Substantive Unfairness: A New Species of Abuse of Power?
![handle is hein.journals/fedlr28 and id is 625 raw text is: COMMENT
SUBSTANTIVE UNFAIRNESS: A NEW SPECIES OF ABUSE
OF POWER?
Cameron Stewart*
INTRODUCTION
The use of substantive unfairness as a ground of review of administrative action has
been a continuing issue for several years.' Over this period there has been an
increasing divergence between the position held by the Australian and English
judiciary. Australian judges have steered away from the recognition of such a ground
of review; while English judges have been more open to its development.2 Recently,
the English Court of Appeal, in rather spectacular fashion, completed the development
of the principle by carving out a role for substantive unfairness as a new species of
abuse of power. The decision has cemented substantive unfairness into English
administrative law.
The case, R v North and East Devon Health Authority; Ex parte Coughlan,3 is
complicated by emotional facts, numerous points of appeal and detailed reference to
the United Kingdom's National H tealth Service (NI-IS) regulation. H lowever, the case s
discussion of general principles of administrative law and its open acknowledgment of
........................................................................................................................................................................................................
Lecturer, Division of Law, Macquarie University. Thankyou to Roger Magnusson, Peter
Radan, the anonymous referee and the editor for their helpful comments and suggestions.
Any remaining errors are mine.
For academic comment, see J McLachlan, Substantive fairness: Elephantine Review or
Guiding Concept?' (1991) 2 PLIZ 12; J McLachlan, Substantive fairness: Elephantine
Review or Guiding Concept? Part II (1991) 2 PLR 109; A Abadee, Keeping Government
Accountable for its Promises: The Role of Administrative Law (1998) 5 AJAL, 191; R Cooke,
Fairness (1989) 19 VUWLR 421; P Finn and K J Smith, The Citizen, the Government and
'Reasonable Expectations' (1992) 66 A LJ 139; P Elias, Legitimate Expectations and Judicial
Review in M Taggert (ed), Judicial Review of Administrative Action in the 1980s (1986).
2 See discussion below on English developments and their rejection in Australia.
3 [2000] 2 WLR 622.](ViewImageLocal?handle=hein.journals/fedlr28&div=35&collection=&method=preview&ext=.png&size=3)
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Substantive Unfairness: A New Species of Abuse of Power?
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