Cases:

Exclusivity principle:
The principle that a remedy for a public law matter should be pursued only through
the application for JR. / the private law matters should not be the subject of an
application for JR
The House of Lords held in O'Reilly v Mackman [1983] 2 AC 237 that where public law
rights were at stake, the claimants could only proceed by way of judicial review. They
could not originate their action under the general civil law procedure,
because that would be avoiding the procedural safeguards afforded to
public authorities by the judicial review procedure, such as the requirement of
sufficient interest, timely submission and permission for judicial review. However, a
defendant may still raise public law issues as a defense in civil proceedings.
So for example, a tenant of the public authority could allege illegality of its decision to
raise the rents when the authority sued him for failing to pay under the tenancy
contracts. He was not required to commence a separate judicial review process
(Wands worth London Borough Council v Winder (1985)). If an issue is a mix of private
law rights, such as the right to get paid under a contract, and public law issues of the
competence of the public authority to take the impugned decision, the courts are also
inclined to allow the claimant to proceed using ordinary civil procedure, at
least where it can be demonstrated that the public interest of protecting authorities
against frivolous or late claims has not been breached (Roy v Kensington and Chelsea
and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye
Pension Fund v Sheffield City Council (1997)).

1. OReilly v Mackman :
Following a prison riot, certain prisoners were sentenced to a period of solitary
confinement and loss of early release by the Prison Board of Visitors. The prisoners
commenced an ordinary action for a declaration that the decision was ultra
vires because inter alia they had not been given a fair hearing. The House of Lords
struck out the pleadings. They held that, given the improvements made to the
judicial review procedure in the 1978 Reforms, and the safeguards of that
procedure for the administration, it would normally be an abuse of process
for the court to allow an ordinary action, rather than judicial review, to be
pursued by a person seeking to establish that a decision of a public
authority infringed rights protected by public law.

2. Sit Ka Yin Priscilla v Equal Opportunities Commission

Cotractual employment vs public authorities
Commentary:

Apllicants seeking to challenge an executive act or decision must be sure that they
make their claim by means of the apprioate process.
Public law: JR ; Private law ordinary procedure(by writ or originatinf summons)
Otherwise: a abuse of process
The governemt may need to take care of various aspects, and balance the interest of
different stakeholders. It may scrutiny the merits of the policy, instead of following the
precedents. Judicial review is particularly important for the public authorities to gain
flexibility.
There comes before the High court a case which has obvious merit, the court can
there and give leave and treat the material which is before is as fulfilling the
procedural requirement of an application for judicial review.
The exclusivity principle should not be rigidly applied that it serves to block worthy
challenges to the decisions and actions of public authorities.
3. Cocks c Thanet District Council
Held: where the actions impugned the authoritys performancee of its statutory
duties as a pre-condition to enforcing private law rights, the correct way was to
do so within judiial review proceedings. The authoritys decision could not be
chllenged by an ordinary action the House attacted particulart imortance to the
prtection givent to publich authorities by Order 53 of the Rules of the Supreme
Court to the extent that leave to bring proceedings was requied and a time limit
imposed subject to good reason for extending.
Exceptions to exclusivity principle
4. Davy v. Spelthorne Borough Council
Facts: A public authority negligently advised Davy over his rights regarding a
planning permission application
Issue: Could a local authority be subject to a private law action
Decision: Yes
Reasoning: Negligent misstatements do not concern public law rights,
therefore claims may be bought in private law
5. Lau Wong Fat v. Attorney General [1997] HKLRD A15
the applicant challenged the constitutionality of the New Territories Land
(Exemption) Ordinance. The proceeding was commenced by writ and the court
held that that was the wrong procedure. It was held that where a person
seeks to establish that the decision of a person or body infringes rights
which are entitled to protection under public law, he must, as a general
rule, proceed by way of judicial review and not by way of an ordinary
action. However, no further action was taken by the applicant.
6. Lau Chi Fai v Secretary for Justice & Anor

it depends on the decision of the autority:

if the authority fails or refuses to create private law rights for the employee
pulic law the employee will have public lawright to compel compliance.
If the authoriry gives the emplyee the requied contractual protection, private
law give rise to no adminstraive law remedies.
Commentary:
a. mutual consent of the parties:
The O53 prcess dpes not have to be the sole reoute for raising a public
law chllenge if both parties mutally consent to a different process. (Lee
Miu Ling v Attorney-General)
The public authority could choose not to enjoy the protections offeredd by
the O53 procedure
The mutual consent of the parties alone would have still overriddent the
exclusivith principle.
b. Collateral public law right:
an individaul may not have to proceed through O 53 if there are private
rights as well as public rights engaged.
Cocks c Thanet District Council
The court has exercised its discretion to allow a plaintiff to continue in a
private law proceeding rather than enforcing proceedings by was of O53.
Roy v Kensington & Chelsea & Westinster Family Practitioner Commitee
The respondent had withheld part of the plaintiffs medical practise
allowance saying that he had failed to devote himself full time to his
practice. The plaintiff sued, and the defendant sought to strike out his
application, saying that his application had to be by way of public law
action through a judicial review.
Held: The fact that the defendants decision was a public law act did not
prevent the plaintiff pursuing his rights in private law and that could be by
way of ordinary action. The plaintiff had a relationship with the committee
which established private law rights. The rule of procedural exclusivity
does not apply where a defendant in a civil case simply seeks to defend
himself by questioning the validity of a public law decision.
The fact that it was the doctors private law rights, whether contractual or
not, which were in question meant that he would be allowed to sue in
private proceedings to protect those right
1. The public law element is not a condition precedent to the existence of
the private law right
2. There is no intention on the part of the applicant to evade O53

Then the public law matter might permissibly be raised as a collateral

issue under private law proceedings.

c. The dominant right: public law or private law?

Roy v Kensington & Chelsea & Westinster Family Practitioner Committee
it was not an abuse of process to sue in contract for statutory where the
public law element was not dominant
conversely, where the court identifies that the remedy being claimed
derives solely from a public law right, then even if the action engages
rights traditionally conceived of as private law rights, the exclusivity
principle still applies.
public action does not lose its public charater merely because it involves
interference with private rights and freedoms
essential factor: degree of overlap and the precedence of the right
the exclusivity principle will not apply where the public law matter is
raised as a defense to a provate law proceeding
d. The exclusivity principle will not apply where the public law matter is raised as a
deference to private law proceeding
e. use exclusivity principle in the criminal law
public law challenge to the calidity of the relevant legal provision may be raised
as a defence to a criminal chatfe in specific circumsances:
1. clear connection between the legal provsion which is being challenged by the
defendant and the offence with which the defendant is charged.
2. Must not be any express statutory language forbidding a defendant from
raising such challenge
What is a public lawmatter?

R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB

815:
The Court of Appeal allowed an application for judicial review (which
ultimately failed) against the Panel on Take-overs and Mergers, a nongovernmental body overseeing the conduct of company take-overs in
the City of London. The Court of Appeal refused to tie susceptibility to
judicial review exclusively to the source of a bodys power in statute or the
prerogative. Instead the court focused on the need for a public element
(838). This element was found on the facts since the Panels source of
power was not simply consensual submission to its jurisdiction; it was in
fact operating as part of the government framework, it was
supported by a periphery of statutory powers and penalties, and it
provided no possibility of private law redress.
Even it is not a government body, but since it is operated in the
government framework, acting as a role of government authourities, it is
still subject to JR

Rank Profit Industries Ltd v. Director of Lands

Held that: (a) The mere fact that a decision relates to Crown lease, which
should be governed by the law of contract, is not decisive on the
reviewability of this decision. The true question is whether the making
of a particular decision amounts to the performance of a function
within the public domain. For example, a threat of future action
(note: the Court has not elaborated further on what this term refers to)
may constitute a reviewable act.
(b) Whatever the position might be in other jurisdictions, it has been
settled law in Hong Kong that, in deciding whether to grant or withhold its
consent to a modification of the terms of a lease, the Government did
not exercise a public law function but acted in its private capacity
as landlord.
(c) The Director of Lands, in negotiating modification of the lease
agreement, was not acting pursuant to specific statutory authority Hence,
the basis of negotiation was contractual and the parties were at liberty
to make or reject any offer of amendment.
(d) Article 7 of the Basic Law should not be read to mean all lease
agreements entered into by Government were governed by public law
principles.

Anderson Asphalt v Secretary for justice

issue is whether the decision of Director of Lands to grant a short term

waiver and not to terminate the same are amenable to judicial review.
Below is a summary of the judge's views.
Not every decision of a government official is amenable to judicial review.
It is important to look at the functions which the official was
performing in making the decision sought to be challenged in order to
determine whether the decision is reviewable. Hence, it is important to
ask what functions the Director was performing when deciding to grant
the short term waivers, and when deciding not to terminate the same.
It is well settled that in lease modification cases, the role played by the
Director of Lands was merely that of a government land agent,
acting as a landlord, and hence not amenable to judicial review.
The mere presence of an element of planning control in the decisionmaking process is not in itself sufficient to turn a decision on lease
modification into a public law one, amenable to judicial review. The
crucial question is whether some additional public elements of sufficient
weight are present in the decision-making process to render the decision
made a public one.
Looking at the role played by the Director in granting a short-term waiver,
the Director's role and function are essentially private in nature and
hence the resulting decision is not amenable to judicial review.

CHAU TAM YUET CHING V DIRECTOR OF LANDS

The licensee (X) of two Government land licences (GLLs) sought to

judicially review the decisions of the Director of Lands to: (a) cancel the
licences for failing to rectify breaches of the terms (the First Decision);
and (b) to issue a notice under the Land (Miscellaneous Provisions)
Ordinance requiring cessation of occupation of the land (the Second
Decision). X argued that the GLLs were to be determined statutorily.

The lower court dismissed Xs application and refused leave for

challenging the Second Decision as there was no independent ground of
challenge. X appealed, arguing that inter alia, the Ordinance enabled the
Government to recover possession of land without a court order in breach
of Xs right to a fair hearing under the Hong Kong Bill of Rights.
Held, dismissing the appeal, that, inter alia:
Decisions to grant and cancel a licence for the occupation of unleased
land were not reviewable as they were commercial decisions guided by
the interest of the Government as landowner or landlord. They were also
governed by the private law of contract or land law. The mere
existence of some public interest considerations in the decision-making
process did not per se render it amenable to public law remedies.
There was no infringement of Xs right under Article 10 of the Bill of
Rights. Here, X accepted that there was no viable private law challenge to
the First Decision; she had not pursued such a route not because of a lack
of access to court, but due to a perceived lack of merit in such a
challenge.
Commentary:
What is a public law matter? From the source of powertest to the function test?
source of powertest
if a decision maker has exercised powers which has as their source a statory
provision a public law matter JR
if a decision maker exercised power granted to him by contract then no JR
if there is another public element present in the challenge, such as thedecisomaker fulfilling a public function then the source of power may no longer bet
he sole determinative test in relation to JR
functional test
if the decision under challenge is made in pursuit of a function which can be
said to be a public fucntion, then the decision under challenge is a public law
matter and amenable to review.
No universal test
Each case will depend on its own facts.
Not all decisions of public authorities should be governed by public law
principles
First is to examine the source of an authoritys power.
If the formal source of power is not determinative, then it is examined the
function being exercised by that public authority
Thus, today court will consider both the source of the power being exercised and
the fuction being fulfilled by the decision-maker. Firsy is the source of
powertest, there mist be a link between the statutory source of power and the
decision being taken. If there is no obious source of power, the the court will
look at the functin being fulfilled. And if the fuction is a public fuction then the
decision under chalenfe will be amenable.
The statutory source of a decision-maker;s pwer may not be sufficient to render
his decision amenable to review if the decision he is making is not related to the
main function for which thouse poers were conferred on him. consider source
of power and the fuction filfilled by making the decision.

If the function performed under the decision is merely incidental or ancillary to

the main or substantive statutory function of the public body, it is less likely that
the decision is amenable to JR
The court will look t both the power exercised us statutory power, as well as
whether the decision under the challenfe is a consequence of the particular
statutory power conferred on the decision-maker
function test sufficeinet public element
Wan Yung Sang v Housing Authority [2011] H.K.E.C. 907
Amenability to review is based on there being sufficient public element to the
decision under challenge
A commercial decision, if undertaken by a statutory body, would not usually be
amenable to review. However, where there is fraud, corruption bad faith or
breach of law, then the courts have indicated a willingness to find the decision
amenable to review.

What generally is not a :oublic law matter?

1. Commercial or contractual transaction
Although the decision maker may be a statutory body, exercising what are
broadlu public functions if the particular decision being challenged fall within a
commercial or contractual aspect of the decision makers function, private
law function
2. Emplyment contracts
the employer is a public body will not be sifficient to make a decision regarding
emplyment amendable to JR the source of power being exercised is not the
statutory power conferred on the bodu bu thte contract unreviewable
it is nor sufficient enough to inject the necessary :public elementinto the
decision which the applicant sought to have reviewed.
The state as Landlord
Hang Wah Chong Investment Co. Ltd. v Attorney-General
When thte state is exercising powers to achieve interest which are held in
common with private landloard the state is then acting in private domain
not JR
However, in Wan Yung Sang v Housing Authority, thd goal of making proper use
of limited publuc resources may be a sufficient public element to render a
decision arising from landlordc contractual function one which is reviewable.
In Wong Wai Hing v Director of Lands (recovering possession of land in order to
build public housing development), the exercis of power went beyong that of a
private landlord and so there was a sufficient public element to the
government;s decision, therefore JR
3. Monopoly power
because the decision-maker has a monopoly over the area of activity in which
the challenged decision located is not sufficient to render the decision public in
nature
the extent of monopoly power exerciese is not equal to public element
Key to determine whether a public function is being fulfilled

but-for test
the test consider whether, but for the existence of the decision maker carrying
out its function, the government would itself have introduced legislation to
regulate the area in question.

it require the court to engage in hypothetical considerations of what the

government might have done, nut not actually done.
The integration test
Requires the court to look at the context eithin which the decision making body,
and the specific funtion it fulfills, are locate.
more compelling