O. 81 Rules of the High Court 1980 & O. 14 Rules of the High Court 1980

summary

To sum up, this is a case where the plaintiff is in essence seeking to recover a liquidated sum due from the defendants. That sum represents the balance due to the plaintiff under the consent order recorded in the winding up proceedings. What the plaintiff seeks to do is to recover that sum by resort to RHC O. 81. It cannot do that as the substance of its claim falls squarely within the O. 14 jurisdiction. The two jurisdictions – under O. 14 and O. 81 – are mutually exclusive. The High Court had no jurisdiction to deal with the plaintiff’s claim under O. 81. This is not a mere technicality and is not saved by O. 1A

The Judgement

LEE TENG SIONG v. LEE KHENG LIAN & ORS
COURT OF APPEAL, PUTRAJAYA
Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA, Hashim Yusoff JCA
[CIVIL APPEAL NO: W-02-647-2005]
31 JULY 2006
JUDGMENT
Gopal Sri Ram JCA:
[1] The only point at issue here is whether an application for summary judgment which ought properly to be moved under RHC O. 14 but is moved under O. 81 is saved by the terms of O. 1A. Here is the factual matrix from which this question emerges.
[2] The plaintiff in the action (appellant before us) and the defendants (respondents in this appeal) are shareholders in a company called Lee Geok Thye Holdings Sdn Bhd ("the Company"). Following disputes between them, the plaintiff presented a petition to wind up the company on the just and equitable ground under s. 218(i) of the Companies Act 1965. The defendants who were represented by solicitors gave notice of their intention to appear and oppose the petition. The winding up proceedings came to an end when the plaintiff and the defendants (named as opposing contributories) entered into a consent order which was in essence a buy out by the defendants of all the plaintiff’s shares in the company and some other assets. The agreed purchase price was RM10,000,000. The plaintiff was to deposit the share certificates in respect of his shares and the duly executed transfer forms with his solicitor. He did that. The defendants paid two instalments of the purchase price. There was then a default. Thereafter, the plaintiff instituted an action to recover the balance of the purchase price. After delivery of the pleadings, the plaintiff moved for summary judgment. His summons for judgment recites that it was taken out under RHC O. 81 r. 1. The learned judge who heard the summons dismissed it. In essence he gave two reasons for his decision. First, that the consent order did not bind the defendants: for it was only the company which was the respondent in the winding up proceedings. The defendants were not parties to the winding up proceedings and they did not make payment to the plaintiff. On the other hand, it was the company which made the payments. Second, the consent order does not provide for a remedy against the defendants. In the circumstances, the plaintiff had no cause of action against the instant defendants and his action was an abuse of process. The plaintiff has now appealed against that order of dismissal.
[3] Now, let me say at once that it is the usual practice of this court to refuse to entertain appeals against the refusal of summary judgment. That practice was established in 1994 when this court was constituted. Once a judge has held that there are triable issues disclosed in the papers before him, we generally allow his view to prevail. For, upon such an appeal, we are only a court of review and it is not our function to trawl through the pleadings and scrutinise the affidavits to see if the judge was wrong. Once the High Court holds that there are triable issues of fact, it is best that the matter is left to proceed to the stage of case management and then on to its conclusion in the usual way. Indeed, this court is entitled to dismiss an appeal against an interlocutory order without hearing full argument unless some manifest injustice would ensue. An example of the exercise of this power is SBJ Stephenson Limited v. Mandy [1999] EWCA Civ 1720, where the English Court of Appeal dismissed an appeal against the grant of an interim injunction on the ground that it would be entirely pointless and indeed wrong for there to be a debate at the appellate stage as to whether the plaintiff in that case had a seriously arguable case justifying interim relief until trial. The court accepted that it would not be a correct use of the court’s time or cost efficient to enter into the merits of the appeal. The same applies in our jurisdiction.
[4] But this is not a usual case. It is out of the norm. Here there is no dispute as to facts. Quite the contrary. Because, all the material facts are common ground between the parties. What is contended is that the judge misdirected himself on a point of law. The misdirection, it is said, inter alia, lies in the finding by the learned judge that the defendants were not parties to the winding up. I think that there is force in the plaintiff’s complaint. A winding up petition is not a lis inter partes. It is not like a civil suit. It is a lis ad rem. All sorts of persons have an interest in winding up proceedings. You have the creditors. You have the contributories, who, by definition, include the holders of fully paid shares. The view I take is supported by the judgment of Harman J in Re Western Welsh International System Buildings Ltd [1985] 1 BCC 99, 296, at 99, 297.
[5] I must mention that during his argument, learned counsel for the plaintiff also referred us to two authorities to show that the company was only a nominal party to the winding up proceedings and that the real litigants are the shareholders. They are Re Crossmore Electrical & Civil Engineering Ltd [1989] 5 BCC 37 and Re Hydroscan Ltd [1991] BCC 19. But these are decisions on
s. 459 of the UK Companies Act, the equipollent of s. 181 of our Companies Act 1965 which concerns proceedings for oppression, unfair prejudice and unfair discrimination inter se the members of a company. They are therefore unhelpful for present purposes.
[6] That said, there are two added features in this case to which I must make reference. First the consent order makes it abundantly clear that the parties to the agreement embodied in it were the plaintiff of the one part and the defendants (described as "opposing contributories") of the other part. A consent order of the type that is under consideration here is really nothing more than an agreement for valuable consideration that has been entered into between parties to an ongoing litigation. It must be honoured by the respective obligors in the absence of any statutory or common law impediment. And like any ordinary contract, it cannot be impeached save by way of a fresh action based on any of those grounds on which an agreement may be set aside. See, Tio Chee Hing v. Tractors Malaysia [1973] 1 MLJ 66 (reversed by the Privy Council on the merits); Hock Hua Bank Bhd v. Sahari bin Murid [1981] 1 MLJ 143.
[7] In Habib Mian v. Mukhtar Ahmad AIR [1969] All 296, Pathak J when delivering one of the judgments of the Full Bench said:
There is authority for the proposition that a compromise decree is a creature of the agreement on which it is based and is subject to all the incidents of such agreement, that it is but a contract with the command of a Judge superadded to it and in construing its provisions the fundamental principles governing the construction of contracts are applicable. Nagappa v. Venkat Rao [1901] ILR 24 Mad 265; Amrit Sundari v. Sharajuddin AIR [1915] Cal 464; CJ Smith v. A. Kanny AIR [1924] Pat 231 and Jahuri Lal v. Kandhai Lal, AIR [1935] Pat 123.
One of the cardinal principles in the construction of contracts is that the entire contract must be taken as constituting an organic synthesis, embodying provisions which balance in the sum of reciprocal rights and obligations. It is through the prism of that principle that the terms of the compromise decree must be analysed.
[8] In my judgment, the consent order vested in the plaintiff a cause of action he did not previously have against the defendants. Tong Lee Wah & Anor v. Chin Ah Kwi & Ors [1971] 2 MLJ 75 is authority for the view I take. In that case, Gill FJ when delivering the unanimous decision of the Federal Court said:
After a judgment by consent has been passed and entered, it cannot afterwards be varied on the ground of mistake, except for reasons sufficient to set aside an agreement (see Attorney-General v. Tomline (1877–8) 7 Ch D 388). The general rule is that after a judgment has been passed and entered, even where it has been taken by consent and under a mistake, the court cannot set it aside otherwise than in a fresh action brought for the purpose unless (a) there has been a clerical mistake or an error arising from an accidental slip or omission, or (b) the judgment as drawn up does not correctly state what the court actually decided and intended to decide, in either of which cases the application may be made by motion in the action (see Ainsworth v. Wilding [1896] 1 Ch 673). The same rule must apply, a fortiori, where the parties have entered into an agreement in pursuance of the terms of settlement embodied in the consent order.
In re Hearn [1913] 108 LT 452, 737 is usually cited as the authority for the proposition that a consent order, embodying a new agreement between the parties beyond the scope of the action, can only be enforced in a fresh suit. In that case not only did the compromise go outside the ambit of the original action but, first, no liberty to apply had been reserved at all and the stay was absolute and unqualified, and, secondly, the relief sought by an application in the same proceedings was not a mere enforcement of the agreed terms but to modify them to give effect to the original intention in changed circumstances. It was held by Sargant J that such an application could not be made by a summons in the original action which was commenced in 1908 by originating summons, but that independent proceedings must be taken. An appeal against that decision was dismissed by the Court of Appeal. The main ground for the decision in the Court of Appeal was that the applicant was seeking relief against trustees outside the ambit of the compromise itself, but Cozens-Hardy M.R. went on to say at page 738:
But apart from that, although that alone is a sufficient ground for dismissing this appeal, there is also this further ground – namely, that this is an attempt to enforce, not a title under the will, which alone was dealt with by the trustees’ summons, but an entirely new and independent bargain between the husband and the wife, and that could not be done in the old proceedings.
[9] The second feature is this. After the consent order had been entered into, the instant defendants took out an application in the winding up to set it aside. It was the defendants’ case that their solicitor had entered into the consent order without their authority. Vincent Ng J rejected that contention. His judgment is reported in [2003] 4 CLJ 834. After examining the evidence before him he made the following findings:
Prior to the filing of this motion, there was part performance of the consent order, in that the petitioner deposited his share certificates and the duly executed memorandum of transfer with his solicitors, and the applicants and the other opposing contributories had made two payments. The applicants and the other contributories then defaulted in the payment of the third and subsequent instalments. Hence, in my view, the applicants, by the present motion are attempting to renege from the consent order and to get out of their obligations to perform the agreed terms of the consent order.
[10] These findings bind the defendants in the instant suit. Indeed I can find no clearer case of estoppel. And I need only quote from the speech of Lord Radcliffe in Society of Medical Officers of Health v. Hope [1960] AC 551:
The principles of law governing estoppel per rem judicatam inter partes are generally repeated in the form derived from the words of de Grey CJ in the Duchess of Kingston’s Case [1776] 20 St.Tr. 355, 538n and quoted by Lord Selborne LC in Reg. v. Hutchings [1881] 6 QBD 300, 304 (CA):
... the judgment of a court of concurrent’ (or of exclusive) ‘jurisdiction, directly upon the point, is conclusive ... between the same parties coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment.
Other authorities have added the requirement that there must be a lis inter partes for the judgment to proceed upon, and that the court must be a court ‘of competent jurisdiction that has seisin of the case for the purpose of reaching a final decision inter partes’: see Inland Revenue Commissioners v. Sneath [1932] 2 K.B. 362, 380-381.
[11] Based on what I have said thus far, it appears that the learned judge in the present instance fell into error in holding that the defendants were not parties to the consent order. They were. He also erred in holding that the plaintiff did not have a cause of action. The plaintiff surely has a good cause of action. He and the defendants had entered into a solemn bargain. The defendants had, after making part payments to him, refused further performance. He was therefore the victim of a breach of contract and was entitled to sue. If these be the only points at issue, then this appeal may well succeed and leave may have to be granted to the plaintiff to sign summary judgment on the uncontroverted facts. But that is not the case. And that brings me to the real issue in this appeal: the one identified at the commencement of this judgment.
[12] If you look at the plaintiff’s summons for judgment, you will see that it says that it is – and here I quote the actual words used – "an application on the part of the abovenamed plaintiff under O. 81 r 1 of the Rules of the High Court 1980". The prayer in the summons for judgment claims an order that the defendants pay to the plaintiff "the sum of RM6,800,000 being the balance of the purchase price for the assets as set out on the Schedule hereto". The Schedule sets out the plaintiff’s shares in the company and in another company called Malinjaya Sdn Bhd and two lots of land in the District of Kuala Pilah.
[13] The defendants argue that what the plaintiff’s claim is for a liquidated sum and not for the relief of specific enforcement. The plaintiff ought therefore to have proceeded under O. 14 and not under O. 81. The plaintiff says that it does not matter that the summons recites that it was being taken out under O. 81 and that the learned judge could have simply proceeded under O. 14. In support of his argument, the plaintiff relies on O. 1A which reads:
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
[14] It is the plaintiff’s submission that though the application states that it was made under O. 81 and not under O. 14, this is a mere technicality and should be ignored by the court as inconsequential. The judge, it is said, should have acted under
O. 14 and entered judgment for the plaintiff. Having given the arguments in this case my most anxious consideration I have come to the conclusion that this appeal must fail and that the order of the judge must be upheld, albeit for different reasons.
[15] At common law, a court – even a superior court of record – has no jurisdiction to enter judgment summarily against a defendant to an action. It was the English Rules of the Supreme Court 1883 that empowered the High Court to enter judgment summarily in cases where a writ was specially indorsed. However, special indorsement of a writ was not permitted in cases involving an allegation of fraud or in cases of libel, slander and malicious prosecution. In 1957, our Rules Committee discontinued the use of the FMS Civil Procedure Code and introduced the Rules of the Supreme Court 1957 which were based (save in areas of the levying of execution) on the 1883 Rules. Under the 1957 Rules, the O. 14 procedure as framed in the 1883 Rules was introduced, although this summary judgment jurisdiction did already exist under the provisions of the Civil Procedure Code. There was however no jurisdiction in the High Court to enter judgment summarily in cases of specific performance and rescission. The jurisdiction to enter summary judgment in cases of specific performance was conferred through an amendment to the 1957 Rules by the introduction of an O. 14A. In the comprehensive procedural changes that took place in 1980, this summary jurisdiction was written into O. 81 which is the current empowering provision. Take away O. 81 and you cannot enter summary judgment for specific performance or rescission. Likewise with O. 14. Take it away and the court has no jurisdiction to enter summary judgment. I have made these points to show that RHC O. 14(1) and O. 81(1) are not merely procedural in nature. They are jurisdictional. I cannot overemphasise that absent these two rules of court there is no power in the High Court to enter summary judgment.
[16] Further, O. 14 in r. 2(3) makes it amply clear that it is mutually exclusive from O. 81. It says:
This Order shall not apply to an action to which Order 81 applies.
This exclusivity is important because the jurisdiction that the court exercises under the former is distinct from the latter. Thus, a plaintiff cannot move under O. 14 until after appearance is entered. However, an appearance to the writ is not a sine qua non of the summary judgment jurisdiction conferred under O. 81. Also, O. 81 is only concerned with the forms of specific relief or damages as an alternative thereto as provided by that rule of court. Last but not the least, the procedure to be followed under O. 81 is markedly different from that prescribed by O. 14.
[16] All that I have said thus far accords with the views expressed by this court in Choong Mee Leng v. Lam Chong Seng [2005] 3 CLJ 350. At the risk of repetition, this is the view that was expressed:
4. It is not open to argument that the foregoing rule of court is jurisdictional in nature. But for the rule the court has no jurisdiction to enter summary judgment in the cases set out therein. It is to be noticed that O. 81 does not include the declaratory decree among the relief that may be granted summarily. Compare this with the English RSC 1997 which empowers an English court to summarily grant a declaration that a contract is at an end. But neither the English rule of court nor ours empowers a court to include a declaration that a contract is subsisting. It follows that the court has no power to enter summary judgment either under procedure prescribed by O. 14 or O. 81 save in a case expressly provided for in either of these rules of court.
5. In Cotra Enterprises Sdn Bhd v. Pakatan Mawar (M) Sdn Bhd [2001] MLJU 358, Ahmad Maarof JC had before him a case in which the plaintiff had sought summary judgment under O. 14 for a declaration the substance of which was that five written agreements he had entered into were void and had been rescinded. The learned judicial commissioner held – and in our judgment correctly held – that the declaration sought was in essence an order for rescission within O. 81 and therefore fell outside the scope of O. 14. In the present case the facts are inverted. Here the respondent obtained a declaration under O. 81 when that form of relief is not one of the remedies available summarily under the Order. It is our very respectful view that the High Court was plainly wrong in making the order which it did as it simply did not have the power to do so.
6. In CE Heath Plc v. Ceram Holding Co [1988] 1 WLR 1219, Neill LJ made the following observation:
The scope of O. 14 proceedings has been a matter which has been determined by the rules. There would therefore appear to be little, if any, room for an argument that the court has some wider powers in these fields than that conferred by the rules, or that it has some residual or inherent jurisdiction to grant relief where it is just to do so, or that the wide language of the statute confers some additional powers to act outside and beyond the rules.
7. That passage in our respectful judgment applies to the summary procedure created by RHC O. 81.
[17] What we are therefore concerned with are not two different procedures to achieve the same result but two entirely different types of jurisdiction. Now, O. 1A (of which I must confess to be the draftsman) speaks of the "technical non-compliance of any of the rules". A good example of a technical point is the very recent case of Alliance Bank Malaysia Bhd v. Mukhriz Mahathir [2006] 6 CLJ 723. In that case objection was taken to the admissibility of an affidavit on the ground that the affidavit did not carry a complete jurat. Ramly Ali J treated the omission as a pure technicality and excused it. But what we have here is a jurisdictional point: not a mere technical non-compliance of the rules of court. And, it is settled law that neither consent nor waiver may confer jurisdiction on a court that has none. As Lord Reid said in Essex County Council v. Essex Incorporated Congregational Church Union [1963] 1 All ER 326 at p 330:
[I]n my judgment it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.
[18] An irregularity may be waived by the court; a want of jurisdiction cannot. It therefore follows that O. 1A has no application to the present instance.
[19] In support of his argument that the High Court should have treated the mention of O. 81 as a matter of no consequence learned counsel for the plaintiff cited Lee Chong Lim v. Standard Chartered Bank Malaysia Berhad [2004] 6 CLJ 447. In that case, the plaintiff sought summary judgment purportedly under O. 81 for specific performance of an agreement he had with the defendant bank. One of the grounds on which the summons was opposed was that the contract was to lend money and that specific enforcement of such a contract would not be granted in accordance with well established principles that guide the discretion of a Court of Equity. The learned judge in that case appears to have treated a substantive objection going to discretion as a purely procedural objection. He said:
First, I shall deal with the purely procedural point that the application does not come within the ambit of O. 81(1)(a), (b) and (c) to which counsel for the defendant has correctly submitted is concerned merely with specific performance ‘for the sale, purchase or exchange of property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages’.
Rightly therefore, this application should have been made under the general provision of O. 14 which has a larger foot-print to include the grant of an order of specific performance of other contracts. But an incorrect citation of the orders of the RHC is not necessarily fatal, where the substance of the application is clear and comprehensible to the defendant - to seek by way of an application for summary judgment the specific performance of a contract. The court looks to the substance not the form. The rule is now made all that much clearer with the recent introduction of O. 1A of the RHC …
[20] With respect, I am unable to accept the view taken by the learned judge in Lee Chong Lim v. Standard Chartered Bank Malaysia Berhad. As I have already said, what appears to have been taken was a point of substance and not mere procedure. Also, the jurisdictional point taken before us does not appear to have been argued in that case. I therefore do not think that that case really assists the instant plaintiff.
[21] There is another point I need to mention. It has to do with the approach of the learned judge in this case. Now, what he had before him was a summons for judgment. Whether it be one made under O. 14 or O. 81, the only question he had to answer was whether there were bona fide triable issues that merited a full trial. He would certainly have been entitled to identify such issues. Unfortunately he went further to make findings on the merits of the case. This, with respect is outside the scope and purview of the two orders earlier referred to. If authority is needed, you will find it in Diamond Peak Sdn Bhd & Anor v. Tweedie [1980] 2 MLJ 31.
[22] To sum up, this is a case where the plaintiff is in essence seeking to recover a liquidated sum due from the defendants. That sum represents the balance due to the plaintiff under the consent order recorded in the winding up proceedings. What the plaintiff seeks to do is to recover that sum by resort to RHC O. 81. It cannot do that as the substance of its claim falls squarely within the O. 14 jurisdiction. The two jurisdictions – under O. 14 and O. 81 – are mutually exclusive. The High Court had no jurisdiction to deal with the plaintiff’s claim under O. 81. This is not a mere technicality and is not saved by O. 1A.
[23] For the reasons already given, this appeal fails. I would dismiss it with costs and affirm the orders made by the learned judge but for different reasons. The deposit must be paid out to the respondents to account of their taxed costs.
[24] By way of postscript I must add that this dismissal does not preclude the plaintiff from filing a fresh application under O. 14 as this is not a case where the summons for judgment has been dismissed on merits. So no question of issue estoppel may arise here as happened in Malayan United Finance Bhd v. Noormurni Sdn Bhd [1988] 1 MLJ 395.
[25] My learned brothers Mohd Ghazali bin Mohd Yusoff and Hashim bin Dato’ Haji Yusoff JJCA have seen this judgment in draft and have expressed their agreement with it.
* * * * * *
Case(s) referred to:
Alliance Bank Malaysia Bhd v. Mukhriz Mahathir [2006] 6 CLJ 723 HC (refd)
Choong Mee Leng v. Lam Chong Seng [2005] 3 CLJ 350 CA (foll)
Diamond Peak Sdn Bhd & Anor v. Tweedie [1980] 2 MLJ 31 (refd)
Essex County Council v. Essex Incorporated Congregational Church Union [1963] 1 All ER 326 (refd)
Habib Mian v. Mukhtar Ahmad AIR [1969] All 296 (refd)
Hock Hua Bank Bhd v. Sahari Murid [1981] 1 MLJ 143 (refd)
Lee Chong Lim v. Standard Chartered Bank Malaysia Berhad [2004] 6 CLJ 447 HC (dist)
Lee Teng Siong v. Lee Geok Thye Holdings Sdn Bhd [2003] 4 CLJ 834 HC (refd)
Malayan United Finance Bhd v. Noormurni Sdn Bhd [1988] 1 CLJ 149; [1988] 1 CLJ (Rep) 190 SC (refd)
Re Crossmore Electrical & Civil Engineering Ltd [1989] 5 BCC 37 (dist)
Re Hydroscan Ltd [1991] BCC 19 (dist)
Re Western Welsh International System Buildings Ltd [1985] 1 BCC 99 (foll)
SBJ Stephenson Limited v. Mandy [1999] EWCA Civ 1720 (refd)
Society of Medical Officers of Health v. Hope [1960] AC 551 (foll)
Tio Chee Hing v. Tractors Malaysia [1973] 1 MLJ 66 (refd)
Tong Lee Wah & Anor v. Chin Ah Kwi & Ors [1971] 2 MLJ 75 (foll)
Legislation referred to:
Companies Act 1965, ss. 181, 218(i)
Rules of the High Court 1980, O. 1A, O. 14A, O. 81 r. 1
Companies Act [UK], s. 459
For the appellant - RR Sethu (NH Wong with him); M/s NH Wong & Assoc
For the respondents - Hamid Sultan Abu Backer; M/s Hamid Sultan Loga Chitra & Assoc
[Appeal from High Court, Kuala Lumpur; Civil Suit No: D3-22-452-04]
Reported by Suresh Nathan

INDUSTRIAL COURT - : Whether the claimant had come within the definition of workman under the Act - dismissal without just cause or excuse

RUTH MARK MARK BAJANIK DAS v.TANG LING SHOPPING CENTRE SDN BHD
AWARD NO. 493 OF 2009 CASE NO: 10(23)/4-650/07]

[1] For resolution before this court is a reference made on 28 August 2006 by the Honourable Minister of Human Resources exercising his ministerial powers under s. 20(3) of the Industrial Relations Act 1967 ("the Act"). It entails the dismissal by Tang Ling Shopping Centre Sdn. Bhd. ("the company") of Ruth Mark a/p Mark Bajanik Das ("the claimant") from her employment on 15 March 2005.

The Brief Facts

[2] The claimant was employed by the company as a ‘Sales Assistant’ with effect from 21 December 2004. She was paid at a daily rate of RM28. On 15 March 2005 her service was summarily terminated.

The Issue

[3] The courts mandate on receiving a reference under s. 20(3) of the Act has be aptly articulated by Salleh Abas LP in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 (SC) as follows:

When the Industrial Court is dealing with a reference under s. 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal and if so whether it was with or without just cause or excuse. (emphasis added).

[4] That there was a termination of employment of the claimant by the company is a common position adopted by both parties. This disposes the initial task of this court, which is to determine whether there was indeed a dismissal.

[5] The next function then of this court is to verify the propriety of that termination, that is, was it for just cause or excuse. This entails a three-step process:

i) establishing the employer’s reason for the dismissal;

ii) examining whether the reason has been sufficiently made out in the proceedings before the court; and lastly

iii) concluding whether that reason constituted just cause or excuse for the dismissal.

[See the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 (FC)]

The Case For The Company

[6] COW1 (the sole witness for the company) one Ms. Pou Yoon Thau, the Human Resources Executive in the company, testified that sometime in December 2004 the claimant approached her at her office seeking a temporary position at the Shopping Centre. The claimant had informed COW1 that she was awaiting her results for the SPM examination. Ms. Pou then verbally offered the claimant the position of ‘Sales Assistant’ whilst allegedly informing her that the position would remain only until March 2005. The vacancy was apparently available at the time to accommodate the company’s "peak business time" of the school holidays; the company’s year-end stock taking exercise that would be undertaken in December and January and the Chinese New Year celebrations in February 2005 when many permanent staff would take leave. The rate of pay that was offered was in the sum of RM28 per day, payable strictly on confirmation of daily attendance at the job. In other words, "no work, no pay". According to COW1 the claimant duly accepted this temporary arrangement of employment and commenced work on 21 December 2004. The company produced 4 salary slips marked collectively as exh. COE2 which set out the earnings of the claimant for the months of December 2004 to March 2005. Each bore out the fact that the claimant was daily rated and paid for the actual days that she had worked in those respective months. Come 15 March 2005 COW1 summarily informed the claimant that her services were no longer required by the company and terminated her employment with effect from that date. Neither the appointment and its terms, nor the termination was reduced into writing.

The Case For The Claimant

[7] The claimant, who was the only one to give evidence on her own behalf, testified that as far as she was concerned she was offered and had accepted a "permanent position" as ‘Sales Assistant’ with the company. She stated that her salary was RM728 per month based on a daily rate of RM28 multiplied by 26 days. She confirmed having been assigned to the Men’s Department; that she wore the company’s uniform at work; and had worked under a supervisor on a regular schedule of shift duty. She confirmed the bone fides of the salary slips produced by the company and marked as exh. COE2. Prior to her dismissal on 15 March 2005 she had been on medical leave from 12 to 14 March; of which the company had been informed by her mother and for which she had produced a medical certificate to the company on the day of the dismissal. The claimant stated that COW1 had on the day in question merely informed her that her services were no longer required and then summarily terminated her employment.

Addressing The Issue

[8] The case of Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS 30, is binding authority for the proposition that the court is restricted in its inquiry into the veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) speaking for the Federal Court ruled:

Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.

[9] In applying the three-step process that I have to embark upon to determine if the claimant’s dismissal was for just cause or excuse, I find a unilateral dismissal of a summary nature perpetrated by the company upon the claimant. In so doing, the company has dismissed the claimant and has done so without just cause or reasonable excuse. That, I so find. In arriving at this finding I find support in the case of Nik Omar Nik Man v. Bank Simpanan Nasional [2005] 4 CLJ 66 (CA). Though not relevant on material facts, I find the principal of law expressed therein exactly on point. In that case the reason given by the employer for the dismissal of the employee was as in the instant case, simply that his services were no longer required. Arifin Zakaria FCJ (as His Lordship then was) speaking for the Court of Appeal said:

We do not think it is open to the respondent (employer) to terminate the service of the appellant (employee) simply on the premise that his service is no longer required without giving reasons for it. It should be realized that what the respondent purported to do would have dire consequences on the appellant. (emphasis added)

The Claimant’s Contract Of Employment

[10] Having decided that the claimant’s dismissal was without just cause or excuse, I now turn to the remedy to be accorded to her. This turns on the key question of discontent between the parties. It involves the contract of employment between the claimant and the company; and a consideration of whether or not the claimant could be deemed to be a "workman" under the Act. Although this aspect of the case may well have been dealt with at an earlier stage of this Award, I chose to address it here.

[11] Section 2 of the Act defines ‘contract of employment’ as:

any agreement, whether oral or in writing and whether express of implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman;

and ‘employer’ as:

any person or body of persons, whether corporate or unincorporated, who employs a workman under a contract of employment, … .

and ‘workman’ as:

any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purpose of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.

[12] In American International Assurance Co Ltd v. Dato’ Lam Peng Chong & Ors [1999] 2 CLJ 771 (Court of Appeal) per His Lordship Gopal Sri Ram JCA (as His Lordship then was):

First, the issue whether a person is a ‘workman’ as defined by the IRA depends upon the nature of the engagement in a given case. A person is a ‘workman’ if he is engaged under a contract of service. But he is an independent contractor and therefore not a ‘workman’ if his engagement is pursuant to a contract for services. The point has been concluded by binding authority. In Hoh Kiang Ngan v. Industrial Court [1996] 4 CLJ 687 the Federal Court laid down the applicable test as follows:

In our judgment, the correct test to be applied in determining whether a person is a ‘workman’ under the Act is that enunciated by Chang Min Tat FJ in Dr A Dutt v. Assunta Hospital [1981] 1 LNS 5. We accordingly hold that a ‘workman’ under the Act is one who is engaged under a contract of service. An independent contractor who is engaged under a contract for services is not a ‘workman’ under the Act. We take this view because it provides for a flexible approach to the determination of the question. It is fairly plain to see why flexibility is achieved by having resort to this test.

In all cases where it becomes necessary to determine whether a contract is one of service or one for services, the degree of control which an employer exercises over a claimant is an important factor, although it may not be the sole criterion. The terms of the contract between the parties must, therefore, first be ascertained. Where this is in writing, the task is to interpret its terms in order to determine the nature of the claimant’s duties and functions. Where it is not in writing, then its terms must be established and construed. But, in the vast majority of cases, there are facts which go to show the nature, degree and extent of control. These include but are not confined to the conduct of the parties’ at all relevant times. Their determination is a question of fact. When all the features of the engagement have been identified, it becomes necessary to determine whether the contract falls into one category or the other, that is to say, whether it is a ‘contact of service’ or a ‘contract for services’.

Second, it is clear from the Federal Court decisions in the
Dr Dutt and the Hoh Kiang Ngan cases that the question whether a person is a ‘workman’ is a question of mixed law and fact for the Industrial Court to decide. ‘The fact is the ascertainment of the relevant conduct of the parties under their contract and the proper inference to be drawn therefrom as to the terms of the contract, and the question of law (once the terms have been ascertained) is the classification of the contract as one of service or one for services’ (per Chang Min Tat FJ in Dr Dutt’s case) (emphasis added).

[13] And in Aetna Universal Insurance Sdn. Bhd. v. Tan Ann And Ors [1997] 1 ILR 851 (Award No. 163 of 1997) it was declared that:

The most authoritative pronouncement on the definition of ‘workman’ is to be found in the decision of the Federal Court in Hoh Kiang Ngan v. Industrial Court [1996] 4 CLJ 687, where the ratio decidendi as set out in headnotes 2 to 4 is as follows:

2 As the word ‘workman’ is defined in the IRA, it is not permissible to ascribe to it its common and ordinary meaning. The fact that the definition has been left unamended despite several amendments made to the Act points to the conclusion that Parliament intended to keep the definition of ‘workman’ flexible, with a view to its being worked out on a case-by-case basis.

3 The flexible and correct approach to determine whether a person is a ‘workman’ under the Act is to ascertain whether the contract is one of services or one for services. A ‘workman’ under the Act is one who is engaged under a contract of service, whereas an independent contractor who is engaged under a contract for services is not a ‘workman’ under the Act.

4 Where it is necessary to determine whether a contract is one of service or one for services, the degree and extent of control which is exercised over the person is an important factor, although not the sole criterion. The terms of the contract between the parties must first be ascertained to determine the nature of that person’s duties and functions. But in the vast majority of cases there are facts which show the nature, degree and extent of control, and these include the conduct of the parties at all relevant times. (emphasis added)

[14] The lack of a definitive document that sets out the terms and conditions of the employment agreement between the parties in the instant case does not help; but neither is it an insurmountable impediment. One only has to look at the manner and the conditions under which the claimant carried out her duties. Her testimony that she wore the company’s uniform at work; had worked under a supervisor in a single department (the "Men’s Department") and on a regular shift schedule, which remained largely unchallenged by the company, lends credence to the courts conviction that the claimant was subject to the company’s control to a sufficient degree to make it (the company) her master. The circumstances of the case show that the claimant was employed, as a ‘Sales Assistant’ as part of the company’s overall business of running a Shopping Centre. As a corollary, the court finds that the claimant was working under a contract of service, verbal though it may be and therefore was a ‘workman’ under the Act. This court finds further comfort in this ruling by reference to the case of Lian Ann Lorry Transport & Fowarding Sdn. Bhd. v. Govindasamy Palanimuthu [1982] CLJ (Rep) 173 @ 176 where Salleh Abas FJ (as he then was) speaking for the Federal Court held:

As long as there exists a relationship of a master and servant or that of an employer and employee, the law will infer a contract of service existing between them, notwithstanding the fact that the service or the employment is intended by the person in the position of master to be temporary or of short duration only. And the law will imply the existence of such relationship where a person is hired by another as an integral part of the latter’s business. Stevenson Jordan and Harrison Ltd. v. Macdonald and Evans [1952] 1 TLR 101. Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497, 524. (emphasis added)

The Remedy

[15] This court heard testimony from COW1 that the company no longer runs the Shopping Centre as at the date of hearing. This was not challenged by the claimant. Under the circumstances, reinstatement would therefore not be an appropriate remedy in this case.

[16] On due reflection of the case as a whole, it is the view of this court that what would be the appropriate remedy is an order for a fixed sum as compensation for the wrong which the claimant has suffered. In the instant case, given that the claimant was only with the company but a short time, it is the order of this court that the claimant will be compensated to the extent of three (3) months of her highest monthly earnings as shown in COE2.

Final Order

[17] This court therefore for the reasons stated above orders the company to pay the claimant, through the Malaysian Trade Union Congress, the sum of RM2,184 [RM728 (claimant’s earnings for January 2005) X 3 months] as compensation within 30 days from the date of this Award.

[Dismissal without just cause or excuse - claimant awarded compensation in the sum of RM2,184.]

Believe

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I Believe...'The happiest of people don't necessarily have the best of everything; They just make the most of everything. Thank you God for all the wonderful people who help us throughout the journey of life... May Angels guard you and guide you'

PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA

IN THE MATTER OF AN ARBITRATION BETWEEN KARAHA BODAS COMPANY, L.L.C., Petitioner, v. PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA, Respondent.

CIVIL ACTION NO. H 01-0634

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
February 15, 2002, Decided
February 20, 2002, Entered


For KARAHA BODAS COMPANY LLC: Kenneth S Marks, Susman Godfrey LLP, Houston, TX.
For KARAHA BODAS COMPANY LLC: Christopher F Dugan, Jones Day et al, Washington, DC.
For PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA, defendant: F Walter Conrad, Jr, Baker Botts, Houston, TX.


NNCY F. ATLAS, J.

This matter is before the Court on Petitioner Karaha Bodas Company, L.L.C.'s ("KBC'S") Motion for Leave to Register Judgment ("Motion to Register") [Doc. # 49] and Motion for In Camera Review of Second Affidavit of Christopher F. Dugan ("Motion for In Camera Review") [Doc. # 50]. n1 Having reviewed the parties' submissions, all matters of record, and applicable legal authorities, the Court concludes that KBC's Motion to Register and Motion for In Camera Review should be granted.

Respondent Perushahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina") has filed its Opposition to KBC's Motion to Register [Doc. # 55] and Motion for In Camera Review [Doc. # 56]. KBC has filed a Combined Reply to Respondent's Opposition [Doc. # 61]. Pertamina's Motion for Leave to File a Sur-Reply in Opposition to Motion for In Camera Review of Second Affidavit of Christopher F. Dugan [Doc. # 62] is granted, and the Court has also considered Pertamina's Sur-Reply [Doc. # 63].

On December 4, 2001, a final judgment was entered against Pertamina in favor of KBC for $ 261,166,654.92 plus interest ("Judgment"). In an Order entered January 25, 2002, this Court found that a reasonable period of time had passed since entry of the judgment and authorized KBC to commence proceedings to execute on the Judgment. KBC now seeks leave to register the Judgment in other districts pursuant to 28 U.S.C. § 1963. This Court has jurisdiction to address KBC's Motion to Register while Pertamina's appeal is pending. Chicago Downs Ass'n v. Chase, 944 F.2d 366, 371-72 (7th Cir. 1991). Pertamina has not filed a supersedeas bond or otherwise sought a stay of execution pending appeal.

Section 1963 provides in relevant part:

A judgment in an action for the recovery of money or property entered in any court of appeals, district court, bankruptcy court, or in the Court of International Trade may be registered by filing a certified copy of the judgment in any other district or, with respect to the Court of International Trade, in any judicial district, when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown.

Good Cause Standard. -- Numerous courts have found that § 1963's requirement of "good cause" is met by a showing that the defendant lacks sufficient property in the judgment forum to satisfy the judgment, and has substantial property in another district. Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1197-98 (9th Cir. 2001); Chicago Downs Ass'n, 944 F.2d at 371; Dyll v. Adams, 1998 U.S. Dist. LEXIS 1616, *3-*4 (N.D. Tex. Feb. 6, 1998); Jack Frost Lab., Inc. v. Physicians & Nurses Mfg. Corp., 951 F. Supp. 51, 52 (S.D.N.Y 1997); Bingham v. Zolt, 823 F. Supp. 1126, 1136 (S.D.N.Y. 1993), aff'd, 66 F.3d 553 (2d Cir. 1995); Schreiber v. Kellogg, 839 F. Supp. 1157, 1162 (E.D. Pa. 1993). The decision to allow registration of the Judgment lies in the Court's discretion. See Chicago Downs Ass'n, 944 F.2d at 372 (the district court's finding of good cause was not an abuse of discretion); See Columbia Pictures Television, Inc., 259 F.3d at 1197 ("We review the district court's decision to certify the judgment for registration based on a finding of good cause for an abuse of discretion.").
KBC's Evidence of Good Cause. -- In support of "good cause," KBC has submitted the First Affidavit of Christopher F. Dugan, Exhibit 4 to Motion to Register ("First Duggan Affidavit"), which identifies certain assets of Pertamina located in the Southern District of Texas and states that such assets are insufficient to satisfy the Judgment. Pertamina has not contradicted the First Dugan Affidavit in any way. The January 31, 2002 letter to this Court from Pertamina's counsel regarding a discovery dispute with KBC supports a finding that Pertamina has insufficient assets in this district to satisfy the Judgment. In that letter, counsel describes Pertamina's Houston office as "small" and states that it "merely responds to requests for information about the Indonesian oil and gas sector and sometimes facilitates purchases by Pertamina in the U.S.; it is not engaged in the sale of products or any other significant business matters in the U.S. and is not connected to the subjects of KBC's notice."

KBC has also submitted the Second Affidavit of Christopher F. Dugan ("Second Dugan Affidavit") in support of its position that Pertamina has substantial assets in other jurisdictions. KBC has asked the Court to consider the Second Dugan Affidavit in camera so as to avoid informing Pertamina of its execution strategy. Pertamina objects that consideration of the Second Dugan Affidavit in camera violates its due process right to confront the evidence against it and undermines the protections afforded to it by the Foreign Sovereign Immunities Act ("FSIA"). Pertamina's argument is unpersuasive.
In support of its ex parte submission, KBC relies in part upon Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 288, 69 L. Ed. 288, 45 S. Ct. 61 (1928), in which the Supreme Court stated:

The established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take notice of what will follow, no further notice being necessary to advance justice.

(citations omitted). The Fifth Circuit analyzed Endicott in Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1363-65 (5th Cir. 1976), and found "more recent decisions of the Supreme Court establish the need to balance various interests in order to determine whether due process requires notice and an opportunity for a hearing whenever an individual is to be deprived of property permanently or temporarily." See also Morrell v. Mock, 270 F.3d 1090, 1097 (7th Cir. 2001) ("In determining . . . what post-judgment process (if any) is due, we must balance the nature of the private interests at stake, the risk of harm from erroneous deprivations, and the government's interests affected."). The Brown court cited North Georgia Finishing, Inc. v. Di-Chem., Inc., 419 U.S. 601, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974); Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969).

This matter is before the Court on KBC's request to register the Judgment in other districts, not a request for execution. Thus, at this stage Pertamina is not being deprived of property, even temporarily. The balancing test articulated by Brown arguably is not applicable in this situation. Nonetheless, the Court has undertaken the balancing test proposed by Pertamina and finds in favor of KBC.
KBC was first awarded Judgment against Pertamina by an International Arbitral Tribunal in December, 2000. This Court affirmed the award approximately one year later and issued its Judgment. Pertamina has now appealed that Judgment to the Fifth Circuit. KBC already has had to wait a substantial period before commencing efforts to collect the award and Judgment from Pertamina. n5 There is a very real danger that Pertamina's assets in the United States will be depleted as time wears on. This danger is enhanced by the impending reorganization of Pertamina and, possibly, the precarious state of the Indonesian economy.

Pertamina has the power, even now, to stop KBC's collection efforts by filing a supersedeas bond.

Pertamina has expressed serious concerns that KBC's actions will interfere with Indonesia's sovereign immunity because some of the property KBC has identified as belonging to Pertamina may in fact belong to the Indonesian government. Pertamina's concerns can be addressed adequately in any forum in which KBC seeks a writ of execution or other process against specific property. Whether or not specific property is immune or exempt from execution is not before this Court. In addition, the risk of harm to Pertamina is mitigated by procedures under state law commonly available for relief from wrongful execution, including the right to seek damages and attorney's fees. The Court finds that the balance of interests in this case weighs in favor of KBC.
The FSIA expressly allows execution on property in the United States of a foreign state as long as the provisions of § 1610 are met. Section 1610(c) of the FSIA prohibits attachment or execution until the court has ordered such attachment and execution after determining that a reasonable period of time has elapsed following entry of judgment. KBC's current motion complies with § 1610(c) because KBC has obtained an order declaring that a "reasonable period of time" has elapsed since entry of judgment. In any event, the Court notes that only registration is currently at issue, not execution against property. Thus, Pertamina's argument that there is no provision in the FSIA allowing ex parte proceedings against the property of a foreign state is not determinative of the issue at hand. By the same token, Pertamina has identified no statutory bar to the in camera review of the Second Dugan Affidavit.

Pertamina relies on Ferrostaal Metals Corp. v. S.S. Lash Pacifico, 652 F. Supp. 420, 423, (S.D.N.Y. 1987). This case is inapposite. In Ferrostaal, the judgment creditor served various banks with non-judicial ex parte restraining notices enjoining payments to the judgment debtor. Id. at 421. The notices were not issued pursuant to a court order and thus they were "just the type of restraining notices against which § 1610(c) of the Act protects foreign states." Id. at 423. In contrast, KBC has appropriately sought an order from the Court before engaging in enforcement efforts against Pertamina.
The Court concludes that its consideration of the Second Dugan Affidavit ex parte does not violate Pertamina's right to due process or it rights under the FSIA. The affidavit supports KBC's requests as to jurisdictions in which registration of the Judgment may take place. A separate order authorizing execution in those jurisdiction will also be necessary.
Scope of Leave to Register. -- KBC's Motion to Register seeks leave to register the Judgment in other districts generally. However, the Second Dugan Affidavit presents evidence that Pertamina has substantial assets potentially subject to execution in Delaware, New York, and California. n7 The body of case law interpreting the "good cause" provision of 28 U.S.C. § 1963 does not establish whether registration should be granted generally, or should be limited to any district in which the plaintiff has presented evidence that the defendant has substantial assets. The Court finds that the reasonable and equitable application of the "good cause" standard mandates, during the pendency of an ppeal, registration only in those districts for which KBC has supplied evidence of the existence of assets. See Jack Frost Lab., Inc., 951 F. Supp. at 52 (granting motion to register judgment in Florida, but not in district courts in any other states because plaintiff presented no evidence of assets outside of Florida).

The Court concludes, after balancing the interests of the parties, that due process requires the provision of notice to Pertamina of the jurisdictions in which the Judgment against it may be registered.

For the reasons discussed above, the Court finds that good cause exists to allow KBC to register the December 4, 2001 Judgment in the district courts in Delaware, New York, and California. It is therefore
ORDERED that KBC's Motion to Register [Doc. # 49] is GRANTED. It is further
ORDERED that KBC's Motion for In Camera Review [Doc. # 50] is GRANTED. It is further
ORDERED that KBC may register the Judgment entered December 4, 2001 in the district courts in Delaware, New York, and California.
SIGNED at Houston, Texas, this 15th day of February, 2002.
NANCY F. ATLAS
UNITED STATES DISTRICT JUDGE