CASE(S) OF THE WEEK
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VIJAYARAO SEPERMANIAM v. SURUHANJAYA PERKHIDMATAN AWAM, MALAYSIA
[2018] 9 CLJ 141
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP CJ (MALAYA), HASAN LAH FCJ, RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ZAHARAH IBRAHIM FCJ
[CIVIL APPEAL NO: 01-37-08-2017(P)]
16 AUGUST 2018
ADMINISTRATIVE LAW: Public servants – Dismissal from service – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant’s requests – Public servant dismissed from service – Whether public servant denied right to be heard and right to documents – Whether dismissal from public service lawful, constitutional, valid and operative – Public Officers (Conduct and Discipline) Regulations 1993, regs. 4(2)(g), (i), 25(1), 28, 37(2)(a), 38, 135(2)
ADMINISTRATIVE LAW: Dismissal – Public servants – Right to appeal – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant’s requests – Public servant dismissed from service – Whether public servant had constitutional right to appeal to Appeal Board against decision of Public Service Commission – Federal Constitution, art. 144(5A) and (5B) – Public Services Disciplinary Board Regulations 1993, regs. 5(1), 14
CONSTITUTIONAL LAW: Fundamental liberties – Right to be heard – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant’s requests – Public servant dismissed from service – Whether public servant denied right to be heard and right to documents – Whether dismissal from public service lawful, constitutional, valid and operative – Federal Constitution, art. 132(1)(c)
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ZAINOOR FAIROSE ATONG (AS THE REPRESENTATIVE OF THE ESTATE OF
MAZLAN AHMAD, DECEASED) & ORS v. PACIFIC & ORIENT INSURANCE CO BHD
[2018] 9 CLJ 47
COURT OF APPEAL, PUTRAJAYA
ALIZATUL KHAIR OSMAN JCA, BADARIAH SAHAMID JCA, ZABARIAH MOHD YUSOF JCA
[CIVIL APPEAL NO: W-02(NCVC)(A)-1324-08-2015]
16 MAY 2017
CIVIL PROCEDURE: Jurisdiction – High Court – Co-ordinate jurisdiction – Whether High Court has power to set aside order of another High Court of coordinate jurisdiction – Whether judgment regularly obtained – Principle in Badiaddin Mohd Mahidin & Anor v. Arab Malaysia Finance Bhd – Whether applicable
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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
Business ordered to rehire worker it sacked for operating a side business on company time: A lesson in proper dismissal procedure
AUSTRALIA
Employment
Importer jumped the gun in firing sales associateA Melbourne-based businessman has conceded he jumped the gun in firing a worker for operating a side business on company time, after being ordered to rehire her last week.
The Fair Work Commission (FWC) has ruled cabinetry and hardware importer Lek Supply unfairly dismissed sales associate Abigail Jackman in April over allegations she stole from the company by working on her own business.
Jackman started her own business, Royal Scent & Co, while she was on maternity leave last July, selling candles, as well as bath and body products.
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First follow-on cartel damages case reaches judgment in UK
UK
Competition
HC signals allowing cartelist to retain overcharges would be against justice, fairness and public policyDamages have been awarded to BritNed in the first cartel damages case to reach judgment in the UK. BritNed, a jointly owned by UK National Grid and Dutch TenneT, was found to have paid a higher price for a submarine cable system as a result of a power cables cartel in operation between 1999 and 2009. ABB supplied the cable element for a 1,000MW high-voltage submarine cable system connecting the electricity grids of the UK and the Netherlands.
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UK judge says there has to be an app for that!
Lawyers will lose the youth market if they fail to adapt and provide legal advice rapidly via mobile phone, according to a UK judge.
Sir Geoffrey warned, ‘there are risks, but we can minimise their adverse effects. Young people will no longer accept that legal advice is one of the only things they cannot obtain instantly or the next day with a few taps on their smartphone.’ While recognising the downsides of legal technology and artificial intelligence, Sir Geoffrey explained legal advice will become commonly delivered online in areas like property, divorce and straightforward commercial deals.
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Why are investment banks nervous about Australia's cartel case?
AUSTRALIA
Financial markets
Landmark case will set precedent in area that lacks clear rules and never been tested in courtsInvestment bankers are bracing for the start of a landmark legal case about alleged cartel activity in Australia’s financial sector, nervous the proceedings could lead to increased scrutiny and tougher measures from regulators worldwide. Australian authorities filed criminal charges in June against the local units of Citigroup (C.N), Deutsche Bank (DBKGn.DE), Australia and New Zealand Banking Group (ANZ.AX) and six bankers over a $2.3 billion stock sale. Most past investigations into cartels by the Australian Competition and Consumer Commission (ACCC) have looked at trade in goods. This is the first time a probe has led to charges alleging criminal cartel conduct in the financial sector.
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Litigation finance: Could law firms remodel to take on hedge funds?
Hedge funds are making sizeable returns from the proceeds of litigation. But could law firms play them at their own game?
There has been a lot of press on the growth of the litigation funding market with funders posting record profits and a stream of new entrants seeking their piece of the pie. The industry’s global expansion has had a significant impact on how high value legal disputes are financed and many believe that the market has not yet reached its full potential. Whilst litigation funding can be the obvious, though by no means the only, solution for clients looking for assistance with their legal spend, it can come at a hefty price. The funder’s success fee will often be circa three times their investment plus the repayment of the original capital. This begs the question for how long will law firms sit back and allow hedge funds to make sizeable returns from their cases before they adjust their own models to ensure the proceeds of their success largely stay with them? Will the landscape shift to see a marked rise in law firms competing against funders through the increased use of alternative fee arrangements such as contingency fees?
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What are you smoking?
UK law firm issues first report on public opinion on legalization of medical cannabis, suggests wide-spread public support.Memery Crystal, a UK law firm advising on medicinal cannabis, has
published a report on the UK investment and legal landscape for the
cannabis industry. Included in the report are results from the first UK-wide survey into public opinion on legalising medical cannabis, commissioned by Memery Crystal and conducted by CTF Partners. Overall survey results show public opinion to be in support for the UK Home Secretary’s actions to relax the laws on medical cannabis, with 69 per cent of respondents supporting reclassification of cannabis for medicinal purposes, and only 10 per cent not supporting reclassification. Older generations were more supportive with 75 per cent over 65s and 59 per cent 25-34 year-olds. Though supportive, 65 per cent of respondents have concerns about the future direction of cannabis legislation, and 74 per cent of respondents were aware of the government announcement for reclassification, showing it to be high on the public’s radar.
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Islamic finance on the advance in Europe
EUROPE
Islamic finance
Industry becoming more influential within Europe banking sector
Latest developments show that Europe is increasingly embracing Islamic finance to an extent that the industry is gradually becoming more influential within the continent’s banking sector. Gulf Times reported last week about the growing potential Islamic finance is gaining on the Balkans, namely in Bosnia and Herzegovina, and this time it is the foray of Al Baraka Banking Group, which through its Turkish subsidiary Al Baraka Turk, launched a digital-only Islamic bank in Germany under the name of “insha,” according to a September 30 press release of the Istanbul-based Islamic lender.
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New rules for casual workers begin on October 1, 2018
AUSTRALIA
Employment
Casual workers who have worked regular hours for a year can request permanent positionCasual workers now have the right to ask their bosses for a permanent position if they have worked regular hours for at least one year. The Fair Work Commission released a ruling last year that an employee who worked an average of 38 hours for at least 12 months could ask for their position to be converted to a permanent full-time job.
Those who worked less than 38 hours can ask to be a part-time employee if they work a “pattern of hours”, according to the ruling that took effect on October 1.
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Court order makes it easier for copyright owners to curb access to piracy websites
SINGAPOREIntellectual property
Dynamic injunction, first in Singapore, will block new means of accessing infringing websites
In a move that will help disable access to piracy websites, the High Court has made it easier for six major motion-picture and television programming studios to block new websites linked to the 53 that were blocked earlier this year. The order, called a dynamic injunction, is the first in Singapore.
It will block new means of accessing the 53 infringing websites — such as The Pirate Bay, Kickass Torrents and Solarmovie.sc — without the studios having to return to court, unless there is a dispute.
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No class action for unhappy Uber drivers: U.S. appeals court
USEmployment
Uber drivers lose critical court ruling, cannot sue company as a class
Uber Technologies Inc won a legal victory on Tuesday as a federal appeals court said drivers seeking to be classified as employees rather than independent contractors must arbitrate their claims individually, and not pursue class-action lawsuits. In a 3-0 decision, the 9th U.S. Circuit Court of Appeals in San Francisco reversed a lower court judge’s denial of Uber’s motion to compel arbitration in three lawsuits.
It also overturned the class certification in one of the lawsuits of thousands of California drivers who had driven for the San Francisco-based ride-hailing company since August 2009.
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Uber, Grab Singapore Fine Shines Spotlight on M&A Notice Rules
SINGAPORECompetition
First-of-its-kind fine against Uber, Grab marks test case for competition regulation
Singapore’s first-of-its-kind fine Sept. 24 against Uber Technologies Inc. and rival Grab marks a test case for competition regulation in Southeast Asia and Singapore’s relatively new law.
Uber didn’t ask permission before it sold its the Southeast Asian business to ride-hailing company Grab in March, which gave the company 80 percent of the ride-hailing market in Singapore.
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India's supreme court decriminalises gay sex
After years of protest and many days in court, the supreme court reads down India's section 377 which criminalised 'carnal intercourse.'The Supreme Court of India has decriminalised gay sex between consenting adults by reading down Section 377 of the Indian Penal Code (IPC). The judgment titled Navtej Singh Johar & Ors. v. Union of India was delivered by a bench of chief justice of India Dipak Misra and justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
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