CASE(S) OF THE WEEK
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LIM JEN HSIAN & ANOR v. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA & ORS
[2017] 8 CLJ 412
COURT OF APPEAL, PUTRAJAYA
DAVID WONG DAK WAH JCA, BADARIAH SAHAMID JCA, HARMINDAR SINGH DHALIWAL JCA
[CIVIL APPEAL NO: W-01(A) 391-12-2015]
16 MARCH 2017
ADMINISTRATIVE LAW: Judicial review – Application for – Citizenship of child – Illegitimate child – Child born to Malaysian biological father and Thai biological mother – Requirement of citizenship by jus soli and jus sanguinis – Whether child acquired citizenship of biological mother – Whether requirements under s. 1(e) of Part II, Second Schedule of Federal Constitution fulfilled – Whether child entitled to citizenship by operation of law
CONSTITUTIONAL LAW: Citizenship – Application – Illegitimate child – Child born to Malaysian biological father and Thai biological mother – Requirement of citizenship by jus soli and jus sanguinis – Whether satisfied – Whether child acquired citizenship of biological mother – Whether proven 'not born a citizen of any country' – Whether requirements under s. 1(e) of Part II, Second Schedule of Federal Constitution fulfilled – Whether child entitled to citizenship by operation of law
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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
To heave, or not to heave – a dirty business
AUSTRALIA
Insurance
Correct way to interpret exclusion clause was to construe it by reference to natural and ordinary meaning
On 25 December 2011, a storm resulted in an inundation of hail and rain which led to pooling under the concrete slab of Ms Guastalegname’s home. As a result of the pooling, there was a heave of the clay soil causing it to expand and raise the concrete slab, subsequently lifting the walls and roof frame of the building, leading to cracking and other damage to the home.
Ms Guastalegname claimed indemnity under her ‘Home Building Insurance’ policy with AAMI for the cost of repairing the damage to her home. AAMI admitted that the storm was an insured event and had caused the inundation which resulted in the heave and the damage of the home. However,
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BC Court of Appeal Confirms Dismissed Employees Do Not Require Expert Evidence to Prove Compensable Mental Injury
Canada
Employment
Courts won't award damages for normal distress and bad feelings resulting from loss of employment
An award of aggravated damages based on mental distress to a
dismissed employee in
Lau v Royal Bank of Canada
1
presented the
British Columbia Court of Appeal with its first opportunity to apply
the Supreme Court of Canada’s decision in
Saadati v Moorhead
2
.
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Landlord precluded from claiming against tenant for losses arising from a fire due to covenant to insure in the lease
Canada
Insurance
Landlord precluded from claiming against tenant for losses arising from fire due to covenant to insure in lease
The plaintiff landlord commenced an action against one of its tenants for negligence arising out of a fire loss that occurred at the landlord’s premises. The plaintiff landlord was indemnified by its insurer which advanced a subrogated claim against the tenant. As a term of the lease, the tenant contributed to the insurance premiums for coverage provided by the landlord.
The issue before the court was whether the insurer was precluded from a subrogated action against the tenant by virtue of the terms of the lease.
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Singapore court rules on apparent bias in construction adjudication
SINGAPORE
Arbitration
Adjudicators should disclose in full anything that might create apparent bias
ANALYSIS: A recent case before the Singapore High Court rejected a complaint of apparent bias against an adjudicator. The ruling suggests that adjudicators should disclose anything which might create a case of apparent bias, and disclosure should be made in full. Many adjudicators are also practitioners at the construction bar and deal with many members of the construction industry during their practice. It is therefore not surprising for adjudicators to have had dealings with the parties who come before them, in what can create fertile conditions for allegations of bias.
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Four year restraint found to be reasonable after sale of employee shares
AUSTRALIA
Employment
Four-year restraint period on employee was reasonable
In the recent decision of Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460, the Victorian Supreme Court stopped an IT specialist (the employee) from working for a competitor after it found a four year restraint period imposed on the employee to be reasonable. To sell his 40% shareholding in the company – Southern Cross Computer Systems (Southern Cross) – the employee had entered into a sale agreement which included the restraint clause in question. After some dispute as to the interpretation and scope of the restraint clause, McDonald J found that it afforded no more than reasonable protection of the purchaser’s goodwill in the business attributable to the shareholding. This article will examine how the Court construed the clause in the context of the sale agreement and how the four year restraint period was found to be reasonable.
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Protecting confidential information from digital thieves
Australia
Intellectual property
Former DXC employee prevented from disclosing or using information copied to USBs
The digital age has made it easier than ever for departing employees to “steal” important information from their (soon to be ex) employer.
The nefarious USB allows employees to siphon off terabytes of digital records, including financial statistics, client details, and prices.
The New South Wales Supreme Court recently granted an interlocutory injunction against a former employee of DXC Connect (DXC), a provider of information communication technology services. The former employee, armed with an armada of USBs, jumped ship to a market rival, taking with him sensitive information he downloaded from work computers.
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Oh me oh my, "MI" is not "I" - "MI PAD" and "IPAD" are not similar
SINGAPORE
Intellectual property
Xiaomi's 'MI PAD' and Apple 'IPAD' not similar
Xiaomi's "MI PAD" trade mark can be registered, says the Intellectual Property Office of Singapore (IPOS) following an unsuccessful opposition by Apple Inc. Underpinning the decision is the Principal Assistant Registrar's (PAR) finding that the parties' respective marks, "MI PAD" and "IPAD", were not similar.
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Related entities and failure to prevent insolvent trading – go to the back of the line
AUSTRALIAInsolvency
Guidance for liquidators attempting to recover amounts from directors of insolvent company
The appellants, Mr and Mrs Perrine, were directors and shareholders of Perrine Architecture Pty Ltd (Perrine Architecture).
Perrine Architecture owned approximately 79% of the shares in Perrinepod Pty Ltd (Perrinepod), of which the appellants were also directors.
The respondent liquidator, Mr Carrello (Liquidator) was appointed as liquidator of Perrinepod on 1 March 2012.
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Worker wins $8000 in compensation after being dismissed for admitting birthday drinks left her unable to work
AUSTRALIAEmployment
Reinstatement of employee not appropriate, employer to pay A$8,230 in compensation
Salmon producer Tassal has been ordered to pay a former employee $8200 in compensation after the company fired her for calling in sick on the afternoon of ANZAC Day this year, admitting she had “over indulged” and would not be coming to work the next day.
The staff member worked in a processing role for Tassal between August 2012 and her dismissal in May 2017.
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Database rights can subsist in PDFs, rules High Court
UK
Intellectual property
PDF version of document can constitute database
David Stone, sitting as a deputy High Court judge, was considering the issue of whether a PDF could be classed as a database under the EU's Database Directive in a case concerning a dispute between a medical technology supplier and a health provider and another supplier.
Stone determined that Bluecrest Health Screening (Bluecrest) and Express Diagnostic (Express) infringed database rights and copyright owned by Technomed in health screening reports produced for Bluecrest customers.
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How Top U.S. Law Firms Get Away With Paying Women Less
US
Legal profession
Uptick in lawyer gender-bias cases reflects broadly felt frustration
In January 2014, the law firm Chadbourne & Parke hired Kerrie Campbell to work in its Washington office. After 27 years in the business, she’d finally reached the pinnacle of private law practice: partnership at a top-tier firm—a century-old stalwart of the elite New York bar. In a press release, Chadbourne said, “We are thrilled to welcome her.”
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