-
CASE(S) HIGHLIGHT
-
ZSCHIMMER & SCHWARZ GMBH & CO KG CHEMISCHE FABRIKEN v. PERSONS UNKNOWN & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
ONG CHEE KWAN JC
[SUIT NO: WA-22NCC-600-12-2020]
13 FEBRUARY 2021
[2021] CLJ JT (4)
A self-identification order, also known as a 'Spartacus' or 'I am Spartacus' order, compels persons unknown to identify himself/herself and to provide an address for service. The self-identification order would require placement of an advertisement in local newspapers of a notice against the person(s) unknown and this notice would alert the persons unknown of the order for them to self-identify within seven days of the advertisement, failing which, they risk committal proceedings.
Read more
-
ROSLIZA IBRAHIM v. KERAJAAN NEGERI SELANGOR & ANOR
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
NALLINI PATHMANATHAN FCJ
ABDUL RAHMAN SEBLI FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
MARY LIM FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(f)-2-01-2020(B)]
5 FEBRUARY 2021
[2021] CLJ JT (3)
The Syariah Court may only exercise jurisdiction over a person when it has over him both jurisdiction ratione personae, which is contingent on the person’s legal persona, and jurisdiction ratione materiae or subject matter jurisdiction. Absent these jurisdictions the Syariah Court is not empowered to exercise any power over a person and if exercised would be ultra vires the Federal Constitution (FC). This said, in cases where a person’s religious status of whether he is a Muslim or not is in dispute, a distinction needs be drawn between cases where one ‘no longer professes the religion of Islam’ and one who ‘never professes the religion of Islam’; only the former which refers to renunciation cases is justiciable before the Syariah Court; the latter, which necessarily engages the issue of one’s identity and legal status, must fall within the jurisdiction of the Civil Court. There is also a notable difference between the term ‘profess and practise’ and ‘profess’ as used in art. 11(1) of the FC and Item 1 of the State List of the FC respectively; ‘profess’ per se is a constitutional term that is justiciable before the Civil Court, whilst ‘profess and practise’ is a question of faith and dogma and falls within the jurisdiction of the Syariah Court by virtue of art. 121(1A) of the FC.
Read more
-
MARIA CHIN ABDULLAH v. KETUA PENGARAH IMIGRESEN & ANOR
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; ROHANA YUSUF PCA; NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ; HASNAH MOHAMMED HASHIM FCJ; MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NO: 01(f)-5-03-2019(W)]
08 JANUARY 2021
The appellant, vide an application for judicial review, sought to challenge the decision of the Director General of Immigration ('DG') in imposing a travel ban against her pursuant to s. 59A of Immigration Act 1959/63. In holding that the DG was wrong in imposing the travel ban, for allegedly disparaging the government, the Federal Court held there was no positive law, clearly and unequivocally setting out that the respondents had the right to impose the travel ban, hence, the DG's discretion is not unfettered. Despite holding that ss. 59 and 59A of the Immigration Act were not inconsistent with arts. 4(1) and 121 of the Federal Constitution and thus, valid and constitutional, the peculiar facts and circumstances of the appellant's case rendered the reason for the travel ban given by the DG inappropriate; the appellant's right to travel, a fundamental right guaranteed under art. 5(1) of the Federal Constitution, had been breached.
Read more
-
PERBADANAN PENGURUSAN TRELLISES & ORS v. DATUK BANDAR KUALA LUMPUR & ORS
COURT OF APPEAL, PUTRAJAYA
MARY LIM JCA; HAS ZANAH MEHAT JCA; S NANTHA BALAN JCA
[CIVIL APPEAL NO: W-01(A)-712-12-2018]
27 JANUARY 2021
[2021] CLJ (JT2)
1. A local authority has a duty at common law to notify and hear objections from adjoining landowners in order to be regarded as having acted fairly in making its decision. The outcome of objection hearings must then be communicated with reasons proffered. The absence of an express provision in any statute requiring the decision-maker to give reasons does not however mean that such duty does not exist; the duty remains until the statute states otherwise. This having been said, the relevant r. 5(3) of the Planning (Development) Rules 1970, which is made under the Federal Territory (Planning) Act 1982 and which gives locus standi to landowners of lands adjoining the land proposed to be developed to appear in hearings or inquiries, is irrelevant in determining the locus standi in relation to an application for judicial review pursuant to O. 53 of the Rules of Court 2012 ('ROC'). Under O. 53 r. 2(4) of the ROC, persons who are adversely affected by the decision made by a public authority are allowed to initiate judicial review applications and these persons are not required to establish their right under specific law before they are entitled to initiate judicial review proceedings. Therefore, there is only one test to be applied, and that is whether the applicant is adversely affected by the decision of the public authority.
2. The Kuala Lumpur Structure Plan 2020 and the Kuala Lumpur Local Plan 2020 should act as a guide for the Datuk Bandar Kuala Lumpur, as the relevant local and planning authorities in charge of control and regulation of proper planning in Kuala Lumpur, to ensure that any planning permission for development granted to any applicant accords and is consistent with such plans. The Datuk Bandar is also duty bound to ensure that any departure therefrom must be for good reasons, and that such failure to abide by the plans be properly explained in writing by him.
Read more
JUDICIAL QUOTES
-
“Considering the above statement as pleaded in the O. 53 statement it is clear that the basis of this judicial review application is founded on the fact that the impugned State law ie, the State Sales Tax Ordinance has encroached its legislative perimeter by imposing the sales tax on petroleum product that falls under the Federal List. It is worth mentioning here that 'oil (and oilfield)' and 'petroleum products' are listed in item 8(j) of the Federal List (List I) of the Ninth Schedule Federal Constitution.”
“Hence, it is clear that the crux of the declaratory order sought by the applicant goes directly to challenge the power of the State Legislature in passing the impugned section of the State Sales Tax Ordinance. This challenge falls under art. 4(3)(b) of the Federal Constitution and pursuant to cl. (4) of art. 4, such challenge must be commenced with the leave of the judge of the Federal Court. However, the applicant did not obtain such leave before commencing this application. Consequently, I rule that this court has no jurisdiction to grant the declaration sought for.” – per Azahari Kamal Ramli J in Petroliam Nasional Bhd (PETRONAS) v. Comptroller of State Sales Tax, Sarawak & Ors [2021] 1 CLJ 430
-
ARTICLE HIGHLIGHT
Fair Work Commission gives go ahead for vaccine refusal case
AUSTRALIA
Employment
Case involving worker who declined flu shot could become landmark battle
An aged care worker who was placed on unpaid leave, and later considered to be terminated, after she refused to get vaccinated may now file her unfair dismissal complaint, the Fair Work Commission ruled. The case involving an Ozcare employee who declined the influenza vaccine is expected to become a landmark battle, at a time when companies in Australia are closely considering their options for mandatory staff vaccinations against the other highly contagious disease COVID-19.
Read more
-
UK Top Court Gives Uber Drivers Benefits in Landmark Ruling
UK
Employment
SC: Uber drivers are 'workers' and not self-employed
Uber drivers in Britain are entitled to benefits like paid holidays and minimum wage, the country’s top court ruled Friday, in a decision that threatens the company’s business model and holds broad implications for the gig economy.
The ruling that the drivers should be classed as “workers” and not self-employed is a big defeat for the ride-hailing giant. And it could inspire similar legal action against other companies who rely on gig workers as well as influence courts in other countries grappling with the issue, experts said.
Read more
-
BBC fined £28,000 for contempt after recording and broadcasting clip of court hearing on Microsoft Teams
UK
Media
BBC fined £28k for airing footage from virtual HC hearing
The BBC has been fined £28,000 for contempt of court after “a catalogue of serious errors” resulted in the recording and broadcasting of a clip from a virtual hearing to half a million people. In November 2020, regional TV news programme BBC South East Today used a “scene-setting” clip of a judicial review hearing into a controversial decision to grant planning permission to a “fracking” site in Horse Hill, Surrey.
Read more
-
Employee who took cannabis for back pain unfairly dismissed
UK
Employment
Employee prescribed opiates and morphine for medical reasons was unfairly dismissed
A recycling employee who failed a drugs test was unfairly dismissed, with an employment tribunal finding that his employer did not take into account his ‘unblemished’ service and his medical reasons for taking cannabis.
Mr Pamment had worked at Renewi UK Services for 14 years before he was dismissed on 1 April 2020, following a random drugs test that showed he was over the limit for cannabis, opiates and morphine.
Read more
-
Doctor sacked for 'setting patient on fire' wins compensation over racial discrimination
UK Employment
Surgeon sacked after accidentally setting patient on fire awarded compensation
A British doctor, who was sacked for allegedly setting a patient on fire during a surgery, was awarded about Dh330,00 in a race and unfair dismissal claim.
Surgeon wins Dh330,00 for unfair dismissal and racial abuse.
A British doctor, who was sacked for allegedly setting a patient on fire during a surgery, was awarded about Dh330,00 in a race and unfair dismissal claim.
Doctor Obi Iwuchukwu, who is originally from Nigeria and a breast specialist, was suspended after conducting an operation, according to a report in Mail Online.
The surgeon had used alcoholic antiseptic which ignited as he was using a heated surgical tool to sterilise the patient’s wounds during the medical procedure.
Read more
Emails sent to you weekly with the latest updates on the law.
