August 5, 1907.]
SUPREME COURT.
Friday, July 26th.
IN APPELLATE JURISDICTION,
[BEFORE THE FULL COURT.]
LEAVE TO APPEAL.
The Hon. Mr. H. E. Pollock, K.C., moved for leave to appeal to His Most Gracious Majesty in Council from a decree of this Court dated 15th July, 1907, made in the suit of Long Ke v. Ng Wai, dismissing appellant's appeal against that portion of the judgment of his Honour the Chief Justice delivered on 27th June 1907, directing that appellants do not recover the costs of, and incidental to, the case but that the re-pondent recovers said costs.
In doing so, he said that the motion was in proper form.
The Chief Justice-Do you come within the value ?
Hon. Mr. Pollock-Yes, my Lord. Mr. Blade-I am appearing t oppose. The Chief Justice-What is the limit here? Hon Mr.ollock-£500,
The Chief Justice- I think it is usual in such cases to state the exact amount.
Hon. Mr. Pollock-How can we when the costs are not taxed yet? We can state what our own costs are. Our submission is that we should not have been deprived of costs. Our costs alone come to $4,500.
The Chief Justice-Of course you have a right to appeal to the Privy Council.
No question of the nature of the appeal arises."
Mr. Slade-Ob, yes, my Lord. Hon. Mr. Pollock-You cannot appeal to the Privy Council on the question of costs alone without appealing on the question of principle. We are therefore appealing on the question of
costs,
The Chief Justice-It seems to me the point might be taken that judgment might have been given for the plaintiffs, each party paying his own costs, and you could hardly appeal from
such decision.
Hon. Mr. Pollock-Oh, yes, my Lord. The Chief Justice-There is no use letting it go forward unless it is clear we
are on solid ground. Suppose the order had been that each party pay his own costs?
Hon. Mr. Pollock-We should not have appealed then it is purely on the question of principle.
The Chief Juslice-I suppose we must hear Mr. Slade.
Mr. Slade submitted that their Lordships had no jurisdiction in the case, arguing tha costs were not a matter at issue in a suitt but that they were only incidental to the matter at issue.
Hon. Mr. Pollock, in reply, pointed out that their Lordships gave appellants special leave to appeal to the council. Their case rested upon want of jurisdiction in the matter of cost.
Application adjourned for consideration.
THE BUILDING AUTHORITY V. PUNG CHUN YUKN.
Judgment on the appeal on the question for costs in this case was delivered. The appellant was represented by Mr. M. W. Slade, instructed by Mr. D. V. Stevenson (of Messrs. Deacon, Looker and Deacon), and the respondent, the Building Authority, by Hon. Mr. H. H. J. Gomperts, Attorney-General, instructed by Mr. G. E. Morrell, Crown Solicitor.
His Honour ssid :-
The question of costs in this case is narrowed to a very fine point. By the Code of Civil Procedure, section 368, costs may be given against the Crown in proceedings under the Code: and the first question is whether sitting to hear this appeal the Fall Court is sitting under the Code or not.
I think the Attorney-General has successfully established by "Exp Woodhall Beaman v. Burleigh," and other cases cited by him, that these are criminal proceedings, and that the Full Court is sitting as a Criminal Court of Appeal; but as section 368 is drafted it does not say costs in Civil proceedings may be given for or against the Crown; but lays down s general principle, and therefore the question is more properly stated as I bave put it, are we sitting under the Code of Civil Procedure.
CHINA OVERLAND TRADE REPORT.
through the references to Authority, in precisely the same way as the the Building Crown was mentioned in "Moore v. Smith" by the references to the Attorney-Generki, I think it must be so.
Let us see how the matter stands, By ss. 98 and following of the Magistrate's Ordinance 3 of 1890 appeals on points of law by way of case stated are allowed to the Fall Court: that is to say the Full Court as con. stituted by ss. 22 and following of the Supreme Court Ordinance 8 of 1873. Section 23 pro- judgment in R. v. Archbishop of Canterbury" There is an important passage in Wright's vides that appeals from the Magistrates shall be which throws some light on the que tion, and heard before the Full Court. But 8. 594 and it is of considerable authority when we bear following of the Code of Civil Procedure deals in mind that for some years Mr. Justice only with appeals from decisions of the Judges Wright was Junior Counsel to the Treasury hearing appeals from the Magistrates is sitting matters: of the Court; and therefore the Full Court in when he became very familiar with such under the Magistrate's Ordinance and not writ of mandamus when it is applied for by under the Code, and therefore s. 368 does not
"We express no opinion as to the
or against the officers of Executive departments apply.
of the public service in relation to their statutory or other duties."
The next point arises under the Interpreta- tion Ordinance 1897, s. 29 of which provides that no Ordinance, whether passed before or after the commencement of this Ordinance, shall bind the Crown, unless it is therein stated, or unless it appears by necessary smplication that the Crown is bound thereby,
It should be noticed that this provision does not appear in the English Interpretation Act,
The argument resolves itself into this: -The Crown bas no inherent right of appeal from Magistrate's decisions, and can only have a case stated in virtue of the
Magistrate's Ordinance: the Crown cannot take one part of the Ordinance and not the other: therefore the Crown must be bound by those other provisions of the Ordinance which enable the Full Court to give costs: i, e. s. 106. Therefore this is a case of necessary implication within the
meaning of the Interpretation Ordinance. Lord Campbell's judgment in the other judgments are not so clear on the point, "Moore v. Smith" supports this view, though
Attorney-General in one of the sections of the as there is a reference to a power given to the statute, and it was because of that reference that given against the Crown. Crompton J. said: the other judges thought that costs could be I am inclined to think that even without s. 4 the section in which the Attorney-General is referred to) the Crown would be within the provisions of . 6 (as to costs)". But be then proceeds to show that the Crown is certainly within 8. 6 because of 8. 4. There is nothing therefore but the inclination of his opinion.
"Thomas v. Prichard" is not too clear either. been impressed with the fact that in the because there again the Court seem to have Summary Jurisdiction Act 1848, there were and it was from this fact that they inferred the some sections in terms referring to the Crown,
to be in all cases under the Summary Jurisdiction implication or presumption that the Crown was Act bound by the provisions of the section as to costs.
"In R. v. Archbishop of Canterbury," there Archbishop, was a question of a writ of mandamus to the
which opposed as the rights of the Crown were the Attorney-General affected. No order was made for payment of costs to the Crown: the principle of the common law laid down by Lord Campbell C. J. in R. v. Beadle" that "the Crown never paid nor received costs" being acted upon in the case.
Then comes what I may call the indecision of the judgment The Court will ouly decide the question before it, and will express no opinion on other maiters, But as to them it may be said
on the statutes
one baud the fact that have been the payment of costs to the Crown in relation passed providing for to certain definite matters is "of some weight as an indication that express legislation was necessary in order to exclude the rule of common law. On the other hand, as incidental to department administration, there often be litigation which does not directly affect any prerogative of the Crown, and as to which no good reason can for the denial of costs to the successful party. be assigned And the case of "Moore v. Smith" this view."
supports
must
́R. v. Beadle" the standard case of reference is against the award of costs in the case of proceedings under a general statute with no reference to the Crown.
|
So much for the state of the law: as to the unsatisfactory nature of it I can only refer to Lord Campbell's judgment in the lettar❘
But then comes this question. Is not the Crown mentioned in this Building Ordinance
case.
7.
The grant of costs in such cases he thought cited above was as appears from the paragraph of this judgment
warranted by "Moore Smith, " and this seems to be approved in "Thomas v. Pritchard." Here the Building Authority is authorised to do many things on behalf of the Crown, and therefore wi hin the principle above enunciated, we think that order for costs may be made for and against the Crown.
Mr. Justice Wise-I concur.
given the Crown on the case stated, and costs against the Crown on the point of res judicata,
The Chief Justice added that costs would be
IN ORIGINAL JURISDICTION.
CHI WO AND CO.
บ.
the plaintiffs claimed 84,023, the amount of THE FUMIGATING AND DISINFECTING Buerau. Judgment was given in the action in which
Po" in ocusequence of her having on the night damage sustained by their steam launch " of October 21st, 1906, struck the hulk "Stanfield"
Hoi
Sir Henry Berkeley, K C., instructed by Mr. Master) appeared for the plaintiffs, and Mr. A. C. Jackson (of Messrs. Johnson, Stokes and M. W. Slade, instructed by G. K. Hall Bratton (of Messrs. Brutton and Hett) represented the defendants.
His Honour said:
The first question I have to decide in view of him is-Was the wreck of the "Stanfield" light- the Assessor's answers to the questions I put to
the plaintiffs must fail. ed or not? If this is answered in the affirmative
I therefore proceed to examine the statements on one side and the other.
the "Hoi Hau," said that he came across from For the plaintiff : Pang Cheung, the coxswain in command of Hongkong once a week to coal at Mong Kok, accustomed to see the red light on the "Stanfield" leaving Hongkong about 7.30 p.m., that be was that on the night in question he left for coaling at 7 45. He was steering, and knowing that he sailor to look out for the light. He didn't see was going in the vicinity of the hulk he told a
found no light on her and that he warned the the light, came into collision with the hulk, and "Hoi Ho" people about it. His description of the that it was low on the surface of the water : light which he says he saw on other nights was that he didn't know how it was carried, and not so high as a launch light,
:
Mr. Logan going in a launch to dine in the Volunteer camp
on Stonecutters, left Yaumati Ferry Wharf at 7 p.m. He said that he knew where the wreck was: it was almost in his course and that there was no light on her at 7.10. He is certain about it as he was almost to avoid her. on top of her and the coxswain had to swerte
gives the same version.
Mr. Kynock, who accompanied Mr. Logan,
To Kai, the coxswain of Mr. Logan's passed the hulk and there was no light on her: launch, says he left Yaumati at 7.15, that he and that returning from Stonecutters be passed again at 8.15 sud again saw no light. getting on the top of the hulk. He confirms the sheering off in order to avoid
оп
A Sam, the lookout man on the “Hai Haa look
says that the coxawain told him to none,
out for wrecks, that he 瑞寶
and wreck which was not lighted. He returned on that they weat
to the
the "Hoi Po," and being told to look out for wrecks and red lights did it, bat didn't see any: that they went slow, then quicker, and
No comments yet.
Private notes are available after approval.