Sharipah Marhaini Binti Syed Ali v 1. ) Majlis Bandaraya Petaling Jaya (BA-25-62-09/2023)

1.

AZNAN BIN HAJI HASSAN [Dalam kapasitinya sebagai Setiausaha Majlis Perbandaran Petaling Jaya (“MBPJ”)] …RESPONDEN 24/10/2024 15:41:29 Kand. 68 S/N Fbgev4i0o0ap7W1h2RG8FA JUDGMENT (Enclosure 47 – Application for Misjoinder) Introduction [1] This is the second respondent’s application in Enclosure 47 for Misjoinder. Grounds for this application [2] This application is based on these following reasons:

there is no cause of action against the second respondent in this judicial review proceeding (“JR Proceeding”) as the second respondent was not involved in any decision either made individually or collectively regarding the position held by the applicant; and

(ii) the inclusion of the second respondent in this judicial review proceeding is scandalous. Parties [3] The applicant is a former Acting Mayor and Secretary of MBPJ to the first respondent. The first respondent is a local authority and a statutory body governed under the Local Government Act 1976 (Act 171). S/N Fbgev4i0o0ap7W1h2RG8FA [4] The second respondent is the current Secretary of MBPJ to the first respondent. Analysis and Findings [5] The second respondent submitted that the applicant has no reasonable cause of action against the second respondent. [6] The applicant named the second respondent in his role as the Secretary of the first respondent in a judicial review action. This action aims to have the High Court review the decision-making process of the first respondent. However, according to the second respondent, it is evident that the second respondent had no involvement in the decision-making process of the first respondent. [7] The challenge is based on the alleged decision of the first respondent to transfer the applicant from the position of Setiausaha Majlis Bandaraya Petaling Jaya to Pengarah Jabatan Khidmat Pengurusan Secara Khas Untuk Penyandang, a decision in which the second respondent had no role. It was submitted that the second respondent was not involved, individually or collectively, in any decision related to the applicant’s positions while serving as secretary of the first respondent. [8] The second respondent cited the case of Letang v. Cooper [1965] 1 QB 232 where Diplock LJ. defined “cause of action” to mean “factual situation, the existence of which entitles one person to obtain from the court a remedy against another person”. [See also: Nasri v. Mesah [1971] 1 MLJ 32; Government of Malaysia v. Lim Kit Siang United Engineers (M) Berhad v. Lim Kit Siang [1988] 2 MLJ 12] S/N Fbgev4i0o0ap7W1h2RG8FA [9] It was submitted that the first respondent is a local government constituted under Local Government Act 1976 (Act 171) and has the conduct of the affairs of the City of Petaling Jaya in the State of Selangor Darul Ehsan. [10] The composition of the local government are as follows by section 10 of the Local Government Act 1976 (Act 171): “Councillors

The local authority shall consist of –

The mayor or President or

Not less than eight and not more than twenty four other councillors…” [11] It was submitted by the second respondent that it is the statutory requirement under the Local Government Act 1976 (Act 171) that all decisions of the local authority are made collectively by its Full Board’s Meeting. A recommendation at the Committee level becomes the valid decision of the first respondent only if it is endorsed by its Full Board Meeting. [12] It was further contended that the applicant’s inclusion of the second respondent in this judicial review proceeding is described as scandalous. The second respondent was not involved in any decisions and has no authority over the applicant's placement. It is argued that the purpose of naming the second respondent appears to be to damage his reputation as the secretary of the first respondent. S/N Fbgev4i0o0ap7W1h2RG8FA [13] The applicant opposed this application Enclosure 47. According to the applicant, the applicant is questioning the appointment of the second respondent to her position. Since the second respondent’s position is being questioned, therefore the second respondent is ought to be named as a party. See: Waytha Moorthy Ponnusamy & Ors v. YB Dato’ Seri Dr Ahmad Zahid Hamidi, Timbalan Perdana Menteri/Menteri Dalam Negeri & Ors [2023] 1 MLJ 240. [14] Moreover, it was submitted that the second respondent would be affected by the decision of this judicial review. [15] In relation to where there ought to be a misjoinder of any party, the court has a wide discretion to determine any issue or question in dispute in so far as it affects the rights and interests of parties named in the cause of the matter. [See: Kuala Lumpur Finance Bhd v. Azmi & Co Sdn Bhd [1996] 4 MLJ 650] [16] This court is of the considered view that whilst the second respondent may not be the party that made the decision, it cannot be denied that the second respondent might be affected by the decision of this judicial review application. Should this court allow this application by the second respondent, the second respondent would not have been given the right to be heard. In the interest of justice, specifically the opportunity to be heard, the second respondent ought to remain as a party to this application for judicial review. S/N Fbgev4i0o0ap7W1h2RG8FA Conclusion [17] For the abovementioned reasons and in the interest of justice, it is the considered view of this court that the second respondent remain a party in these proceedings. This application in Enclosure 47 is dismissed, costs in the cause. Date: 24 October 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N Fbgev4i0o0ap7W1h2RG8FA Counsel: For the applicant: Tuan Arvinkumar a/l K. Mohan Tetuan Nekoo Advocates & Solicitors Suite 8-15-3, Menara Mutiara Bangsar, Jalan Liku, 59100 Kuala Lumpur. +6 03 2282 4131 info@nekoo.com.my For the respondent: Puan Sofiah Omar Tetuan Kamaruzaman Arif & Sofiah Advocates & Solicitors Crystal Chambers, No. 4, Jalan Kristal 7/67A, Seksyen 7, 40000 Shah Alam, Selangor. kamarsofiah@gmail.com +6 03 5524 1924