Anderson Asphalt Ltd and Others v. The Secretary for Justice

FACV 19/2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 19 OF 2008 (CIVIL)

(ON APPEAL FROM CACV NO. 163 OF 2006)

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BETWEEN

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Court: Chief Justice Li, Mr Justice Bokhary PJ,Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Woolf NPJ

Date of Hearing: 19 November 2008

Date of Judgment: 19 November 2008

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J U D G M E N T

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Chief Justice Li :

1.The Court allows the appeal and grants leave to apply for judicial review.  The orders made by the Judge and by the Court of Appeal refusing leave are set aside.

2.We are satisfied that the applicants have satisfied the threshold of sufficient interest at the leave stage and the reasonably arguable test for leave.

3.Delay was not an issue before the Judge.  The Court of Appeal held there was delay in prosecuting the appeal against the Judge’s refusal of leave.  Postponements of the appeal hearing were sought and granted for various reasons.  Whether there was any such delay and if so its legal relevance and effect on relief (if any) may have to be explored at the hearing.  But leave should not be refused on this basis.

4.It is plainly in the interests of justice that the present judicial review proceedings should be heard at the same time as the judicial review challenging the decision to refuse to terminate the short-term waivers.  The parties and the Judge should give the most careful consideration to how this can be achieved, unless there are compelling reasons of which we are unaware to make this impracticable.

5.We have considered the letter dated 15 October 2008 from the Department of Justice to the Registrar on costs.  We do not agree with the suggestion that there should be no order as to costs of the appeal to the Court of Appeal and this Court.  We order that costs of the application for leave before the Judge and the costs of the appeal to the Court of Appeal and this Court (including the application for leave to appeal) should be costs reserved to the Judge conducting the judicial review proceedings.

Mr Michael Thomas SC and Mr Anthony Ismail (instructed by Messrs JSM) for the appellants