CASE(S) OF THE WEEK
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BONIFACE LOBO ROBERT V LOBO & ANOR v. TRIBUNAL PENGURUSAN STRATA, PUTRAJAYA & ORS
[2017] 6 CLJ 537
HIGH COURT MALAYA, KUALA LUMPUR
AZIZUL AZMI ADNAN J
[JUDICIAL REVIEW NO: WA-25-59-03-2016]
4 APRIL 2017
CIVIL PROCEDURE: Judicial review – Certiorari – Application to set aside decision of Strata Management Tribunal ('Tribunal') – Allegation that Tribunal breached rules of natural justice in hearing and determining claim – Whether Tribunal heard or considered merits of substantive claim – Whether claimant denied from making oral submissions – Whether Tribunal breached rules of natural justice when it did not inform claimant on law relied upon – Whether Tribunal lacked impartiality or acted in bad faith – Strata Management Act 2013
LAND LAW: Strata title – Joint Management Body – Joint Management committee – Application to set aside decision of Strata Management Tribunal ('Tribunal') – Whether Tribunal heard or considered merits of substantive claim – Whether claimant denied from making oral submissions – Whether Tribunal breached rules of natural justice when it did not inform claimant on law relied upon – Whether Tribunal lacked impartiality or acted in bad faith – Strata Management Act 2013
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MENTERI DALAM NEGERI & ORS v. GOPAL R SUBRAMANIAM
[2017] 6 CLJ 593
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF CJ; SURIYADI HALIM OMAR FCJ; RAMLY ALI FCJ; PRASAD SANDOSHAM ABRAHAM FCJ; JEFFREY TAN FCJ
[CRIMINAL APPEAL NO: 05-153-06-2016 (R)]
1 JUNE 2017
CRIMINAL PROCEDURE: Preventive detention – Detention under Prevention of Crime Act 1959 – Report of inquiry officer – Service of report on detainee – Section 10(2) – Officer having custody of detainee to serve report forthwith – Meaning of 'forthwith' – Whether to mean 'as soon as reasonably practicable' – Interpretation Acts 1948 and 1967, s. 54
STATUTORY INTERPRETATION: Prevention of Crime Act 1959 – Section 10(2) – Service of report of inquiry officer on detainee – Officer having custody of detainee to serve report forthwith – Meaning of 'forthwith' – Whether to mean 'there and then' or ‘immediate' – Whether to mean
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CASE(S) HIGHLIGHT
Uber rape case: Cab driver Shiv Kumar Yadav found guilty, faces life imprisonment
More than 10 months after a 25-year-old woman was raped and sexually assaulted inside a radio taxi in the national capital, a fast-track court in Delhi Tuesday convicted cab driver Shiv Kumar Yadav, holding him guilty on charges of rape and endangering the life of the victim. Yadav, a former driver of Uber taxi service, faces a maximum punishment of life imprisonment.
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Judgment
Sentencing Decision
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ARTICLE HIGHLIGHT
Whistleblowing: Court of Appeal sheds light on public interest test
UKEmployment
CoA's wide interpretation of 'public interest' test good news for whistleblowers, not so good for employers
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed and another [2017] EWCA Civ 979 is the first case to go before the Court of Appeal for a view on the 'public interest' test.
In order to be protected against detriment or dismissal a worker must have made a qualifying disclosure, which means any disclosure of information that, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following...
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When Can the Director of a Corporation Be Held Personally Liable for Oppression?
CANADACompany law
Circumstances in which director can be held personally liable for oppressive conduct
Oppression is a broad and equitable
remedy. It allows Courts to rectify
unfair or prejudicial behaviour on
the part of corporate stakeholders.
While most Canadian case law is
devoted to the issue of what amounts
to oppression, a new decision of
the Supreme Court of Canada,
Wilson v. Alharayeri
, 2017 SCC 39,
clarifies the circumstances in which
a director can be held personally
liable for oppressive conduct.
Wilson
emphasizes that the test for personal
liability for oppression is fluid and
contextual.
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Formal written warnings not always required to prove dismissal fair
AUSTRALIAEmployment
Employers need not formally warn employees about unsatisfactory performance
In a recent unfair dismissal claim heard at the Fair Work Commission, an employer came under fire for their lack of formal warnings and file notes regarding a dismissed underperforming employee. However, employers can breathe a sigh of relief as the Commission found that employers need not formally warn employees about unsatisfactory performance. Rather, evidence of a performance improvement plan, informal mentoring and general discussions about the dissatisfaction with the employee’s performance, was enough to warrant as warning to the employee.
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Canada's top court rules Google must block some results worldwide
CANADAIntellectual property
Supreme Court rules 7-2 Canadian courts can force Google to remove results worldwide
Canadian courts can force internet search leader Google to remove results worldwide, the country's top court ruled on Wednesday, drawing criticism from civil liberties groups arguing such a move sets a precedent for censorship on the internet.
In its 7-2 decision, Canada's Supreme Court found that a court in the country can grant an injunction preventing conduct anywhere in the world when it is necessary to ensure the injunction's effectiveness.
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No Free Accidents: Supreme Court of Canada Upholds Termination of Drug Dependent Employee
CANADAEmployment
Termination of employee involved in workplace incident while under influence of drugs
On June 15, 2017, the Supreme Court of Canada in Stewart v Elk Valley Coal Corp.1 ("Elk Valley") confronted the "uneasy fit of drug addiction and drug testing policies in the human rights arena"2. Elk Valley addresses an employer's decision to terminate an employee involved in a workplace incident while under the influence of drugs and the employee's allegation that his termination constituted unlawful discrimination under Alberta's human rights legislation.
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What's in a Name? When Profit Sharing "Insurance" is not Insurance under the Insurance Act
CANADAInsurance
Option to lock-in broker's profit share does not constitute insurance
In a recent trial win for McMillan, the Ontario Superior Court in Victess Capital Corp. v. Intact Insurance Co.1 rendered a decision that sheds light on the definition of insurance under Section 1 of the Insurance Act (the “Act”). The decision confirms that an option to lock-in a broker’s profit share does not constitute insurance under the Act, notwithstanding that the insurer may explicitly refer to the program as profit share “insurance”.
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A reminder why certainty in contracts is so important
AUSTRALIAConstructionImportant implications for interpretation of renewal clauses
In the recent New South Wales Court of Appeal decision Port Macquarie-Hasting Council v Diveva, the Court considered the contractual interpretation of a renewal clause. The clause was phrased in general terms and did not specify by whom the clause was exercisable.
This case has important implications for the interpretation of renewal clauses which you should be aware of when drafting or entering into contracts.
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Why Everyone's Talking About Dana Gas's Sukuk
MIDDLE EASTIslamic finance
Dana Gas' decision to declare Sukuk invalid sends shivers through industry
A decision by a Middle Eastern gas producer to declare its own Shariah-compliant bonds unlawful has baffled investors in the $2 trillion Islamic finance industry.
Sharjah-based Dana Gas PJSC said Tuesday it no longer considered its two Islamic bonds totaling $700 million issued four years ago as Shariah compliant under the United Arab Emirates’ law. A court in Sharjah has since barred bondholders from taking any action against the company’s securities until it reviews Dana Gas’s application to declare its debt “unlawful and unenforceable.”
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