ERAKA NAIDU A/L SANNACY v Majlis Perbandaran Subang Jaya

Case Significance

Illustrates that a stay of a public authority's action pending judicial review requires the applicant to show special circumstances, and will be refused where the impugned action is independent of the decision under challenge.

This High Court decision at Shah Alam concerns an application for a stay in judicial-review proceedings. The applicant, acting for the residents of a residential area in Puchong, had obtained leave to seek judicial review of a local authority's decision refusing approval to operate a gated-and-guarded scheme. Pending the substantive review, the applicant sought a stay under prayer 2 of the application to restrain the respondent, Majlis Bandaraya Subang Jaya, from taking any action to demolish the guard house and boom gate that the residents had erected in 2015 and maintained through resident subscriptions. The applicant argued that the residents had complied with the relevant gated-and-guarded guidelines, including obtaining the consent of 77.5% of residents, and that a stay would cause the respondent no prejudice. The court examined the special character of a stay in the judicial-review context, drawing on authorities including Islamic Financial Services Board v Marlin Fairol Mohd Farouque and the recognition in the case law that a judicial-review stay temporarily suspends the effect of a public-law decision pending the outcome of certiorari or prohibition proceedings, and is not the same as a stay of execution after judgment. The court held that the applicant had failed to discharge the onus of showing special circumstances warranting a stay, and that the notice to demolish the guard house and boom gate was independent of the decision under challenge, so that refusing a stay would not deny the applicant the full benefit of a successful review. Finding the application without merit, the court dismissed prayer 2 of the application. The judgment is a useful illustration of the threshold of special circumstances required before a court will stay a public authority's action pending judicial review. The court's refusal turned on the applicant's failure to identify any special circumstance distinguishing the case from the ordinary run of public-law challenges, and on the demolition notice standing independently of the very refusal that was under challenge.