1.1To answer this question, it is necessary to understand the basis and history of the

Wednesbury review and its development in order to justify that the “Wedenesbury

Unreasonableness” born out of the case itself should sustain.

1. Brief history of the Wednesbury review and its objective

Judicial review at common law is an inherent supervisory jurisdiction of the High Court

over the validity of action or decision making process by the public authority, but not to

review the merit of a decision that has been made.

Traditionally, the judicial review is laid down in a UK case of Wednesbury in 1940

which provided 2 limbs to the test of unreasonableness namely the Super Wednesbury

Unreasonableness and the Sub Wednesbury Unreasonableness. These 2 aspects of

unreasonableness is used to attack the faulty decision-making process of the

administrators on the ground of substantive ultra vires. The former means a decision that

is so unreasonable at its highest degree that no reasonable officials or authorities could

have arrived to such a decision. The latter means an abuse of discretionary power such as

a decision that is tainted by mala fide ( in the case of Partap Singh), influenced by an

improper purpose (Sri Lempah case, Sydney Municipal v Campbell), setting aside

relevant consideration (Tan Tek Seng v SPP), and taking into account irrelevant

consideration ( Padfield v Ministry of Agricultural and Fisheries).

Merdeka Universitity’s case

In this case, it has been held that the YDA is a constitutional monarch and acts in the

discharge of his functions in accordance with the collective or individual ministerial

advice. The exercise of the discretion in the matter is really that of the Government of

Malaysia. Hence, the exercise of discretion in a case can be challenged as exercise of

discretion by any other authority.The dicta by Abdoolcader sums up all the grounds on

which a discretionary decision can be challenged.

Super-Wednesbury Unreasonableness

Subsequently, the CCSU case in 1985 came about and it then recategorised or

rationalised the two limbs of Wednesbury unreasonableness into 3 categories namely

illegality, irrationality and procedural impropriety and these are the grounds that will

mandate a judicial review. Also not to forget that the CCSU case also mentions that there

is a possibility for “proportionality” to be featured as the fourth ground of review. Here,

Super-Wednesbury unreasonableness is re-labeled as “irrationality” in CCSU.

What constitutes Super-Wednesbury unreasonableness?

The high threshold of proof is required on the part of the claimant for pursuing the

ground of Super-Wednesbury unreasonableness. When there are matters of public

expenditure or government policy involved, only absurdity amounting to bad faith or

misconduct of an extreme kind will satisfy the threshold of Super-Wednesbury

unreasonableness. In the case of Nottinghamshire, an Expenditure Guidance was issued

to local authorities by a minister was challenged on the ground of unreasonableness. The

English Courts declined to intervene.

How “irrationality” operates post-CCSU

Ex p Fielder is a case that illustrates behaviour that has been deemed

irrational. After a planning application to build houses close to Canvey

Island had been refused, a public inquiry was set up which was expected to

last for three days. One of the objectors was to give its evidence on the

second day but when it arrived to do so, the inspector had already closed the

inquiry. The parties complained and a second inquiry was set up. However,

no notice of this was issued to the parties. The court held that failure to act

with procedural fairness amounts to irrationality.