TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 67

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18.

The Bar Association's representative on the Sub-committee,

Richard Mills-Owen, Q.C., stated the reasons for this

recommendation.

He said :

This

"I feel quite strongly that in Hong Kong there is a case

for interim relief to be available against the Crown.

might take the form of an order declaring that the Crown

"ought not to do... etc" pending trial. There are many

possible applications. Examples that. spring to mind are

resumption of land; destruction of unauthorised structures;

general abuse of executive power. I feel that such relief is even more necessary in Hong Kong because I certainly

have the impression that the Government plays a much

greater role in the life of the community in Hong Kong than

in the U.K.. I feel therefore, that interlocutory relief

ought to be available in the courts, if the Crown is

equally to be subject to the law."

Other Common Law Jurisdictions

19.

The

From enquiries to comparable jurisdictions it appears that only New Zealand has empowered its courts to grant interim

declarations against the Crown. As noted above, the proposal has

been rejected by the United Kingdom Government. In Australia the

introduction of the remedy has not been considered as the federal

courts and the courts of most states already are empowered to grant

interim relief against the Crown by way of interim injunctions. situation in Canada is more complex. All of the Canadian provinces

except for British Columbia have enacted provisions identical to

section 16 of the Crown Proceedings Ordinance. In British Columbia

and the Canadian federal jurisdiction the courts have relied upon the

common law to refuse to grant injunctions against the Crown.

Accordingly, in Canada there is currently no form of interim relief

against the Crown and there is no proposal under consideration to

alter that situation.

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