A. Procedural exclusivity
Local case law has established that as a general rule, public law issues are required to be ventilated by way of judicial review. This is the rule of “procedural exclusivity”. In O'Reilly v Mackman [1983] 2 AC 237, the House of Lords established that generally it would be contrary to public policy, and as such an abuse of the process of the court, to permit a claimant challenging a decision of a public authority and the alleged rights infringements by way of ordinary action.
Allowing such action would provide means for the applicant to evade the provisions of Order 53 of the Rules of the High Court (Cap. 4A), and thereby forfeit protection towards such authorities.
The rule in O'Reilly was recognised by the Hong Kong courts since at least the 1990s. As held by Ma CJHC in Leung v Secretary for Justice [2006] 4 HKLRD 211, the procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave affords a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual are outweighed by public interest.
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