Tan Shih Ying v. City University of Hong Kong

HCAL 36/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 36 OF 2012

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BETWEEN

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Before: Hon McWalters J in Court

Dates of Hearing: 17 August 2012

Date of Judgment: 7 December 2012

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J U D G M E N T

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Introduction

1.On 19 March 2012 the applicant applied for leave to judicially review a decision by City University of Hong Kong (“the University”) communicated to her on 23 December 2011.

2.Leave was granted to the applicant to apply for judicial review on 17 May 2012.  The application for judicial review was heard on 17 August 2012 at which time the applicant applied to amend the Form 86 in respect of both the decision being reviewed and the grounds of review.  I heard argument on both the application to amend, which was opposed, and the application for judicial review, as amended.  I reserved my decision.  This is my judgment.

The Decision Being Reviewed

3.The applicant was employed by the respondent on a 3-year contract commencing on 8 December 2008 and ending on 31 December 2011.  In September 2011 she was informed that at the end of her contract she would not be re-appointed. At the time that leave was granted the essence of her complaint was that the decision not to re-appoint her was not lawfully made as it did not comply with the provisions of The City University of Hong Kong Ordinance, Cap 1132 (“the Ordinance”) or with the proper procedures of the University.

4.The applicant’s case at the leave stage was that the University is a statutory body which can only act in accordance with the provisions of its creating and governing ordinance.  Under those provisions the decision to re-appoint the applicant is a decision which only the President of the University has the authority to make.  When her contract came to an end and she enquired who made the decision not to re‑appoint her she was informed it was the Provost.  She maintained that the Provost was not vested with the authority to make the decision in respect of her re‑appointment and in doing so, was acting ultra vires.

5.The Ordinance creates a statutory framework which regulates the University’s performance of its duties and exercise of its powers, one of which is the appointment of staff.  The statutory framework provides that employees may be appointed by the Council or the President, if so delegated, or by the President’s delegate.  Thus the applicant’s claim at the leave stage was based on an allegation that a public body was acting unlawfully in the exercise of its statutory powers in its dealings with its staff.  That is, it was actually breaching the provisions of its governing ordinance in the course of making the decision not to renew the applicant’s contract.

6.Now the applicant accepts that the decision not to re-appoint her was in fact made by the President and so she has had to reformulate her claim in respect of the illegality of the respondent’s actions.  Those actions were illegal, she now seeks to argue, because the respondent, acting through the President and Provost, did not deal with the issue of her re‑appointment correctly in that it did not apply to her an internal document of the University called “Policies and Procedures on Redundancy” and dated 12 April 2006.  In order to provide a statutory underpinning to the respondent’s misconduct it is said that its failure to deal with the applicant in accordance with this internal administrative document is equivalent to or tantamount to, a breach of sections 13(4)(a) and 15(2)(a) of its ordinance.

7.Consequently at the hearing of this application the applicant applied for leave to amend the Form 86 so that the decision being judicially reviewed reads as follows:

“The decision of the President of City University of Hong Kong (“the President”) on 28 September 2011 to endorse the recommendation by the Provost of the University not to invite the applicant to apply for reappointment.”

8.The amended grounds on which relief is sought are as follows:

“1. There has been a breach of a statutory duty and/or procedure.

2. There has been an unlawful delegation of statutory duties.

3. The decision was not authorised by any power.

4. There was a duty to apply the policies and procedures of the University; such duty was breached.

5. There was a duty of procedural fairness to apply the policies and procedures of the University; such duty was breached.

6. There was a legitimate expectation that the University would apply its policies and procedures; such legitimate expectation was defeated.

7.    That the Applicant’s employment contract with the University contained implied obligations: the University would not act in a manner that was likely to destroy or seriously damage the relationship of trust or confidence between the University and the Applicant, and that the University would observe natural justice.  The University breached such implied obligations, causing the Applicant loss and damage.  Further or alternatively, that the University breached its statutory duties which caused the Applicant loss and damages.”

9.The application to amend was opposed by the respondent who argued that the effect of the amendment was to apply for judicial review on a completely different basis to that on which leave was granted and furthermore the amended application did not contain the necessary public law element.

10.In her oral submissions counsel for the applicant abandoned the second ground on which she sought relief.  All of the remaining grounds related in one way or another to the failure by the respondent to apply the Policies and Procedures on Redundancy to the applicant.

The Factual Background

11.By letter dated 27 November 2008 the President of the University offered employment to the applicant for a period of three years from 8 December 2008 to 31 December 2011.  The offer was for the applicant to occupy the post of Director of Communications in the Communications Office which from 1 January 2009 was renamed the Communications and Public Relations Office.  The applicant’s position then became Director of Communications and Public Relations.

12.On 16 November 2009 the applicant was offered a transfer to the Office of the Provost as Senior Coordinator (Communications) with effect from 1 December 2009.  She accepted this appointment and worked in this post until the end of her contract.

13.On 29 June 2011 the Supervisory Executive Officer requested the Provost to conduct a personnel review of the applicant and decide if the applicant “will be invited to undergo the re-appointment process”.

14.On 28 September 2011 the Provost recommended that the applicant not be considered for re-appointment and on the same day this recommendation was endorsed by the President.  On the same day the Provost informed the applicant that she would not be re-appointed but the applicant claims that she was not told who took this decision.  The applicant described her conversation with the Provost as follows:

“The Provost informed me during a meeting on 28 September 2011, that my role as Senior Coordinator was no longer required and that my fixed-term contract would not be renewed. His words clearly conveyed to me that the University intended to make my role redundant and dismiss me.”

15.The applicant says that shortly after this interview with the Provost she discovered the existence of the Policies and Procedures on Redundancy.  It is the applicant’s case that on the basis of her conversation with the Provost it is clear that the University was making her redundant and that being so should have given her the benefit of the procedural rights set out in the Policies and Procedures on Redundancy.

16.Once the applicant became aware of the existence of the Policies and Procedures on Redundancy and realized that she did not appear to have been given the benefit of them she was prompted to set in train email enquiries with the Director of Human Resources, Ms Helen Leung, on how the procedures set out in this document had been applied to her.  She emailed Ms Leung on 28 November 2011 and in that email indicated that she wished to lodge an appeal pursuant to the provisions of this document.  When she received no reply she sent a further email on 5 December.

17.On 9 December Ms Helen Leung replied to the applicant that the Policies and Procedures on Redundancy did not apply to her as no recommendation for redundancy had been made in respect of her.  Her employment with the University was coming to an end simply because she was on a fixed term contract and that fixed term was expiring.

18.In an email in reply on 12 December the applicant said:

“Provost Ellis told me on 28 September that the reason for allowing my contract to expire without renewing it is my position is no longer needed pursuant to a university-wide rationalization exercise. Thus fixed term contract or not, this is a redundancy situation and you are obligated to follow University rules accordingly.”

19.Ms Leung replied on 15 December reiterating the position she adopted in her previous email.  Nothing further of significance occurred between the applicant and the University prior to the expiry of her contract.

20.On 9 May 2012 the applicant commenced proceedings in the Labour Tribunal.  The grounds of her claim were “dismissal by reason of redundancy” and “dismissal without any valid reason”.  The applicant filed with the Labour Tribunal in support of her claim a statement setting out “Events leading to termination of employment and reasons for the claims”.  At the end of this document she summarized her claim as follows:

“To summarize, the University is in breach of contract in at least four separate ways. First the University is in breach of the Employment Ordinance in that it has failed to follow the statutory definition of a redundancy. Second, the University is in breach of its employment contract with me as it failed to follow the redundancy procedures as set out in its own regulations. Third, the University is in breach of its Code of Practice for Council Members as the President had failed to respond to my repeated appeals to the non-renewal decision. Fourth, the University is in breach of the employment contract it entered into with myself as it failed to follow the express contractual requirement that the President was the Person of Authority regarding my appointment/re-appointment and failed to respond to my repeated appeals to the dismissal decision made by the Provost.”

21.On the 26 June 2012 the Labour Tribunal Proceedings were brought to an end by the University making a  limited admission of liability and the Presiding Officer of Labour Tribunal making an order, the key paragraph of which was in the following terms:

“Upon admission of liability by the Respondent company, it is hereby determined that the claim is found for the Claimant’s Item (A): Redundancy Ex-Gratia Payment; the Respondent company shall pay $142,618.85 to the Claimant.”

22.That then was the position at the hearing of this application for judicial review.

The Application for Leave to Amend

23.The application for leave to amend is opposed and the grounds relied upon apply equally to the respondent’s opposition to the application to judicially review the decision of the University.  The first ground of opposition is that the decision is not amenable to judicial review because it is lacking the requisite public law element.  It is, the respondent argues, just a private employment dispute.  Because the factual position underlying the application has changed since leave was granted the applicant faces the same difficulty in establishing a public law element even if, in the event that leave to amend is refused, she proceeds on her original Form 86.

24.Additionally the respondent prays in aid the doctrine of res judicata and argues that the issues the subject of the application for judicial review have already been dealt with by the Labour Tribunal.  If that is so, then, the respondent argues, the proceedings before this court are an abuse of the processes of this court.

What is the Public Law Element in the Application for Judicial Review?

25.The applicant’s submission that the decision is amenable to judicial review is based on three grounds.  They are:

(i) The Ordinance regulates the terms and conditions of service of classes of employees of the University.

(ii) The University has breached sections 13(4)(a) or 15(2)(a) of the Ordinance or has acted in a way which is equivalent to such breach.

(iii) Any assessment of a statutory underpinning should be subject to an examination of alternative remedies.  The applicant argues that the inadequacy of the remedies provided by the Labour Tribunal is another reason why I should find that “the statutory regulation of these terms and conditions of service constitute a statutory underpinning to the Applicant’s employment.”

26.It is also argued on behalf of the applicant that when the University first employed her it was at the rank of Administrative and Services Head and that should have been unaffected by her internal transfer in the course of her contract.  Thus, when it came to the question of her re-appointment she should have been treated as a member of staff holding the rank of Administrative and Services Head.  Instead, it is said she was treated as a Head of Department level staff and this “refusal to acknowledge the Applicant as Administrative and Services Head is a fundamental breach which should be deemed as equivalent to a breach of sections 13(4)(a) and 15(2)(a) and amenable to judicial review”.

27.The arguments flowing from the first two of these grounds are based on the fact that the University is a public body governed by the provisions of its creating ordinance.  The starting point, therefore, for determining whether there is a public law element in the applicant’s complaints is a consideration of the provisions of the Ordinance.

The City University of Hong Kong Ordinance

28.The University is a statutory body created by Cap 1132 and in fulfilling its objects and exercising its powers it must act in accordance with its governing ordinance.  As with any statutory body the Ordinance that creates it also establishes bodies or officers to run it, vests those bodies or officers with powers and in some cases circumscribes those powers or their exercise.  That is the position in respect of the University.

29.The powers of the University are set out in section 7 and under section 7(P), the University may “employ staff, advisers and consultants, on a full time or part time basis”.  The supreme governing body of the University is the Council (s 9) who shall appoint a President who, “subject to the control of the Council, is vested with the management, conduct and administration of the University, and the welfare and discipline of staff and students” (s 14(1)(a)).  The Council has the power to appoint persons as employees of the University (s 14(1)(c)) and “may, in writing, with or without restrictions or conditions as it thinks fit, delegate to the President its powers and duties.” (s 15(1)).  The President has a similar power of delegation under s 16(1).

30.However what the Council cannot delegate to any committee or to the President is its power “to approve the terms and conditions of service of any class of persons in the employment of the University”.  This is made clear by section 13(4)(a) which provides:

“(4) The Council shall not delegate to any committee appointed under subsection (1) the power –

(a) to approve the terms and conditions of service of any class of persons in the employment of the University;”

and by section 15(2)(a) which provides:

“(2) The Council shall not delegate to the President the power to –

(a) approve terms and conditions of service of any class of persons in the employment of the University.”

Thus, the applicant argues, there is statutory regulation of her terms and conditions and this provides a statutory underpinning to her employment.

The terms and conditions of service

31.The Ordinance creating the University does not itself lay down the terms and conditions of employed staff but it vests the Council with the exclusive authority to do so.  The Code of Practice for Council Members describes the position as follows:

“2. Summary of the Responsibilities of Council Members

The University is a legally independent corporate institution which has the purpose of providing teaching and undertaking research ….. The Council is the executive governing body of the University and has the responsibility for ensuring the effective management of the Institution and for planning its future development. It has ultimate responsibility for all the officers of the University.

The constitution and powers of the University are laid down in, and limited by, the University Ordinance. The main responsibilities of the Council are:

……

2.8 Staffing

The Council has responsibility for the institution’s employment policy.  This includes ensuring that pay and conditions of employment are properly determined and implemented…. The Council has established a Human Resources Committee to assist in meeting these responsibilities.  The Committee is responsible for setting the manpower planning policies of the University, establishing disciplinary procedures and recommending procedures for redundancy and any early retirement schemes …..”

32.Thus the Council sets terms and conditions of staff and is assisted by the Human Resources Committee in the performance of this duty.  In discharging this duty it tasked the Human Resources Committee to recommend procedures for redundancy which it did and the final product was the Policies and Procedures on Redundancy which was endorsed by the Council.

33.It is the applicant’s case that the Policies and Procedures on Redundancy are part of her terms and conditions of employment, they having been approved by the University council.  The Code of Practice for Council Members states:

“In the case of dismissal by reason of redundancy, the Council has approved a redundancy scheme including a set of procedures to be followed. The latter includes an appeal procedure for the individual concerned to challenge the redundancy decision.”

34.There is also a Procedural Manual that “sets out staffing procedures for personnel decisions on appointment/substantiation/ re‑appointment of administrative and services staff comprising Administrative, General Grade and Minor Grade Staff of the University”.[1] It was this set of procedures that were applied to the applicant by the University and it is the applicant’s case that as she was being made redundant this was the wrong set of procedures to apply to her.

35.This Manual of staffing procedures refers to the Policies and Procedures on Redundancy in Part III, paragraph 1.4 where it says:

“As the University strives to achieve productivity gain and better use of human resources, there may be situations where the skill requirements for a job ceases or diminishes. The University has in place a set of policies and procedures on redundancy …. to deal with such situations should the need arise.”

Discussion

36.It is not disputed that the University did not apply the Policies and Procedures on Redundancy.  Indeed, this was a deliberate decision of the University based upon a belief that this document does not apply to an employee on a fixed term contract whose contract is coming to an end simply by the effluxion of time and to whom the University does not wish to make an offer of a further contract.  However putting this issue to one side for the moment, the applicant argues that if the University should have done so then its failure to comply with procedures mandated by the Council is tantamount to a breach of sections 13(4)(a) or 15(2)(a) and injects into its conduct the necessary public law element.

37.Assuming that the Policies and Procedures on Redundancy is part of the terms and conditions of service of a person in the employment of the University, and that it applied to the circumstances of the refusal by the University to offer the applicant further employment; and assuming further that the University deliberately and unlawfully refused to apply it to the applicant; is there present a public law element such as would make the unlawful decision of the University not to apply the provisions of this document to the benefit of the applicant amenable to judicial review?

38.Within the Ordinance there is no provision regulating the employment of staff.  There are simply empowering and delegating provisions such as those in sections 13(4)(a) and 15(2)(a).  This distinguishes this ordinance from others which may give specific rights to a particular employee or class of employee or imposes duties on the public body on how a particular employee or class of employee is to be treated, especially when it comes to discipline or dismissal.  Because that is not the position here, the applicant finds herself having to argue that the treatment of her by the University is only equivalent to or tantamount to a breach of these statutory provisions.

39.The provisions that regulate the employment of staff are those provisions created or endorsed by the Council or by persons or bodies properly delegated to perform this task.  Of course because the organization carrying out these functions is a statutory body the exercise of these powers can ultimately be traced back to a statutory provision.  But that alone does not constitute the statutory underpinning necessary to satisfy the requirement of a public law element.  If that was all that was needed then every employment dispute by an employee of a statutory body would be amenable to judicial review.

40.Something more is required and what that something is was made clear by the English Court of Appeal in R v East Berkshire Health Authority, Ex parte Walsh [1985] 1 QB 152.  This decision has been applied in Hong Kong and is authority for a number of principles relating to how an applicant for judicial review satisfies the requirement of showing that what he claims has been infringed is a public law right as opposed to a private law right.  It will not be enough that the applicant is an employee of a public body and that he has been treated unlawfully by that public body in relation to his employment.  Nor will it be enough that the public has an interest in the issue being litigated.

41.In the East Berkshire Health Authority case what was relied upon by the applicant were statutory restrictions upon the freedom of the Health Authority to employ certain officers on whatever terms it thought fit.  This caused Sir John Donaldson MR to examine what kind of statutory underpinning was necessary in order to give an employee public law rights.  He examined three decisions of the House of Lords and noted that in each of them “there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff …. and it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law”. [2]

42.In the context of employment law Sir John contrasted the public law and private law rights at page 165 E - 6 as follows:

“The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation or unfair dismissal, an order of reinstatement or re-engagement and so on.  Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee “public law” rights and at least making him a potential candidate for administrative law remedies.  Alternatively it can require the authority to contract with its employees on specified terms with a view to the employee acquiring “private law” rights under the terms of the contract of employment.  If the authority fails or refuses to thus create “private law” rights for the employee, the employee will have “public law” rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights.  If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of “public law” and gives rise to no administrative law remedies.”

43.Sir John concluded that no public law element was present in the applicant’s complaints “which would give rise to any entitlement to administrative law remedies”.[3]

44.An illustration of the application of these principles to a factual situation virtually identical to the one in the present case is the judgment of Keith J in Sit Ka Yin Priscilla v Equal Opportunities Commission (1998 – 99) 8 HKPLR 342.  In this case the applicant’s employment was terminated by the respondent, a public body, and the applicant claimed that her dismissal was not in accordance with the internal procedures of the public body as set out in its Disciplinary Policy and Procedures.  The legislative provisions in the Sex Discrimination Ordinance, Cap 480, which set up the Equal Opportunities Commission contained the following provision which was relied upon by the applicant as providing the necessary statutory underpinning:

“The Commission shall determine – (a) … the terms and conditions of employment of its employees; and (b) … matters relating to their … dismissal from office.”

45.Keith J said that he would assume that the Commission’s internal document, the Disciplinary Policy and Procedures, was prepared by the Commission pursuant to its statutory duty to determine matters relating to its employees’ dismissal from office.  But, he said, that did not mean that “there were any special statutory restrictions upon the applicant’s dismissal or other statutory underpinning of her employment.”[4]

46.Keith J then referred to the passage from Sir John Donaldson’s judgment in the East Berkshire case that I have earlier quoted and then applied Sir John’s comments to the case before him, saying at page 346 I:

“Applying these remarks to the present case, the Ordinance did not restrict the Commission’s freedom to dismiss its employees. It merely required the Commission to have a policy relating to their dismissal. Nor did the Ordinance require the Commission to contract with its employees on specified terms. It merely required the Commission to specify terms relating to dismissal from office. To the extent that the terms of the Disciplinary Policy and Procedures gave the Commission’s employees various rights, those rights were accorded to the employees by the Commission and not by the Ordinance. The argument which Mr Mok wishes to deploy – namely, that the mere fact that the Ordinance required the Commission to specify the terms relating to dismissal from office amounted to a sufficient statutory underpinning of an employee’s right to a fair hearing before disciplinary action is taken – is, in my view, not arguable.”

47.Another example of the application of these principles in the context of public authority employment is Cheng Chun-Ngai Daniel v Hospital Authority HCAL 202/2002.  In this case Hartmann J was dealing with the Hospital Authority Ordinance which, like the University’s Ordinance and the Sex Discrimination Ordinance, created a statutory power for the Authority to employ persons but did not regulate the terms upon which the employment shall be subject.  There, the applicant was challenging his dismissal and in order to determine whether there was a public law element in the applicant’s complaint Hartmann J looked to the source of the power being exercised and concluded it was not the statute, albeit that ultimately all acts done in the performance of the Authority’s functions derive from the Authority’s Ordinance.[5]

48.However Hartmann J recognized that on the case authorities there was another approach to determining whether the exercise of an administrative power has the necessary public law character.  This other test is to consider the essential nature of the decision made pursuant to the exercise of that power and the consequences of its application.  That is, to ask the question, “what is the function being exercised by the public authority” [6]. For example in exercising a purely commercial function a public authority performs a private function governed by private and not public law.[7]

49.In the Cheung Chun-Ngai Daniel case Hartmann J summarised the legal position and I gratefully adopt his analysis.  At paragraphs 26 - 27 of his judgment he said:

“Finally, it follows from the principles I have described that judicial review is not appropriate where the only issue is whether or not there is a breach by a public authority of its own internal procedures ….

In the circumstances, it seems to me that the law in this jurisdiction is now clear.  Within the context of employment, judicial review is not appropriate to impugn the decision of a purely private or domestic tribunal, for example, as in the present case, a disciplinary tribunal set up by an employer.  Such a tribunal does not exercise any public function. The nature of any decision made by it has consequences only for the employee; it has no broader public consequence.  If the decision of such a tribunal has resulted in a wrongful dismissal, the remedy is by way of the common law, or through the Labour tribunal, for damages.”

50.No authority has been cited to me that would support the proposition that, absent a contravention by the public authority of a provision of its ordinance, a public authority’s decision not to renew the contract of employment of one of its staff involved the exercise by it of a public law function.  Such a view of such a decision would appear to be contrary to the comments of Sir John Donaldson in the East Berkshire case that I have quoted and this was certainly the view of Cheung J in Fraser v Chief Executive of the HKSAR & Anor [2000] 3 HKLRD 492.

51.Finally, whether as a separate test or a variant of the public function test, the courts will also look to whether, in taking the decision in respect of the applicant that it did, the public body was performing a public duty.  To answer this question I turn to the Ordinance creating the University which sets out its objects in section 3(2) as follows:

“The objects of the University shall, subject to this Ordinance, be to provide for studies, training and research and development in technology, engineering, science, commerce, arts and other subjects of learning.”

Given these objects it is difficult to see that a decision taken in respect of an administrative staff member of the University on a matter relating to that staff member’s employment with the University can be said to be a decision taken by the University in the discharge of its public duties.

52.Applying the principles to which I have referred from the cases cited to the applicant’s case, 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 factual situations in the East Berkshire, Sit Ka Yin Priscilla and Cheng Chung‑Ngai Daniel cases are similar to the applicant’s case in that there is no breach of any provision of the Ordinance governing the operations of the University.  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.  As I said, the applicant’s complaint is essentially that there has been a failure to apply the terms and conditions set by the Council to her and that is a private law dispute.

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”.

54.The fact that in the course of her employment the applicant was transferred to another post whose rank may have been lower than the rank of the post to which she was first appointed does not take her case any further on the question of whether she has satisfied the requirement that there be a public law element.  At its highest it is no more than another example of a failure by the University to treat her properly in accordance with the terms and conditions of service that applied to her.  A breach of the terms and conditions of service is not, as I have already said, a breach of the provisions by the University of its governing ordinance and cannot be said to be tantamount to such a breach.

55.She argues that I should also take into account the inadequacy of the remedies available to the applicant.  However in my view that is not a matter I can properly take into account.  It is simply not relevant to the question of whether the applicant’s complaint is amenable to judicial review. The inadequacy of the private law remedies available to the applicant becomes relevant when it is necessary to consider whether, given the existence of alternative remedies available to an applicant for judicial review, the court, in its discretion should grant the application.  But that is an issue that arises only after it has been determined that the applicant’s claim is amenable to judicial review.  The fact that private law remedies may not be adequate in some way to redress the applicant’s complaint cannot make up for the absence of a public law element so as to transform a claim not amenable to judicial review into one that is.

Conclusion

56.I therefore refuse leave to amend the Form 86.  On the original but now factually altered Form 86 I rule that the applicant has failed to establish that her complaint has a public law element necessary to make it amenable to judicial review.  Although I entertained submissions on the merits of the application for judicial review, in view of my decision on the public law element it is not necessary for me to make any ruling on them.

57.I therefore dismiss the application for judicial review and make an order nisi that the costs of the application be awarded to the respondent.  Unless either of the parties applies by summons to vary this order, it shall become absolute after 14 days from today.

Ms Ella Liang, instructed by Stevenson, Wong & Co, for the applicant

Mr Hectar Pun, instructed by Mayer Brown JSM, for the respondent