M E M O
|To||: ||Members of the Bills Committee
|From||:||Bernice Wong, ALA1
|Tel|| :||2869 9204
|Date||:||10 March 1998
Land (Compulsory Sale for Redevelopment) BillAddition of Secretary of Justice as a defendant (Clause 3)
1.The Law Society recommends that a copy of the application be served on the Secretary for Justice in Clause 3. This proposal is based on sections 3A and 3B of the Partition Ordinance (Cap. 352). The Bills Committee wishes to know whether the Lands Tribunal has the power to appoint an amicus curiae i.e. a friend of the court to advise the court on matters of law if no express provision is made in the Bill.
Distinction between an amicus and an intervener
2.The role of SJ as an intervener (i.e. joining as a party and raising matters of public interest) is different from an amicus curiae (i.e. friend of the court). As an amicus, the duty of the SJ (or any other person as the court may grant leave) is to assist the court in the capacity of an adviser by drawing to its attention legal authorities that might otherwise be overlooked. An amicus is not an adversary in the proceedings. As an intervener, the SJ is entitled to tender evidence, cross examine witnesses and appeal the judgment in the same manner as if he were an original party to the suit.
Adams v Adams (Attorney-General intervening)  (divorce division)
3.SJ has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown including its relation with foreign states. In such circumstances, he will have locus standi at the invitation of the court or with leave of the court.
4.He also has a right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court. Public policy is a matter of which the courts take direct judicial cognisance, and where the law is doubtful or the considerations of public policy is in dispute, the view of the executive may be of value to the court.
Sections 3A and 3B of the Partition Ordinance (Cap. 352)
5.Sections 3A and 3B were inserted by the Partition (Amendment) Ordinance 1987 (19 of 1987). The Ordinance when first enacted in 1969 provided for the Crown to be a necessary party to any partition proceedings (old s 3(3)).
6.The amendment was a result of a review prompted by a court case where the AG's costs in appearing were disallowed by the trial judge on the basis that the Crown's involvement had been unnecessary. The review reached 2 conclusions :
- experience has shown that few issues of concern to the Crown arise in partition actions;
- the right for the AG to intervene in the public interest can be reserved in another manner.
7.Following amendments introduced in 1987, parties no longer need to join the Attorney General as a matter of course. The public interest and the interest of the Crown is protected by a new mechanism. The Director of Lands is to be served with certain documents in the proceedings and given the right to inspect all such documents filed in court as if he were a party. If at any stage the Director intends to seek advice on any matter he may stay the proceedings for at least 14 days by filing a memorandum in court. If the Crown decides that it should be represented in the proceedings, the Attorney General may join as a party. From then on, the Attorney General would have to be served with all the documents required to be served on the Director.
8.In considering whether an express provision similar to that in the Partition Ordinance should be added, members are deciding as a matter of policy whether the SJ is entitled to intervene on its own initiative or only at the invitation of the Tribunal.