the decision itself, though supervision has broadened, in extent and scope, under three heads, possibly four: "illegality", "irrationality", "procedural impropriety" and probably "proportionality" in the not too distant future. See Council of Civil Service Unions v. Minister of Civil Service ⁽³⁾. Secondly, so counsel submitted, even accepting these passages as decisions, they are not directly referable to the framed questions for the Marine Court but are only collateral findings creating no legal consequences and forming no part of any process leading ultimately to legal consequences. Lastly, counsel for the respondent sounded a warning note that a declaration could possibly be the only avenue to redress.

34. This is as convenient a time as any to recapitulate each applicant's theory. At the re-hearing, it was universally accepted that Osprey sank at about 6 a.m. The applicants were of the opinion that Osprey must have sunk very quickly due to the open vents to the engine room. Also, the vessel was a steel ship, heavily ballasted. In their own ways, both applicants were trying to find the most probable route from Repulse Bay within a time frame ending 6 a.m. on the 9th September 1983.

35. The wreck was resting upright on the bottom of the sea. A broken part of the foremast was lying across the port bulwark. At the time when Mr. Wyatt was giving his evidence, as I have said, it was the general impression that the condition of the two other masts was not known. On that then available and other information, Mr. Wyatt's theory was that the sinking of Osprey should be within, say 5 miles from the wreck. He postulated that it was unlikely for the vessel to drift to the position of the wreck from a far distance. He took the view that a long drift could only have been achieved in a completely inverted position with air trapped inside. The vessel was last seen by Ogura as lying over on her starboard side with her bow subsequently sticking out in the air. According to Mr. Wyatt, that was a fair sign of her going down fast, stern first with very little buoyancy. Mr. Wyatt doubted whether Osprey would still have been sitting on the bottom of the sea if she had drifted a long way, in a completely inverted position. He found it difficult to accept that the vessel could have overturned and righted herself just before she started to sink. The main mast of the vessel was about 103 feet and the charted depth of the shallow waters to the north and the east of the wreck was some 82 feet which might be increased by the elements during the typhoon by up to another 10 feet. In a completely inverted position, the 103 feet top mast must have, so surmised the expert, speared the sea bottom and snapped. Further, during a long drift, Osprey could have been affected by the rocking motion of the waves thus possibly exposing the other two masts to damage. After Mr. Wyatt's evidence, the diver, Mr. Wang was recalled who clarified that the top mast was also found broken off. That supplemental information was unknown to Mr. Wyatt whose theory was incidentally based also on other factors in addition to the top mast, such as the open vents, the vessel sinking stern first, the upright resting position of Osprey, the broken piece of the foremast still lying across the port bulwark and the unknown condition of the missen mast.

36. After the re-hearing, the Marine Court revised his finding as to where Osprey had sank. It was concluded that Osprey sank 12 miles from the position which it had previously found and 15 miles from the wreck.

37. Mr. Wyatt had explained that he was no expert on ocean currents and had no expertise in typhoon conditions. He was merely trying to suggest "a reasonable pointer to the possible speed that the vessel would be capable of". He was aware of the maximum effective hull-speed of Osprey of less than 14 knots. His postulation was that in order to travel quite close to the wreck before it sank, Osprey must have sailed at a high speed of 17 knots. Under what he described as the extreme conditions, the influences of the typhoon must have added several knots to Osprey's effective hull-speed. He was inaccurate in his use of "surfing" as an analogy, but he explained that Osprey could have been carried forward in the water mass with the tidal currents as well as blown by the storm wind. He described his postulated high speed of 17 knots as "the speed over the ground". He was conscious of the reality that there was "so little data to work on that he doubted if anybody could really say what a limit might be". Apart from certain facts and data given to him, Mr. Wyatt had chosen, and in my opinion quite rightly, to approach the situation with an objective open mind, independently of the previous findings and conclusions. I have commented on this aspect. He consulted charts, the Hong Kong Royal Observatory as well as the Civil Aviation Department. Mr. Wyatt was himself initially surprised by the high speed of 17 knots for the given time frame, but in the end he was reasonably satisfied with his own analysis, particularly as contrasted with the other more improbable possibilities. His postulation was not rejected by another Surveyor of Ships of the Marine Department, Mr. Mnew. Mr. Mnew also found the postulated high speeds startling as a first impression, but his doubts gradually dissipated when he was reminded of the unknowns in the extreme conditions of typhoon influences. He did not "think it impossible by any means" that Osprey could sustain high speeds over the ground of up to 17 knots or more.

38. Mr. Wyatt maintained that it was impossible for Osprey to leave Repulse Bay at 1 a.m. He took the view that if she was to sink within 5 miles of the wreck, it would be most unlikely that she left at 2 o'clock and that on probabilities Osprey was "actually leaving the confines of Repulse Bay not leaving the anchor" at 3 to 3:30 a.m. He "was convinced that had she left before 3:30, she would not have ended" where the wreck was. Thus working backwards, he happened to arrive at almost the same departure time as the one which he had been told initially to assume.

39. Mr. Wyatt acknowledged that both his postulated high speed over the ground in severe typhoon conditions and the theory of drifting a long distance in a completely inverted sunken position were difficult to believe. But of the two, he found it easier to accept the postulated high speed.

40. Mr. Drummond had not met Mr. Wyatt before he, Mr. Wyatt submitted his report to the Marine Department. This fact was not brought to the attention of the Marine Court. Mr. Drummond explained his "numerous permutations of routes". By process of elimination, he concentrated on four probable ones. His final preference was a route following a south-westerly track from Repulse Bay, passing ahead of or through the eye of the storm, and foundering near the position of the wreck. In that preferred theory, he postulated different speeds for different possible departure times from 1 a.m. at 7.5 knots to 3:30 a.m. at 22.4 knots. He acknowledged 22.4 knots as improbable. He found 16 knots for a time of 3 a.m. high but probably attainable. He concluded in his theory that Osprey would probably have left Repulse Bay from any time before 3 o'clock in order to reach a position quite near the wreck at 6 a.m. In another words, if the vessel had left at 3 a.m., her speed would have been "the probably attainable" 16 knots. Mr. Drummond, like Mr. Wyatt, did not shift his ground. He did not fit in with the departure time of the Dinnens' at 3:30 a.m. His theory was different from that of Mr. Wyatt's.  He never in fact rejected Mr. Ogura's evidence of 1 a.m. departure time, but with extreme conditions in such a fluid situation, he was not prepared to disbelieve the Dinnens' departure time of about 3:30 a.m.

41. Regulation 6(2) of the Merchant Shipping (Marine Courts) Regulations enables any person to appear at an investigation with leave, "and any person so appearing shall also be a party to the investigation". If charges of this serious nature had been made against these experts at the re-hearing, definitely they would have applied for leave to intervene, and if so granted leave they would have become a party to the investigation. Without prior notice of these criticisms in the Report, the applicants feel aggrieved. They sought and obtained ex parte leave for filing a motion for judicial review on the 20th June 1986. The locus standi required of these applicants must have been considered at the hearing of their ex parte application. See p. 589 Wade on Administrtive Law, 5th ed.; Order 53 r. 3(7) R.S.C. There was no challenge from the respondent that these applicants do not have sufficient interest in seeking judicial review. "There is now a clearly discernible trend away from the restrictive and highly technical approach to locus standi." p.412, de Smith's "Judicial Review of Administrative Action", 4th edition. I am satisfied that they do have sufficient interest.

42. The jurisdiction conferred on, the procedure followed in and the information held by the Marine Court are all relevant considerations for deciding what matters are judicially reviewable. I should begin with the relevant provisions for the constitution of a marine court. At its first hearing or re-hearing, a marine court is appointed or re-appointed by warrant of the Governor to make investigation. See section 52(1) of the Merchant Shipping Ordinance. A marine court is assisted by two assessors. See section 52(2). A marine court has the powers of the inspectors appointed under the Merchant Shipping Acts, as well as the powers of a magistrate. See section 53(2); section 58(2). It has all the trappings of a court of law: It is called a court. It is able to summon witnesses to attend, give evidence, produce documents or make declarations. See section 54. It could fine witnesses in default. If a marine court is apponted to enquire into charges of incompetence or misconduct, it has power to cancel or suspend a certificate of a master, mate or engineer. See section 55(l). For the cancellation or suspension of a certificate, the decision shall be stated in open court. See section 55(2). A marine court is enjoined to make a certificate holder aware of the charges against him and allow him an opportunity of making a defence. See section 55(5) and section 58(3). It has power to order costs and enforce it as if it were an order for costs made under the Magistrates Ordinance. See section 57(1) (c). If no application has been made for a re-hearing or if an application so made was refused, in general, an aggrieved party before a marine court would have a right to appeal. See section 56(2).

43. Therefore, our marine courts are creatures of statute deriving their origin from section 478 of the Merchant Shipping Act 1894. They are courts of investigation with certain ministerial powers, some penal in nature. The marine courts have "a further power, for which no provisions have been made in the end, but which, owing to the nature of the case and the publicity attached to the proceedings, is in effect highly penal, namely, that of censure." "The importance of this penalty lies in the publicity which the proceedings of the court receive in the shipping community". See pages 20 and 21 of Shipping Inquiries and Courts by A.R.G. McMillan The marine courts "on occasions require to take judicial decisions which intimately affect the private rights of individuals". See page 3 ibid.

44. The procedure of a marine court is parallel to that of a court of law. Notice of Investigation in the prescribed form has to be served. See Regulation 3(1) of the Merchant Shipping (Marine Courts) Regulations. The Notice of Investigation is to be accompanied by a statement of questions which the marine court will be called upon to determine. See Regulation 3(3). The statement of questions may be reframed by the Director of Marine at the conclusion of his examination of his witnesses or amended at the request of any party. See Regulations 4 and 16. Parties may be legally represented. See Regulation 7(2). Notice to produce and notice to admit documents may be served. See Regulations 8 and 9. However, it is not bound by rules of evidence. See Regulation 11. Addresses may also be made. See Regulation 20.

45. As I have said, on all hands it was agreed that the Marine Court is amenable to judicial review. In Australia, it has been decided that certiorari will lie to bring up the proceedings of a marine court. See In re Bell⁽⁴⁾.

46. In the instant case, the Marine Court castigated these applicants for havig organised themselves in fitting in with the statements of the Dinnens'. They were said to have, in effect, tailored their evidence by making postulations on "flimsy, unsubstantiated and erroneous assumptions" and deliberately set out to attack Ogura with a view to branding him as a liar. These are accusations of concerted misconduct and bad faith for the purpose of luring the Marine Court into a perversed decision by dubious expert hypotheses.

47. By its constitution, the Marine Court here seems to enjoy a wider latitude than a judge who cannot mount an independent search for the truth on his own. Regulation 11(1) of the Merchant Shipping (Marine Courts) Regulations enables the Marine Court to receive and consider any evidence which it finds material. As I have pointed out, it is not bound by rules of evidence. The Director of Marine may adduce any evidence, whether or not admissible or relevant. See Regulation 15. It may even proceed with the investigation in the absence of any party. See Regulation 12.

48. The Marine Court in this case was appointed for making an investigation into a shipping casualty, with the resultant loss of life and injury to Mr. Ogura. In his investigation, Judge Wane must necessarily evaluate the credibility and quality of the witnesses. He was certainly entitled to comment on and censure the conduct of any particular witness. The learned Judge would have acted outside his terms of reference, if he had made criminal charges against anyone unconnected with the subject matters of the inquiry. However, in every investigatory tribunal, "where the crime concerned is one of perjury at the inquiry itself, there may well be a grey area between what is permissible comment upon evidence ...... that (it) has rejected, and what is a finding of criminal conduct by a witness which does not fall within ....... (its) terms of reference". See Mahon v. Air New Zealand ⁽⁵⁾ . Miss Eu, counsel for the applicants complained that the Marine Court had departed from its terms of reference and acted in excess of jurisdiction. Insofar as the Marine Court's robust but allegedly unjustified criticisms of the applicants can be taken as accusations of a criminal nature, whether unconnected or incidental, it is debatable whether they were within his brief in the warrant. This motion can be disposed of within the narrower compass of the Judge's inadvertent breach of a duty to act fairly and his consequential oversight in observing the rules of natural justice. Therefore, I need express no concluded view.

49. Another jurisdictional aspect stems from a New Zealand decision, Reynolds v. A.G. ⁽⁶⁾ where it was held that once a report of an inquiry had been forwarded to the Governor in Council, neither the Governor nor the Governor in Council could be reached by judicial process in the form of certiorari, an order to bring up the proceeding for quashing. Reynolds v. A.G. ⁽⁶⁾ was not overruled by the New Zealand Court of Appeal in Re Royal Commission on Thomas Case⁽⁷⁾. There is no evidence that the Report of the Marine Court is in any other hands than those of the Acting Governor, and the ratio in Reynolds v. A.G. ⁽⁶⁾ sounds persuasive enough to follow so that certiorari may not lie in the instant case. But what was decided in Reynolds v. A.G. ⁽⁶⁾ does not affect the other discretionary remedy by way of declaration. See also Re Erebus (No. 2) ⁽²⁾. For the reasons I shall give later in this judgment, I decline to quash passages by way of collateral assessment of witnesses in the Report. Therefore, no determination need be made as to whether certiorari is available to the Applicants when the Report is now presumably being held by the Acting Governor.

50. In addition to her submission that the criticisms against the applicants were made in excess of jurisdiction, Miss Eu contended that they were not supported by evidence, with some even contrary to the evidence. Further, it was strongly pressed upon me that no reasonable tribunal would have made these criticisms which were irrational conclusions, wholly insupportable. See Associated Provincial Picture Houses, Limited v. Wednesbury Corporation ⁽⁸⁾.

51. The Marine Court had the assistance of two assessors. In general, "the presence of assessors is provided for to ensure that the court shall have skilled advice". See p. 17 Shipping Inquiries and Courts by A.R.G. McMillan. "Where the assessors are persons of nautical skill and experience, the practice of the admiralty courts is so far followed, that evidence on question of nautical skill and experience is excluded." See page 18 ibid. In The Kestrel ⁽⁹⁾ , the Court declined an offer of expert evidence. Miss Eu had successfully demonstrated that there were times at which the Marine Court in the instant case displayed less than adequate appreciation of the evidence, but that had not shaken the Marine Court's preferred version to the ground. In broad terms, the Marine Court was critical of the postulated high speeds, departure time from Repulse Bay after 1 a.m. and short drifting distance. Were these criticisms such that no reasonable tribunal would have made? The answer is to be found in what information the Marine Court held. Apart from the assessors' assistance, the Marine Court was entitled to receive and consider any evidence which it regarded as material. It was not bound by rules of evidence. It was even free to proceed with the investigation in the absence of any or any proper party. This Court was not assisted as to what other information, if any, there was in the hands of the Marine Court. Section 55(4) of the Merchant Shipping Ordinance required the Marine Court "to send a full report on the case with the evidence to the Governor". The evidence so sent with the Report is presumably the same evidence now placed before me and was probably the only evidence considered by the Marine Court. This matter was not canvassed in these proceedings, and I cannot be sure, though probably it was the case, that the Marine Court acted on no other evidence. Moreover, it may very well be arguable that "the evidence" referred to in section 55(4) would not include "the skilled advice" supplied by the assessors. The Report itself made no reference to consideration of any information other than the evidence so sent. But, for all these reasons, it does not necessarily follow that there was none. The two assessors both signed and expressed their consensus with the Report. From their questions put to the applicants, they seemed to find the experts' theories questionable. The assessors were not entirely without company; even the applicants themselves initially pondered over the high speeds in their postulations. In view of the decision I have arrived at, it would not be profitable to examine what other information, if any, the Marine Court possessed and could legitimately act on, what its precise nature, extent or scope was, how much of it should have been set out in the Report, and finally whether the reprimands of the applicants would have been given by any reasonable tribunal. On the material contained in the Report, there is much to be said for Miss Eu's contention that the Wednesbury principles ⁽⁸⁾ apply, but there is no real need for resolving this vexed question as the motion before me could, in justice, be disposed of on the sole issue of the Marine Court's duty to act fairly.

52. Mr. Neoh, counsel for the respondent led me through the historical development of judicial review for illustrating the crucial importance of, first of all, the making of "a decision" and secondly one which would directly affect legal rights or would itself be a step in some process leading to legal consequences. In deference to counsel's elaborate research, I should deal with his topics, viz. the types of tribunals subject to judicial review, the nature of the criticisms made by the Marine Court and whether they are matters reviewable. I shall then turn to choice of remedy and discretion.

53. The exercise of supervisory control over inferior judicial tribunals was extended to statutory bodies exercising quasi judicial functions or "some right or duty to decide". See R. v. Electricity Commissioners. Ex parte London Electricity Joint Committee Company (1920), Limited, & Others ⁽¹⁰⁾. From early times, emphasis was placed on the making of a decision. Lord Goddard C. J. had this to say : "There must be something that can be called a determination which will affect the rights of the party and there must be a tribunal whose duty it is to act judicially". See R. v. St. Lawrence's Hospital Statutory Visitors. Ex parte Pritchard ⁽¹¹⁾. The pre-requisite of acting judicially soon eroded, and Ridge v. Baldwin ⁽¹²⁾ took the matter further by removing the last vestiges of any artificial distinction between tribunals exercising judicial or quasi judicial powers and those exercising purely administrative or executive powers. Sachs L.J. observed in In re Pergamon Press Ltd. ⁽¹³⁾ :

"It is ....... not necessary to label the proceedings 'judicial,' 'quasi judicial,' 'administrative' or 'investigatory' : it is the characteristics of the proceeding that matter, not the precise compartment or compartments into which it falls."

54. Having taken statutory bodies under the Court's supervisory control as from quite early times, not all the decisions they made were regarded as reviewable unless some legal rights would be affected. In Australia, a territory in which development of administrative law has been liberal and incisive, even up to 1963, it was still being considered as indispensable for judicial supervision to lie that the decision "could, of its own force, prejudicially affect" legal rights or would create ''a real prejudice in a legal respect". See Testro Brothers Pty. Ltd. v. Tait ⁽¹⁴⁾, where a company inspector's report was said to be merely advisory and therefore unreviewable. In Ireland then, a similar attitude was adopted. See The State (Stephen's Green Club & Anr.) v. The Labour Court ⁽¹⁵⁾, where it was decided that though closely resembling a court of law, an Irish Labour Court was immune from a writ of prohibition as its recommendations imposed no liabilities and affected no rights. In Canada at or about the same time, Labour Conciliation Boards were held not to be subject to judicial control, whose awards adjudicated on no rights or liabilities. See F.F. Ayriss & Co. v. Board of Industrial Relations of Alberta ⁽¹⁶⁾.

55. A great many attempts have been made to widen the meaning of legal rights, the interference of which would bring about procedural fairness including the application of the rules of natural justice. In England, victims of criminal offences have been held to enjoy the rules of natural justice before a Compensation Board, although they have no legal right to the compensation. See R. v. Criminal Injuries Compensation Board, Ex parte Lain ⁽¹⁷⁾. At page 779 letters H/I, Diplock L.J., as he then was, introduced an artificial concept of legal prejudice. He held that a recommendation of the Board "whose determinations (did not) give rise directly to any legally enforceable right or liability", was "one step in a process which (might) have the result of altering the legal rights or liabilities of a person to whom it (related)". At page 782 letter E, Lord Diplock, as he now is, left open the question as to whether administrative law strictures would apply to decisions incapable of affecting legal rights. Lord Wilberforce had earlier recommended that "the essential procedural requirements" in administrative law including the rules of natural justice were "to be tested broadly on argument of public policy and not to be resolved on narrow verbal distinctions". See Malloch v. Aberdeen Corporation⁽¹⁸⁾. By 1973, judicial opinions favoured a less rigid application of the principles of natural justice. Lord Morris' rhetoric in Furnell v. Whangarei High Schools Boards ⁽¹⁹⁾ was:

"Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action' .... But as pointed out by Tucker L.J. in Russell v. Duke of Norfold (1949)1 A.E.R. 109, 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration."

56. The criticisms made unfairly against these applicants by the Marine Court were claimed in these proceedings to be mere comments having no effect on legal rights. They are, as comments or decisions, collateral to the matters for investigation specified in the warrant appointing the Marine Court. Commenting on the veracity and motives of witnesses may have to be incidentally undertaken by any marine court in the discharge of its duty. It may well be even necessary to stigmatise certain evidence in terms of perjury. But in offering opinions or making observations particularly on collateral matters, the tribunal should constantly be most circumspect. See Re Erebus (No. 2) ⁽²⁾. It should be all the more so when a witness, such as an expert witness can normally expect to be treated as detached, unconcerned and impartial. An expert would himself ask to be disqualified or be withdrawn by the party seeking his assistance if he lacks or is in danger of losing these attributes. Risk of being condemned as members of an organized conspiracy to usher the Marine Court to a perversed conclusion is different from the possibility commonly faced by individual witnesses that their evidence may be disbelieved. When an expert is testifying as to theories and not pure facts, he would be less drawn to his personal welfare but more preoccupied with the threat to the correctness of his expertise views which are liable to be called in question. He must be somewhat distracted from any possible danger of exposing himself to personal attacks and the need for offering explanations in his own defence. Common decency dictates that if the integrity and reputation of such a witness are to be impugned, he ought to be fairly warned and afforded an opportunity to elaborate.

57. I have examined in some detail what evidence there was at the inquiry in support of these criticisms and to what extent these applicants had been put on notice. The applicants attended in their capacity of experts. Their theories were used by the Marine Department. They were put forward by the Attorney as credible witnesses. The views expressed by the Attorney in his opening as an advocate are no more infallible than learned submissions of our other eminent counsel, but for the applicants, they could be forgiven for coming before the Marine Court with a fair sense of security. It is inconceivable that these applicants could reasonably have foreseen the mounting of serious personal attacks of such magnitude. Surprise and even disbelief on the part of Judge Wane and his assessors were little suppressed in their questioning of the applicants and Mr. Mnew, but the experts and Mr. Mnew were themselves equally overawed by some of the postulations in their own initial reaction. The applicants were never warned or given notice of these unformulated charges of grave misconduct which must have been present in the mind of the Marine Court. These criticisms are strong condemnations that go well beyond collateral assessments of conduct and credibility of witnesses necessary for the purposes of the investigation with which the Marine Court was entrusted.

58. Is any of these criticisms a decision or part of a decision? Miss Eu relied heavily on her contention that the entire Report is one decision of which these criticisms form part. These are views taken purportedly as collateral assessments of the witnesses. Call them what you will, a decision, a finding, a conclusion, a criticism, a condemnation, a censure or an opinion. These are mixed expressions of facts as found and what was thought to be appropriate observations.

59. I need not dwell on a decision or a finding. A tribunal must "act with procedural fairness towards the person who will be affected by the decision", per Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service ⁽³⁾. In his speech, the learned Law Lord was concerned with a finding having consequences on private rights or legitimate expectations in public law. The latter is not relevant here. Miss Eu sought to draw a parallel between damage to reputation and other incursions on private rights in the application of procedural fairness. From the judgment of the Judicial Committee in Mahon v. Air New Zealand ⁽⁵⁾, counsel seemed to have derived good support for her proposition. The rules of natural justice were there held "applicable to a decision to make a finding ....... collateral but not essential to (the judge's) decision upon any of those matters upon which his terms of reference required him to report." In that case, the charges affecting the witnesses involved organising a pre-determined plan of deception, including a conspiracy to commit perjury and "an orchestrated litany of lies". At page 820, letter G - page 821, letter C, the Judicial Committee referred, with approval, to the two basic rules germane to the exercise of an investigative jurisdiction as formulated by the Court of Appeal in R. v. Deputy Industrial Injuries Commissioner, Ex parte Moore ⁽²⁰⁾. Speaking on the second rule for listening fairly to relevant evidence and rational arguments, the Judicial Committee endorsed the requirement that even for a person represented at the hearing, "who will be adversely affected by the decision to make the finding", he "should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result". This was lacking in the instant case.

60. Maxwell v. Department of Trade and Industry ⁽²¹⁾ is an illustration for condemnations and criticisms made by inspectors appointed to investigate and report on the affairs of a company. The inspectors conceded that in carrying out the investigation and making the reports, it was their duty to act fairly and in conformity with the principles of justice. Lord Denning, M.R. had this to say at P. 534 letters A/B :

"It may on occasion be necessary for them to condemn or criticise a man. Before doing so, they must act fairly by him."

61. "Conclusions" were involved in R. v. Collins ⁽²²⁾, in which Stephen, J. was to regard them as amenable to procedural fairness if only they would either directly affect rights or create a new hazard, and not merely for the information of a Minister.

62. In The Seistan ⁽²³⁾ , censure added by an assessor as a rider to the findings of the Court was taken as "wholly irregular" in the absence of any charge made against a chief engineer and opportunity given to meet it.

63. In his dissenting judgment in Testro Bros.Pty. Ltd. v, Tait ⁽¹⁴⁾ Menzies, J.said of findings or opinions, once imbued with legal consequences, as being subject to the basic principles of justice. An observation of the learned judge calls for a closer examination. Menzies, J. distinguished these findings or opinions from mere opinions given by a tribunal for information only, which the learned judge said, were above all judicial intervention "no matter how authoritative its procedures, how searching its probing and how likely it might be in the circumstances to lead unjustly to loss of business, loss of reputation or adverse proceedings". But it would seem that the learned judge was commenting on unintended incidental consequences rather than direct personal attacks deliberately aimed at any particular target.

64. Whatever is stated by an investigatory tribunal as a concluded view whether in terms of a decision, a finding, a conclusion, a criticism, a condemnation, a censure or an opinion, the statement may be open to judicial review. Some decided cases favour the application of fair play in action only when such a statement would directly affect legal rights or "satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences", unlike the case of what is called a purely advisory body having only "exclusively informative function" as in Testro Bros. Pty. Ltd. v. Tait ⁽¹⁴⁾ or R. v. Collins ⁽²²⁾. Other authorities favour an extended application of fair play in action to any concluded view expressed, which is likely to cause "wide repercussions", "very damaging to those whom they name", ruining "reputations or careers", affecting competency, mental state or livelihood such as The Seistan ⁽²³⁾; In re Pergamon Press Limited ⁽¹³⁾ ; R. v. Kent Police, Ex parte Godden ⁽²⁴⁾; Maxwell v. Department of Trade and Industry ⁽²¹⁾ ; Heatley v. Tasmanian Racing and Gaming Commission⁽²⁵⁾; or Mahon v. Air New Zealand ⁽⁵⁾.

65. It may be argued, as did Miss Eu, that the extended application of the principles of natural justice is more apparent than real as the latter category of cases involved an invasion of a man's innermost private right to his reputation in matter of competency or mental capability. In Re Erebus (No. 2) ⁽²⁾ Woodhouse, P. and McMillin, J. had this to say of reputation :

"At common law every citizen has a right not to be defamed without justification. Severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity affects that right especially when the officer has judicial status and none the less because he has judicial immunity."

"If the findings ...... were made ... contrary to natural justice, it affords a striking instance of how contrary to public interest it would be if the Courts were not prepared to protect the right to reputation."

66. At pages 177 and 178, de Smith 4th ed., the observance of "fair procedural standards" is strongly defended where reputation may be violated by decisions made or actions taken. Despite the quoted comment of the learned Australian judge, Menzies, J. in Testro Bros. Pty. Ltd. v.Tait ⁽¹⁴⁾, which I have endeavoured to distinguish, I am inclined to a more liberal procedural safeguard, at least for the criticisms so gravely affecting the reputation of these applicants, whether or not the requirement of fair play in action can be justified by a man's common law right not to be defamed. In the field of administrative law, it would seem that the more progressive the appraoch, the more likely it is to gain an overall recognition in the future.

67. Counsel for the respondent fairly cited to me other local decisions not in his favour. These cases call for the protection of reputation by procedural fairness. These are: In Re J.L. Mitchell & Ors. ⁽²⁶⁾ and the recent M.P. 1145 to 1151 of 1986 ⁽²⁷⁾. In the former, the Pull Bench detected charges of negligence and incompetence implicit in the censure motion which might "have some effect upon the reputation of the individual members of the department" and "might adversely affect the subsequent careers of the applicants." In the latter, certiorari and declaration were readily accepted as the proper remedies for the determinations of the Insider Dealing Tribunal, which would not lead to any "disqualification, penalty or other consequences, criminal or civil". Both these local cases were concerned with reprimands or condemnations which were tentamount to a public rebuke, but they would affect no legal rights and would lead to no alteration of legal consequences. I take much comfort in being able to arrive at a conclusion consistent with the views expressed in these cases, although the application of the rules of natural justice did not seem to have been resisted in the latter.

68. How then is judicial discretion to be exercised? What remedy can be given? The applicants were not parties to the original hearing; nor had they ever sought leave to appear and be treated as a party. It has not been, to my knowledge, decided whether an application for leave to appear could have been made by these applicants at a re-hearing. One applicant attended both hearings, but the other was absent at the first hearing. The right to appeal conferred by section 56(2) lies only when no application for a re-hearing has been made or was granted. Counsel did not address themselves to the question as to whether or not the right to appeal by any or any potential party had been lost as a result of the re-hearing. The defamatory criticisms would not appear to be actionable. Counsel for the respondent submitted that probably appeal would not lie from these criticisms nor would they be actionable in libel. I have not had the benefit of any full arguments. However, the applicants have not been shown to have any clear right to appeal from or sue on these criticisms unfairly made in breach of the rules of natural justice. I would not refuse judicial review by reason of the absence of any such clear right. Consequently, neither of these matters calls for a decision before me, and they are best to be left for a determination after full arguments on another occasion.

69. Inadvertent failure to respect procedural fairness has rendered these criticisms vulnerable to judicial review. The applicants should be vindicated, and apart from the difficulties in quashing only passages and granting a bare declaration, there is no other consideration to dissuade me from exercising my judicial discretion.

70. A certiorari was issued to bring in for quashing the whole of the Chief Gas Examiner's report in R. v. London County Council Ex parte Commercial Gas Company ⁽²⁸⁾. In In Re J.L. Mitchell & Ors. ⁽²⁶), had it not been for other considerations, the Full Bench would have been prepared to grant a certiorari in respect to the censure motion. In the Insider Dealing Tribunal Miscellaneous Proceedings Nos. 1145 to 1151 of 1986, the prayer of a certiorari quashing parts of the report was not resisted on juridical grounds. It was solely contested on the merits. Reports made by the Insider Dealing Tribunal or Inspectors appointed to examine the affairs of companies may be different in nature. Not infrequently they investigate and report on separate individuals involved in isolated incidents. Findings made against a particular person are often a chapter on its own and may readily be lifted from the rest. Quashing of the findings about an individual in such a report would obviously be unobjectionable.

71. The other judgment of Cooke, Richardson and Somers J.J. in Re. Erebus (No. 2) ⁽²⁾ doubted, as "a difficult and technical question", whether the Courts have ''jurisdiction to quash particular passages" in a report. Their Lordships in Her Majesty's Council also refrained "from going into the question whether upon an application for judicial review of a report of a tribunal of inquiry there is jurisdiction in the reviewing court to set aside a finding of fact which is gravely defamatory of the applicant for review, or to make a declaration that such a finding is invalid". See Mahon v. Air New Zealand ⁽⁵⁾. A distinction may or may not be drawn in the case of reports by the Insider Dealing Tribunal or Inspectors of companies. In addition to such possible jurisdictional hindrance, it would be evidently difficult to assess what effect the deletion of these offensive passages would have on the other portions of the Marine Court's Report. Rightly or wrongly, the Marine Court was within his power to reject the theoretical presentations of these experts. These criticisms are closely linked to and associated with the Marine Court's rejection of their theories. What effect the quashing of these criticisms would have on the Marine Court's rejection of the applicants' theories is difficult to evaluate. I do not accept Miss Eu's contentions that these offensive passages have no bearing on the rest of the Report and that as findings they are independent and severable. For these reasons and with much reluctance, I must decline the invitation to quash the passages which I have found truly objectionable.

72. Can then a bare declaration be made? A bare declaration was sought in Maxwell v. Department of Trade and Industry ⁽²¹⁾ to the effect that natural justice had not been observed in the conduct of an inquiry. Lord Denning warned us that the occasions on which a bare declaration could be granted must be rare. See p. 536, letter G. Orr, L.J. agreed that "the circumstances which would justify the grant of such relief ...... would have to be of a very exceptional kind." See p. 539, letter A.

73. The jurisdiction to grant a bare declaration has never been doubted. See Re Erebus (No. 2) ⁽²⁾. In that case, Woodhouse, P. and McMullin, J. were in favour of granting a bare declaration, but these learned judges did not elaborate how their proposed action could be justified or otherwise supported. Cooke, Richardson and Somers, J.J. left the question undecided with an observation that "the Court would have to be satisfied that grounds so strong as to require it to act in that unusual way had been made out". See p. 667, lines 23 - 25. Their Lordships in the Privy Council expressed no view. See Mahon v. Air New Zealand ⁽⁵⁾.

74. In the instant case, one of the alternatives in the declaration prayed for would seem to be least disruptive viz. a declaration that the parts found offensive were "reached in breach of the rules of natural justice and/or without any notice given to the applicants''. Counsel for the respondent conceded to the Court's general jurisdiction to grant bare declarations but implored this Court not to act in defiance of the known strictures.

75. There still exists to-day in our Courts a "traditional reluctance" to grant a purely declaratory judgment unaccompanied by other relief. Such "unimaginative conservatism" has become "a settled practice''. See pages 478, 479 and 481, de Smith's "Judicial Review of Administrative Action", 4th edition. In those pages, de Smith has given a succinct historical survey sufficient for our present purpose. "The development of declaratory orders in English legal history has never been thoroughly investigated." Page 476, ibid. There was thus an understandably lack of enthusiasm at Bar in launching into a full debate of such judicial aversion to a bare declaratory judgment. Hence, I am no wiser on this obscure branch of the law. In the realm of uncertainty, the guideline offered by the "Cooke's judgment" in Re Erebus (No. 2) ⁽²⁾ has much to commend itself: A bare declaration ought to be firmly justified by strong grounds. I have not been provided with any justification. Nor have I been fed any exceptional circumstances for the invited unusual departure. Further, this judgment is sufficient for meeting the justice of the case, and the applicants would stand to gain little more by a bare declaration. Even if I were seized with this motion without any settled practice or if such deep-rooted judicial reluctance to grant a bare declaration could be overcome, as a bare declaration has no practical purpose to serve, the inutility in the instant case would be enough to dissuade me from invoking a jurisdiction which is fundamentally discretionary. I would not, therefore, accede to Miss Eu's request.

76. I was informed by both counsel that whatever the outcome, I would not be invited to make any order as to costs. On that understanding, no order is made as to costs. This motion is accordingly disposed of.

(1) [1957] P.D. 85 at p.93

(2) [1981]1 N.Z.L.R. 618 at p. 628 lines 47 & 48.

(3) [1985]1 A. C. 374 at p.410, letters D-E, per Lord Diplock.

(4) 18 V.L.R. 432

(5) [1984]1 A.C. 808 at p. 839, letters G/H.

(6) [1910]29 N.Z.L.R. 24, p. 38.

(7) [1982]1 N.Z.L.R. 252 at p. 258, lines 40 to 42.

(2) [1981]1 N.Z.L.R. 618 at p.623 lines 37-47, per Woodhouse, P & McMullin, J.

(8) [1948]1 K.B. 223.

(9) (1881)6 P.D. 182 at p. 189.

(8a) [1948]1 K.B. 223.

(10) [1924]1 K.B. 171 at p.p. 193 & 195.

(11) [1953]1 W.L.R. 1158 at p. 1162.

(12) [1964] A. C. 40.

(13) [1971]1 Ch. 388 at p. 402, letters G and H .

(14) [1963]109 C.L.R. 353 at P.P. 363 and 368.

(15) [1961]I.R. 85 at p. 95.

(16) [1960]23 D.L.R. (2d) 584.

(17) [1967]2 A.E.R. 770.

(18) [1971]2 A.E.R. 1278 at p. 1293 litters h/j.

(19) [1973]A.C. 660 at p. 679.

(2) [1981]1 N.Z.L.R. 618 at p. 651, lines l-3.

(3) [1985]1 A. C. 374 at p. 411, letters A/C.

(5) [1984]1 A. C. 808 at p. 820 letters E/F.

(20) [1965]1 Q.B. 456 at p.p. 488, 490

(21) [1974]1 Q.B. 523.

(22) [1976]8 A.L.R. 691.

(23) [1959]1 L1. L. Rep. 607.

(14) [1963]109 C.L.R. 353 at p.p. 366 & 373

(14) [1963]109 C.L.R. 353 at p. 366.

(22) [1976]8 A.L.R. 691 at p 695, lines 21 - 24.

(23) [1959]2 Ll. L. Rep. 607.

(13) [1971]1 Ch. 388 at p. 399 letters D/G & H.

(24) [1971]1 Q.B. 662 at p. 669G.

(21) [1974]1 Q.B. 523.

(25) [1977]137 C.L.R. 487 at p. 495.

(5) [1984]1 A .C. 808.

(2) [1981]1 N. Z.L.R. 618 at 627 lines 17-20 & lines 21-24.

(14) [1963]109 C.L.R. 353 at p.p. 366 and 373.

(26) [1976] H.K.L.R. 1005 at p.p. 1017 & 1018.

(27) In the Matter of Applications by Chow Chin-wo and Others for Judicial Review of Determinations of the Insider Dealing Tribunal, judgment of which was delivered on the 20th October, 1986.

(28) [1895]11 T.L.R. 337.

(26) [1976]H.K.L.R. 1005.

(2) [1981]1 N.Z.L.R. 618 at 667, Lines 11-12.

(5) [1984]1 A. C. 808 at p. 840, letters B/C.

(21) [1974]1 Q.B. 523.

(2) [1981]1 N.Z.L.R. 618 at p. 623 lines 41.

(5) [1984]1 A. C. 808 at p. 840, letter B/C.

(2) [1981]1 N.Z.L.R. 618.

Representation:

Miss Audrey Eu inst'd. by M/s Herbert Smith & Co. for Applicants.

Mr. Anthony Neoh inst'd. by M/s Lo & Lo for the Respondent.