Anderson Asphalt Ltd and Others v. The Lands Department

CACV 163/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 163 OF 2006

(ON APPEAL FROM HCAL NO. 28 OF 2006)

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 20 May 2008

Date of Judgment: 20 May 2008

Date of Handing Down Reasons for Judgment: 27 May 2008

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal from a judgment of this court dated 27 February 2008.  The background to this matter and the relevant facts can be gleaned from the judgment of this court.  On this application there were said to be no less than 5 matters of great general or public importance.  This court refused leave with reasons to be given in writing.

2.Whatever other points were sought to be raised, the first point that must be considered is the dilatory way in which the applicants have proceeded in this matter.  In this respect I refer to paragraphs 19-29 of this court’s judgment of 27 February 2008.  The applicants have filed evidence seeking to explain the delay in bringing on the appeal.  This court was well aware of the relevant matters having reviewed the court files and that evidence takes the matter no further.

3.Because the applicants are still seeking leave to apply for judicial review, this appeal constituted part of the process in applying for that leave.  When this court said at paragraph 27 of the judgment that the delay in bringing on this appeal would render it an abuse to permit these proceedings to go ahead that was said after careful consideration of all the material before it and of the court files.  As was pointed out in paragraph 29, the initial periods of the waivers have expired and the subsequent continuations of the waivers are now in effect.  The applicants have proceeded to challenge the renewal of those waivers and the decision of the Director refusing to terminate or to consider terminating the waivers.  Those proceedings, HCAL 98 of 2007, have been set down for hearing in December this year.

4.The applicants’ protestation that no prejudice, hardship or detriment would have resulted from their delay in pursuing their application for leave is tendentious, to say the least.  If the decision of the Lands Department which is sought to be impugned is set aside those who have occupied the land in the meantime would be placed in an invidious position.

5.It is a fundamental principle of judicial review proceedings that application for judicial review must be made promptly.  The rules of court, Order 53 r.4(1), continue “… in any event within three months from the date when the grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.”  It would be to ride roughshod over the rules of court and the rules relating to judicial review if they were interpreted to mean that so long as the initial application had been filed the applicant could delay in fixing the hearing of its application as long as it chose.  Litton NPJ said at paragraph 52 of his judgment in Peter Po Fun Chan v Winnie C.W. Cheung, Chief Executive & Registrar of Hong Kong Institute of Certified Public Accountants [2008] 1 HKLRD 319:

“Where an application is made many months after the time limit mentioned in r.4, or where the orders sought would lead to no practical benefit, the judge is entitled to refuse leave, however strong the complaint might otherwise be.”

6.What was said there must apply just as much to prosecuting the application for leave as it applies to filing in the initial papers.  In my view, the way in which the applicants have proceeded in this matter must of itself bar them from relief no matter what other points they might wish to raise.  The time for challenging the initial grant of the waivers has long since passed just as the waivers themselves have expired.  The applicants are challenging the waiver which is in force at the moment in HCAL 98 of 2007.

7.Furthermore, regard was had to the merits of the applicants’ case in paragraph 33 of this court’s judgment.  The facts set out there speak for themselves.  When this matter was raised with counsel it was said that the initial decision to grant the waivers was made without consideration that the applicants for the waivers would wish to have renewals and would not be content with the period of the initial waivers.  To have any validity this argument would have to be based upon the supposition that the Director of Lands was putting the Government in the position where it would have to extend those waivers, but that is an un-tenable argument, because the waivers were short term.  Everybody was well aware of that and those who obtained the waivers went into the matter with their eyes open knowing full well that they were obtaining short term waivers which the Government was under no obligation to extend or renew.

8.For these reasons alone, it would be quite wrong for this court to give leave to the applicants to appeal to the Court of Final Appeal for the purpose of obtaining leave to apply for judicial review.

Hon Le Pichon JA:

9.I agree.

Mr John Litton, instructed by Messrs JSM, for the Applicants