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Judicial review to discretionary power


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this note is reference for student of Administrative Law (LAW506) in Universiti Teknologi MARA, Malaysia. It's prepared by Puan Normawati Hashim

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  • 1. 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• Doctrineof ultra vires (u/v): - Narrow u/v: * substantial u/v. *procedural u/v. - Broad/wide u/v.
  • 2. Control.• Broad u/v consists:- 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.
  • 3. Control( broad u/v)• Abuse power-mala fidei: * Meaning: dishonest intention. * Effect: decision / order invalid * Case: -Raja Tan Sri Khalid bin Raja Harun. -Partap Singh. -Rowjee.a Polis Negara - Mohammed Ezam bin Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449
  • 4. 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. [1979] 1 MLJ 135 - Maradana Mosque trustees v Mahmud [1967] 1 AC 13 - Padfield v Minister Agriculture and fisher [1968] 1 All ER 694 - Congreve v Sec For Home Affairs [1976] 1 All ER 697
  • 5. Abuse of Power• Fail To take into account relevant consideration.• Cases: - Robert v Hopwood [1925] AC 578 - 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 [1925] AC 338
  • 6. Abuse of Power• Unlawful or improper purpose• Cases: - DP Vijandran V Majlis Peguam (1996) 1 CLJ23 - President, District Council Batu Pahat (1983) 1 MLJ 299
  • 7. 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
  • 8. 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. [1955] Ch 210
  • 9. 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.
  • 10. Unreasonable.• In CCSU (1984) 3 All ER 949• Lord Diplock used the term “irrationality” for Wednesbury unreasonableness.• Irrationality.
  • 11. 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”.
  • 12. Unreasonable.• Malaysia.• Pengarah Tanah dan Galian W.P.• “…the authority must act reasonably and may impose condition relevant to the permitted development”.
  • 13. Failure to Exercise Discretionary Power.• Acting under Dictation• Did not consider the matter itself.• Effect: - decision invalid.• Cases: - Simms motor [1946] 2 All ER @01 - Chong Cheong Wah - P. Patto [1986] 2 MLJ 204
  • 14. 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 [1970] 3 All ER 165
  • 15. 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 [1970] 1 WLR 1231