Aggrieved for the purpose of judicial review

In the UK, the applicant in an application for judicial review must have "sufficient
interest" in the subject matter to apply for judicial review. He also does not need to
prove that he has been an "aggrieved person". Simply he needs to prove that he has
"sufficient interest" in the subject matter of the case.
In Malaysia, the applicant in an application for judicial review has to prove that he has
been "adversely affected" by the administrative decision and only then he is
considered as the aggrieved person for the purpose of judicial review. So basically,
"aggrieved person" means that the applicant's legal right has been adversely affected
by the decision of the administrative authority.
The expression adversely affected has not been defined even though the High Court in
YAM Tunku Dato Seri Nadzaruddin Ibni Tuanku Jaafar v Datuk Bandar Kuala
Lumpur seemed to treat the words adversely affected as one of sufficient interest; as
well as the Court of Appeal in QSR Brands v Security Commission [2006] 3 MLJ 164
(CA) where the particular applicant need to have sufficient personal interest in the
legality of the action impugned and Federal Court in Malaysian Trade Union Congress
& Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 where the
applicant has to at least show he has a real and genuine interest in the subject matter.

Yam Tunku Dato'' Seri Nadzaruddin Ibni Tuanku Ja''afar v Datuk Bandar Kuala
Lumpur & Anor [2003] 1 CLJ 210
The applicant had locus standi as he was adversely affected as the owner of the
adjacent land of the respondent.

QSR Brands v Security Commission [2006] 3 MLJ 164 (CA)

For the purposes of procedural locus standi, the applicant needs only to show that he is
adversely affect by the decision of any public authority (see Ord 53 r 2(4))
The phrase adversely affected in Ord 53 r 2(4) calls for a flexible approach and would
cover cases where fundamental rights/personal liberty is at stake;
[16] There is a single test of threshold locus standi for all the remedies
that are available under the order. It is that the applicant should be
'adversely affected'. The phrase calls for a flexible approach. It is for the
applicant to show that he falls within the factual spectrum that is covered
by the words 'adversely affected'. At one end of the spectrum are cases
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where the particular applicant has an obviously sufficient personal interest

in the legality of the action impugned. This includes cases where the
complaint is that a fundamental right such as the right to life or personal
liberty or property in the widest sense has been or is being or is about to
be infringed.
[17] At the other end of the spectrum are cases where the nexus between
the applicant and the legality of the action under challenge is so tenuous
that the court may be entitled to disregard it as de minimis. In the middle
of the spectrum are cases which are in the nature of a public interest
litigation.
[18] In an ordinary case, if on a reading of the application for leave to
issue judicial review the court is satisfied that the applicant has neither a
sufficient personal interest in the legality of the impugned action in the
sense already discussed, nor is the application a public interest litigation,
then leave may safely be refused on the ground that the applicant is not a
person 'adversely affected'.
Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi &
Anor [2014] 3 MLJ 145 [FC]
For an applicant to pass the 'adversely affected' test, the applicant has to at least show
he has a real and genuine interest in the subject matter. It is not necessary for the
applicant to establish infringement of a private right or the suffering of special damage.

In Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Lord
Diplock considered the concept when seeking to define the ambit of judicial review and
stated that for a legitimate expectation to arise, the decision must affect the other
person by depriving him of some benefit or advantage which either:

(i) he had in the past been permitted by the decision maker to enjoy and which
he can legitimately expect to be permitted to continue to do until there has been
communicated to him some rational grounds for withdrawing it on which he has
been given an opportunity to comment; or

(ii) he has received assurance from the decision maker that will not be
withdrawn without giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn.

@
administrative decision
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Meaning of decision for the purpose of judicial review

In most of the cases, decision was not defined. Most of the time, it is referred to
administrative decision or decision of any public authority
(Lord Brightman in the House of Lords) in Chief Constable of North Wales Police v
Evans [1982] 1 WLR 1155, that is judicial review is concerned not with the decision but
the decision making process. (of which our FC followed in Ramachandrans case
[1997] 1 MLJ 145).

In Tanjong Jaga v Minister of Labour [1987] 1 MLJ 125 (SC) where it was held that
judicial review is of the hearing and not of the decision. It is concerned not with the
decision but with the decision-making process.

Harpers Trading (M) Sdn Bhd v National Union Of Commercial Workers (Supreme
Court) (Kuala Lumpur) [1991] 1 MLJ 417
Judicial review is not an appeal from a decision but a review of the manner in which the
decision was made.

Ashbridge Investments v Minister of Housing and Local Government (Lord

Denning MR) quoted by Abdoolcader SCJ in Malayan Banking Bhd v Association of
Bank Officers, Peninsular Malaysia & Anor [1988] 3 MLJ 204 at p 207 which reads
as follows:
The court can only interfere on the ground that the Minister has gone outside the
powers of the Act or that any requirement of the Act has not been complied with. Under
this section it seems to me that the court can interfere with the Minister's decision if he
has acted on no evidence; or if he has come to a conclusion to which on the evidence
he could not reasonably come; or if he has given a wrong interpretation to the words of
the statute; or if he has taken into consideration matters which he ought not to have
taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with
the position when the court has power to interfere with the decision of a lower tribunal
which has erred in point of law.

**

In Australia, they have Administrative Decision (Judicial Review) Act 1977 whereby
there is a provision which states that to apply for review under the ADJR Act you must
be a person aggrieved by a decision, a report or recommendation that was made
under an enactment before a final decision, a conduct for the purpose of making a
decision and by failure to make a decision. It also states that to be a person aggrieved,
you must have an interest in the subject matter of the decision that is greater than a
member of the public would have. It is not enough that the person feels aggrieved.
The ADJR Act does not define the word decision. It does, however, define the
expression the making of a decision and in order to fall within the scope of the ADJR
Act, a decision must be administrative in character, be made, proposed to be made, or
required to be made under an enactment etc under section 3(2). A decision must be an
ultimate, final, or operative determination and not a mere preliminary expression of
opinion or statement.

DPN
CCSU v Minister for the Civil Service; (HoL)

Ministers instruction to the effect that the terms and conditions of the civil
servants at CCHQ would be revised so to exclude membership of any trade
union other than a departmental staff association approved by the Director of the
CCHQ.
Appellant applied for JR of the ministers instruction seeking inter alia declaration
that it was invalid because the Minister had acted unfai`rly in removing their
fundamental right to belong to a trade union without consultation.
Held that an aggrieved person was entitled to invoke judicial review if he showed
that a decision of a public authority affected him by depriving him of some benefit
or advantage which in the past he had permitted to enjoy and which he could
legitimately expect to be permitted to continue to enjoy either until he was given
reasons for its withdrawal and the opportunity to comment on those reasons or
because he had received an assurance that it would not be withdrawn before he
had been given the opportunity of making representations against the withdrawal.
* Legitimate expectation arose from regular practice of consultation gave rise to
implied limitation on ministers exercise of the power, which is obligation to act
fairly by consulting the GCHQ before withdrawing the benefit of trade union
membership.

To qualify as a subject for judicial review the decision must have consequences
which affect some person other than the decision maker, although it may affect
him too.
It must affect such person such other person either by (a) altering the rights or
obligations of that person which are enforceable by or against him in private law;
or (b) by depriving him of some benefit or advantage which either (i) he has in the
past been permitted by the decision maker to enjoy and which he can legitimately
expect to be permitted to continue to do until there has been communicated to
him some rational ground for withdrawing it on which he has been given an
opportunity to comment or (ii) he has received assurance from the decision
maker will not be withdrawn without giving him first an opportunity of advancing
reasons for contending that they should not be withdrawn.
For a decision to be susceptible to judicial review the decision maker must be
empowered by the public law (and not merely, as in arbitration by agreement
between private parties) to make decisions that, if validly made, will lead to
administrative action or abstention from action by authority endowed by law with
executive powers which have one or other of the consequences mentioned in the
preceding paragraph.
The ultimate source of the decision making power is nearly always nowadays a
statute or subordinate legislation made under the statute, but in the absence of
any statute regulating the subject matter of the decision the source of the
decision making power may still be the common law itself, ie that part of the
common law that is given by lawyers the label of the prerogative. Where this is
the source of decision-making power, the power is confined to executive officers
of central as distinct from local government and in constitutional practice is
generally exercised by those holding ministerial rank.