Law Hau Yu v Master J Wong
Court of First Instance
Constitutional and Administrative Law List No. 46 of 2016
Andrew Chung J in Chambers
12 August 2016

Judicial review – role of inferior tribunal – whether should appear at judicial review application – whether “neutral” stance appropriate

P brought proceedings claiming entitlement to the credit balance in the bank account of the deceased (“X”), claiming she had cohabited with him before his death and that he had died intestate with no family. P applied for leave to apply for judicial review of a direction by the Probate Master that X’s estate be joined as a defendant in the proceedings (the “Direction”), on the basis that not being an incorporated entity, it could not be joined as a defendant. At the inter partes hearing, the Department of Justice (the “DoJ”) appeared for the Master as the putative respondent, but adopted a neutral stance. P indicated that she would proceed by r. 62(1) of the Non-contentious Probate Rules (Cap. 10A, Sub. Leg.) which provides that “Any person aggrieved by a decision of the Registrar may appeal by summons to a judge”, but sought to adjourn the application sine die with liberty to restore.

Held, dismissing the application, that:

  • The application was inappropriate. There was no complaint of unfairness, bias, procedural injustice or the like against the Master. Accordingly, it should have proceeded by way of a r. 62(1) appeal rather than judicial review. Further, such an appeal would fully dispose of P’s complaint and whatever the result, this application would be unnecessary.
  • As for the role of the DoJ, there was no inflexible practice for an inferior tribunal not to appear at a judicial review application. Whether this was appropriate depended on the circumstances. Here, these included that: (a) although the application was commenced by judicial review, it was in truth in the nature of an appeal; (b) on the materials adduced, there was at present no other party to serve, or who would appear to oppose it; (c) the Direction did not determine the final outcome of P’s application for grant of representation; and (d) the Master had given no reason for the Direction.
  • Moreover, in light of s. 4(9) of the Intestates’ Estates Ordinance (Cap. 73), the Government might have a legitimate interest in the estate in its own right and might be an “interested party”. The DoJ should therefore have adopted a stance other than “neutral” in order to: (a) provide assistance to the Court concerning the circumstances leading to the Direction (including any relevant general practice of the probate registry); (b) appear for the Master and advance reasons (if any) for the Direction; and (c) appear for the Government and advance its case (if any).
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