With regard to the new Order 53 in the Rules of Court 2012, answer ALL the following questions:
Explain the salient features of the new Order 53.
Application for Judicial Review
- R1(1) provides for the application for judicial review - uniformity of procedure, because previously different remedies have different locus standi.
- R2(4) provides that any person who is adversely affected by the action, decision or omission of any body carrying out public function or duty has the locus standi to apply for judicial review - wider scope to include action, decision or omission. no limit on public authorities, therefore private bodies may come under this as well. QSR Brands v Securities Commission: GSR introduced the spectrum test, which includes public interest litigation.
- R3(6) application must be made 3 months from date grounds of appeal arise / decision notified to applicant - an extension from the previous 40 days
- R3(7) court may extend time upon application if got good reason
- R6 any party may apply for discovery of documents and cross-examination - important as can examine affidavit or sworn statements, because witnesses are called and give evidence, during JR no more calling of witnesses. Instead affidavits are signed.
- R5 empower court to award damages
- R2(2) allows more than one remedy, either alternatively or jointly
- R2(3) states that court can grant injunction or monetary compensation as it sees fit
How and to what extent may judicial review of administrative action be affected by the new Order 53?
R1(2) subject to Specific Relief Act
R2(1) no habeas corpus
R2(3) injunction subject to s29 Government Proceedings Act (no injunction against government) and s54(d) Specific Relief Act (injunction cannot interfere with public duty carried out by government department)
R2(4) Who can file affected
R1(1) seems to suggest it reigns over Parent Act - if there are words that say order 53 only to guide, not to interfere the substance of law. If it is to control the substance, ultra vires. Justice GSR - rules are merely rules, in no way to come in and interfere with power of court.
Sivarasa Rasiah (CoA) - judges should not forget the most important case - merits and justice - not technical procedures proscribing it. Even if there is a breach of rules, if there is a merit is more important, judges should overlook the rules. Dangerous - if all courts only look at merits, rules won’t be followed. R2(1).
Discuss the validity of the new Order 53 vis-a-vis the Courts of Judicature Act 1964 and the Federal Constitution
R1(1) – inherent power – statute only confer additional power
Statute cannot limit inherent power