Administrative - 1985- 1989

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This page lists 32 cases, and was prepared on 15 November 2008.

Kioa -v- West (1985) 60 ALJR 113
1985 Mason J	Commonwealth, Administrative	Casemap 1 Citers
	(High Court of Australia) The court described the essence of procedural fairness: "In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ….."

In Re Findlay, in re Hogben [1985] 1 AC 318
1985 HL Scarman L	Administrative	Casemap 1 Cites 1 Citers
	A Secretary of State is entitled to change his policy: "It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions . . the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper or even to prevent, changes of policy." It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in "exceptional circumstances" and to leave those circumstances undefined.

Wheeler -v- Leicester City Council [1985] AC 1054
1985	Administrative	Casemap 1 Citers
	The court considered whether it could enquire as to whether one reason for a decision of the respondent was that it could be used as a cloak to disguise an improper ulterior motive.

Bourgoin SA -v- Minister of Agriculture Fisheries and Food [1985] Unreported
1985	Torts - Other, Administrative	Casemap 1 Cites 1 Citers
	The Minister had revoked the plaintiffs' licence in order to protect English turkey producers against competition from French turkey producers, knowing that this was in breach of the UK's obligations under article 30 of the EEC treaty, that the act would and was calculated to injure the plaintiffs in their businesses, and that protecting English turkey farmers was not a purpose for the achievement of which the relevant powers were conferred upon him. Held: The court considered the tort of misfeasance in public office "I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council [1982] AC 158 in the sense that malice and knowledge are alternatives. There is no sensible reason why the common law should not afford a remedy to the injured party in circumstances such as are before me. There is no sensible distinction between the case where an officer performs an act which has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A and, accordingly, I determine that paragraphs 23 and 36 of the amended statement of claim do disclose a cause of action."

Gillick -v- West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1985] 3 All ER 402; [1986] AC 112; [1985] 3 WLR 830; [1985] UKHL 7; [1986] 1 FLR 229
17 Oct 1985 HL Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Templeman	Health, Children, Administrative	1 Cites 1 Citers
	The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the advice infringed her rights as a parent, and would lead to what would be an unlawful assault. Held: "It is abundantly plain that the law recognises that there is a right and duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment." Nevertheless, the policy was capable of being lawful. A court could correct unlawful advice given by a government department. A doctor could give such advice to a girl under 16 where she would understand it, where she could not be persuaded to involve her parents, she was likely to have sex irrespective of advice, her health was at risk, and it was in her nest interests. A parent's rights of control over a child diminished as that child's understanding grew approaching adulthood.
	Statute References omitted
	Link[s] omitted

Regina -v- Secretary of State, ex parte Nottinghamshire County Council [1986] AC 240; [1985] UKHL 8
12 Dec 1985 HL Lord Scarman	Judicial Review, Administrative	Casemap 1 Citers
	A "low intensity" of review is applied to cases involving issues "depending essentially on political judgment".
	Link[s] omitted

Regina –v- Lancashire County Council ex parte Huddleston [1986] 2 All ER 941
1986	Administrative	1 Citers
	When a challenge is made in court to a decision of a public authority, there is an obligation on a respondent public authority to put before the Court the material necessary to deal with the relevant issues; "all the cards" should be "face upwards on the table".

Regina -v- Inner London Education Authority, ex parte Westminster City Council [1986] 1 All ER 19
1986 Glidewell J	Administrative, Local Government	Casemap 1 Citers
	A political purpose can taint an administrative decision with impropriety.

Bourgoin SA -v- Minister of Agriculture Fisheries and Food [1986] QB 716
1986 CA Oliver LJ, Mann J	Torts - Other, Administrative	Casemap 1 Cites 1 Citers
	The plaintiffs were French producers of turkeys. They alleged that the Minister revoked their licence to import turkeys into this country by a decision that was ultra vires and motivated by a desire to assist British turkey producers, and that this amounted to misfeasance in public office. The Minister sought to have the plea struck out on the ground that it lacked the essential averment that the Minister acted with the purpose of inflicting harm on the plaintiffs, in other words that he had 'targeted malice'. Held: It was proper to draw an inference from a party's behaviour as to their tortious intentions: 'If an act is done deliberately and with knowledge of its consequences, we do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them.' The court examined the necessary ingredients of the tort of misfeasance in public office. It recognised and analysed two strands of the tort. The claim against the nominated department of state depended on proof that "the minister's motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them" It was 'immaterial that one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences of the act or that the act was not "aimed" at the person who, it is known, will suffer them.' Oliver LJ: "If it be shown that the minister's motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them – it seems to me entirely immaterial that the one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them. In my judgment, the judge was right in his conclusion also on this point."

Minister for Aboriginal Affairs and another v Peko-Wallsend Limited and others (1986) 162 CLR 24
1986 Gibbs C.J, Mason, Brennan, Deane and Dawson JJ	Commonwealth, Administrative	Casemap 1 Citers
	(High Court of Australia) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. If the discretion at issue is unconfined by the terms of the statute, the court will not find the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. "Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law." Mason J: "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." Brennan J: "A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered."
	Link[s] omitted

Regina -v- Assistant Commissioner of Police of the Metropolis ex parte Howell (1986) RTR 52
1986	Administrative	Casemap 1 Citers
	After twelve years a London cab driver's licence was not renewed on medical grounds. Held: His challenge succeeded because he had been given no opportunity to make representations about the matters said to have concerned the decision-makers. An order that the matter be reconsidered and decided afresh.

Connor -v- Strathclyde Regional Council 1986 SLT 530
1986	Scotland, Administrative	Casemap 1 Citers

EC Gransden & Co Ltd and Falkbridge Ltd -v- Secretary of State (1987) 54 P&CR 86; [1986] JPL 519
1986 Woolf J	Planning, Administrative	Casemap 1 Citers
	If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the decision was actually made. In order to have proper regard to a policy, it is essential that the policy is properly understood by the decision-maker, otherwise the decision will be as defective as would be the case if no regard had been paid to the policy in question.

The European Gateway [1987] 1 QB 206
1987 Steyn J	Administrative	1 Cites 1 Citers
	The court considered what use should be made by a court of a previous stautory inquiry. After referring to Waddle: "It is sufficient if I observe that I do not consider that this dictum (which goes to the admissibility of the report of a wreck inquiry) is inconsistent in any way with my view of the weight that should be attached to such a report."

Regina -v- Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514; [1987] 2 WLR 606; [1986] UKHL 3; [1987] 1 All ER 940
1987 HL Lord Bridge of Harwich	Immigration, Human Rights, Administrative	Casemap 1 Cites 1 Citers
	Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth's claim that upon being returned he would been killed, had been rejected without investigation. Held: A claim to refugee status was not an exception to the ban on appeals under section 13(3). A person deemed under section 11(1) not to have entered the UK was not 'lawfully within' the UK within the meaning of the Geneva Convention, Status of Refugees 1951'. If the applicant (Musisi's) argument had been well-founded any asylum seeker arriving in the United Kingdom would have "an indefeasible right to remain here." Lord Bridge observed that that would be "very surprising" and he concluded rather that "the deeming provision enacted by section 11 (1) makes [the argument] quite untenable." There is a need for anxious scrutiny of any case where human life or liberty is at risk.
	Statute References omitted
	Link[s] omitted

Regina -v- Home Secretary, ex parte Bugdaycay [1987] 1 All ER 940; [1987] AC 514
1987 HL Lord Bridge, Lord Templeman	Criminal Practice, Administrative	Casemap 1 Cites 1 Citers
	The case concerned a refusal to grant asylum. Held: While acknowledging the limitations of the Wednesbury principles, the courts will apply them extremely strictly in a case in which the life of the applicant is at risk. The court must be entitled to subject an administrative decision to the most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. "The most fundamental of all human rights is the individual's right to life and, when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision calls for the most anxious scrutiny. Where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process."

Regina -v- Monopolies and Mergers Commission, Ex parte Elders IXL Ltd [1987] 1 WLR 1221
1987	Administrative
	The procedure in fact adopted by the Commission was so unfair as to be unlawful.

Lloyd -v- McMahon [1987] AC 625; [1987] UKHL 5
12 Mar 1987 HL Lord Bridge	Local Government, Administrative	Casemap 1 Cites 1 Citers
	An aggrieved objector to local government spending should pursue his rights under the Act and not by way of seeking judicial review. Lord Bridge: "My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure attainment of fairness."
	Statute References omitted
	Link[s] omitted

Leech -v- Governor of Parkhurst Prison [1988] AC 533; [1988] UKHL 16; [1988] 1 All ER 485; [1988] 2 WLR 290
1988 HL Lord Oliver of Aylmerton	Administrative, Prisons	Casemap 1 Citers
	The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; they are subject to the supervision of the courts in their compliance with the rules of natural justice. A governor carrying out his disciplinary functions under the English Prison Rules 1964 "is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties."
	Link[s] omitted

Regina -v- Gwent County Council ex parte Bryant [1988] Crown Office Digest p 19
1988 Hodgson J	Administrative	Casemap 1 Citers
	The court described what was meant by consultation: "Fair consultation means: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious consideration by an authority of the response to consultation "

Regina -v- Tower Hamlets London Borough Council, ex parte Chetnik Limited [1988] 1 AC 858
1988 HL Lord Bridge	Administrative, Local Government	Casemap 1 Citers
	When considering an exercise of a statutory discretion where there is no checklist given by the statute as to how it is to be exercised, how wide is the discretion? Before deciding whether a discretion has been exercised for good or bad reasons, the court must first construe the enactment by which the discretion is conferred. Some statutory discretions may be so wide that they can, for practical purposes, only be challenged if shown to have been exercised irrationally or in bad faith. But if the purpose which the discretion is intended to serve is clear, the discretion can only be validly exercised for reasons relevant to the achievement of that purpose. The powers of local authorities conferred upon them for public purposes are conferred upon them "as it were upon trust and not absolutely" and that they can only be lawfully used in the right and proper way which Parliament when conferring them may be presumed to have intended.

Regina -v- Commissioner for Local Administration ex parte Eastleigh Borough Council [1988] QB 853
1988	Administrative, Local Government	Casemap 1 Citers
	Maladministration includes bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude and arbitrariness in reaching a decision or exercising a discretion, but that it has nothing to do with the intrinsic merits of the decision itself.
	Statute References omitted

Regina -v- Director of GCHQ ex parte Hodges Unreported, 20 July 1988
20 Jul 1988 QBD	Employment, Administrative	Casemap 1 Cites 1 Citers
	The Court accepted evidence that the positive vetting procedure operated at GCHQ was required in the interests of national security. Held: The withdrawal of the applicant's positive vetting clearance was not justiciable. As to the Civil Service Union Case: "I apprehend for myself that the majority of their lordships were of the view that once it had been established by evidence that a decision had been made on behalf of Government in the interests of national security the whole ambit of that decision was one which the courts can neither enquire nor intervene."

Regina -v- Devon County Council, ex parte George [1989] 1 AC 574; [1988] 3 WLR 1386
1989 HL Lord Keith	Education, Administrative	Casemap 1 Cites 1 Citers
	A child lived 2.8 miles from school. The journey was rural and unlit. Whe he was 8, the education authority withdrew free transport saying it was practicable for a parent to walk with him. Held: The decision whether to offer support was that of the local Authority exercising its administrative discretion in the circumstancs of each case. There was material before them to support their conclusion, and it could not be set aside. Lord Keith: "It is section 55(1) under which a local education authority provides free transport to and from school for pupils who reside outside the statutory walking distance. In the case of such pupils a local education authority would be acting unreasonably if it decided that free transport was unnecessary for the purpose of providing their attendance at school, because if it were not provided the parents of these pupils would be under no legal obligation to secure their attendance".
	Erducation Act 1944 39(2)(c)(5) 55(1)

Simplex GE (Holdings) Limited -v- Secretary of State [1989] 3 PLR 25; (1989) 57 C& PR 306
1989	Planning, Administrative	Casemap 1 Citers
	A decision should in general be quashed if by way of error a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision-maker was bound on the facts to have reached the same conclusion if the error had not occurred.

Jones -v- Department of Employment [1989] QB 1; [1988] 2 WLR 493
1989 CA	Negligence, Administrative	Casemap 1 Cites
	The claimant said the respondent adjudication officer had been negligent in assessing and rejecting his claim for benefits, which had later been allowed on appeal. The officer claimed he was exercising a judicial office and was immune from action. He appealed refusal of his strike out claim, and added that he had no duty of care. Held: The officer exercised an administrative, not a judicial function, and so had no immunity. However his duties were of a public law nature, and no common law duty of care to the claimant arose.
	Statute References omitted

British Medical Association -v- Greater Glasgow Health Board 1989 SC 65; 1989 SC HL 60
1989 HL Lord Jauncey	Scotland, Administrative	Casemap 1 Cites 1 Citers
	The House considered the availability of orders against the Crown in Scotland. It is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. The general purpose of the Act was "to make it easier rather than more difficult for a subject to sue the Crown",
	Statute References omitted

Calverley -v- Chief Constable of Merseyside Police [1989] AC 1228
1989 HL	Torts - Other, Administrative	Casemap 1 Citers
	The availability of the tort of misfeasance in public office was said to be one of the reasons that justified the non-actionability of a claim in negligence for an act of maladministration.

Regina -v- Commissioner for Local Administration ex parte Croydon London Borough Council [1989] 1 All ER 1033
1989	Local Government, Administrative	Casemap 1 Citers
	Delay in application.

Calder Gravel Ltd -v- Kirklees Metropolitan Borough Council (1989) 60 P & CR 322
1989 Sir Nicolas Browne-Wilkinson V.-C	Planning, Administrative	Casemap 1 Citers
	The plaintiff's predecessor in title had applied in 1946 for planning permission. The authority approved the application and for nearly 40 years all concerned had proceeded on the basis that outline planning permission had been granted. In 1984 the defendant council contended that in the absence of a document containing a formal grant no valid permission could have been granted. A fresh application for permission was refused and the plaintiffs therefore sought a declaration that there had been a valid grant of permission in 1946 under a document that had since been lost. The Vice-Chancellor heard evidence of the circumstances in which the application had been made and the manner in which the parties had acted in the intervening period. The evidence was not satisfactory on either side and he was unable to make a firm finding either that there had, or had not, been a formal grant of permission contained in a document that had since been lost. In those circumstances he considered it proper to resort to the presumption of regularity which he described in the following terms: "But in certain cases the law raises a presumption. . . . . . The presumption is that when there has been a long-term enjoyment of a right which can only have come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence of proof to the contrary, that there was a lawful origin. This is the historical basis from which the doctrine of lost modern grant was developed in relation to easements. Given the long enjoyment of a right of way, then the court presumed the existence of a grant of the right of way. I am not for a moment suggesting that the technicalities and indeed the legal consequences applicable to lost modern grant in the law of easements are applicable to the present case; they are not. The legal basis though is the same, namely a presumption from long enjoyment. The same presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty."

Safeway Food Stores Ltd -v- Scottish Provident Institution 1989 SLT 131
1989	Scotland, Administrative	Casemap 1 Citers

Regina -v- Secretary of State for Social Services, Ex parte Child Poverty Action Group [1990] 2 QB 540; [1989] 1 All ER 1047
1989 CA	Benefits, Administrative	Casemap 1 Citers
	The applicants sought judicial review of the failures by the respondent in processing claims for benefits. They asked that there should be a declaration that the respondent had a duty to refer a claim to an adjudication officer as soon as it was received, that he should have the information needed to process the claim, and that it be dealt with within 14 days or as soon as was reasonably practicable. Held: The claimant group had a sufficient interest or standing to be entitled to seek a judicial review. No declaration should be made. An adjudication officer may himself make enquiries when setting a claim, and need not consider only matters internal to the claim.
	Statute References omitted