ADMINISTRATI

VE LAW
ERNEST NG
PARKSIDE CHAMBERS
LLAW3903 - UNIVERSITY OF HONG KONG
INTRODUCTION

 Public and Private Divide & Procedural Exclusivity – the Rule: O’Reilly v Mackman [1983] 2
AC 237
 In Hong Kong: The Anderson Asphalt Ltd Case
 Exception to the Rule
 Plaintiff-specific: The Collateral Issue Exception
 Defendant-specific: The Collateral Issue Exception
 Civil Proceedings
 Criminal Proceedings
 Consent
THE RULE
THE STARTING POINT

 As a start, Admin Law applies to public bodies and does not concern private organization
and individuals. They are governed by different regime.
 However, not every decision of a public body is a matter of public law. Sometimes they
act in private capacity.
 Also, sometimes, a private entity may perform public function.
 It depends on whether there is sufficient ”Public elements”
PRACTICAL ROADMAP

Public Law matters Private Law matters

- O. 53 • The general body of Civil law
- Leave required • Leave not required
- Stricter time limits: 3 months (subject to • Longer time limits: 6 years, for example.
extension) • Use of Statement of Claim / OS or even
- Use of Form 86 and Affidavit Evidence trial of the matter
- Quicker, faster (usually) • Takes longer time (usually)
- Applicant bears full and frank duty of • General civil duties of disclosure
disclosure; Respondent bears duty of • Different remedies, such as damages
candour to disclose materials. • Claim / Defence as of right
- Public law remedies, discretionary
SOLUTION: SOURCE / FUNCTION

 Court developed two approaches to decide whether a decision falls within the ambit of its
supervisory jurisdiction
 First, the legal source of power exercised by the decision maker
 Second, whether there is no clear answer to (1), the Court may consider the
characteristic of the function being performed.
THE “SOURCE”

 Statutory power
 Presumed to be subject to JR: R v Panel on Take-over and Mergers exp Datafin Plc [1987] QB 815 at
p. 847
 Alternative view: R (Molinaro) v Kensington LBC [2001] EWHC 896 (Admin): sufficient but the
question is whether a “public law” ground of challenge can be made out.
 Monopolistic power (?)
 Consensual Agreement (?)
THE “FUNCTION”

 To consider all the criteria

 The “But-for” test: Whether, but for the existence of a non-statutory body, the government would
itself almost invariably have intervened to do or regulate the activity in question
 Whether the government has acquiesced or encouraged the activities of the body under challenge
by providing the “underpinning for its work, has woven the body into the fabric of public regulation
or the body was established under the authority of government
 Exercise of monopolistic power
 Whether consensual submission
 Public Funding
THE “DATAFIN” CASE: FACTS

R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815

 The Panel on Take-overs and Mergers was a self-regulatory organization set up to
administer the City Code on Takeovers and Mergers.
 It had a private, consensual mandate to protect shareholders. So if you want to participate
in and benefit from the securities market, you must abide by the Code (this is your choice).
 But the panel exercised immense power “de facto by devising, promulgating, amending
and interpreting The City Code on Take-overs and Mergers, by waiving or modifying the
application of the Code in particular circumstances, by investigating and reporting upon
alleged breaches of the Code and by the application or threat of sanctions.”
THE “DATAFIN” CASE: FACTS

 Datafin plc complained to the Panel on Take-overs and Mergers that the Panel had
incorrectly applied its own rules.
 The Panel dismissed this complaint and Datafin plc sought JR of the Panel’s decision.
 Can the Panel’s decisions be judicially reviewed, even though its powers are not
derived from statute?
THE “DATAFIN” CASE: FACTS

 Per Atkin LJ at p, 839

“…. [The Panel] is without doubt performing a public duty and an important one. This is clear from
the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the
field of take-overs and mergers and to use the panel as the centrepiece of his regulation of that
market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of
whom, may in a technical sense be said to have assented to this situation, e.g. the members of the
Stock Exchange. At least in its determination of whether there has been a breach of the code, it has a
duty to act judicially and it asserts that its raisin d'etre is to do equity between one shareholder and
another. Its source of power is only partly based upon moral persuasion and the assent of institutions
and their members, the bottom line being the statutory powers exercised by the Department of Trade
and Industry and the Bank of England. In this context I should be very disappointed if the courts
could not recognise the realities of executive power and allowed their vision to be clouded by the
subtlety and sometimes complexity of the way in which it can be exerted.”
THE “RIFLE ASSOCIATION” CASE: FACTS
Hong Kong Rifle Association and Hong Kong Shooting Association (No 2) [2013] 3
HKLRD 362
 The Hong Kong Shooting Association (HKSA) was an incorporated company and the sole
governing body of the sport of shooting in Hong Kong.
 Following a series of disputes, the Hong Kong Rifle Association (HKRA) ceased to be a
member of the HKSA and consequently, was required by the Government to vacate a
shooting range leased under a short-term tenancy.
 The HKRA sought leave to apply to JR the HKSA’s refusal to reinstate its membership.
 Does the HK Shooting Association’s decision not to readmit the HK Rifle
Association entail a sufficiently public element to render it amenable to judicial
review? Or is this really a private law matter?
THE “RIFLE ASSOCIATION” CASE: FACTS

 Held that it was not a matter of public law susceptible to judicial review.
 Noted that
 it was not in its origin, history, constitution or membership a public body.
 There was no public source for any of its powers.
 It did not exercise any governmental power, whether de facto or de jure . The power to decide
whether to admit or reinstate a member was derived from its memorandum and articles of
association, and was consensual and contractual in nature.
 It could not be said that in making the decision, the HKSA was exercising a public law function or its
decision had public law consequences.
THE “RIFLE ASSOCIATION” CASE: FACTS

 The right to operate the shooting range on government land, which had been terminated, had no
impact on the HKSA's power to admit or reinstate a shooting club as a member.
 In any event, the Government's policy regarding permission to use such land had no direct bearing
on the HKSA's power. Further, the grant or termination of the short-term tenancy was a matter of
private law.
THE ANDERSON CASE: PRINCIPLES SUMMARISED

 Andrew Cheung J (now the CJ) has summarized the principles at para. 57:
 (a) Only a decision made in the public law domain is amenable to judicial review.
 (b) Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature
of the functions that the decision-maker was performing when making the decision under challenge
that is of crucial importance.
 (c) In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or
a decision made in the performance of a purely commercial function, is most likely a private law
decision, not amenable to judicial review.
THE ANDERSON CASE: PRINCIPLES SUMMARISED

 (d) Put another way, the presence of a public element(s) of sufficient significance in the decision-
making process could turn an otherwise commercial decision into a public law decision, amenable
to judicial review.
 (e) What is sufficient is a matter of fact and degree, depending very much on individual
cases. No hard and fast rule can be laid down. It is, in a borderline case, very much a
matter of overall impression and one of degree […]
THE ANDERSON CASE: PRINCIPLES SUMMARISED

 (f) - (j): omitted.

 (k) This illustrates that the mere presence of some public element (namely, town planning
consideration) may not be sufficient to render the decision a public law decision. The crucial
question is whether some additional public element(s) of sufficient weight is/are present in the
decision-making process to render the decision made a public one, amenable to judicial review. Put
another way, the crucial question is whether the role played or function performed by the
Government official is sufficiently public to render the decision a public one, susceptible to judicial
review.
 (l) Again it depends on the facts, and in a borderline case, it is really a matter of overall
impression and degree.
THE RULE: O REILLY V MACKMAN

 General presumption of abuse of process:

 In general, it is presumed that using a private law procedure to vindicate public law
rights is an abuse of process (an attempt to avoid protection accorded to public bodies)
 See famous case of O’Reilly v Mackman, 1983, in which prisoners attempted to
challenge disciplinary decisions in private law action.
 See also High Court Ordinance (Cap 4); Order 53 of Rules of High Court (Cap 4A), both of
which require an application for judicial review if seeking the traditional public law
remedies (mandamus, prohibition, certiorari) or s. 21J injunction
 But there are exceptions to rebut the rule of procedural exclusivity!
THE EXCEPTIONS
COLLATERAL ISSUE
(PLAINTIFF)

 Articulated in O’Reilly by Lord Diplock at p. 285: -

“My Lords, I have described this as a general rule; for though it may normally be appropriate
to apply it by the summary process of striking out the action, there may be exceptions,
particularly where the invalidity of the decision arises as a collateral issue in a claim for
infringement of a right of the plaintiff arising under private law, or where none of the parties
objects to the adoption of the procedure by writ or originating summons. Whether there
should be other exceptions should, in my view, at this stage in the development of procedural
public law, be left to be decided on a case to case basis—a process that your Lordships will be
continuing in the next case in which judgment is to be delivered today [Cocks v. Thanet
District Council [1983] 2 A.C. 286].
COLLATERAL ISSUE
(PLAINTIFF)

 But, the question can be mixed.

 Recent example of Tang Shih Ying v City University Hong Kong [2013] 1 HKLRD 675
 X was employed by CityU. The University's Council had exclusive responsibility for setting the
terms and conditions of its staff, which were contained in inter alia an internal administrative
document entitled "Policies and Procedures on Redundancy". X sought to JR the decision not to
renew her employment contract on its expiry, arguing that it had made her redundant and failure to
apply the procedures set by the Council was tantamount to a breach of the Ordinance.
COLLATERAL ISSUE
(PLAINTIFF)

 Held that it was “not amenable”:

 52. […], I can find no public law element in her complaints that would make them
amenable to judicial review. In the present case the decision is essentially the decision by a
public body not to offer further employment to one of its employees upon the expiry of that
employee's contract of employment with the public body. […]. The Ordinance requires the
Council to set the terms and conditions of staff and the Council has done so. The applicant
complains that there has been a failure by the proper authorities, the President and his
delegates, to apply those terms and conditions to her. But even if true this decision does
not involve the University breaching a public duty placed upon the University or any
contravention of its governing ordinance. Had the complaint been that Council had failed to
perform its statutory duty of setting the terms and conditions of staff then there would
have been a public law element. But that is not the complaint here. […].
COLLATERAL ISSUE
(PLAINTIFF)

 “53. Thus, in my view, on any analysis there is no public law element in the applicant's
claim. If the test of statutory underpinning is employed then no such statutory
underpinning can be found for all that is complained of is that there was a failure to comply
with internal procedures. If the test of the nature of the public function being discharged is
employed then all that is revealed is that an employer made a purely private law decision
not to renew the contract of one of its employees, a decision which may have been taken
by the employer in non-compliance with its own internal procedures but which was not
made in contravention of or in non-compliance with any of the statutory provisions of its
ordinance. If the test is whether a breach of a public duty is involved in the University's
treatment of the applicant then the answer is also "no".”
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Primarily developed in the English decision of Wandsworth London Borough Council v

Winder [1985] AC 461.
 Council brough action for non-payment of rent
 D raised the argument that certain resolutions and notices of increase in rent were
unreasonable / ultra vires..
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Per Lord Fraser at p. 507 onwards: -

“…Lord Diplock was careful to emphasise that the general rule which he had stated in the
previous paragraph might well be subject to exceptions. The question for your Lordships is
whether the instant appeal is an exception to the general rule. It might be possible to treat
this case as falling within one of the exceptions suggested by Lord Diplock, if the question of
the invalidity of the appellants' decision had arisen as a collateral issue in a claim by the
respondent (as defendant) for infringement of his right arising under private law to continue
to occupy the flat. But I do not consider that the question of invalidity is truly collateral to the
issue between the parties. Although it is not mentioned in the appellants' statement of claim,
it is the whole basis of the respondent's defence and it is the central issue which has to be
decided. The case does not therefore fall within any of the exceptions specifically suggested
in O'Reilly v. Mackman [1983] 2 A.C. 237 .”
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Per Lord Fraser at p. 508 onwards: -

“Although neither O'Reilly nor Cocks [1983] 2 A.C. 286 is an authority which directly applies
to the facts of the instant appeal, it is said on behalf of the appellants that the principle
underlying those decisions applies here, and that, if the respondent is successful, he will be
evading that principle. My Lords, I cannot agree. The principle underlying those decisions, as
Lord Diplock explained in O'Reilly [1983] 2 A.C. 237 , 284, is that there is a "need, in the
interests of good administration and of third parties who may be indirectly affected by the
decision, for speedy certainty as to whether it has the effect of a decision that is valid in
public law.”…”
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Per Lord Fraser at p. 509 onwards: -

“It would in my opinion be a very strange use of language to describe the respondent's
behaviour in relation to this litigation as an abuse or misuse by him of the process of the
court. He did not select the procedure to be adopted. He is merely seeking to defend
proceedings brought against him by the appellants. In so doing he is seeking only to exercise
the ordinary right of any individual to defend an action against him on the ground that he is
not liable for the whole sum claimed by the plaintiff. Moreover he puts forward his defence as
a matter of right, whereas in an application for judicial review, success would require an
exercise of the court's discretion in his favour. Apart from the provisions of Order 53 and
section 31 of the Supreme Court Act 1981 , he would certainly be entitled to defend the
action on the ground that the plaintiff's claim arises from a resolution which (on his view) is
invalid: […]
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Per Lord Fraser at p. 509 onwards: -

“I find it impossible to accept that the right to challenge the decision of a local authority in
course of defending an action for non-payment can have been swept away by Order 53,
which was directed to introducing a procedural reform. As my noble and learned friend Lord
Scarman said in Reg. v. Inland Revenue Commissioners, Ex parte Federation of Self Employed
and Small Businesses Ltd. [1982] A.C. 617 , 647G "The new R.S.C., Ord. 53 is a procedural
reform of great importance in the field of public law, but it does not - indeed, cannot - either
extend or diminish the substantive law. Its function is limited to ensuring 'ubi jus, ibi
remedium."' Lord Wilberforce spoke to the same effect at p. 631A. Nor, in my opinion, did
section 31 of the Supreme Court Act 1981 which refers only to "an application" for judicial
review have the effect of limiting the rights of a defendant sub silentio. […]
COLLATERAL ISSUE
(DEFENDANT, IN CIVIL PROCEEDINGS)

 Points to note and issues to consider: -

 D’s choice as to the procedure
 Whether D should be given the freedom to “wait and see”
 Whether this could “cure” the invalidity
 Wider public interest not to have an “invalid” decision stand as “valid” beyond the O.
53 Regime
 Disproportionate burden / duty on ordinary citizen to take out JR
COLLATERAL ISSUE
(DEFENDANT, IN CRIMINAL PROCEEDINGS)

 Boddington v. British Transport Police [1998] 2 All ER 203: -

 the appellant had smoked a cigarette in a carriage of a train designated non-smoking. Question
was whether he was, in his defence, entitled to challenge the transport authorities designation of all
carriages in the train as non-smoking as ultra vires.
COLLATERAL ISSUE
(DEFENDANT, IN CRIMINAL PROCEEDINGS)

 Held that: -
 That a defendant was entitled to challenge, by way of his defence to a criminal charge of breaching an
administrative order, the validity of that order.
 But that in certain instances there may be qualifications upon his right to do so. Those qualifications may
include a construction of the legislation which clearly prohibited a defendant from raising a defence in public
law. Such a construction may be supported where there are other avenues available to the defendant to
appeal the administrative order prior to any breach of it coming into being.
 The appellant there was entitled to raise a defence based upon the unlawfulness of the transport authorities'
order - there was no real opportunity for the defendant to challenge the order by way of any appellate process
or prior approach to the courts to question the legality of the authorities' prohibition before he had actually
committed and been charged with the offence.
COLLATERAL ISSUE
(DEFENDANT, IN CRIMINAL PROCEEDINGS)

 Applied in HKSAR v The IO of No. 10 Bonham Strand & Anor HCMA 239/2004 (28th May
2004):
 The appellants were convicted on summons for failing to comply with directions issued by the Director of the Fire Services
("the Director") in relation to fire safety. The fact of non-compliance was not disputed. Each appellant was fined upon its
conviction after trial
 Appeal on inter alia that Director wrongly exercised his discretion to issue the relevant directions.

 Held that the defence was not available to them, Court observed that (i) the D had reasonable opportunity to challenge the
initial decision of the Director and (ii) it would allow consistency of decisions – as it is not a party to the criminal proceedings
(iii) it was not the legislature’s intent to allow such a defence as the law provide for strict liability subject to “reasonable
excuse” defence
CONSENT

 Articulated in O’Reilly by Lord Diplock at p. 285: -

“My Lords, I have described this as a general rule; for though it may normally be appropriate to
apply it by the summary process of striking out the action, there may be exceptions, particularly
where the invalidity of the decision arises as a collateral issue in a claim for infringement of a
right of the plaintiff arising under private law, or where none of the parties objects to the adoption
of the procedure by writ or originating summons. Whether there should be other exceptions
should, in my view, at this stage in the development of procedural public law, be left to be
decided on a case to case basis—a process that your Lordships will be continuing in the next case
in which judgment is to be delivered today [Cocks v. Thanet District Council [1983] 2 A.C. 286].”
 Example: Lee Miu Ling & Anor v the Attorney-General CACV 145/1995 (24.11.95)
 Action commenced
CONSENT

 Practically rare.
 Example: Lee Miu Ling & Anor v the Attorney-General CACV 145/1995 (24.11.95)
 Action commenced by OS (not JR) re constitutionality of functional constituencies
 Litton VP doubted why it was commenced by OS but not JR, thus potentially avoiding scrutiny re
standing (at §§55-57).
 Example: Lau Chi Fai & Anor v The Secretary for Justice & Another [1999] 2 HKLRD 494
OTHER EXCEPTIONS?

 Articulated in O’Reilly by Lord Diplock at p. 285: -

“My Lords, I have described this as a general rule; for though it may normally be appropriate
to apply it by the summary process of striking out the action, there may be exceptions,
particularly where the invalidity of the decision arises as a collateral issue in a claim for
infringement of a right of the plaintiff arising under private law, or where none of the parties
objects to the adoption of the procedure by writ or originating summons. Whether there
should be other exceptions should, in my view, at this stage in the development of procedural
public law, be left to be decided on a case to case basis—a process that your Lordships will be
continuing in the next case in which judgment is to be delivered today [Cocks v. Thanet
District Council [1983] 2 A.C. 286].”
OTHER EXCEPTIONS?

 “unwieldy discovery”
 “complicated issues of facts”
 “Remedy sought inappropriate”
 Others?
FINAL NOTES

 O. 53 r. 9
 “(5)Where the relief sought is a declaration, an injunction or damages and the Court
considers that it should not be granted on an application for judicial review but might have
been granted if it had been sought in an action begun by writ by the applicant at the time
of making his application, the Court may, instead of refusing the application, order the
proceedings to continue as if they had been begun by writ; and Order 28, rule 8,
shall apply.”