Case Document

100%Judiciary

HCAL 24/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 24 OF 2014

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BETWEEN
	ORRICO, PHILIPPE	1st Applicant
	NOMAD RESTAURANT MANAGEMENT LIMITED	2nd Applicant
	and
	MUNICIPAL SERVICES APPEALS BOARD	Respondent
	LIQUOR LICENSING BOARD	Interested Party

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Before: Hon Zervos J in Chambers

Date of Hearing: 2 January 2015

Date of Decision: 2 January 2015

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DECISION FOR LEAVE TO APPEAL
A COSTS ORDER

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1.The Municipal Services Appeals Board (MSAB), the respondent, seeks leave to appeal from my decision dated 1 December 2014 where I made absolute my order nisi that the MSAB pay the costs of the applicants and ordered that the MSAB pay the costs of the application to vary the order nisi.

2.Leave is required from the court to appeal a costs order. The test to be applied is whether there are grounds of appeal that have reasonable prospects of success or there is some other reason in the interests of justice why the appeal should be heard. See my comments in Pfeiffer GMBH v Cheung Hay Kit trading as Sun Wai Construction, unreported, HCA 1369 of 2011, 16 December 2013, at paragraphs 4 and 5.

3.The costs order was made in relation to judicial review proceedings where the applicants successfully reviewed the decision of the MSAB to revoke their liquor licence which had been previously granted by the Liquor Licensing Board (LLB). In the subject proceedings, the MSAB was the respondent and the LLB was an interested party. The MSAB took what is referred to as the usual practice and it advised the court that it adopted a neutral stance and would not take active participation in the proceedings and would not be represented at the substantive hearing of the application. The LLB also took a neutral stance as it was its decision that had been overturned by the MSAB’s decision which was the subject of challenge. Notwithstanding the position taken by the LLB, it participated in the proceedings and was legally represented at the hearing of the application for the purpose of providing whatever assistance it could to the court in relation to the application. The LLB was not there to defend the decision of the MSAB but purely to provide assistance to the court given the neutral position it had taken on the issue.

4.I made the costs order against the MSAB because the flawed decision that had been successfully reviewed was that of the MSAB. In such a situation, costs will normally follow the event. As is apparent from my decision on the costs order, I had to address what was the relevant principle on the question of costs against a tribunal which neither appears nor participates in a successful application for judicial review against its decision. It required an examination of the relevant English jurisprudence on this issue and its application and/or adoption in Hong Kong.

5.As Mr Anthony Ismail correctly postulates, my decision raises a number of questions. What is the relevant principle to be applied on an issue of costs against a tribunal which neither appears nor participates in a successful application for judicial review against its decision? In other words, what is the test or principle that should be applied on a question of costs against an inferior court or tribunal in these circumstances. If the test is as stated in the relevant English authority, what is the true and proper meaning of “flagrant instance of improper behaviour”? On the basis of that test, was the MSAB, whilst not attending or participating in the proceedings, defending its decision or its decision making process and/or was this a case of “flagrant instance of improper behaviour”?

6.The MSAB in its appeal grounds raises further questions as to whether or not I made errors of law and/or wrongly failed to take into account relevant considerations and/or wrongly took into account irrelevant considerations when exercising my discretion. These are legitimate questions which have been particularised in the grounds themselves.

7.It is clear that my decision raises questions of general principle and it is in the interests of justice for an appeal to be heard. I therefore grant the MSAB leave to appeal by decision. I grant leave to amend the Notice of Appeal to appropriately include the Decision together with the corrigendum. The costs of this application will be costs in the cause of the appeal.