Vincent Tan case misnamed so it would seem as if he had won another multimillion defamation matter - Industrial Court says it does not know how or why the misnaming occurred, but can Sahathevan v Sun Media remain precedent in any court

 by Ganesh Sahathevan 

As previously reported:

After approximately SIX  years of correspondence  and after prolonged  periods of silence and much ding-donging the Industrial Court of Malaysia has at least admitted that the case name in Sun Media v Ganesh Sahathevan, in which Ganesh Sahathevan was in fact the plaintiff, is incorrect. As any first year law student would know, the correct order is Plaintiff v. Defendant, in this case, Ganesh Sahathevan v Sun Media.

However, the Industrial Court has then gone on to say that it does not know how the error occurred, and will not therefore correct its records.  The partial admission, after a fashion, adds to the evidence that the Industrial Court also was subject to the legal manipulation of disgraced former lawyer VK Lingam,and his primary cli Vincent Tan Chee Yioun, at least in the matter of Ganesh Sahathevan v Sun Media.

The Industrial Court's admission begs the question : how can Sun Media Group Sdn Bhd v. Ganesh Sahathevan' [2006] 2 ILR, 1057 be precedent for anything? 

If it cannot be precedent, how can it remain on the books?

This is clearly a matter that needs clarifcation by the Chief Justice, Federal Court Malaysia.

TO BE READ WITH 

Monday, April 17, 2023

Industrial Court admits error in VK Lingam , Vincent Tan decision, but will not correct error - MACC investigation into Human Resources Minister Sivakumar and officers should be expanded to include current and historical misconduct at the Industrial Crt

 by Ganesh Sahathevan 

                                                                              

                                                                                 

  

After approximately SIX  years of correspondence  and after prolonged  periods of silence and much ding-donging the Industrial Court of Malaysia has at least admitted that the case name in Sun Media v Ganesh Sahathevan, in which Ganesh Sahathevan was in fact the plaintiff, is incorrect. As any first year law student would know, the correct order is Plaintiff v. Defendant, in this case, Ganesh Sahathevan v Sun Media.

However, the Industrial Court has then gone on to say that it does not know how the error occurred, and will not therefore correct its records.  The partial admission, after a fashion, adds to the evidence that the Industrial Court also was subject to the legal manipulation of disgraced former lawyer VK Lingam,and his primary client, Vincent Tan Chee Yioun, at least in the matter of Ganesh Sahathevan v Sun Media.

Interference in the workings of the  Industrial Court is very likely to have been driven down from the Ministerial level (Tan and Lingam only dealt with their equals) and hence an investigation into the Industrial Court's misconduct can serve as a platform for investigation into the current Minister V.Sivakumar , and his predecessors.  It was the case until at least  2018 that the Minister for  Human Resources determined ,which cases were heard by the Industrial Court.  It would be naive to assume that the Minister and his officers do not still exert influence over the Industrial Court.

TO BE READ WITH 

UESDAY, DECEMBER 18, 2007

Saufee Affandi of The Industrial Court and the law he created for Vincent Tan and VK Lingam

The Sun Media Group Sdn Bhd was sold by shareholders who included Berjaya's Vincent Tan Chee Yioun and his lawyer V.K. Lingam to Nexnews Bhd sometime in 2003. One of the conditions imposed on that sale by the Securities Commission Malaysia was that the vendors indemnify Nexnews for any amount of damages awarded by any court against Sun Media Corp in relation to all legal proceedings commenced prior to the completion of the acquisition of Sun Media Corp by Nexnews.

One of those proceedings was the matter of Ganesh Sahathevan v Sun Media Group Sdn Bhd.
I have referred to this matter and how its management by the Industrial Court, in light of the VK Lingam video, raises questions about the corruption of that court and a former Director-General of the Manpower Department, Zainol Abidin Abdul Rashid.
http://malaysianjudges.blogspot.com/2007/10/will-zainol-abidin-abdul-rashid-step.html


In Award 893 of 2006 , delivered on 22 May 2006, IC chairman Haji Saufee Afandi bin Mohmad found that the sacking of the claimant , Ganesh Sahathevan , a journalist , by his employer, Sun Media Group Sdn Bhd, publisher of THE SUN daily, was just and for proper cause.



The company had sacked the claimant in January 1997 , for writing a
story that the company had published concerning the business dealings
of Datuk Mokzhani Mahathir and a former stock broker from Singapore,
Peter Lim Eng Hock.

The story written was based almost entirely on statements made by
Mokzhani Mahathir.

Peter Lim issued a cease and desist to the Claimant and company in
regards to the story, but not Mohzani Mahathir.

The company immediately sought to apologise to Mr Lim and retract the
story, before it had obtained from Ganesh Sahathevan a written report
regarding his sources and justification for the story.



Subsequently, the company had claimed that Ganesh did not exercise
proper care in writing the story, claiming that the story was false.
The company alleged that legal action had been commenced against it
by Mr Lim as a result of publication of the story, even though no
legal action had been commenced. Ganesh maintained that the story was
accurate, and alleged victimisation on the basis that Berjaya Group
Bhd, then a shareholder of Sun Media Group, was also a party to the
business dealing revealed in the story.Company searches were provided
as evidence of Berjaya's involvement.


In finding for the company , Haji Saufee Afandi held:

"The Claimant has made issue with the Company's offer to apologize to Peter Lim.I agree with the Company that the offer to apologize is irrelevant to whether or not the dismissal of the Claimant is for just cause or excuse. If the Claimant had indeed written the Peter Lim article negligently ie without proper basis then he has committed a misconduct. That is so whether the Company offered to apologize or not. In fact even if the Company decides to fight the claims and wins based on evidence or fair comment that it obtains subsequently or through other parties still the Claimant is guilty of misconduct if he wrote the article without proper basis. "


The company had relied on a number of defamation cases in its submission.
Thus, the Industrial Court in this case considered the matter as one of defamation.

In the words of the learned Chairman:
Although these are defamation cases, they are relevant to guide the Court on the type of justification a journalist must have when he writes an article, especially one that contained allegations which may affect the reputation of the person mentioned .


The decision opens to the door for plaintiffs in defamation matters another avenue when seeking suppression of stories they are not happy about.
Parties who feel aggrieved by any matter published need not now seek the more legally rigorous and expensive route of an action in defamation, and related interlocutory injunctions. They can now attempt to ensure that the publisher of the article is pressured enough,with the mere threat of an action in defamation, to act against its own journalist,who would be denied the defence of fair comment.

In one fell swoop Saufee Affandi destroyed the centuries old defence of fair comment, quite an amazing feat for a chairman of an Industrial Court, who was formerly a judge in the Sessions Court. Like the case of Vincent Tan v MGG Pillai, this too appears to be a case where the court was prepared to create, re-write the law to suit the plaintiff for reasons best known to the judge concerned.

NSW Sup Crt Judge Ian Harrison's email to Nationals MP would be considered threatening, intimidating, a form of harassment by the NSW LPAB, which is chaired by Chief Justice Andrew Bell- NSW LPAB would consider Harrison not fit and proper to be a lawyer, never mind judge

by Ganesh Sahathevan

A scolding will not suffice 

                                                           






Simon Benson of The Australian reported on 24 May 2023 :

A prominent NSW Supreme Court judge has accused a ­Nationals MP of racism over his opposition to an indigenous voice to parliament, in an extraordinary intervention that has raised concerns about the separation of powers between the judiciary and the workings of parliament.

In a highly charged email sent to Nationals MP Pat Conaghan on Wednesday morning, Ian Harrison, a judge with the NSW Supreme Court, described the federal MP’s views as “disgusting”, paternalistic and racist.

In his email to Mr Conaghan, Justice Harrison expressed ­“dismay” at the MP’s speech, ­describing it as the “the lowest ebb in my day”.

“I appreciate that you are a member of Mr (David) Littleproud’s party, one of the first publicly to support the NO vote,” Justice Harrison wrote. “I despaired when he announced that decision, replete as it was with the perpetuation of institutional abuse of Australia’s First Nations people. You (sic) speech last night only increased my despair.

“I am not one of your electors so my opinion on anything has no direct bearing upon you (sic) electoral status. However, I was moved while listening to you speak to write to you now to express my complete sadness, not that you have predictably taken the stand that you have, but that you obviously do not understand or appreciate the depths of paternalism and racism that oozed from your words.

“Your argument is predicated upon the position that the Voice will add nothing practical to the lives of indigenous Australians.

“We can argue about that forever, but I will not do so here. However, what is so subtly disgusting about your contention is that it promotes the counterfeit spectre of harm to the Australian community while ignoring the immense and patently harmless symbolic benefit that recognition of the Voice will give to a long-neglected section of our society.

“There are no sleeping constitutional issues here. It is a simple matter of human decency. Your position, and the position of your party, is niggardly and cruel and mean-spirited. It is patently based upon a political stance that is indecent in its ignorance. May you live long enough, and acquire sufficient wisdom and self-awareness, to be ashamed of yourself.”

The email was signed: “Regards, Ian Harrison”.

The standards of the NSW LPAB, which is chaired by the Chief Justice Andrew Bell , hold that Harrison's language is threstening, intimidating and hence  a form of harassment.

Andrew Bell is bound his own standards to do more than just scold Hrrrison. By his own standards, Harrision would not be considered fit and proper to remaim a lawyer, let alone a judge.

END 

NSW Sup Crt judge Ian Harrison's email to NSW Parliament a symptom of a malady that has infected the NSW Supreme Crt under the leadership of former Chief Justice Tom Bathurst , that of judges demanding the public accept their worldview, regardless of the law and the facts

 by Ganesh Sahathevan 

                                                                      

Simon Benson of The Australian has reported this morning of 24 May 2023:, under the headline  Judge’s scathing email to MP: you were racist on voice:

The email by Justice (Ian) Harrison, sent in his capacity as a judge, was dated May 24 at 8.54am.

A spokesman for the Supreme Court said Justice Harrison (pic abbove) had sent the email, however, the Chief Justice could not be contacted for comment on whether the correspondence was appropriate.

In his email to Mr Conaghan, Justice Harrison expressed ­“dismay” at the MP’s speech, ­describing it as the “the lowest ebb in my day”.

“I appreciate that you are a member of Mr (David) Littleproud’s party, one of the first publicly to support the NO vote,” Justice Harrison wrote. “I despaired when he announced that decision, replete as it was with the perpetuation of institutional abuse of Australia’s First Nations people. You (sic) speech last night only increased my despair.

“I am not one of your electors so my opinion on anything has no direct bearing upon you (sic) electoral status. However, I was moved while listening to you speak to write to you now to express my complete sadness, not that you have predictably taken the stand that you have, but that you obviously do not understand or appreciate the depths of paternalism and racism that oozed from your words.

“Your argument is predicated upon the position that the Voice will add nothing practical to the lives of indigenous Australians.

“We can argue about that forever, but I will not do so here. However, what is so subtly disgusting about your contention is that it promotes the counterfeit spectre of harm to the Australian community while ignoring the immense and patently harmless symbolic benefit that recognition of the Voice will give to a long-neglected section of our society.

“There are no sleeping constitutional issues here. It is a simple matter of human decency. Your position, and the position of your party, is niggardly and cruel and mean-spirited. It is patently based upon a political stance that is indecent in its ignorance. May you live long enough, and acquire sufficient wisdom and self-awareness, to be ashamed of yourself.”

The email was signed: “Regards, Ian Harrison”.

Judge Harrison's  assertion that "there are no sleeping constitutional issues ...t is a simple matter of human decency" is his opinion based on his sentiment, not the law or the facts. There are complex issues that arise, and if a judge is not aware of them, Chief Justice Andrew Bell needs to give him more than just a ticking-off.

Having said that it does appear that Harrison is following in the footsteps of his recently retired chief justice, Tom Bathurst AC QC. who in his time felt entitled, disregarding the law and facts, to comment on US politics. 

Bathurst and Harrison choose to participate in public debate, but only form the safety on the bench. This writer knows from personal experience that Bathurst was not averse to having the apparatus of the NSW Supreme Court  punish those who disagrees with him. 

As Tim Blair out it, the solution to this type of inappropriate conduct is resignation. 

To Be Read With 

WHY BOTHER WITH ELECTIONS?

Tim Blair, The Daily Telegraph

February 2, 2017 5:22am

Judges know best. They are more knowledgeable and caring than politicians. They are also more knowledgeable and caring than the voters who elect those politicians.

We know this because the state’s leading judge, Tom Bathurst, says so.

In a speech to the Opening of Law Term dinner, Chief Justice Bathurstdeclared it was the judiciary and not the government who can be relied upon to promote fairness and equality. Left to our own devices, and without the soothing touch of all-wise judges, Australians would apparently descend into rampant racism.

“It should give us pause that one of the most serious threats to the rule of law in Australia was grounded in xenophobia,” Chief Justice Bathurst said, much in the manner of his predecessor Jim Spigelman.

The chief justice’s speech will no doubt please that sector of our community which is essentially suspicious of and distrusting towards the majority of Australians. Bathurst reinforced this notion with a line about promoting equality, fairness and the rule of law “in spite of popular sentiment”.

Poor old popular sentiment always cops a bashing from the we-know-better brigade. This is frequently ill-considered. After all, popular sentiment led to stopping the people smuggling trade in our region – and therefore ending a murderous practice that cost around 1200 lives at sea during Labor’s six years of power.

Interestingly, the legal fraternity – those promoters of fairness and equality – even now forms a large part of the movement dedicated to ending Australia’s life-saving border security operations.

Chief Justice Bathurst reached all the way back to 1888 for one example of the judiciary’s wisdom over popular opinion. During that year the NSW Government ordered police to stop Chinese passengers getting off a ship which had docked in Sydney Harbour, only for the government to be eventually overruled.

The chief justice sees parallels between the events of 1888 and Australia’s current mood, at least in terms of then-NSW premier Sir Henry Parkes’s comments at the time.

Sir Henry is presently unable to respond, having been dead for more than 100 years, but we would submit that Australia has changed a great deal during the intervening period. We are now a multicultural, tolerant, educated and thoughtful people who are quite capable of seeking fair outcomes without being bossed into them.

If Chief Justice Bathurst would like to have more of a say in the state’s affairs, he is welcome to run for elected office.