Course: Administrative Law

Title: Date: 2019- 5- 14

With references to judicial decisions, discuss the following instances of abuse&non-
exercise of discretion where the decisions made by administrative bodies may be declared
invalid by the court.
Introduction Definition of discretion or discretionary power

Content: 1) Setting aside irrelevant consideration/ taking into account irrelevant

consideration
Principle/positio
n of the law in The general principle/ position:
regards to tat If the administration or the authority takes into accounts irrelevant
heading consideration when he makes the decision, the decision can be quashed
by the Ct.
If the authority or administration omits to take into account relevant
considerations, the resulting decision can also be quashed by the ct.
At least 2 Cases:

2) Improper purpose
The general principle/ position:
The administration or the public authority must use the discretionary
power given to him
according to the purpose of the statue.
If th discretionary power exercised for a purpose which is outside of
the purpose of the statue, it can be considered as an abuse of discretion
becoz the power is exercised for an improper purpose.

Cases:
Pengarah Tanah & Galian, WP v Sri Lempah Enterprise
FC: If the contention is accepted,
it would mean tat t authority can unreasonably impose a condition
tat is irrelevant , to the permitted development.
The authority must act reasonably.
It doesn’t hv an un uncontrolled discretion to impose whatever
conditions it liked.
The authority cannot use its power for an ulterior obj.
3) Unreasonableness
Definition: It’s not t judge think is reasonable or not reasonable,
It’s what the court thinks tat reasonable pp would actually treat such
decision be unreasonable.
‘‘So unreasonable tat no reasonable authority could ever have come to
it’’, and
If a decision reasonable, then it’s a form of abuse and therefore such
decision will be quashed by the court.

2 Cases:
A. Prescott v Birmingham Corporation
B. Pengarah Tanah & Galian,WP v Sri Lempah Enterprise
C. Chai Choon Hon v Ketua Polis Daerah Kampar

4) Acting under dictation

Definition: It happens when the person or the officer or authority who
given t discretionary power to exercise tat discretion BUT
he or she makes t decision based on t dictation of t superior authority

2 cases:
A. P Patto v CPO, Perak
B. Chong Chong Wah v Sivasubramaniam

5) Fettering discretion
Definition: The authority of administration actually follows a policy
too strictly without considering the perculiar facts of the cases. And
If such a situation happens tat follows too strictly on the policy, the
decision tat he make maybe quashed by t court.

2 Cases:
A. H Lavender v Minister of Housing
B. MUI Finance v Menteri Kewangan Malaysia