TOMORROW FINANCES LTD v. DIRECTOR OF FIRE SERVICES

TOMORROW FINANCES LTD v. DIRECTOR OF FIRE SERVICES

The court refused leave because none of the grounds were reasonably arguable: the FHANs were lawful and proportionate measures within the DFS's wide discretionary and technical expertise, the alleged alternatives did not render the measures manifestly without reasonable foundation, there was no implied duty to consult or to give reasons in the circumstances, and the applicant's belated attempt to re-amend Form 86 was disallowed for delay and prejudice; accordingly leave to apply for judicial review was refused and costs were awarded on a nisi basis.

Citation
[2019] HKCFI 3025
Parties
Applicant: Tomorrow Finances Limited; Putative Respondent: Director of Fire Services
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 December 2019
Case Number
HCAL1467/2018
Procedural Posture
Judicial Review Application for Leave / Leave Hearing and Decision Refusing Leave
Outcome
leave refused
Legal Topics
Proportionality, Wednesbury Unreasonableness, Fettering of Discretion, Procedural Fairness (duty to Consult; Duty to Give Reasons), Ultra Vires, Case Management and Amendment of Grounds, Fire Safety Regulation
Source Language
EN
Constitutional Law Administrative Law Public Law Regulatory Law Property Law Proportionality Wednesbury Unreasonableness Fettering of Discretion +4 more

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Parties

Tomorrow Finances Limited

Applicant

Director of Fire Services

Putative Respondent

Procedural Posture

Judicial Review Application for Leave / Leave Hearing and Decision Refusing Leave

Legal Issues

  1. 1 whether Fire Hazard Abatement Notices (FHANs) infringed Basic Law Articles 6 and 105 (right to use of property) and whether any infringement was justified by proportionality
  2. 2 whether FHANs were illegal or irrational (fettering discretion, Wednesbury unreasonableness, failure to take into account relevant considerations)
  3. 3 whether there was a common law duty to consult or to give reasons in issuing FHANs

Ratio Decidendi

The court refused leave because none of the grounds were reasonably arguable: the FHANs were lawful and proportionate measures within the DFS's wide discretionary and technical expertise, the alleged alternatives did not render the measures manifestly without reasonable foundation, there was no implied duty to consult or to give reasons in the circumstances, and the applicant's belated attempt to re-amend Form 86 was disallowed for delay and prejudice; accordingly leave to apply for judicial review was refused and costs were awarded on a nisi basis.

Court Disposition

leave refused

Orders

  • Application to re-amend Amended Form 86 to add two new grounds dismissed
  • Leave to apply for judicial review against Subject FHANs refused