NSW AG Speakerman' and his LPAB confirm that ministers of religion cannot be witnesses-Speakman & Berjelikian iseem unaware that their position can cost them the Muslim vote

by Ganesh Sahathevan



In a letter dated 19 February 2019 the Legal Profession Admission Board (LPAB) informed this writer that his interpretation of The Oaths Act NSW is incorrect, confirming that ministers of religion are not , in NSW,accepted as witnesses of sworn documents.


The LPAB is chaired by the Chief Justice NSW and administered by the Department Of Justice, whose minister in charge is the Member for Cronulla, the Attorney General Mark Speakman.


The AG and the premier, Gladys Berjelikian have been queried repeatedly about the matter and cannot claim ignorance, or that the exclusion is the work of departmental mandarins.

It is hard to see this exclusion is not going to cost them votes, now that it is very much in the public domain. The exclusion is likely to be of particular concern to Muslim voters, who are not likely to have been aware that the imams are not acceptable as witnesses.

END







It is hard to see that

OCT

11

NSW AG Speakerman's religious exclusions an election issue ;his Dept Of Justice Secretary Cappie-Wood must not interfere in the coming election to defend or promote Speakerman.

by Ganesh Sahathevan

Mark Speakman

As First Law Officer of the state, Mark oversees
the administration of almost 200 Acts of Parliament,
the most of any minister in the NSW Government.



Andrew Cappie-Wood 

The article below published in June this year appears to have angered the Attorney  General, Mark Speakerman SC ,and spurred the Secretary of his Department Of Justice & Attorney General, Andrew Cappie-Wood, into action.

This writer has been informed in writing by the Legal Profession  Admission Board which is administered by the Department that he has defamed the AG, who is also Member for Cronulla.

In making that finding the LPAB said:

It came to the attention of the Department of Justice communications team that Mr Sahathevan made comments on his personal blog in regards to Chief Justice and the NSW Attorney General.

Metadata analysis confirms that the  LPAB document in which the above is contained is a document of the Department Of Justice & Attorney General.

This would not be the first time that Mr Cappie-Wood and his Department have intervened in public debate and a public vote.
At the height of the same sex marriage vote last year, the Department's  Registrar Of Birth And Marriages approached the Lord Mayor Of Sydney, Clover Moore, with an offer to have a mass wedding at the Town Hall if the same-sex marriage vote was positive

Ms Moore was happy to accept the offer, but it is unclear if Cappie-Wood's mass wedding has come to pass.Be that all as it may, his department and he must not be allowed to interfere in any way in public debate.

His Minister ,the Member For Cronulla, must face the electorate on his own, without departmental support, and explain his religious exclusions.

END

(Disclosure :This writer has been found by the Board, the LPAB,chaired by the Chief Justice NSW,to be NOT fit and proper for admission to practice in NSW for reasons including the one stated above. The LPAB has not provided  details of  the defamation of the CJ that it has relied on)

JUN

16

NSW AG Speakerman has already broken the seal of the confessional; as with the ministers of religion and the Oaths Act ,done in stealth, praying that no one notices. 

by Ganesh Sahathevan

While the ABC has reported in stories featuring the Attorney General Mark Speakman SC that the NSW Government has avoided the Child Abuse Royal Commission's recommendation to break the seal of the confessional, the NSW Government's offical response seems to say otherwise:

There is no exemption in the Children and Young Persons (Care and Protection) Act 1998 (NSW)  for persons in religious ministry from reporting knowledge or suspicions formed, in whole or in part, on the information disclosed or in connection with a religious confession. 
Some persons in religious ministry are already captured by the NSW mandatory reporting scheme if they work with children in another capacity. For example, a priest who is also a teacher at a school would be mandatorily required to make a report if they had reasonable grounds to suspect that a child is at risk of significant harm and those grounds arose during the course of their work as a teacher.

This is a complex issue that the NSW Government will consider further along with its response to recommendation 35 of the Criminal Justice report which relates to the new failure to report offence applying to members of the clergy. 

In simple terms, and in language that can be easily manipulated by NSW civil servants, the seal of the confessional has already been broken. Speakman can as he has done in the case of the Oaths Act(see below), allow NSW civil servants to apply the law as they so wish, while pretending to maintain a SC like aloofness from the reality , even when the application of the law is incorrect, or the law is breached.As this writer says, the AG is better returned to the backbench, if not the Bar, where he can ply his trade away from the public gaze. 
END 

Mark Speakman

As First Law Officer of the state, Mark oversees
the administration of almost 200 Acts of Parliament,
the most of any minister in the NSW Government. 


This writer has recently been told that a minister of religion, even if the person is a marriage celebrant , is not an acceptable witness for the purposes of statutory declarations of good character  submitted to the Legal Profession Admission Board. The Board is chaired by the Chief Justice,the and the LPAB is a division of the Department Of Justice ,which is under the purview of the Attorney General NSW, Mark Speakman SC.

Mr Speakman has been queried about the exclusion of ministers of religion, but has chosen to remain silent.The law on the matter is clear;ministers of religion are  by virtue of State and Commonwealth law able to witness statutory declarations  ,unless the legislation requires the declaration be witnessed by a judicial officer. 

Having said that,this writer has sympathy for the AG;he does "oversees the administration of almost 200 Acts of Parliament, the most of any minister in the NSW Government.

END 

References 




Form 3A Statutory Declarations;which are declarations that a person is fit and proper for admission to practice in NSW.




( (For ease of reference ,located at linkhttp://www.lpab.justice.nsw.gov.au/Documents/Form%203A_31%20July%202015.pdf)


The questions that arise in the matter are these:

a) are legal practitioners and JPs the only persons who may witness a Form 3A ;and if not

b) who else can.

Form 3A is listed in the Eight Schedule of the Oaths Act 1900.


These are dealt with in Section 21 of the Act which states:

21 (1) The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary , commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her, in the form or to the effect of the form in either the Eighth or the Ninth Schedule.

The phrase " or other person by law authorised to administer an oath" is not defined anywhere in the Act.

Neither is the terms "authorised witness", which is , the primary question in this matter.

However, Section 21 does provide us an answer in the negative to the question:
are legal practitioners and JPs the only persons who may witness a Form 3A .


However, Section 34 provides :

34 IDENTIFICATION OF PERSON MAKING STATUTORY DECLARATION OR AFFIDAVIT

(1) A person who takes and receives a statutory declaration or affidavit in this State (an

"authorised witness " )

(a) must see the face of the person making the declaration or affidavit, and


(b) must know the person who makes the declaration or affidavit or confirm the person's identity in accordance with the regulations, and

(c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with.

Reading Sections 21 and 34 together it does appear that Form 3A and other Eight Schedule declarations may be witnessed by " other person(s) by law authorised to administer an oath".

The Act and the related regulations do not define or provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.


The Act and the related regulations do not define nor provide any guidance as to who the other persons by law authorised to administer an oath might be. However a literal interpretation of "by law" would not exclude any person authorised under any law of the state. There is nothing in the Act that excludes Commonwealth law,and hence "by law" must also mean a law of the Commonwealth.


In fact, with regards marriage the Commonwealth recognizies ministers of religion registered pursuant to the laws of the states and territories:

The Commonwealth Attorney General's chambers says on its website:


Under Australian law, only an authorised celebrant can legally solemnise marriages within Australia. The department maintains a list of all authorised marriage celebrantsin Australia; this is referred to as the Register of Marriage Celebrants. The Register of Marriage celebrants can be used to search for authorised celebrants in your state or territory and can be broken down by type of authorisation.

Ministers of religion

These celebrants are regulated by state and territory registries of births, deaths and marriages and their respective religious organisation as listed in the Marriage (Recognised Denominations) Proclamation 2007.

The department maintains a list of all Ministers of religion of recognised denominations who perform religious ceremonies.

Posted 16th June by Anonymous

Posted 11th October 2018 by Anonymous

RCI terms of reference should include judges direct and indirect commercial interests, including endorsements, associated firms,proxies.

by Ganesh Sahathevan




V K Lingam jailed 6 months for contempt of court


It is "Royal Commission Into The Judiciary" time again! This time around the terms of reference need to be sufficiently wide to capture the networks used by judges and lawyers to promote their financial interests, and their spheres of influence. The VK Lingam network of satellite firms is but one example.
Other examples can be found on this blog.
END

As reported by The Star,Malaysia
Appellate judge makes shocking claims of judicial scam in affidavit NATION Thursday, 14 Feb 2019 10:29 PM MYT

Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer filed a 65-page affidavit alleging a purported scam between certain judges and private litigants. Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer filed a 65-page affidavit alleging a purported scam between certain judges and private litigants. PETALING JAYA: An appellate judge has made shocking claims in court papers, exposing purported scam between certain top judges and private litigants to cheat the government. The revelation by Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer was contained in his 65-page affidavit filed in support of an application by famous lawyer Karpal Singh’s daughter Sangeet Kaur Deo to declare that the chief justice had failed to defend the integrity of the judiciary in two cases. He said the scam was carried out by nominees of politicians getting into contracts with the government, but once the government pulled out, the private parties would take the government to court to claim compensation. The private parties created contracts with the government to defraud public funds and the apex court was perceived to be sympathetic to them, said Hamid. “Subsequently, the government will terminate the contract and the nominee will sue the government for breach of contract. “The government may record a consent judgment accepting liability and agreeing to assess damages. “This modus operandi was to deprive the exchequer by false claims,” he wrote in the affidavit. He said this was illegal and to stump it, he developed the jurisprudence relating to fraud on the exchequer or entering into unfair terms with the government, which will make the contract unenforceable based on public policy grounds. He claimed that some top judges frowned upon his move and judgments on commercial matters that supported the government. Hamid also hinted at a top judge, whom he referred to as “ARLC”, who became a sort of a “Maharajalela” (tyrant) dictating what the judges should do and write. This was also the same judge who reprimanded him as he was upset with Hamid’s jurisprudence that prevented ARLC from helping the nominees, said Hamid. Hamid also claimed he has direct knowledge of judicial and constitutional misconduct in the judiciary in consequence of at least two events. The first one being that a month before the 14th General Election last May, a top judge and other judges including himself met for lunch at an Italian restaurant, when the top judge and a number of the other judges were concerned they would be removed if the opposition came to power. “Basically, it was a confession relating to guilt,” he wrote. The other event was that after the election, a senior judge informed him that there was interference in Datuk Seri Anwar Ibrahim’s case decisions at the Court of Appeal as well as at the Federal Court and similarly also in Karpal Singh’s sedition case. “These two events brought me back to flashbacks of other events which together made a strong case for Royal Commission of Inquiry (RCI) as well as tribunalisation to expose judicial as well as constitutional misconduct of top judges with the aid and support of other judges,” he said. He said the contents of his affidavit were prima facie to expose constitutional and judicial misconduct before the election and also after the election, which is continuing without abate. There was also sufficient material to purportedly say top judges are continuing to mislead the public so as not to expose the judicial crimes, said Hamid. “The CJ (Chief Justice) himself not seeking RCI when the Bar Council has publicly demanded twice for RCI - this is one of the disappointments and regrets. “In addition, a former Chief Justice has sarcastically questioned the integrity of the CJ. The CJ has not responded to it,” he wrote. Hamid, however, acknowledged that there were a number of good judges of integrity as well as competence in the Court of Appeal as well as at the High Court, including judicial commissioners. He did not say the same about many of the apex judges in the past and present as he claimed that they knew of the wrongdoings and did not lift a finger to stop the judicial massacre in the administration of justice. “In fact, some of the senior ones were directly or indirectly involved in fixing of coram or had full knowledge of constitutional as well as judicial misconduct and were silent or supported the constitutional crime by top judges for their own selfish interest related to promotion, etc thereby destroying the integrity of the administration of justice,” he said. TAGS / KEYWORDS: Courts , Datuk Dr Hamid Sultan Abu Backer , Scam

NZ judge Kit Toogood who allowed Low family its escape has a colourful history that demands NZ Government intervention in the matter

First posted on Sahathevan Blog NZ judge Kit Toogood who allowed Low family its escape has a colourful history that demands NZ Government intervention in the matter

Selangor Turf Club's Vincent Tan faction suffers loss in the Federal Court;Implications for Berjaya's Turf Club project

I have previously written about the rather premature inclusion of the Selangor Turf Club(STC) land in the virtual vault of Berjaya Land Bhd's bankable assets (see http://sahathevan.blogspot.com/2007/11/vincents-edge-declares-ownership-of.html).
That deal rests on a promise that Berjaya will provide each Turf Club member a bungalow from its proposed development on that land. The enticement appears to be based on the principle that an unincorporated association is not a legal entity and is thus one in which assets, rights and liabilities accrue to its members.

However, on 28 May 2009 the Federal Court in a matter brought against the STC's Committee by two of its members , decided that the STC , being a registered society pursuant to section 7 of the Societies Act 1966 (the Act) is in fact a legal entity that can own and dispose of property.

In handing down the judgement of the Court ABDUL AZIZ MOHAMAD, FCJ said:
As far as concerns the vesting aspect of the funds and property of
the Club, Rule 24(a) of the Rules(of the STC) is consistent with section 9(a) and (b) of the Act. But where the rule speaks of the Committee “as Trustees for
the Ordinary Members of the Club”, and when rule 3 speaks of ordinary
members having the right “to share with other Ordinary Members in the
property and assets of the Club”, I am of opinion that those rules are
looking to the day when the registered society that the Club is, is
dissolved, or when its registration is cancelled. When a registered
society is dissolved, section 9(h) requires that “all necessary steps shall
be taken for the disposal and settlement of the property of such society,
its claims and liabilities, according to the rules (if any) of the said society
applicable thereto”. When the registration of a registered society is
cancelled, section 17(1)(a)(b) provides, inter alia, that the property of
the society shall vest in the Director General of Insolvency who “shall
proceed to wind up the affairs of the society, and after satisfying and
providing for all debts and liabilities of the society and the costs of the
winding up shall pay the surplus assets, if any, of the society … to
members of the society according to the rules of the society …”. I
should think that, in the case of dissolution, that is also what happens to
the surplus assets of a society, in consequence of the steps that section
9(h) requires to be taken."
http://www.kehakiman.gov.my/judgment/fc/latest/2009/J-02_i_1508_W__CAV_.pdf


It would appear then that the proposal to hand each and every member a bungalow lot as part compensation for the land may well be invalid. In light of the judgement above, STC members have limited, if any, rights to the particular assets that constitute the property of the STC but rather to the surplus of assets over liabilities in the event of deregistration. If the Berjaya Land proposal is deemed valid members will in fact be sharing in the proceeds from the sale of an asset of the STC.
END

Defence of Qualified Privilege,once banished, returns to Malaysian courts

In the defamation matter of Tan Kok Ping v New Straits Times Press (Malaysia) Bhd, Mr. Justice Ghazali Cha of the High Court in Malaysia has ruled that the New Straits Times Press (Malaysia) Bhd, its former group editor-in-chief Tan Sri Abdullah Ahmad and former reporter V. Ramanan, who are the defendants in the suit, were entitled to succeed on the defence of qualified privilege and therefore “the impugned articles were immune from the suit”.

Ghazali Cah also said the two articles which were subject of the action had merely given account of police investigations into an alleged forged letter and did not convey the meaning that Tan, 62, was guilty of forgery or had been a party to the forging of the letter.

“I do not agree that a reader would be overtly presumptuous and infer guilt on the plaintiff, but merely take the article to mean there was an ongoing police investigations.

“The articles merely intended to show as a result of a police report lodged, Tan as the Magnum Corporation Bhd executive chairman had been called in for questioning,” he said.

Tan had sued the defendants claiming they had falsely and maliciously printed and published, or caused to be printed and published, certain defamatory words in two articles in the New Straits Times and in the Malay Mail on April 5, 2002 which was accompanied by his photograph.
(http://thestar.com.my/news/story.asp?file=/2009/6/19/courts/4149370&sec=courts)

Previously, Malaysia's courts in hearing defamation matters had all but banished the defence of qualified privilege, particularly in matters that involved Tan Kok Ping's business associate, Tan Sri Dato Seri Vincent Tan Chee Yioun.

Sri Ram's reversals: Was it a case of a brahmin fearing being born again to a lower caste?

In regards to the newly appointed justice of the Federal Court Gopal Sri Ram, was it the fear of being reborn into a lower caste that brought about in the good brahmin-iyer the following reversals:

In 1995 in the matter of Vincent Tan v MGG Pillai:

A second judge on the panel, Gopal Sri Ram, also rejected an appellant's argument that the 10 million ringgit judgment was excessive because Tan Sri Tan hadn't proven the extent of damages he suffered from four articles published in Malaysian Industry in late 1993 and early 1994. Judge Sri Ram said the articles suggested that Tan Sri Tan had manipulated the government to secure lucrative contracts, adding that "this must be a warning signal to irresponsible journalists that they cannot say anything they like and get away with it," according to Bernama.
(Malaysian Appeals Panel Upholds Stiff Awards Levied in Libel Case
By Stephen Duthie ;19 April 1995,The Asian Wall Street Journal)

Then, by 2001 , an otherwise inexplicable change of heart:

In (a) celebrated judgment of Court of Appeal judge Datuk Gopal Sri Ram in 2001, the RM1 million award was reduced to RM100,000, or just one-tenth of the original amount.

More importantly, he had boldly spoken out on the pressing need to put an end to the mega trend, which began in 1996.

Sri Ram referred, in particular, to the suit that started it all - the RM10 million suit brought by tycoon Tan Sri Vincent Tan against several persons, including freelance journalist M.G.G. Pillai.

In his judgment, Sri Ram said this decision had been "much misunderstood".

"The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of our society than the loss of a limb. But we think the time has come when we should check the trend set by that case.

"This is to ensure that an action for defamation is not used as an engine of oppression. Otherwise, the constitutional guarantee of freedom of expression will be rendered illusory," he said.

(Reining back quantum of damages. By Carolyn Hong. 27 July 2003.New Sunday Times)



And let us not forget this little matter from the bad old days:

The most recent case is playing out in a small court room in the southwestern suburbs of Kuala Lumpur, where the mother of a 17-year-old high-school student is suing the International School of Kuala Lumpur, claiming he was unfairly dropped from the school's debate team. Damages sought: a record 6 million ringgit ($2.4 million).

The case has sparked intense interest among legal circles, educators and foreign investors in the Malaysian capital. For starters, the thin, bespectacled student, Govind Sri Ram, is the son of a prominent Court of Appeals judge, Gopal Sri Ram. And many are surprised at the speed with which the case raced through Malaysia's legal labyrinth. The trial began on January 6, less than seven months after a writ was filed with the High Court. "Normally, in a civil case, you're lucky to get a hearing within five years," a veteran lawyer notes.

The main point of interest for lawyers is that the case is breaking new legal ground. "It's the first time in Malaysian history that someone is suing on the basis of unfair discrimination," notes one. "Malaysia has no laws on discrimination."

Educators are also following the case closely. A hefty award for the plaintiff would be a major financial burden on the school -- and could hinder Malaysia's efforts to attract foreigners.
(Malaysia -- See You In Court: A series of civil suits suggests growing litigiousness ,By Murray Hiebert in Kuala Lumpur ,23 September 1999
Far Eastern Economic Review)



Next, in an decision clearly in favour of the establishment,The Bakun Dam matter-where Sri Ram held that "In particular he (James Foong) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents."
The appellants were Penan trying to defend their homes;the respondents the Governments of the Federation of Malaysia and the State of Sarawak.
( see http://malaysianjudges.blogspot.com/2007/08/when-fairuz-sri-ram-mokthar-sidin.html )


Then, in a reversal against the establishment , this unseemly commentary on matters that were not put before the Court which resulted in a successful appeal against his decision:

The court held that the main and supplementary Appellate Court's decisions, written by Justices Datuk Gopal Sri Ram and Datuk Zulkefli Ahmad Makinudin, contained elements of real danger of bias.

The court, led by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, also held that the appellant, Metramac, and its case, have been unfairly regarded with disfavour.

The quorum made the findings after considering the question of biasness in the Court of Appeal's judgment, in particular, the adverse remarks and findings against third parties made in the written grounds of judgment by Justice Sri Ram.

To the remarks and findings, the Federal Court expressed its regret that they were not only unnecessary, irrelevant and not supported by evidence, but the language used was unwarranted to say the least.

On Jan 12 last year, the Court of Appeal ordered Metramac, owner and operator of East West Link Expressway and Sungei Besi Expressway, to pay RM65 million to Fawziah Holdings as compensation for loss of advertising rights, including all proceeds to be received under future contracts.

In Sri Ram's written grounds of judgment, he, among others, commented that Tan Sri Halim Saad and his business partner, Anuar Othman, siphoned off RM32.5 million from Metramac and enjoyed the patronage of former Finance Minister Tun Daim Zainuddin.
(JUDGMENTS BIAS, FEDERAL COURT SETS ASIDE APPEAL COURT'S DECISION

19 July 2007,Bernama Daily Malaysian News)

I suppose one should also ask: Can a man found to be biased in his judgement be ever suitable for promotion based on "merit" to the highest court in the land?