Bulletin_44

CLJ Bulletin, Vol 2004, Issue 44
5 November 2004

Introduction:
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New This Week - CLJ October Part 4 2004

COURT

COURT OF APPEAL

Dato’ Idris Jusoh v. Dato’ Seri Tuan Guru Hj Abdul Hadi Awang & Ors
(Defamation - Interim injunction to restrain publication) [2004] 4 CLJ 229

Gai Hin Refrigeration Sdn Bhd v. Kamanis Holdings Sdn Bhd
(Civil procedure - Consent judgment - Variation by judge - Functus officio) [2004] 4 CLJ 232

Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Bar Council - Extraordinary General Meeting - Whether grant of injunction and declaratory reliefs proper by learned judge) [2004] 4 CLJ 239

Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd & Other Appeals
(Civil procedure - Appeal - Further evidence - Admission of - Conditions - Interference by appellate court - Findings of fact by trial court) [2004] 4 CLJ 282

National Union Of Plantation Workers v. Revertex (M) Sdn Bhd
(Labour law - Trade dispute - Reference - Whether s. 33 application a guise for bringing disputed questions of fact before Industrial Court) [2004] 4 CLJ 298

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Further evidence - Admission of - Conditions - Whether evidence could have been obtained with reasonable diligence for use at trial - Whether would have an important influence on result of case - Whether apparently credible - Ladd v. Marshall - Rules of the Court of Appeal 1994, r. 7(3A) - Courts of Judicature Act 1964, s. 69(3) - Requirement for affidavit fully explaining why evidence was not called at trial court
Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd & Other Appeals
(Abdul Kadir Sulaiman, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 282 [CA]

Appeal - Interference by appellate court - Findings of fact by trial court - Inferences drawn by trial judge - When may appellate court interfere - Primary discretion of court of first instance - Whether trial judge misdirected himself or committed error of law - Whether properly evaluated evidence - Whether inferences of fact consistent with evidence - Watt or Thomas v. Thomas - Clarke v. Edinburgh & District Tramways Co Ltd
Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd & Other Appeals
(Abdul Kadir Sulaiman, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 282 [CA]

Injunction - Injunction restraining Bar Council from convening Extraordinary General Meeting - Resolution to discuss allegations of impropriety made against then Chief Justice - Whether grant of injunction proper by learned judge
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

Judgment - Consent judgment - Variation by judge - Whether proper - Application by defendant to set aside consent judgment dismissed by judge - Whether judge can thereafter vary consent judgment - Whether judge had become functus officio - Whether judge still had jurisdiction to vary consent judgment - Whether consent judgment already drawn up and perfected - Binding nature of consent judgments
Gai Hin Refrigeration Sdn Bhd v. Kamanis Holdings Sdn Bhd
(Arifin Zakaria, Mohd Ghazali Yusoff & Nik Hashim JJCA) [2004] 4 CLJ 232 [CA]

Locus standi - Action for injunction - Injunction restraining Bar Council from convening extraordinary general meeting to discuss allegations of impropriety made against then Chief Justice - Whether applicant being a member of the Malaysian Bar had the locus standi to institute action
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

Trial - Conduct of proceedings - Whether proceedings conducted by way of
O. 33 Rules of the High Court 1980 proper
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

EVIDENCE

Admissibility - Privilege - Secrecy of Bar Council proceedings - Whether secrecy protected by s. 76(2) Legal Profession Act 1976 - Whether Evidence Act 1950 applied to admit evidence by member of Malaysian Bar
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

Fresh or further evidence - Admission of, on appeal - Conditions - Whether evidence could have been obtained with reasonable diligence for use at trial - Whether would have an important influence on result of case - Whether apparently credible - Ladd v. Marshall - Rules of the Court of Appeal 1994, r. 7(3A) - Courts of Judicature Act 1964, s. 69(3) - Requirement for affidavit fully explaining why evidence was not called at trial court
Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd & Other Appeals
(Abdul Kadir Sulaiman, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 282 [CA]

LABOUR LAW

Trade dispute - Reference - Company refusing to recognise workers as union representatives - Application by Union under s.33(1) Industrial Relations Act 1967 for interpretation of collective agreement - Whether s. 33 application a guise for bringing disputed questions of fact before Industrial Court - Whether Industrial Court had jurisdiction to entertain application - Whether company’s refusal to accord recognition a trade dispute that should have been referred to Industrial Court under s. 26(1)
National Union Of Plantation Workers v. Revertex (M) Sdn Bhd
(Mokhtar Sidin, Arifin Zakaria & Hashim Yusoff JJCA) [2004] 4 CLJ 298 [CA]

LEGAL PROFESSION

Bar Council - Extraordinary General Meeting - Resolution to discuss allegations of impropriety made against then Chief Justice - Whether meeting and proposed resolution ultra vires Legal Profession Act 1976 - Whether contemptuous and constituted offences under Sedition Act 1948 - Whether grant of injunction and declaratory reliefs proper by learned judge
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

Malaysian Bar - General meeting - Resolution to discuss allegations of impropriety made against then Chief Justice - Whether grant of interlocutory injunction proper by learned judge
Majlis Peguam Malaysia & Ors v. Raja Sekaran Krishnan & Other Appeals
(Richard Malanjum, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2004] 4 CLJ 239 [CA]

TORT

Defamation - Interim injunction to restrain publication - Words complained of - Whether defamatory of plaintiff - Whether justified - Whether learned judge erred in dismissing application for injunction
Dato’ Idris Jusoh v. Dato’ Seri Tuan Guru Hj Abdul Hadi Awang & Ors
(Hashim Yusoff Tengku Baharudin Shah JJCA & Low Hop Bing J) [2004] 4 CLJ 229 [CA]

CASE OF THE WEEK

BEATRICE FERNANDEZ v. SISTEM PENERBANGAN MALAYSIA & ANOR

CONSTITUTIONAL LAW: Fundamental liberties - Equal protection - Federal Constitution, art. 8 - Equality - Gender discrimination - Whether applies in collective agreements or employment contract as between two private individuals - Whether protection in art. 8 only available to private individual as against the State - Whether constitutional law remedies available to private individual whose fundamental rights have been violated by another private individual - Constitutional law as a branch of public law - Whether constitutional law litigation must necessarily involve the State as a party

LABOUR LAW: Employment - Termination of service - On ground of pregnancy as per collective agreement - Whether discriminatory - Whether collective agreement violates fundamental liberties under art. 8 Federal constitution - Whether collective agreement must confrorm to tenets of equality under art. 8(1) - Protection against 'religion, race, descent, place of birth or gender' discrimination - Whether art. 8(2) applies to collective agreement - Whether contravenes art. 8(2)

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