Subsection
(2) This Order is subject to the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950 [Act 137].” [23] It is trite that judicial review concerns not the decision but the decision-making process (See Chief Constable of North Wales v. Evans [1982] 1 WLR 1155). In this regard, the Federal Court in R Rama Chandran v. Industrial Court of Malaysia & Anor [1996] 1 MELR 71, [1997] 1 MLJ 145, [1997] 1 AMR 433, elaborated on the three (3) grounds for judicial review: (i) illegality, (ii) irrationality and (iii) procedural impropriety. The Federal Court held as follows - [70] It is often said that judicial review is concerned not with the decision but the decision-making process. (See, e.g.Chief Constable of North Wales v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the Courts in judicial review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. [71] But, Lord Diplocks other grounds for impugning a decision susceptible to judicial review make it abundantly clear that such a decision is also open to challenge on grounds of illegality and irrationality and, in practice, this permits the Courts to scrutinise such decisions not only for process, but also for substance. [72] In this context it is useful to note how Lord Diplock defined the three grounds of review, to wit, (i) illegality, (ii) irrationality and (iii) procedural impropriety. This is how he put it:- By illegality as a ground for judicial review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided in the event of a dispute, by those persons, the Judges, by whom the judicial power of the state is exercisable. [73] By irrationality I mean what can by now be succinctly referred to as Wednesbury unreasonableness (see Associated Provincial Picture Houses Limited v. Wednesbury Corporation[1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Courts exercise of this role, resort I think is today no longer needed to Viscount Radcliffes ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow [1956] AC 14, of irrationality as a ground for a Courts reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decisionmaker Irrationality by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. [74] I have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. [75] Lord Diplock also mentioned proportionality as a possible fourth ground of review which called for development. [76] Lord Diplocks first ground for challenge, namely, illegality, involves insisting that the authority or body whose decision is being impugned has kept strictly within the perimeters of their powers. A good example of this is the case of Westminster City Council v. Great Portland Estates plc. [1985] AC 661, an ultra vires case, involving judicial construction of the Town and Country Planning Act 1971. The question for decision was whether the Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only land use aims to be pursued? It was held that the character of the use of the land, not the particular purpose of a particular occupier was the concern of planning and, therefore the authority could not seek to favour any particular occupant or class of occupant. By thus confining the relevant authority strictly to the four walls of the powers conferred upon them by the Act, the Court was involved in the exercise of reviewing the impugned decision for substance and not just process. [77] Lord Diplocks second ground for challenge, namely, irrationalityrecognises a different route whereby the substance of a decision may be reviewed by the Courts. By this means, Lord Diplock made it clear that despite being legal, that is to say within the powers conferred, a decision may nevertheless, be struck down, for being contrary to substantive principles. In the words of Lord Diplock, a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. [78] In this regard, the case of Hall & Co Ltd v. Storeham-By-Sea UDC [1964] 1 All ER 1, a planning case, affords a good illustration of how the Courts in the United Kingdom do in practice review a decision for substance even though it may comply with the legislative scheme. The defendant had granted the plaintiffs planning permission subject to conditions that required them to construct a road on their land and dedicate its use to the public. No compensation was payable to them for the loss of the land to be used for the road. Under Town and Country Planning law, a local authority may in granting planning permission, impose such conditions as it may think fit. The Court struck down the condition, one of the grounds being that the condition was void for unreasonableness. On the one hand, while viewed from a traffic engineering point of view, the defendants object was perfectly reasonable, but on the other hand, the course they adopted was utterly unreasonable. In effect, the Court had examined the decision for substance, and held that the imposition of the condition was an abuse of power and unlawful. It is implicit in this decision that the Court was indirectly enforcing the fundamental civil right to be compensated adequately for property compulsorily acquired. [79] Lord Diplocks third ground of judicial review - procedural impropriety which involves reviewing a decision for process-requires no comment, having regard to the topic I am now addressing. [80] Turning to Lord Diplocks fourth ground of judicial review - namely, proportionality there are cases in the United Kingdom which point to the conclusion that even where EEC law is not applicable, such a principle has been recognised as a general principle of English law, and when applied, it enables the Court to review an impugned decision for substance as well as process. In this context, I have in mind cases such as R v. Barnesly MBC, ex parte Hook [1976] 1 WLR 1052; Wheeler v. Leicester City Council [1985] AC 1054 and London Borough of Brent, ex parte Assegai, The Times, 18 June 1987. [24] The Applicant filed this judicial review application to quash the decision of the Tribunal, generally on the basis that the Tribunal made a decision it had no power to make and that it acted ultra vires in granting the Award. [25] On this point, this Court refers to the Federal Court case of PJD Regency (supra) and is inclined towards the submissions of the 2nd Respondent. [26] In PJD Regency (supra), there were seven appeals before the Federal Court that raised the same point of law, namely whether in a Purchaser's claim for LAD for late delivery of vacant possession against a Housing developer, the LAD ought to be reckoned from the date of payment of deposit, booking or initial fee, written intention to purchase or from the date of the sale and purchase agreement. The Federal Court held that “Where a developer failed to deliver vacant possession according to the time stipulated in the statutory sale and purchase agreement, the calculation of the LAD would begin from the date of payment of the booking fee and not from the date of that statutory agreement. This point was further clarified and cemented by the nature of the Housing Development (Control and Licensing) Act 1966 ("HDA") and the Housing Development (Control and Licensing) Regulations 1989 ("HDR") being "social legislation". (paras 20, 23, 24, 25 & 26)”. The Federal Court further held - “(7) Construing the law in a way that a breach of reg 11(2) of the HDR 1989 (which prohibited the collection of booking fees howsoever called or described) would render the Scheduled Contracts void, would be detrimental to the innocent home buyers who paid booking fees under the erroneous assumption that it was necessary to secure their purchases. The scheme of the HDA 1966, the HDR 1989 and the Scheduled Contracts expressly afforded the purchasers a statutorily calculated remedy in the LAD. It did not therefore lie in the mouths of the Developers to demand that the Purchasers be restricted to the plain words of the law when the Developers themselves by demanding and collecting booking fees had acted contrary to the express prohibition of reg 11(2). The onus of compliance with the regulatory scheme of the Housing legislation - being social legislation - was on the developers. (paras 62, 70 & 71)” [27] Additionally, this Court observed, as submitted by the 2nd Respondent, that the email issued to the Applicant’s representative stating that “Your booking is submitted” showed that the Applicant had booked the Property on behalf of the 2nd Respondent. [28] Referring to the same email dated 4.2.2020, it also indicates that Gplex Realty was the Applicant’s property agent. The sales transaction for the Property was handled by the sales agent, Ng Zi Yang. [29] Moreover, the sales agent, Ng Zi Yang was also named as the authorised person to sign the Sales Registration Form on behalf of the Applicant. [30] In this regard, the learned President of the Tribunal had clearly given sufficient appreciation of all relevant documents before him. This was evident when the learned President of the Tribunal, in paragraphs 15 – 19 of the Grounds of Judgment, stated as follows: - “15. The first document was the Offer to Purchase Form [Exhibit B] which is on the letter head of Gplex Realty. As early as the date of the letter i.e. 4-2- 2020, the agent had the details of the property including the unit number and its price. The relevant part of the form is screenshot here for easy perusal: -