Beaux Estate Ltd v. Attorney General

CACV000130/1982

BETWEEN

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Coram: Hon. Leonard, V.P., Cons & Fuad, JJ.A.

Date: 19 November 1982

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JUDGMENT

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Cons, J.A.

1. We are asked to interfere with the decision of Mr. Justice Hunter who decided to adjourn, at least until the 31st May next year, an originating summons which had been placed before him. The reason he did so was that the decision therein might possibly be affected by an appeal which is currently pending before the Privy Council.

2. We accept that it is very unusual for this Court to interfere with the discretion Of a trial judge in a matter of this nature, but we are satisfied that we ought to do so if the particular circumstances of the case so warrant.

3. Unfortunately in the present instance we have no note of the arguments which were put to the learned judge when he was considering the position. We are told that he was made aware of the financial implications to the plaintiff of a delay of that magnitude. However he did not mention those implications when he gave his reasons for making the order that he did.

4. We have had the benefit of an affidavit which was not before him and which sets out in detail the effect upon the plaintiff if it is forced to wait for a decision for this length of time. For my part I have no doubt that had the judge been made as clearly aware of the consequences as we have, he would have given directions for the continuation of the trial in the normal way.

5. There is one matter which, during the course of this morning, has given me anxiety. It is the possibility that if proceedings continued and the plaintiffs were successful, Reg. 30 of the Building (Administration) Regulations might force the Building Authority to approve the plaintiff's plans before the decision in the pending appeal be given. If that decision were then in the Authority's favour the approval might have been unwarranted, but there appears to be no provision for it to be withdrawn. However Mr. Ching submits, and I think he must be correct in this, that if an approval were given as a result of a declaration made by the High Court upon an interpretation of the law that was subsequently found to be incorrect by the Privy Council, in proceedings which would certainly have been taken to challenge that declaration, then that approval would inevitably be held to be and have been null and void.

6. For these reasons I would allow the appeal and remit the action to the trial judge for hearing in the normal way.

Leonard, V.P. :

7. I agree and would also remit with a similar order.

Fuad, J.A.:

8. I also agree with the reasons given by my brother Cons, J.A. as to why we should take the unusual course of interfering with the discretion of the trial Judge. My reluctance to interfere with the discretion of a Judge of the experience of Hunter J. is somewhat   reduced by the fact that he gave leave to appeal against his Order (although he realised that leave might not be necessary as it would be in England, and indeed is not necessary) and I notice that in some of the cases the fact that the Judge has given leave is borne in mind by the Court of Appeal when deciding whether or not it should interfere with his discretion. I would make the order proposed by my Lords the Vice-President and Cons, J.A.

Representation:

Charles Ching, Q.C. & K. Bokhary (M/S Slaughter & May) for Appellant/Plaintiff.

Strawbridge & Macleod, Crown Counsel for Respondent/Defendant.