DISCRETIONARY POWER

Definition

Secretary State of Education & Science v Tameside Borough Council

CCSU v Minister for Civil Service (when DP subject to Judicial Review)

Right of a person to choose any possible COA reasonably believed that there are > 1 possible COA

Illegality

Procedural Rules

Irrationality

issue when power ex against law & aim of statute for purpose it does not authorized

failure to observe procedural rule (Natural Justice & fairness)

term redefined with ref to Wednesbury Unreasonabless

Grounds of Judicial Review

Narrow Ultra Vires

Extended Ultra Vires

Procedural

Substantive

authority fails to exercise DP

authority abuses DP

Improper purpose

Mala Fide

Irrelevant Consideration

Leaving relevant cons

Unreasonabless

Tan Sri Raja Khalid b Raja Harun : elements of mala fide present when order made dishoinestly, or fullfill personal interest

Pratap Singh v State of Punjab : where order was quashed bcs of personal grudge by some circumstances

Re Tan Boon Liat : malice in law not neccesarily malice in fact where order made contrary to purpose & objects of law

Yeap Hock Seng : onus is on complainant to prove there is element of mala fide of administrator

R v ILEA: if order made with 2 purpose, unauthorised purpose & authorised purpose, court will upheld order only if authorised purpose is primary purpose

Municipal Council of Sydney v Campbell : a body such as council, authorised to take land compulasarily for specified purpose will not be permitted to exercise powers for diff purpose

Short v Poole Corp: if authority takes into account irrelevant consideration to purpose of statute, act will be invalid even done with good faith

Breen v Amalgamated Eng Union : if decision influenced by irrelevent cons , decision shall not stand

Minister of Labour Msia v National Union of Journalist Malaysia: court quashed minister's order for taking irrelevant cons which is adverse of publicity of incident but ignored relevant cons.

Asstd Provinicial Picture House v Wednesbury Corp: if statute concening DP express or implied provide matter to be taken into acc when making decision, administrator must do so wo fail

Persatuan Pegawai Bank SM v Minister of Labour : court quashed order as minister failed to take into cons all relevant matter required by law when making decision

CCSU v Mnister for Civil Service: irrationality, one of the ground to review ex of DP. decision must be outrageous that no sensible person would decide such things

PTG WP v Sri Lempah : action of imposing such condition is unreasonable and not related to permitted dev of land in question

Dictation

Simms Motor Units v Minister of Labour : minister cannot interfere with ex of DP of another officer, otherwise order is quashed.

p Patto Chief v CPO Perak : OCPD should form his own personal opinion in regard to app of permit but fail to do so as he forwarded it to a higher ranked police officer. OCPD should be the one to form his own personal opinion as required by law

Fettering Discretion

British Oxygen v Minister of Tech: aim of DP was to allow administrator to be flexible in making decision. thus, making decision based on external influence will defeat purpose of DP

MUI Finance v Menteri Kewangan Msia : Minister act of making policy to reject all app made by financial inst. as fettering his own DP, thus the court quashed the order on ground of failure to exercise DP.

Acting Mechanically

Emperor v Sibnath banerjee : if aunthority vested with power o make decision adopted a routine to listen to recmndtn or objection of others wo applying and satisfying himself it will be held acting mechanically and order will be quashed

ensure authorities ex DP within limits set by Parent Act

Francis v Municipal Councillors Kl : removal of employee by council not president was held to wrongful dismissal as power must be ex by same authority in which power vested by law

statute conferring power on public authority may prescribe procedural req to govern such powers

United Dev Co SB v State Gov Sabah : where there was failure to obtain statutory app the acquisition of land for apprxmly 30 yeras earlier was ultra vires and invalid