ADMIN CASES SUMMARY

SL UV PA
- s 23(1)
of IA

SUBSTANTIVE
ULTRA VIRES

SL UV FC PA UV FC
- Art 4 of - Art 4 of
FC FC

GROUNDS –
Whether rule/order …… UV the PA on the grounds of financial levy?
Whether rule/order……UV the PA for non-compliance with procedures?
Whether rule/order……UV the FC on the grounds of unreasonableness due to its unequal
operation?
SUBSTANTIVE UV:

- Scope, extent, range of power

- McEldowney v Ford (3 items)
o Laid down a threefold test in order to ascertain the validity of a SL' which
is first, that the court will determine the words used in the act to describe
the SL, secondly, the meaning of the SL and finally whether it complies
with the description
- S. 23 of Interpretation Act – SL inconsistent with PA shall to the extent of the
inconsistency be void
*Unconstitutionality of Parent Act

Osman v PP *unequal operation – is it unconstitutional?

In this case, the Emergency (Criminal Trial) Regulation made by Yang di Pertuan Agong
under the power to him by Emergency (Essential Powers) Act 1964 stated that a person
tried under the regulation will be tried without jury and preliminary inquiry and is against
provisions of the Criminal Procedure Code. Its validity was argued as being against Article
8 of the Constitution. The argument was however, rejected by the Privy Council on the
ground that emergency regulations could not be held to be unconstitutional because of
Article 150(6).
Tan Tek Seng v Education Services Commission & Anor.
Article 5(1) means more than mere animal existence but also includes rights as
livelihood and equality of life.

*Unconstitutionality of the Subsidiary Legislation

Hajjah Halimahtusaadiah Hj Kamaruddin v PSC

Govt issued circular pertaining dress code for civil servants, disallowing wearing anything
that cover the face. Whether this prohibition (in this case purdah) is an infringement of
Art 11(5) of FC? Court held that the regulation was not unconstitutional as the dress code
 applies to all and wearing purdah was non-essential and optional in the interests of public
service
Teh Cheng Poh v PP
The issue was regarding the constitutional validity of the 1975 regulations issued by the
YDPA when he no longer had the power to issue an ordinance. Privy Council declared the
said regulation issued under the 1969 Ordinance was ultra vires the FC as YDPA’s power
to make regulations having the force of law ceased once parliament sat after the
proclamation.

SL-SUBSTANTIVE UV-Lack of power

Ghazali v PP
Under Road Traffic Ordinance 1958 the Licensing Board in exercising its discretion under
s 118 shall give preference to an application from a Malaya. The Board attached a
condition to licenses issued to Malays that only a Malay driver should be employed to
drive such vehicle. After giving preference on issuing the license to a Malay, power of the
Board deemed to have end.

SL- SUBSTANTIVE UV – Financial Levy

- Article 96 of the Federal Constitution

- S. 44 of Interpretation Act

AG v Wilts United Dairies

The “Food Controller” in this case could not impose a levy unless expressly authorized by
Parliament. Hence, the general would seem that if and only if a parent Act expressly
endorses the ability to charge taxes or levies, only then would said administrative body
be empowered to do as such
M.P Pillay v PP
S 90(1) of the Road Traffic Act provide that the Minister may make rules……generally for
the purpose of carrying this act into effect. Under this power a rule was made prohibiting
a person from driving a motor vehicle into the restricted zone within time hours without
an area license. Under another rule the fee prescribed was $60 a month. Purpose of the
rule was to tackle the problem of serious congestion during peak hours. The Court ruled
that the fees had indirectly achieve the purpose of the Parent Act and hence was valid.
Howe Yoon Chong v Chief Assessor Property Tax Singapore
In this case, the Minister has authority to make regulations, generally for the better
carrying out of the provisions of this Part of the Act, under Sec.63 of the Property Tax Act.
The Minister then made a regulation levying a fee of S$20 for every year of the property
inspected in the valuation list. The court held that Sec. 63 did not give him the power to
levy fees. The Minister had acted ultra vires to the Act. Thus, the Property Tax (Fees)
Regulations 1975 was null and void and had no effect.
Palm Oil Research And Development Board Malaysia & Anor v. Premium Vegetable Oils
Sdn Bhd
Pursuant to the Palm Oil (Research Cess) Order 1979 (the 1979 Order), a research cess
regulation was made under the Palm Oil Research and Development Act 1979 in respect
of crude oil extracted from oil palm fruits („CPO‟) and also in respect of crude oil
extracted from oil palm kernel („CPKO‟). The cess was held invalid because the 1979 Act
and the 1979 Order made no reference to crude oil extracted from oil palm kernel. It was
also held that no provision in the Act empowering the Minister to impose cess on palm
oil millers.
SL-SUBSTANTIVE UV- Retrospectivity

- Criminal law – Art 7

- S. 20 of Interpretation Act
o When there is an express provision in Parent Act to do so (legislate with
retrospective effect) the effect cannot be earlier than the date of
commencement of the PA.

AG v Cold Storage
Under s23 (2) of the Singapore Interpretation Act the Port of Singapore Authority Act
(Parent Act) gave power to Minister to make the Port of Singapore Authority (Property Tax)
Order 1977 (subsidiary legislation) with retrospective effect under the subsidiary
legislation. It was held that since the Parent Act allows bye-laws made to have
retrospective effect, the bye-law was valid
Kerajaan Malaysia v Wong Pot Heng
FC affirmed the decision of CoA and HC that status of SL made by respondent was invalid
because the delegated authority under the PA for making the regulations in question,
namely the YDPA, was not given power under s 2 of the Parent Act to make them with
retrospective effect.
Syed Ibrahim Syed Mohd v Esso Production Malaysia Incorporated
Court of Appeal allowed the appeal made by appellants saying that in order for the SL to
have a valid retrospective effect, there must be an express provision in the Parent Statute
in this case, Employment Act 1955. As no such provision exist in the Act thus there could
be no retrospective effect in the SL made.
SL – SUBSTANTIVE UV - UNREASONABLENESS

Kruse v Johnson *TEST

If the SL were found to be unequal in their operation as between diferrent classes; if there
were manifestly unjust, if they disclosed bad faith; if there involved such oppressive
operation towards the people that these people can’t found any justification in the minds
of reasonable men, the court held that Parliament never intended to do such rules, thus
making them to be unreasonable and ultra vires.”
McEldowney v Forde
A bye-law had been passed saying that anyone who involved with any unlawful
association (including Republican Club) shall be found guilty of an offence. A person who
was a member of the referred Club had been prosecuted for the above offence although
he had never join any unlawful activity of the club. The court had held that the SL
established was too vague and so arbitrary as to be unreasonable.
Air India v Nergesh Meerza
Test of unreasonableness was read into Article 14 of the Indian Constitution (in pari
materia with article 8 of the Federal Constitution of Malaysia) to invalidate subsidiary
legislation which is regarded as arbitrary or unreasonable. The case concerned a rule by
Air India where they could retire any air hostess if they get their first pregnancy after
marriage. The Indian Supreme Court deemed the rule as that the rule violated the equal
protection clause under article 14 of the Indian Constitution and that the regulation was
“[an] unreasonable and arbitrary provision which shocks the conscience of the Court”
which was “extremely detestable and abhorrent to the notions of a civilized society

SL-OUSTER CLAUSE:

Commissioners of Customs and Excise v Cure & Deely Ltd

Where the parent act gave authority to the commissioners to make regulations for any
matters necessary. The commissioners then made regulations but barred the access of
courts in such matters. The court held that the legislation was, inter alia, ultra vires for
barring the accessibility of courts
Chester v Bateson
The court had declared that a regulation was invalid as it prohibited the property owner,
during the wartime zone to get access to court, without the consent from the Minister.
Here, the court said that although their property might be forgo but their access to the
court can’t ever be denied unless for a legitimate reason.
R & W Paul Ltd v the Wheat Commission
Under the Wheat Act 1932, The Wheat Commission had power to make bye-laws to
provide for the final determination by arbitration of disputes with regards to certain
matter. The commission made a bye-law under this provision saying that all dispute shall
be ruled by the determination of arbitration and that the Arbitration Act 1889 would not
apply to such proceedings. This Act gave a right to obtain a ruling from the courts on
disputed points of law arising in the course of arbitration Therefore the effect of the bye-
law in question was that the courts were excluded from ruling on disputed question of
law arising during arbitration proceedings. Court ruled the commission had no power to
do so by making a bye-law without express authorisation from the Parent Act.
SL – PROCEDURAL UV

Wong Keng Sam v Pritam Sing Brar

The court held that an aggrieved person cannot bring an action for ultra vires if the rules
laid down was only directory.
Govindlal v Agricultural Produce Market Committee
The court held that when a draft rules are required to be published in both Gazette and
newspaper, failure to publish it in the newspaper will makes the rules ultra vires.
Puvaneswaran v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor
The applicant was only served with one copy of the form of his ground of detention while
he was detained. The requirement was to give him two copies so that he will be able to
serve it to his counsel. The High Court held that this procedure is mandatory and failure
to comply with it made the detention void and invalid.
Lachmi Narain v Union of India
Statute requires 3 months’ notice to be given to effectuate the rules, then giving such
notice is mandatory.
 RULE OF NATURAL JUSTICE
 Natural justice is a procedural safeguard against improper exercise of powers by a
public authority. It has been characterised as fair administrative procedure and it
consists of two elements, namely audi alteram partem (right to be heard) and nemo
judex in causa sua (rules against bias).
 Right to be heard is essential in Natural Justice. A person should have an opportunity
to defend himself before he is condemned. Adjudicatory body should not make a
decision adverse to a party without affording him an effective opportunity of
adequately meeting the charge against him – Ridge v Baldwin

RNJ – AUDI ALTERAM PARTEM – NOTICE – charge

Raja Abdul Malek v Setiausaha SPP

The applicant had been dismissed due to the allegation, and it was added with ‘and
others’, which formed vagueness. No explanation / notice served for that ‘and others’.
Court dismiss the allegation as no notice served to explain ‘and others’ allegation.
Maradana Mosque Trustee v Mahmud
This case about manager of a school and they were called upon by the Minister concerned
to explain why the salaries of the teachers in the school were not paid on time. When they
went to explain, the government took over the school based on another reason which was
informed to the managers. The managers brought the cases to the court on the ground
that they were not told about the second charge which was what the decision of the
Minister was based on, before the hearing took place. So this case was invalid because
the managers were not given adequate charge.
Mahadevan v Anandrajan
It was held that the expulsion of the school student, N. Mahadevan was valid. The appellant
challenged the validity of his expulsion, as it did not comply with natural justice. It was
stated that ‘what the rules of natural justice required was that the nature of the
accusations, as opposed to the punishment which could be inflicted upon him if those
accusations were proved to be true, was made known to him’. It was held that the
expulsion was valid as the appellant knew the content of the charge and need not know
the punishment made.
R v Paddington & St Marylebone Rent Tribunal
This cases about rent tribunal and the landlord. The rent tribunal reduced the rent on the
ground that the ceilings of the flats were too low and not up the modern standard. The
revoked the decision of the rent tribunal because the landlord was not told of the ceilings
issue before the hearing and matter did not arise at any stage of the proceedings making
the landlord unable to answer to any questions relating to that matter.
Hasdie Tusin v Kudat Golf & Marina Resort
Claimant was dismissed by his employer but he claimed that he did not receive specific
charge as to his allegations as he only received three warning letters that did not
particularise as to what type of misconduct he had done. Breach of NJ, claimant had a
right to be given a specific detail so that he could properly prepare his case.
State of Uttar Pradesh v Salig Ram Sharma
A charge sheet was served on an employee containing allegations of fraud without
mentioning any particulars. Notice was vague thus breach of NJ.
Lim Ko v Board of Architect
The appellants were sufficiently made aware of the nature of the acts of misconduct
which were alleged against them. The appellant Lim Ko chose not to attend the enquiry–
it was said because he was sick which was found by the court difficult to accept. A
professional man against whom a charge of professional misconduct is being made would
either attend or if too ill to do so would instruct his counsel to press for an adjournment
to enable him to be present. But in this case no medical certificate was produced–indeed
his counsel did not even know what or how serious his client's illness was – and no
application was made for an adjournment.
RNJ – AUDI ALTERAM PARTEM – NOTICE – time

 The notice must give a reasonable opportunity to comply with its

requirements. This means that sufficient time must be given to the concerned
person to prepare a defence and file objections.

Phang Moh Sin v Commissioner of Police

P challenged his dismissal from the Singapore Police Force on the ground of breach of
natural justice. The court found that the inquiry officer informed him of the charge against
him for the first time immediately before the commencement of the hearing and he was
never given a copy of his charge. The P asked for an adjournment to prepare his defense
but it was refused. Court held that a person must be given an adequate notice with the
particulars of the alleged offence so that he may have a fair opportunity of answering the
same. Hence, the public authority shall give sufficient notice to the parties concerned
before the commencement of hearing, but not on the day of hearing itself.
Re Liverpool Taxi Owner’s Association
A letter was sent to the association to show cause by return post against the issue of
fresh taxi license. The court held that the notice given was inadequate. It is
contrary to natural justice to call upon a person to show cause immediately
and to permit no time to consider the charges

RNJ – AUDI ALTERAM PARTEM – HEARING – Must it be orally

Pett v Greyhound Racing Association

The issue was whether the appellant, a licensed greyhound trainer had administered
drugs to a racing dog. An inquiry was initiated into his conduct by the association. He
asked for an oral hearing but the opposition opposed it. Lord Denning state that whether
an oral hearing was to be given or not depend on the nature of the inquiry. In this case,
as it will affect reputation and livelihood, it only fair to require an oral hearing.
Travencore Rayons v Union of India
The issue was that a product of the company was subject to an exercise duty. The company
argued that the product was not dutiable. Through various stages, the matter ultimately
reached the government of India by way of appeal which was to adjudicate upon the matter
in a quasi-judicial capacity. The government rejected the contention of the company
without giving it an oral hearing. The company appealed to Supreme Court. It was held that
if in appropriate cases where complex and difficult questions are raised, personal hearing
is given, it would conduct a better administration and more satisfactory disposal of the
grievances of the citizen.
Mat Ghaffar Baba v Ketua Polis Negara
Plaintiff was not given an oral hearing by the first defendant who dismissed him. CoA
allowed his appeal after taking into consideration that the charge against him was serious
(corruption) and the fact that he was not given the opportunity to cross examine the
witnesses. He must be given the chance according to Art 135(2) of FC.
Ketua Pengarah Kastam v Ho Kwan Seng
The decision cancelling the forwarding agency was taken and communicated to the
respondent who files a written representation of his own accord against the order. FC held
this met the test of fair hearing as representation in writing would be all that was required
and the fact that a personal hearing was not demanded by the respondent. Insistence on
oral hearing in every cases would result in breakdown of the administration. Too slow,
too costly and too technical.
Sarawak Electricity Supply Corporation v Wong Ah Suan:
If a person is given any form of hearing, as long as the alleged party was given adequate
opportunity to defend himself.
RNJ AUDI ALTERAM PARTEM – HEARING – interview?

Mahadevan v Anandarajan
The Principle interviewed the student alone and taxed him with a number of previous
instances of misconduct and asked him to explain them. He then decided to expel the
student upon hearing the explanation given. The Court held that this was not unfair in
relation to the student and complied with natural justice.
Ceylon v Fernando
The student was interviewed twice by the Vice-Chancellor before being suspended by the
university examinations for an indefinite period. Privy Council held that the procedure
accord with natural justice as an adequate opportunity had been given to the student to
present his case.
RNJ – AUDI ALTERAM PARTEM – HEARING – Disclosure of materials/information/evidence
which the authority wishes to use against the individual concerned in arriving at its decision

- NO ELEMENT OF SURPRISE

SURINDER SINGH KANDA v GOVT OF FED OF M’SIA

Police had been dismissed and a board had been appointed to investigate him.
However, no report served to him from that investigation, although he had requested
for it. The report only served to the ad-judicature only. Kanda won in this case.
Jerald Allen Gomez v Shencourt Sdn Bhd
A solicitor has been found guilty by the Disciplinary Committee (DC) for acting in conflict
of interest, negligence and over charging. He challenged the decision made on the ground
that he was not supplied with the notes of the Investigation Tribunal which the DC used
in their decision making. His request on that notes was also denied. Breach of natural
justice because the DC had come to a decision based on materials not available to the
appellant and for which he had asked for.

RNJ – AUDI ALTERAM PARTEM – HEARING – acceptance of evidence

Malayawata Steel Bhd v Union of Malayawata Steel Workers

The company challenged an award of the Industrial Court on the ground of breach of
natural justice as the company was denied the opportunity to call witnesses. The HC held
that there had been a denial of natural justice when the applicant was not allowed to call
his essential witnesses to adduce evidence at the hearing and was therefore denied a
reasonable opportunity of presenting his case.
Re Application by the Union Omnibus Co Sdn Bhd

R v Hull Prison Board of Visitors

RNJ – AUDI ALTERAM PARTEM – HEARING – Disclosure of materials/information/evidence

which the authority wishes to use against the individual concerned in arriving at its decision

- NO ELEMENT OF SURPRISE
 Shamsiah Ahmd Sham v PSC
Plaintiff challenged her dismissal as it was made by the defendant in taking into account
of her past record when a disciplinary action was taken against her without giving her an
opportunity of stating her case. Breach of NJ
Abdul Rahman Isa v PSC
An order of dismissal was quashed because the disciplinary authority took into
consideration some information which greatly influenced their decision without the
disclosing the same to the concerned person and thus depriving him of the opportunity
of explaining it.
Subry Hamid v Husaini Tan Sri Ikhwan
The plaintiff, a lance corporal in the RMPF until his dismissal due to misconduct appealed
to the CoA after his action challenging the dismissal failed before the HC. He contended
that he did not know the disciplinary committee was taking his past record into
consideration when making their decision. Appeal allowed and the dismissal was void.
Lim Ko v Board of Architects
A complaint was made that a file whch was produced as evidence against the
complainant at the inquiry was not shown to him but the court found that the document
was produced at a hearing by a witness and questions were asked about the contents.
Appellant made no demand to examine the file despite the fact that it has been brought
to his attention. No breach of NJ, he had reasonable opportunity to inspect the file.

RNJ – AUDI ALTERAM PARTEM – HEARING – Right to rebut – Counsel Representation

Abdul Ghani Haroon v Ketua Polis Negara

Mala fide were proven when the police had prematurely made up their minds to detain
the applicants in excess of the permissible period and the deliberate denial of access to
their lawyers and family members.
Esso Malaysia Corporation v Aladdin Mohd Hashim
Appellant appealed against the decision of HC that decided in favour of the Respondent
who challenged the refusal of IC to give him the opportunity of being legally represented.
CoA held the HC decision to be correct as the right to be represented in this case was
 necessary since it was pertaining a serious matter which could affect the respondent’s
reputation.
Federal Hotel Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers
The respondent was represented by a lawyer but the IC refused permission to the
appellant’s counsel to act on his behalf and appear and address the court on the
substantive issues involved in the matter. Thus the appellant was without legal
representation. FC characterized this as gross violation of the fundamental principles of
natural justice.

RNJ – AUDI ALTERAM PARTEM – HEARING – Right to rebut – Cross-Examination

Fernando v Ceylon
Appellant contended there was a breach in NJ when he was not afforded with the
opportunity to cross examine the witness instead the two witnesses were questioned by
the Vice Chancellor alone, in the absence of other members of commission. It was held
there was no breach of NJ as appellant did not asked specifically for such cross
examination.
Errington v Wilson
Regard had to be taken to the circumstance of the case and the extent to which prejudice
might have resulted when cross-examination had been disallowed.

RNJ – AUDI ALTERAM PARTEM – HEARING – Reasoned Decision

Padfield v Minister Of Agriculture

It is not compulsory for RD to be given, BUT without RD, court will assumed the decision
made is without a good/valid reason, and this kind of decision is open for the void’s
declaration
Rohana v USM
RD is needed due to several circumstances such as where livelihood affected, free speech
is encouraged in university environment and there exist a right to appeal.
RNJ – NEMO JUDEX IN CAUSA SUA – Personal Bias

Metropolitan Properties Co v Lannon

Tenants of a flat applied for a reducton of rent and application was considered by a Civil
Commitee whose chairman was the son of one of the tenants. When the rent was
reduced, the desicion was challenged as having personal bias. The court held that , there
are was a real likehood of bias in the desion maker. Even if he impartial but if a right
minded person thinks that there was areal likehood of bias on his par.
Dato’ Kanalingan Vellupilai v Majlis Peguam & Anor
Two complaints were lodged against the plaintiff by the Bar Council and he was going to be
tried in a tribunal. The plaintiff wished to have a copy of the attendencee sheet of members
who attended the Disciplinary Board meeting that decided to establish the Inquiry Tribunal
and he also requested to see minutes of said meeting but both document were refused to
him. The plaintiff was brought the cases to the High Court on the basis that the composition
of the Tribunal might lead to a bleased desicion because some of the people who decided
in the Disciplinary Board meeting were members of the Bar Council. It was held that the
Inquiry Tribunal’s composition was not legal because the Bar Council as the complainant
sat as one of the members in the Disciplinary Board meeting.
Soh Beng Tee and Co Pte Ltd v Fairmount Development Pte Ltd
It was held that an adjudicator must be disinterested and impartial. Personal bias may
arise in the adjudicator being against, or in favour of, one party to the dispute in many
varied circumstances. For example, relationship, friendship or business dealings with, or
hostility or animosity to a party, may disqualify an official from acting as an adjudicator
in the dispute
 DISCRETIONARY POWERS

Secretary of State for Education and Science v Tamieside Metropolitan Borough

The very concept of administrative discretion involves a right to choose between more
than one possible course of action upon which there is room for reasonable people to
hold differing opinion as to which is to be preferred

EXTENDED UV - ABUSE OF DISCRETION – mala fide

Pratap Singh v State of Punjab

P served as a doctor for Punjab Civil Medical Service in India. He was charged by the Govt
of Punjab for misconduct and was suspended from his duty. P then challenged the legality
of the order of suspension on the ground that the impugned orders were passed mala
fide by or at the instance of the Chief Minister, who was in-charge of the department of
Health and who was personally hostile to him by reason of certain incidents, and that the
orders were promoted by the desire on the part of the Chief Minister to wreak personally
his vengeance on the appellant. The impugned orders were vitiated by mala fides, in that
they were motivated by an improper purpose which was outside that for which the
power of discretion was conferred on Government; and the said order placing the
appellant under suspension was set aside.
Yeap Hock Seng v Minister of Home Affairs
Burden of proof in establishing mala fide is on the applicant and is normally extremely
difficult to prove such. In this case the applicant was arrested on charge of murder and
an order of preventive detention was served on him after he was discharged by the
magistrate for lack of evidence. He challenged the order as being mala fide. Court found
no evidence of such mala fide.
Yeap Seok Pen v Govt of the State of Kelantan
Mere suspicion is not enough, he who asserts bad faith has the burden of proving it.
EXTENDED UV - ABUSE OF DISCRETION – Vague Purpose

Yew Lean Finance Development (M) Sdn Bhd v Director of Land and Mines Penang

EXTENDED UV - ABUSE OF DISCRETION – Improper Purpose

- Purpose that lies outside the scope and purpose of the statute that confers the
discretionary power to the public authority.
- Statute confers power for one purpose but use for different purpose then invalid

*Padfield v Minister of Agriculture and Fisheries Minister

President District Council Batu Pahat v Lo Hong Tan

License of the respondent was cancelled on the grounds that the premises were in a
ruinous state and were no longer suitable for occupation. Under Local Government Act,
a license could be revoked by the Local Authority at anytime without assigning any reason
therefore. Also under the Act, a closing order could have properly been made in which
case the respondent as occupier could have been asked to leave the premises. In that
case it would have been unnecessary to revoke the license. But in the instant case, no
closing order, or order of demolition had been made before cancelling the license. Court
ruled that the order of revocation was an improper exercise of the discretion vested in
the President of the District Council.
PTG, Wilayah Persekutuan v Sri Lempah Enterprises
A condition imposed to surrender freehold for a 99 year lease in consideration for
permission to develop the land was held to be unreasonable. The condition sought to be
imposed did not relate to the permitted development and was of ulterior motive

EXTENDED UV - ABUSE OF DISCRETION – Unreasonableness

*Associated Picture Houses Ltd v Wednesbury Corporation

The test is not what the court thinks is reasonable or unreasonable but here is something
so absurd that no reasonable or sensible person could have come to that decision.
Backhouse v Lambeth London B.C
 The act of authority increasing the rent fees from mere 17 pound to 1800 pound per week
was unreasonable and therefore invalid.
PTG, Wilayah Persekutuan v Sri Lempah Enterprises
A condition imposed to surrender freehold for a 99 year lease in consideration for
permission to develop the land was held to be unreasonable. The condition sought to be
imposed did not relate to the permitted development and was of ulterior motive.

EXTENDED UV - ABUSE OF DISCRETION – Irrelevant consideration/Relevant Consideration

Wednesbury
If the parent statute expressly or by implication provides matters to which the authority
exercising discretion ought to have regard, then in exercising that discretion, they must
have regards to those matters.
R v Inner London Education Authority
Even if such extraneous consideration taken account are made in good faith, it is still
invalid.
Minister of Labour v National Union of Journalists
A journalist of Utusan Melayu was a alleged to have misconducted himself towards some
female journalists in Tokyo. Utusan dismissed him without any inquiry and the Minister
refused to refer the matter to IC. The minister took into account irrelevant consideration
(adverse publicity surrounding the case), while relevant factors in arriving in the decision
(his public denial of the allegation in the newspaper and submissions made by Union of
Journalists on his behalf). The Minister’s decision was quashed.
Liew Fook Chuan v Minister of Human Resources
CoA held that a Minister in exercising his discretion under s 20(3) of IRA, it is an irrelevant
factor for the Minister to consider whether before dismissing the workman, the employer
had held a domestic inquiry. Minister ought not to be influenced by the fact of a local
inquiry.
Congreve
 Minister was conferred discretionary power to revoke TV license. Revocation made was
quashed for the powers exercised for reasons which were bad in law. A license valide for
12 months were revoked prematurely just to enable the Minister to raise more revenue.

EXTENDED UV - ABUSE OF DISCRETION – acting under dictation

Chong Cheong Wah v Sivasubramaniam

An officer had acted based on a circular by the department saying a particular book was
prejudicial. He did not himself apply his mind but seized the book in question based on
the circular. The seizure was wrong for ‘...it is for him personally to suspect and
subsequently personally think that the book was a prejudicial publication...’
Simms Motor Units v Minister of Labour
The national service officer having discretion under the law, issued an order as a result of
direction from the minister. The order was quashed by the court, the court emphasized
that if the Minister wants to lay down some policy, he should do so through rules and not
through administrative direction. The officer must exercise his own mind and then act.
The Minister cannot by instructions limit the duties or limit the discretion of the officer.
P. Pattoo v Chief Police Officer, Perak
Appellant applied to OCPD concerned for the grant of license for holding solidarity dinner
and lion dance in a public place. Instead of dealing with the applications himself the OCPD
forwarded it to the higher police authorities subsequently being rejected by CPO. Court
held under s 27(2) of the Police Act power to grant license is vested with the OCPD. The
OCPD has been acting under dictation of his superior the CPO in this case.
EXTENDED UV - ABUSE OF DISCRETION – fettering discretion

MUI Finance Bhd v Menteri Kewangan Malaysia

There is a policy where all the appeals from financial institutions under s 129 of Customs
Act 1967 will be automatically rejected, and inflexibility in policy was held to be fettering
discretion.
British Oxygen Co v Minister of Technology
There may be cases where the authority exercising discretion ought to listen to
substantial argument reasonably presented urging a change of policy. Minister must not
simply shut his ears.
R v Windsor Licensing Justices
It is wrong to pursue consistency at the expense of the merits of individual cases. Decision
makers may adopt a policy but should be prepares to listen to new arguments and
consider any special circumstances applicable to individual cases.

EXTENDED UV - ABUSE OF DISCRETION – acting mechanically

- An authority vested with discretion has to apply its mind to the facts and
circumstances of the case before taking an action. If it passes an order mechanically
without applying its mind, its act will be ultra vires.
- An authority neglect or avoid the matters which the authority ought to do.
- An authority having a discretion in a matter purportedly acts in a routine manner by
following the advice of another authority mechanically without exercising his own
independent judgement.

Emperor v Sibnath Banerjee

Home Secretary issued a preventive detention order in a routine manner on the advice
of the police without himself applying his mind to the materials before him and satisfying
himself, independently of the police recommendation, whether an order for such was
called for or not in the circumstance of the case. The Home Department followed a
practice of issuing detention order automatically when the police recommended it and
Home Secretary did not personally satisfy himself whether such order was justified or
not. Court quashed the order. The Home Secretary’s personal satisfaction was a condition
precedent otherwise it would be invalid.
Lee Guan Seng v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia
Under the Dangerous Drugs (Special Preventive Measures) Act 1958 and Emergency
(Public Order and Prevention of Crime) Ordinance 1969 the police is empowered to arrest
and detain a person suspected being involved in activities relating to trafficking dangerous
drugs for a certain number of days specified therein without an order of detention being
first issued by the Minister provided that an officer of or above a certain rank as provided
in the relevant sub-sections has reported the circumstances of the arrest and detention to
a police officer designated by the IGP in that behalf and said officer reported it to the
Minister.
Lee Guan Seng challenged his detention on the grounds that the designated officers upon
receipt of the reports concerning the applicant’s arrest and detention had not applied their
mind to such reports and thus had offended the statutory provisions. The Court emphasized
that the provisions mandatorily provide that the designated officers ‘shall forthwith report’
to the Minister……. And not merely submit or forward a report upon receipt to the Minister
immediately and mechanically without applying their mind to it. The designated officers
are not mere postman to the Minister. The detention order was held to be bad in law as it
offends mandatory procedural requirements. High Court held that “acting mechanically or
a non-application of mind” would render a detention ultra vires, and therefore, void for
having failed to conform to provisions of the Ordinance.
DELEGATUS NON POTEST DELEGARE

- An official to whom discretion has been conferred upon must exercise it and no other
officer can exercise the power. He cannot sub-delegate his power to another
authority. “A delegate cannot further delegate the power to someone else”

Fadzil bin Mohammad Noor v UTM

FC ruled that under the University and University Colleges Act 1971 the disciplinary
powers of the university staff members are vested in the disciplinary committee and not
in the university council which acts as an appellate forum against the decision made by
the former. Their functions are distinct and separate.
IGV v Alan Noor bin Kamat
When IGP was authorized to take disciplinary action against all senior police officers, the
Deputy IGP was not competent to take any such action against any such officer.
Allingham v Minister of Agricultural and Fisheries
The minister had the statutory power to give directions regarding the cultivation of land
for agricultural purposes. He had an express power to delegate this function to a
committee which attempted to sub delegate its functions to an executive officer who
issued a directive to a farmer that only sugar should be grown in a particular field. The
farmer failed to comply with the direction, and, when fined, challenged its validity
alleging that the executive officer had no power to issue it. The court quashed the
conviction finding that only the minister or the committee had the popwer to issue such
orders under the statute.
GOVERNMENT’S LIABILITY IN TORTS

- S. 5 of GPA 1956: provides that the government will be liable for any
wrongful act done, or any neglect or default committed by any public
officer generally if:-
o That officer is a government officer (refer to Sec 6(4))
o That officer acted in good faith
o That officer acted under the orders/instructions of the
government

- S 6(1): Cause of action for damages against the Govt on account of any act,
negligence or default can only be instituted if such a claim could have been
brought against the relevant officer personally. *officer in question must
be made party
- S 6(4): the relevant officer must be at all material times an officer of the
Government and paid in respect of his duties as government officer wholly
out of the revenue of the Government
- S 22: If one wishes to sue the State Government, one has to file the suit
against the State Government, not against individual party.
- LIMITATIONS
o S 6(2) - provides that if any written law negatives or limits liability of the
officer in respect of any act, neglect or default committed by him, then to
that extent, the liability of the Government is also limited
o S 6(3) – protects the govt from any proceedings for any act or omission made
by a person exercising judicial function
o Section 7(1) states that no proceedings are to lie against the government on
account of anything done or omitted to be done or refused to be done by the
government or any public officer in exercise of the public duties of the
government
o The expression exercise of public duties provided under Section 7(2)
includes:
  constructions, tenancy etc, of railways, roads, bridle‑paths or bridges;
construction, maintenance etc of school, hospitals or other public
buildings; or
 drainage, flood prevention and reclamation works; or of channels of
rivers and waterways.
 However under section 7(3) a party may sue for damages or
compensation arising out of negligence or trespass in the execution
of any works of construction or maintenance undertaken by the
government in the exercise of its public duties

Mohd Nor Afandi Mohamed Junus v Rahman Shah Alang Ibrahim

Plaintiff in this case succeeded to prove that the defendant was in fact a govt officer under
s 5 when the lorry collided with him while he was riding his motorcycle. Plaintiff also
satisfied s 6(1) and he could prove the second defendant (M’sian Govt) was the owner of
the lorry driven by the first defendant.
Haji Abdul Rahman v Government of Malaysia
The plaintiff brought an action to recover damages arising out of a traffic accident due to
the negligence of the driver of a government vehicle. The driver of the motor vehicle was
not made a party to the action. The Court dismissed the action as the government servant
was not made as defendant. The identity of the concerned officer must be ascertained
and the liability of the officer must be established before the government can be made
liable.

Govt of Malaysia v Jumat Mohamed

Govt held not liable when an exuberant pupil accidentally poked the eye of another pupil
with sharp pencil as there had been adequate supervision.
Mohamed Raihan bin Ibrahim v Government of Malaysia
Govt was held liable when a school pupil in gardening class hit another pupil with a
gardening tool as there was an inadequate supervision.
Ba Rao v Sapuran Kaur
The respondent had claimed damages on behalf of the estate of the deceased due to the
death which was caused by the negligence of the hospital. The respondent issued a notice
for the hospital to produce the reports and findings of the committee of inquiry but the
appellant objected on the grounds that these reports were unpublished and thus were
privileged from disclosure under Section 123. The Ministry of Health supported this claim
and filed an affidavit objecting to the production of the report on the grounds of public
interest and service. However, it was held by the courts that it was up to the courts to
decide whether the reports were a matter of public interest or not and in this case it was
held that it wasn‟t and thus the reports were ordered to be produced.
Telok Sabang v Govt of Malaysia
The suit arose as a result of the occupation of the plaintiffs sawmill by the armed forces.
The platoon vacated the shed and a fire broke out in the main building of the sawmill 31
hours later. The plaintiff claimed damages for the destruction of the sawmill by the fire
through negligence of the platoon. The court accepted that section 5, gave indemnity to
public officers for the purposes intended therein during an emergency. But the court
ruled that it was a doubtful that Section 5 was intended to indemnify an act of
expropriation of private property without paying compensation by the, armed forces.
Nevertheless, the court held that the fire at the sawmill could not be attributed to the
negligence of the armed forces as it broke out 31 hours after they had left.
Zaharah Bt Husin v Govt of Malaysia
A member of a security forces shot dead two villagers in the forest at night suspecting them
to be communist terrorists. A suit for damages was brought against the government on the
ground of negligence of the concerned member of the security force. Dismissing the suit,
the court ruled that although he was negligent in what he did, he was not acting mala fide.
He might have been careless in what he did but he has acted in good faith and in reasonable
belief that it was necessary for him to act as he did & therefore he acted within the law.
Section 5 of Emergency (Essential Powers) Ordinance, 1969, the court said that no action
can be taken against the public officer or the govt even though that he acted in good faith
and in a reasonable belief that the action was necessary for the purpose intended-this
limits the liability of government.
Dec2014