Minister of Human Resources, Malaysia v Diamet Klang (Malaysia) Sdn Bhd and another appeal [2015] 2 AMR 659; [2013] 1 LNS * 1466 (CA)

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1 Legal Updates April 2015 Cases Administrative Law Minister of Human Resources, Malaysia v Diamet Klang (Malaysia) Sdn Bhd and another appeal [2015] 2 AMR 659; [2013] 1 LNS * 1466 (CA) Whether (i) minister had applied mind independently in arriving at decision to accord recognition to union to represent employees; (ii) union competent to represent employees and that minister was correct in deciding competency issue in favour of union Judge failed to give sufficient consideration to averments by minister. Had he done so, would have noticed that minister had in fact taken into consideration all relevant factors in arriving at decision to accord recognition to union to represent employees. Judge erred in approach to issues raised; should have found no impropriety or unreasonableness in decision by minister to accord recognition to union (or competency of union) to represent employees High Court judge should give effect to s 9(6) Industrial Relations Act 1967 as to conclusiveness and finality of ministerial decision on competency The grounds of judgment may also be viewed here Teh Guat Hong v Perbadanan Tabung Pendidikan Tinggi Nasional [2015] 3 AMR 35 (CA) Whether subject matter of judicial review being sought justiciable and can be determined at leave stage Complaint was that a decision of PTPTN, a public authority, effected through a circular had deprived applicant of a benefit conferred by a previous circular granting an exemption to students who obtained First Class Honours from repayment of their loan amounts due to PTPTN Applicant without doubt a person affected by impugned decision of PTPTN. The complaint was as to its legality, arbitrariness and/or rationality. These were sufficient to grant leave to applicant to pursue judicial review process further as allowed for under O 53 Rules of Court Applicant had sufficiently demonstrated that she was not a busy-body, her grievance was not frivolous, her seeking the court s intervention was not unarguable or misconceived, and it involved a decision of a governmental authority of a general public import. Complaint was clearly susceptible to judicial review.

2 The grounds of judgment may also be viewed here The supporting judgment per Varghese a/l George Varughese JCA may be viewed here The supporting judgment per Prasad Sandosham Abraham JCA may be viewed here For the High Court grounds of decision, see [2013] 1 LNS 1465 (BM) Madlis Aziz v Board of Officers & Ors [2015] 3 CLJ 168; [2015] 2 AMR 720 (CA) Locus standi of applicant or jurisdiction of Board of Officers to review declaration by Native Court on native status of third party Court must give the words of a statute their plain and ordinary meaning with the view of promoting the purpose of the statute as envisaged under s 17A Interpretation Acts 1948 and 1967 If the expression native appears in any written law in force at the commencement or that comes into force after the commencement of Interpretation (Definition of Native) Ordinance 1989 (Sabah Cap 64), then in order to ascertain whether a person claiming to be a native is in fact a native of Sabah, resort must be made to the provisions of the Ordinance, in particular sections 2 and 3 Unsuccessful applicant under subsection (1) would be able to appeal to a District Officer or Board of Officers against the refusal of a Native Court to grant the declaration instead of relying on the power of review or revision or scrutiny of the District Officer or Board of Officers Appellant had a real and genuine interest in the subject matter, to wit the declaration as to the native status of third respondent The majority judgment may be viewed here The dissenting grounds of judgment per Rohana Yusuf JCA may be viewed here For the High Court grounds of judgment, see [2013] 5 CLJ 403; [2012] MLJU^ 666 Bankruptcy Dr Shamsul Bahar Abdul Kadir v RHB Bank Bhd and another appeal Civil Appeal Nos 03(f) (W) and 03(f) (W) (FC) Whether mandatory that judgment creditor who intends to commence bankruptcy proceedings after more than six years from date of judgment must obtain prior leave of court at time of filing bankruptcy notice (BN)

3 Outcome of appeal turns upon construction of s 3(1)(i) Bankruptcy Act 1967 (BA 1967) [which is equipollent to s 4(1)(g) English Bankruptcy Act of 1883] Given that s 3(1)(i) BA 1967 is almost an exact duplicate of s 4(1)(g) English Bankruptcy Act of 1883 and of s 1(1)(g) English Bankruptcy Act of 1914 (otherwise an exact duplicate if not for mutatis mutandis changes), English authorities on English Bankruptcy Acts of 1883 and 1914 therefore relevant on meaning and application of execution thereon not having been stayed Perwira Affin Bank v Lim Ah Hee did not say, and did not rule, that judgment creditor, when he issued the BN, must be or need not be in a position to issue immediate execution The judgment may be viewed here Tetuan Sri Ling & Associates v Lian Meng Wah [2015] 3 AMR 254; [2015] 3 CLJ 63 (CA) Whether advocate and solicitor, being an undischarged bankrupt, legally competent to continue with suit Trial judge s conclusion there could be physical injury occasioned to undischarged bankrupt neither correct nor supported by statement of claim Whether undischarged bankrupt s claim fell within exception in s 38(1)(a) Bankruptcy Act 1967 would depend on meaning of an injury to his person. Exception in s 38(1)(a) presupposes an action for damages that at law can be recovered or are recoverable, or can be awarded by court based on an injury to person. Stapeley v Annets and Robert v Owen not in favour of undischarged bankrupt Order 77 r 3(1) and (3) Rules of Court 2012 must be read together with O 77 r 1; provisions in O 77 r 3(1) and (3) had no application to case The grounds of judgment may also be viewed here Company Law Kumpulan YL Enterprise v Hamidah Abdul Razak [2014] 1 LNS 1460; [2014] AMEJ # 1482 (CA) Whether director held property in trust for company now in liquidation High Court judge s view on strength or weakness of company s audited accounts as evidence was erroneous Also did not give weight to fact that company director had signed on the accounts which in fact acknowledged the trust Burden of proof had shifted to director to rebut, but she was unable to explain why she had signed the accounts if she held the view that the property was hers

4 The grounds of judgment may be viewed here Intellectual Property Ho Tack Sien & Ors v Rotta Research Laboratorium SPA & Anor (Registrar of Trade Marks, intervener) and another appeal [2015] 4 CLJ 20 (FC) Role of registrar in rectification and expungement proceedings under s 45 Trade Marks Act 1976 No need to bring in registrar as a party where no cause of action against him Neither court nor registrar can allow a mark that has been wrongfully registered to remain on register Remedy of removal or expungement of trade mark from register not dependent on s 62(1) Contention that once a mark is registered, it is prima facie a valid trade mark is a rebuttable presumption Decision of Court of Appeal that registrar should be made a party or heard in evidence before rectification could be made not in accord with statutory provisions under Trade Marks Act or its Regulations Section 40(1)(f) only applies to a right to use a mark that has been duly registered. It is therefore tied to s 35(1). The judgment may also be viewed here Labour Law Unilever (M) Holdings Sdn Bhd v So Soo Boon Lai & Anor [2015] 3 CLJ 900; [2015] AMEJ 604 (FC) Whether compensation in lieu of reinstatement can be awarded to employee who has reached retirement age Element of compensation will only arise when employee in a position or situation to be reinstated. It is a condition precedent to such compensation a view fortified by the clear provision of s 20(1) Industrial Relations Act 1967, where the primary remedy of such a representation to Director General is for workman to be reinstated in his former employment The judgment may be viewed here The Court of Appeal decision may be viewed here Legal Profession Sundarajan a/l Sokalingam v Fredrick Indran a/l X A Nicholas O/B Perak Bar Committee & Anor (Malaysian Bar Council, intervener) Civil Appeal No A-02-[IM] (CA)

5 Advocate and solicitor s conduct must be firmly condemned Imperative of punishing lawyer professionally by starting process afresh was far outweighed by what he had endured. Point of the exercise as a professional punishment by now so lost that, being undertaken by the very same body in the flawed earlier proceedings, it might take on the appearance of vindictive punishment The grounds of judgment may be viewed here For the High Court judgment, see [2015] 8 MLJ 203; [2014] 5 AMR 259; [2014] 1 LNS 773; [2014] MLJU 772 Revenue Kenny Heights Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2015] 3 AMR 205; [2015] 1 LNS 176 (CA) Disposal of subject land, and whether disposal exempted from RPGT Unless demonstrated that Special Commissioners of Income Tax (SCIT) had erred on a question of law, resulting in a manifest error in the deciding order, court cannot intervene: Lower Perak Housing Cooperative Society v DGIR followed High Court had a different view of para 16, Sch 2, Real Property Gains Tax Act 1976 but failed to provide its reasoning, and also failed to demonstrate where SCIT had erred on a question of law. Without doing so, the intervention by High Court was without justification and an interference with the decision of SCIT. The grounds of judgment may be viewed here ~ All Malaysia Commercial Reports Monthly publication of High Court and appellate court decisions on commercial law # All Malaysia Electronic Judgments Cases which have not been reported in All Malaysia Reports * Legal Network Series Cases available on the Current Law Journal website but which have not been published in CLJ ^ Malayan Law Journal Unreported Cases available on the LexisNexis website but which have not been published in MLJ Malaysian Law Review (Appellate Courts) Cases from the Court of Appeal and the Federal Court Compiled by knowledge@lh-ag.com Lee Hishammuddin Allen & Gledhill. All Rights Reserved. DISCLAIMER: The views and opinions attributable to the editors of this newsletter are not to be imputed to the firm, Lee Hishammuddin Allen & Gledhill. The contents are intended for general information only, and should not be constructed as legal advice or legal opinion. The firm bears no responsibility for any loss that might occur from reliance on information contained in this newsletter. It is sent to you as a client of or a person with whom Lee Hishammuddin Allen & Gledhill has professional dealings. Please do not reproduce, transmit or distribute the contents therein in any form, or by any means, without prior permission from the firm.

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