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 Universititys 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.