Application For Judicial Review Flashcards
What is judicial review
🔹Review of decision made by any public authority, government body and tribunal under written law;
🔹Who carry out quasi-judicial function or who exercise powers or perform duties which involve a public element
Jerry Wa Dusing
🔹The Court held that Judicial Review is:-
1️⃣Review of the decision of the executive and/or an inferior tribunal;
2️⃣Review of legislation;
3️⃣Review of Constitutional Amendment;
4️⃣Review of Policy decision
What are the grounds for judicial review?
An Applicant for Judicial Review is adversely affected where the act/decision/order is:-
1️⃣Illegality (against the law)
2️⃣Unreasonable
3️⃣ Is punitive in nature and against the principle of natural justice: or
4️⃣ Procedural Impropriety
🔹Malaysia Airline System Bhd v Wan Sa’adi Wan Mustafa [2015]
What are the types of relief sought in judicial review applications?
1️⃣Mandamus order - An order for the subordinate Court, government, or local authority to perform an act.
2️⃣Prohibition - An order to prohibit the act.
3️⃣Quo warrant - An order to do justice, Eg, to restrain a person from acting in an office which he is entitled to act.
🔹All Malayan Estates Staff Union v Rajasegaran The Union used the Quo warranto procedure to challenge the qualification of an Indistrial Court Chairman to be appointed to that office.
4️⃣ Certiorari - An order to quash the decision of the subordinate Court, government, or local authority.
5️⃣ Injunction - An order which may be prohibitory or mandatory.
7️⃣ Declaration - An order to declare for whether the act is lawful or unlawful - Order 53 Rule 2(2)
8️⃣ Damages - Order 53 Rule 5
Is leave required before an application for Judicial Review is made?
Yes. Leave is required for every application for Judicial Review - Order 53 Rule 3(1).
Priciples/Test in granting Leave:-
1️⃣ Objective Test, where it can be used to correct errors of law by an administrative body or tribunal Titular Roman Catholic Archbishop of Kuala Lumpur
2️⃣ “Adversely Affected Test” = Locus Standi Test
🔺Malaysian Trade Union Congress (MTUC)🔻
🔹The applicant has to at least show that he has a real and genuine interest in the subject matter;
🔹It is not necessary for the applicant to show infringement of private right or the suffering of special damage.
📑 https://www.thomasphilip.com.my/articles/judicial-review-are-you-ladversely-affectedr-by-the-public-authoritiesr-decision/
It must be highlighted that Order 53 Rule 2(4) of the Rules of Court only permits a person who is ‘adversely affected’ by the conduct of public authorities to file a judicial review application. These persons are said to have the locus standi (or legal standing) to pursue the action and such a requirement ensures that only those with legitimate legal grievances will be permitted to proceed with the challenge.
The test that is applied by the courts to determine whether a party has the necessary locus standi to file an application for Judicial Review is provided in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 (“MTUC”) where the Federal Court held that there was only a single test for locus standi in judicial review applications underOrder 53 of the Rules of Court, which is that an applicant only needs to show that he is ‘adversely affected’ by the decision of the public authority. To pass this ‘adversely affected’ test, an applicant will need to show that he has a ‘real and genuine interest’ in the subject matter of the application.
TheMTUCdecision liberalised the rules on locus standi. In reaching its decision, the Federal Court adopted the approach taken by the Court of Appeal inQSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164which explained that rules of court should not be interpreted in such a way as to result in unfairness or produce a manifest injustice. As such, a flexible approach ought to be taken here.
An applicationfor judicial review will have to demonstrate that it falls within the factual spectrum that is covered by the words ‘adversely affected’.
Procedure - What form to be used?
Shall apply for relief by Form 109 (unless it is for Habeas Corpus) - Order 53 Rule 2(1)
What is the procedure? [Before leave grant/ Leave application]
[Leave application]
1️⃣ Leave required for all Judicial Review Application
2️⃣ Apply for leave under:- Order 53 Rule 3
🔹ex part application to the judge in Chambers;
🔹supported by Statement; and
🔹An affidavit in Support
3️⃣ Statement (to include name, the description of the application, the relief sought and the grounds on which it is sought)
4️⃣ The applicant must give Notice of Application for leave to the Attorney General’s Chambers at least 3 days before the hearing date; &
🔹Must at the same time lodge in those Days Chambers copies of the statement and affidavits
5️⃣ An application for JR must SHALL be made within 3 months from the date the grounds of the application first arose/ first communicated to the applicant
Circumstances where leave for Judicial Review are allowed
1️⃣ Sivarasa Rasiah - COA held that leave to apply for JR should be based on justice of the case and not only on technical and procedural grounds.
2️⃣Md Aris Zainal Abidin JR✅
🔹JR application made 6 weeks after the decision (at that time application must be made within 40 days; now 3 months). HC dismissed the Appellant’s application. COA allowed and held that Court should consider whether there was injustice or prejudice.
3️⃣Kelana Megah Development Sdn Bhd
🔹Contract not subject to JR
4️⃣Malaysian Airline System Bhd v Wan Sa’adi Wan Mustafa (FC) 🔹Whether there is procedural fairness
Procedure - After LEAVE GRANTED
Order 53 Rule 4
1️⃣ Applicant shall within 14 days AFTER the grant of leave file a notice in Form 110
2️⃣ Upon extracted the sealed copy of Form 110:-
🔹Applicant shall serve a copy of the sealed Form 110 + Statement + Supporting Affidavit;
🔹On all persons affected by the application;
🔹At least 14 days BEFORE the hearing date, specified in Form 110.
Are damages claimable in applications for Judicial review?
Yes - Order 53 Rule 4
Is Discovery available in Judicial Review applications?
Yes, but after leave has been granted - Order 53 Rule 6
What is the recourse a party should take should they unhappy with the order of the judge?
Aggrieved party may appeal to the COA. No setting aside application shall be entertained. Order 53 Rule 9
