Tan Shih Ying v. City University of Hong Kong

HCAL 36/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 36 OF 2012

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DECISION ON COSTS

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Introduction

1.On 7 December 2012 I handed down my judgment in this case, dismissing the application for judicial review and making an order nisi that the costs of the application be awarded to the respondent.  I made a further order that this order nisi would become absolute after 14 days unless either of the parties applied by summons to vary the order.  On 21 December the applicant filed a summons seeking a variation of the order nisi and substituting for the original order an order that there be no order as to costs.  The applicant also asked for this application to be dealt with by written submissions without a hearing and that there be no order as to costs in respect of her summons.  The summons was supported by an affirmation of the applicant.

2.For reasons that are unclear to me the respondent did not respond to this summons until contacted by the court.  On 27 February 2013 the respondent indicated it would be filing an affidavit in reply.  It subsequently decided that the more appropriate course for it was to address the applicant’s summons by way of written submission.  Its submission was received on 13 March 2013. On 15 March the applicant replied to the respondent’s submission in which she made a number of observations and repeated the points made in the material on which she relied in support of her application.

The Applicant’s Submission

3.The applicant bases her application, as revealed in her affirmation, on a claim that she only instituted the judicial review proceedings because she was misled by the respondent as to how the decision not to offer her further employment on the expiry of her contract came to be made. She says she only became aware of the true position when, after leave to apply for judicial review had been granted, the respondent filed evidence in the case.  She says she made the application for judicial review in good faith and based on information provided to her by the respondent.  Consequently, the applicant says, the respondent, by misleading her, brought about the litigation by causing her to think that she had a good cause of action.  As there is fault by the respondent the applicant says that I should exercise my discretion and deprive it of its costs.

4.In a letter to the court dated 20 February the applicant, who acts in person on this application, refers me to a judgment in HCAL 37/2011 & HCAL 43/2011 handed down on 18 February 2013 concerning a judicial review application by other staff employed by the respondent which she says deals with an issue analogous to her own.

The Respondent’s Reply

5.The respondent makes the obvious point that even if it misled the applicant as to how the decision not to offer her further employment came to be made, the applicant on learning the true situation could have decided not to pursue the application for judicial review.

Discussion

6.I agree with the respondent that notwithstanding that the respondent may have misled the applicant factually as to the circumstances surrounding the decision not to offer her further employment and notwithstanding that this misinformation may have been the cause of the applicant instuting these proceedings, it was not the reason for the applicant deciding to pursue the applicant for judicial review.  Once she became aware of the true situation she had to assess her position and make a decision on what she should then do. In her affirmation in support of the present application she is silent on the circumstances in which that decision came to be made.  Rather than abandon her application for judicial review she decided to press ahead with it and apply to amend the Form 86 both as to the decision being judicially reviewed and the grounds on which relief was being sought.  Given that she was legally represented at the hearing of her application for judicial review I can only assume that this decision was a considered and informed one.

7.I am not persuaded, therefore, that the initial fault of the respondent in misrepresenting to the applicant the circumstances in which the decision came to be made of not offering her further employment is a reason to deprive the respondent of its costs.

8.I have read the judgment in HCAL 37/2011 & HCAL 43/2011 but I am of the view that it does not avail the applicant even though it concerns the same respondent.  In that case Andrew Chan J concluded that a particular position occupied by another staff member had not been properly established but, for other reasons, concluded that there were no real winners in the case and so made no order as to costs.  The applicant’s application for judicial review was concerned with whether proper procedures had been followed when making the decision not to offer her further employment.  It was not concerned with whether a particular post of the respondent had been properly established and no relief was sought in respect of any such question.

Conclusion

9.I can see no reason to justify varying the order nisi as to costs and consequently I dismiss the applicant’s summons and make an order absolute awarding costs to the respondent.  I further order that the costs of this application also be awarded to the respondent.

The applicant appeared in person

Written submission by Mayer Brown JSM, for the respondent