1. ) RANJAN PARAMALINGAM 2. ) JUDE MICORY LOBIJIN v 1. ) DATUK BANDAR KUALA LUMPUR 2. ) PERSATUAN PENDUDUK TAMAN BANGSAR

Case Significance

Illustrates that a judicial review cannot be used as a back-door route to re-litigate the legality of a matter already decided against the applicant in an earlier private-law action, and confirms that a local authority's power to approve a gated-and-guarded scheme derives from section 101 of the Local Government Act 1976.

This High Court decision in the Special Powers Division at Kuala Lumpur concerns an application for judicial review challenging a gated-and-guarded residential scheme operated in Bangsar Park by the second respondent, the Bangsar Park Residents Association (Persatuan Penduduk Taman Bangsar), under approvals granted by the first respondent, Datuk Bandar Kuala Lumpur (the Kuala Lumpur City Hall authority). The applicants, an owner and a tenant of a terrace house in the area, complained that they had lost the free and unimpeded use of the public roads they had previously enjoyed, and sought to challenge the authority's conduct in permitting the scheme to continue, including an order of mandamus to compel the authority to remove the structures erected for it. Several threshold issues arose: whether the proceedings had become academic or premature after the authority granted a fresh approval following the filing of the review; whether the application was out of time because the grounds arose earlier when an earlier approval lapsed; whether the court had jurisdiction where Order 53 rule 3(6) of the Rules of Court 2012 had not been complied with; and whether section 101 of the Local Government Act 1976 empowered the authority to approve the scheme. The Court placed decisive weight on an earlier private-law suit brought by the same applicants against the residents' association for nuisance and breach of privacy, in which both the High Court and the Court of Appeal had held the scheme to be lawful. Having failed there, the applicants could not re-litigate the legality of the scheme by seeking a declaration that it was illegal and unconstitutional; to challenge the authority's approval in a public-law action was, in the Court's view, a back-door attempt to re-open a settled question and an abuse of the process of the court. As for the order of mandamus sought to compel removal of the structures, the Court observed that they had been erected pursuant to a scheme that had been approved, so whether they should now be taken down was a matter for ordinary litigation rather than a mandatory order against the authority.