Fis School
Fis School
Fis School
Dan
Dan
Dan
ANTARA
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DAN
JUDGMENT
Introduction
Salient Facts
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[5] The appellant’s grounds for this judicial review application are
the following :
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[7] There are plethora of cases on this and one of which is the
Federal Court case of Akira Sales & Service (M) Sdn Bhd v.
Nadiah Lee bt. Abdullah and another appeal [2018] 2 MLJ 537,
which adopted the principles of judicial review application in R.
Ramachandran v. The Industrial Court of Malaysia & Anor
[1997] 1 MLJ 145 which states the following:
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[9] The meaning or error of law has also been explained in the case
of Syarikat Kenderaan Melayu Kelantan v. Transport Workers
Union [1995] 2 MLJ 317 in the following words:
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[11] Before I deal with the merits of this judicial review application,
it is important to deal with the preliminary issue raised by the
applicant in relation to the jurisdiction of the 3 rd respondent to
hear the respondents’ claim.
[12] The applicant contends that the provisions of CPA 1999 is not
applicable in the respondents’ claim by virtue of subsection
2(2)(e) of CPA 1999 which states :
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[14] The applicant cited the High Court case of Tenby World Sdn Bhd
v. Soh Chong Wan & Anor [2013] 10 CLJ 822 to support its
contention.
[15] The main issue here is whether the aplicant’s services is services
provided by professionals who are regulated by any written law
as envisaged by subsection 2(2)(e) of CPA 1999.
[16] On this issue, I am of the view that the applicant and it staffs
which includes the teachers are not professionals who are
regulated by written law unlike lawyers, doctors and engineers.
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[26] The contention that the 1 st and 2 nd respondent were forced to pay
the expedition’s fee as their children will be suspended is
without merit as payment of fees as mentioned earlier, is the
terms in the enrolment application agreed by parties. The terms
also allows student to be suspended if the fees is not paid.
[27] Aside from this, the expeditions are an integral and compulsory
part of International Baccalaureate Methodology as explained by
the applicant’s Academic Director in his evidence before the 3 rd
respondent and all students are required to participate in their
expeditions for end year assessments.
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[30] The 1 st and 2 nd respondents has also raised an issue that they
were not given the choice but to accept the conversion of their
children’s programme from IGSE O-Level to International
Baccalaureate Methodology which includes the expedition
programme. This contention is untenable as the documentary
evidence, which is the replyslip dated 23.4.2012 signed by both
1 st and 2 nd respondents, has shown that they have agreed to the
International Baccalaureate programme for their children.
[31] The President of 3 rd respondent also has taken into account the
alleged complaints to the 1 st and 2 nd respondents by their
children regarding the previous expeditions such as the
following :
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[33] On this hearsay issue, the Federal Court in Leong Hong Khie v.
PP and Tan Gong Wai v. PP [1986] 2 MLJ 206 explained as
follows :
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was not in issue at the trial, this condition had not b een
satisfied. Having failed to comply with this requirement,
in our judgment, all the statements allegedly made by the
informers to P.W.1 (which we have conveniently
emphasised) are to be treated as hearsay evidence and
therefore inadmissible in law. They ought to have been
rejected by the learned judge.”
[34] In addition, all parents have been informed by the applicant the
details of the expedition and were invited for a briefing with
regard to the expedition. This is supported by the documents
which the applicant intended to tender as exhibits. However the
3 rd respondent refused to admit these documents which would be
able to prove among others, that parents were invited for the
said briefing. This again is an error of law as the documents
which are relevant to the case before the 3 rd respondent should
have been admitted as evidence.
[35] It is also not the burden of the applicant to prove that a Standard
Operating Procedure has been put in place as there was no
complaint on safety issue raised by any party with regard to the
expeditions carried out by the applicants. The applicant has also
appointed teachers to supervise students in the expedition
programme.
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Conclusion
(NORDIN HASSAN)
Judge
High Court Special And Appellate Powers
Kuala Lumpur High Court
COUNSEL:
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Akira Sales & Service (M) Sdn Bhd v. Nadiah Lee bt. Abdullah and
another appeal [2018] 2 MLJ 537
Tenby World Sdn Bhd v. Soh Chong Wan & Anor [2013] 10 CLJ 822
CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1
Leong Hong Khie v. PP and Tan Gong Wai v. PP [1986] 2 MLJ 206
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