Peter James Miers v. The Royal Hong Kong Jockey Club
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CACV000137/1982 Headnote Court of Appeal Leave to appeal to Privy Council - construction of Order in Council 10th August 1909. The applicant applied to the Royal Hong Kong Jockey Club for a licence to ride in races organized by the Club. His application was rejected by the Licensing Committee. His appeal to the Stewards of the Club, an application to the High Court for declarations ( and an enquiry as to damages ) and an appeal to the Court were all dismissed. The contentions put forward in the High Court and again in the Court were that :
BETWEEN
___________________________ Coram: Hon. Cons, Fuad, JJ.A. & Power, J. Date of Hearing: 4 February 1983 Date of Judgment: 8 February 1983 ___________ JUDGMENT ___________ Cons, J.A. : 1. Poorer J., who unfortunately cannot be present today, has asked me to say that he is in full agreement with the judgment I am about to deliver. 2. In order to ride in horse racing organised by the Royal Hong Kong Jockey Club, it is necessary to have a licence from the Club. These are issued annually and are valid only for the current racing season. 3. In 1971, Mr. Peter Miers, the applicant in these proceedings, applied for and obtained such a licence. He did so again the following year and in each succeeding year until last year, when his application for the present racing season was rejected by the Licensing Committee. 4. The rules of the Jockey Club do not provide for any appeal from the decision of that Committee, but an appeal to the Stewards was offered to Mr. Miers and he accepted it. There was a full hearing at which both he and the Club were represented by counsel, evidence was adduced and submissions made. The Stewards dismissed his appeal. 5. He then brought an action in the High Court by way of Originating Summons claiming three remedies: -
6. Mayo J. refused all the relief sought. That refusal was appealed to this Court and we upheld the judge's decision. Mr. Miers now seeks leave to take a further appeal to the Privy Council. 7. The conditions on which we may give him that leave are governed by Rule 2 of an Order in Council dated the 10th August, 1909 -
8. In the appeal itself, counsel for Mr. Miers put forward three contentions:-
9. I am not persuaded that these in any way raise matters of great general or public importance. I do not for one moment deny that Mr. Miers' "exclusion from racing", if I may use that phrase, is a matter of great public interest. But that is something different and is not the criterion that we have to apply. 10. It is of course a matter of great importance to him end to his family. While I do not accept that it has deprived him of his livelihood, it must have made a very great impact on what has become for the last ten years his and his family's way of life here in Hong Kong. Those are considerations that might perhaps have carried weight elsewhere, I do not know. But they are not within our jurisdiction. Nor do I think they are sufficient to bring the case within the words "or otherwise" as those words have been interpreted by the predecessor of this Court in Hui Shiu-wing v. Cheung Yuk-Iin(1). 11. Apart from this, it is said that an appeal lies as a right. For two reasons. The first is by way of contract, a contract said to have been made when Mr. Miers accepted the Club's offer of an appeal to the Stewards. The consideration was that he thereby gave up his right of immediate access to the Courts, which would have been to set aside the unsatisfactory hearing given him by the Licensing Committee. There would be implied into that contract a term that he would be given a fair hearing before the Stewards. In the circumstances he was not, and thus the Club is in breach. The damage he has sustained is the cost of preparing and mounting his appeal, a cost shown by affidavit to be well in excess of $200,000. 12. There is no mention of contract in the Originating Summons or in the Notice of Appeal. At most it received only a passing reference from counsel on the last occasion. It is suggested that this is so because it is a matter subsidiary to the question of whether or not there has been a breach of natural justice and will only fall for decision if that question is answered in the affirmative. 13. I do not accept that suggestion. It is true that a claim in contract could not succeed without proof of a breach of natural justice but that does not make it merely subsidiary. It seems to me that although it is dressed up in this application as a point of law, we are in effect being asked to allow the introduction of a completely new cause of action, and one moreover which would be more appropriate to proceedings commenced by way of writ. I have grave doubts whether we would accede to that request, for I know not what evidence might have been called or elicited at first instance, either as to the formation of the contract or as to the consideration. But in any event I do not think we are in a position to do so. The substance of the case is no longer within our jurisdiction. There can therefore be no question of an appeal as of right in this respect. 14. The second reason relies on the second part of paragraph (a), that the appeal involves, directly or indirectly, a question respecting a civil right worth more than the specified amount. The civil right is said to be Mr. Miers' right to work at his chosen profession for at least this current racing season, a right which I accept to be worth more than $200,000. 15. Mr. Ching, who has appeared throughout for the Jockey Club, submits that this is in fact not the right involved, for had Mr. Miers been successful at any stage in his legal proceedings the most that he could have hoped for was a re-hearing before the Stewards. The right actually involved is nothing more than the right to a fair hearing. He draws our attention to two cases decided in the New Zealand Court of Appeal, the first of which is Graham v. Callaghan (2). 16. In a particular district of New Zealand, a poll had been taken under a statute concerned with the sale of alcoholic liquor. As a result there would presumably be some restrictions imposed upon the sale thereof. A number of persons lodged a petition to set aside the poll, amongst whom were several publicans whose licences would be affected, which licences were accepted as being worth more than the financial minimum. The proceedings upon the petition were stopped by an order of prohibition from the Supreme Court on the ground that the proceedings were beyond the jurisdiction of the magistrate holding them. That order was affirmed by the Court of Appeal, which subsequently refused leave to appeal to the Privy Council, applying rules which are apparently the same as our own. The Court took the view that if the appeal succeeded it would not necessarily follow that the publicans would retain their licences. All that would happen was that the magistrate would continue hearing the petition and might or might not set aside the poll, a question which did not involve a sum of money. In the words of the Court "here the possible indirect result that may follow from another decision is all that can be said to be of any money value to any of the petitioners". 17. That case was followed in Griffin & Sons Ltd. v. Judge Archer (3) where it had been suggested that a judge hearing an appeal from a Transport Tribunal had predetermined the issue. It was held that the only right in dispute was the right to have an impartial hearing, and that in itself could not be reduced to a money value. 18. It is to be noted that in both those cases all that the applicant had was the hope or expectation of a favourable decision from some other tribunal. There was no certainty in either that such a decision would follow. 19. The circumstances we are faced with, however, are different. The Stewards have already indicated why they are unwilling to grant Mr. Miers a licence. They have one reason and one reason only. He lacks ability at the start. Now the substance of Mr. Miers' case is that that is a bad reason, a reason upon which no reasonable body of Stewards could rely. If he is able to make that case good then the inevitable result is that the Stewards ought to grant him a licence, there being no other reason to refuse him. That takes the case out of the class of the two New Zealand cases and puts it within the class of Nag1e v. Feilden (4) where the only reason for refusal of a licence was that the applicant was a woman. 20. As I have already indicated, Mr. Miers asked at first instance for a positive order that the Stewards do grant him a licence. He appeared to lose confidence when he brought his appeal to this Court and added in his Notice of Appeal an alternative request for an order for an immediate re-hearing of his application. 21. I am not myself aware of any case in which a court has gone so far as to make a positive order of that kind, but I am not persuaded that that in it self is conclusive. I am confident that a suitable declaration could be framed which would indicate that in the opinion of the Court, subject to such questions as medical fitness etc., the Steward ought to grant him a licence, and it would be unthinkable that the Stewards of the Royal Hong Kong Jockey Club would not in that case comply, or that they would not have done so had such a declaration been made by mayo J. last October. 22. For these reasons I am satisfied that Mr. Miers is entitled to his leave, subject to appropriate conditions as to security and the time within which the Record is to be prepared and dispatched.
(1) (1968) H.K.L.R. 176 (3) (1957) N.Z.L.R. 502 (4) (1966) 2 Q.B. 633 Fuad, J .A.: 23. I have had the advantage of reading in draft the judgment just delivered by Cons J .A. and I regret that I am unable to agree with my brothers upon what should be the result of this motion for leave to appeal to Her Majesty in Council. Iike them, and for the reasons given by my Lord Cons, J .A., having regard to all the circumstances, I do not consider that this is an appropriate case to grant leave in the exercise of the discretion given to this Court by the provisions of para. (b) of rule 2 of the Rules. 24. I now turn to consider para. (a) of the Rule in its application to this motion. Although an intending appellant is accorded an appeal as of right if he can bring himself within the ambit of that paragraph, since the Judicial Committee Rules 1957 prescribe that all appeals to Her majesty in Council shall be brought either in pursuance of leave obtained from this Court or of special leave granted by the Judicial Committee, we are bound to pronounce on the question. But, of course, we have no jurisdiction to give leave under para. (a) unless the intending appellant discharges the burden of establishing that he has the right he claims by his motion. 25. In my view by any fair use of language, it cannot be maintained that "the matter in dispute on the Appeal amounts to or is of the value of $200,000 or upwards". Nor by the same token do I consider that it can successfully be ccntended that the appeal "involves, directly or indirectly, some claim or question to or respecting property .... amounting to or of the value of $200,000 or upwards". Can it be said, however, that the appeal "involves, directly or indirectly, some claim or question to or respecting .... some civil right amounting to or of the value of $200,000 or upwards"? 26. One of the difficulties confronting us, it seems to me, is that, for perfectly understandable reasons, neither before Mayo J. nor before us were the remedies sought by these proceedings canvassed. It will be recalled that on the appeal before us, Mr. Miers sought -
The items I have numbered (b)(i) and (iii) were not remedies asked for in the originating summons but these included a claim for "other relief". 27. I think it is necessary to consider these remedies for as our law has developed rights and remedies often go together. In summary, Mr. Rodway submitted that when the Stewards agreed to re-hear the application made by Mr. Miers a contract came into existence between the parties; the Stewards breached that contract by failing to conduct the hearing in accordance with the rules of natural justice (an implied term of the contract); Mr. Miers suffered damages as a consequence of the breach; and these exceeded $200,000. This was so whether one looked at the matter from the standpoint of the wasted money incurred by Mr. Miers, in connection with the hearing before the Stewards, by the fees he paid his legal advisers and by the payment of expenses to witnesses, or took into account his loss of earnings due to wrongfully being denied a licence for the current season. There can be no doubt that Mr. Miers expended and lost money far in excess of the sum referred to in rule 2(a). But the question remains to be asked - does the intended appeal involve, directly or indirectly, a claim or question to or respecting a civil right? I will not be so bold as to attempt comprehensively to define what is embraced by the expression "civil right". It is a very wide term and as the courts expand concepts to afford remedies to correct injustice, so do new, what might justifiably be called civil rights emerge. But in my judgment Mr. Miers must show that he is advancing a right that a court will recognise. In this context it is helpful to refer to the Australian decision of Cole v. The Commonwealth of Australia [1961] 106 C.L.R. 653 where provisions very similar to rule 2(a) were construed. At p.655, the High Court of Australia said -
28. Appeals to a court to protect the right of a man to work fall upon sympathetic ears, and as Nagle v. Fielden [1966] 2 Q.B. 633 shows, in appropriate cases the courts are likely to intervene. But the facts there intro way resemble what is alleged in the present case, put at its highest. I do not see how I can avoid the apparent presumption of considering what orders might be made if the appeal proceeded and succeeded. The Judicial Committee would, no doubt, grant the declaration sought - that the Stewards' decision was null and void, and either remit the case to the High Court for further procedure (as happened in Ridge v. Baldwin [1964] A. C. 40) or direct the Stewards to re-hear the application in accordance with the rules of natural justice. Here the rules of the Jockey Club give the Stewards absolute discretion to grant or refuse a licence. No legislation in force in Hong Kong renders this jurisdiction illegal. No suggestion has been made that the rules should be struck down on the grounds of unlawful restraint of trade or public policy. No case has been cited to us in which any court in the Commonwealth has gone so far as to direct the issue of a licence in these circumstances. This is not a case where statutory or other conditions have been fulfilled so that a person is entitled to a licence. Nor is it a case involving wrongful expulsion or suspension. Of course, an appropriately worded declaration would have great moral force and might achieve the ultimate result of persuading the Stewards to grant a licence to Mr. Miers to ride in Hong Kong but such a declaration would do no more than vindicate his right to a fair hearing. At a new hearing both sides would be free to present their cases in any way that they thought fit and would not be bound by what went before. It would by no means necessarily follow that Mr. Miers would be granted a licence. I have reached the conclusion that the "civil right" here involved is the right to be given a hearing in accordance with the rules of natural justice and not the right to a licence without which there can be no "right to work" as a jockey in Hong Kong. Although by no means the same, the situation is not far different from those revealed by the New Zealand canes of Graham v. Callaghan (1904) 23 N.Z.L.R. 56 and Griffin and Sons v. Judge Archer and Others [1957] N.Z.L.R. 502. 29. As regards the contract and its breach put forward by Mr. Rodway, in my view, we are bound to loos at the case as it now stands. I have already remarked that Mr. Miers asked for an inquiry into damages. It need hardly be said that the courts have very wide powers, which they frequently and freely exercise, to allow an originating summons to be amended, but until this is done, it cannot be said that the provisions of O.7 r.3 have been complied with. This rule requires that the summons must include "a concise statement of the relief or remedy claimed.....with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy". No authority has been referred to us, to indicate that a breach of the rules of natural justice, as such, gives rise to a cause of action for damages. Mr. Miers would have to show that the conduct complained of constituted what I might call a recognised civil wrong, or a breach of contract. To show that there had been breach of contract, he would have to plead and show a contractual nexus between him and the Stewards. Only then, it seems to me, could it be said that the appeal "involves directly or indirectly, some claim or question to or respecting ..... some civil right amounting to or to the value of $200,000 or upwards". It is not enough that the appeal might involve such a claim or question. 30. For these reasons, in my judgment, Mr. Miers has not brought himself within the terms of the Order in Council, and I would dismiss the motion.
Representation: Mr. Gilbert Rodway (Hampton, Winter and Glynn) for the Applicant. Mr. Charles Ching, Q.C., with Mr. John Bleach (Johnston, Stokes and Master) for the Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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