Judicial Review to Discretionary Power.

Nature.

• Giving discretion to administration to choose between alternative course of action based on its own opinion

• E.g. : “if it is satisfied”

Control

• Doc.of u/v:

- Narrow u/v:

* substantial u/v.

*procedural u/v.

- Broad/wide u/v.

Control.• Broad u/v- Abuse power.- Fails to exercise power.

• Abuse power- Mala Fide- Improper purpose.- Taking into account irrelevant consideration- Failure to take into account relevant consideration- Unreasonable.

• Fails to exercise power.- Acting under dictation.- Act mechanically.- Fettering discretion.

Control( broad u/v)• Abuse power

-mala fidei:

* Meaning: dishonest intention.

* Effect: decision / order invalid

* Case: -Raja Tan Sri Khalid bin Raja Harun.

-Karpal Singh.

-Partap Singh.

-Rowjee.

-Yeap Hock Seng.

-Karam Singh.

-Musa.

-Ramamoorthy.

-Ramesan.

- Jagdis Singh.

Abuse of Power

• Irrelevant Consideration.

• Meaning: consideration outside scope of statute.

• Effect: action or decision invalid

• Cases: - Short v Poole Corp.

- Pengarah Tanah v Galian W.P.

- Maradana Mosque trustees v Mahmud.

- Padfield v Minister Agriculture and fisher

- Congreve v Sec For Home Affairs.

Abuse of Power

• Fail To take into account relevant consideration.• Cases: - Robert v Hopwood.

- Re Tan Boon Liat.

• Unlawful or Improper purpose.• Meaning : when statute confers power on authority for one purpose

but its use for a different purpose.• Effect: action or decision invalid.• Case: Sydney Municipal v Campbell.

Abuse of Power

• Unlawful or improper purpose• Cases: - DP Vijandran V Majlis Peguam

(1996) 1 CLJ23

- President, District Council Batu Pahat (1983) 1

MLJ299

Abuse of Power

• Unreasonable.• Test in Wednesbury’s case.• “…something so absurd that no reasonable or sensible person

could have come to that decision…”• Test in Wednesbury is very narrow.• Case: - Assoc. Picture Houses V Wednesbury Corp. (1948) 1 KB

223

Abuse of Power

• Unreasonable.• Test in Polar’s Case (Roberts V Hopwood)

-”…what was reasonable in the view of the court.”• Cases: - Roberts V Hopwood

- Prescott V Birmingham Corp.

Abuse of Power

• Unreasonable.• Test in Tamside: - “… something that no reasonable person would

do…”• Case: Secretary of State Education and

Science v Tamside Metropolitan Borough Council (1977) 1014.

Unreasonable.

• In CCSU (1984) 3 All ER 949• Lord Diplock used the term “irrationality” for Wednesbury

unreasonableness. • Irrationality.

Unreasonable.

• Irrationality according to Lord Diplock.• “the decision must be outrageous in its defiance of logic

or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at”.

Unreasonable.

• Malaysia.• Pengarah Tanah dan Galian W.P.• “…the authority must act reasonably and may impose

condition relevant to the permitted development”.

Failure to Exercise Discretionary Power.

• Acting under Dictation• Did not consider the matter itself.• Effect: - decision invalid.• Cases: - Simms motor.

- Chong Cheong Wah.

- Patto.

Failure to Exercise Discretionary Power.

• Acting mechanically.• An authority neglect or avoid the matters which the

authority ought to do.• Effect: decision invalid.• Cases: - Emperor v Sibnath Banerjee

- Oxygen co. V Minister of Technology.

Failure to Exercise Discretionary Power.

• Fettering discretion.• Authority uses policy to regulate its discretion without

taking into account the different merits of each individual case.

• Effect: - decision is invalid.• Case: - B. Lavender V Minister of Housing.