Wednesday, 11 May 2016

Malaysia-Judicial review - principles

In Mkini Dotcom Sdn Bhd & Ors v Chief Judge Of Malaya & Ors [2015] MLJU 1271, it was held that:-

"...[10] It is settled law, the function of the Court in exercising its power to grant leave for judicial review is to sieve through the application before it by examining the facts and the law and decide if the case is one which is frivolous and or one which merits further argument on the substantive motion. In exercising this function the Court is guided by the principles laid down by the Court of Appeal in England in R v Secretary of State for Home Department, ex parte Rushkanda Begum [1990] Crown Office Digest 109, Dip as follows:

  • 10.1.
    If it is clear to the judge that there is a point for further investigation on a full inter parte basis with all evidence as is reasonably necessary on the facts and all such arguments on the law then leave ought to be granted; 
  • 10.2.
    If the judge hearing the leave application is satisfied that there is no arguable case the judge should dismiss the application for leave to move for leave for judicial review; and 
  • 10.3.
    If the judge is not really sure whether there is or is not an arguable case, the judge may invite the putative respondent to attend and submit as to whether or not leave ought to be granted; and 
  • 10.4.
    In exercising the powers in an inter parte leave application the test applicable by the Court must be the same approach as that as the test adopted in deciding whether to grant leave to appeal against the arbitrator's award. The Court has to consider the facts and law before it and ask itself whether the Court is satisfied that there is a case fit for further consideration or otherwise. 
[11] The Federal Court had elaborated and reiterated the test for granting leave in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 CLJ 478 as follows:

Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the reliefs sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though i.e. unless the matter for judicial review is amenable to judicial review no success may be envisaged.

(see Ahli Suruhanjaya yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video yang Mengandungi Imej Seorang yang dikatakan Peguambela dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v Tun Dato' Seri Ahmad Fairuz bin Dato' Sheikh Abdul Halim [2011] MLJU 698)

[12] Based on the above high authorities Applicants applying for leave to be granted must show the following:

  • 12.1.
    The point taken is not frivolous and vexatious; 
  • 12.2.
    Leave would be granted if the point taken justifies an arguable case in favour of granting the reliefs sought at the substantive stage; and 
  • 12.3.
    The matter raised is amenable for judicial review. "

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