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ADMINISTRATIVE LAW – RULES OF NATURAL JUSTICE – RIGHT TO BE HEARD

What is administrative law in general? 

  •  Administrative law is a large field of law that deals with the agencies that are in charge of a variety of government projects. Administrative law governs agencies, commissions, and boards. Administrative law is frequently encountered by the public in the context of a public benefit that has been refused or terminated.

 When can natural justice be claimed?

  • .In judicial, quasi-judicial, and administrative systems, two norms have evolved over time to embody natural justice principles: 1) ‘Nemo debet esse judex in propria causa,’ which states that no one should be judged in his own cause, and 2) ‘audi alteram partem,’ which states that no one should be condemned without first hearing their side of story. 

Q. In the recent case of Nurul Rifayah bt Muhammad Iqbal & Ors v Tan Sri Dato’ Hj Mahiaddin bin Md Yassin & Ors [2021] 12 MLJ 510 the voting rights has been reduced from 21 to 18 years old and will be taken effect starting from July 2021. However, it has been delayed till September 1, 2022 due to the Movement Control Order. This has affected the youth in Malaysia as the Malaysian youth organisation (UNDI 18) has been fighting for these issues. Does this sound fair to you? 

A. If you were in this position, the best way to deal with it is to request the court for a judicial review regarding the issue faced by you. However, there are a few steps that the court will look into before granting  judicial review. This will avoid frivolous or vexatious claims made by the appellant. Hence, O 53 r 2(4) of the Rules of Court 2012 will be read by the court during the two stage test to request leave from the court. Once the court sees nothing wrong with proceeding on the judicial review, leave will be granted. 

What are the remedies available for judicial review? 

  •  Habeas corpus, certiorari, prohibition, and mandamus are examples of public law remedies. In Malaysia, habeas corpus is a well-known prerogative writ that is frequently used to challenge the validity of an ISA detention decision. Regardless of nationality, anybody or someone acting on their behalf can appeal such a writ. In general, a writ of habeas corpus will be issued if the applicant can show that the custody is illegal and that the process of bringing the prisoner to trial is taking too long. It should be remembered that one must appear before a magistrate within 24 hours of being detained.
  •  Certiorari, which means “quashing order,” is a retroactive order that brings a decision made by the authority before the court and asks that it be overturned. Prohibition, on the other hand, is a future command to overturn a decision that is about to be made. It is important to remember that failing to comply with such an order constitutes criminal contempt of court. Meanwhile, mandamus is used to compel the decision–making body to undertake public tasks that it has failed to do. It is enforced to guarantee that public officials carry out their responsibilities. Both certiorari and mandamus can be sought concurrently.
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ADMIRALTY IN REM – WRONGFUL ARREST – POSSESORY RIGHT – ARREST GONE WRONG: WHEN A SHIP ARREST BACKFIRES WITH DAMAGES

In Eletson Holdings Inc & Ors v The Vessel “Paros” [2026] 8 MLJ 80, the High Court set aside an arrest after finding that the plaintiffs had no proprietary or possessory right to the vessel at the time of the writ, as the bareboat charter had already been terminated. The Court held that the claim was in substance a corporate control dispute dressed up as an admiralty action, and emphasised that such disputes do not fall within admiralty jurisdiction. Critically, the plaintiffs’ failure to disclose the termination of the charter when obtaining the arrest warrant amounted to a serious breach, leading the Court to find mala fides or gross negligence and order damages for wrongful arrest. The decision reinforces that ship arrest is a powerful remedy that must be exercised with full disclosure and a proper maritime foundation.

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In CE Energy DMCC v Bashar [2026] Lloyds’s Rep 267, the Commercial Court clarified that not all guarantees labelled “on demand” will be treated as demand guarantees. On a proper construction, the court held that the personal guarantee in question was a contract of suretyship, requiring proof of the principal debtor’s liability rather than automatic payment upon demand. Crucially, the court found that the debtor’s “irrevocable” admissions of debt in a payment agreement created a binding contractual estoppel, which the guarantor could not challenge. The decision also confirms that, where payment is due on a “day certain”, a seller may still claim the price notwithstanding retention of title. The case underscores the importance of precise drafting and the risks of entering into settlement agreements that conclusively fix liability.

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MARITIME NEGLIGENCE – PLAINTIFF CLAIMED FOR DAMAGES CAUSED DURING ANCHOR DEPLOYMENT OPERATION – CALDERBANK OFFERS

In Tom Eastwind 365 Sdn Bhd v The Owners of the Vessel “Icon Sophia” [2025] 9 MLJ 397, the High Court held that the doctrine of res ipsa loquitur applied in a maritime collision during an anchor deployment operation, allowing an inference of negligence against the tug owner. The Court clarified that the doctrine is not defeated merely because the defendant adduces evidence explaining the accident – such evidence goes to rebutting the inference, not preventing it. While liability was established due to the tug master’s error of judgment in manoeuvring too close to a stationary barge, the plaintiff failed to properly prove its damages and was awarded only RM50,000. Notably, despite succeeding on liability, the plaintiff was ordered to pay costs after rejecting reasonable Calderbank offers, underscoring the risks of pursuing litigation without properly substantiated claims.

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JURISDICTION – BILLS OF LADING – BREACH OF HIMALAYA CLAUSE – BREACH OF EXCLUSIVE JURISDICTION CLAUSE – ONEROUS OR UNUSUAL TERMS

In Maersk Guinéa-Bissau SARL v Almar-Hum Bubacar Baldé SARL [2026] 1 Lloyd’s Rep 215, the English Commercial Court held that a shipper was liable for breach of an exclusive jurisdiction clause and a Himalaya clause after commencing proceedings in Guinea-Bissau instead of England. The Court confirmed that such clauses are standard and enforceable, and that commencing foreign proceedings in breach of them can give rise to a claim for damages. Notably, the Court also recognised that Himalaya clauses may be used offensively, allowing subcontractors to recover losses caused by wrongful litigation. The foreign judgment was not recognised due to lack of jurisdiction and denial of natural justice.

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DELIVERY WITHOUT PRESENTATION OF BILL OF LADING – LOI WON’T SAVE YOU: SHIPOWNER LIABLE FOR MISDELIVERY DESPITE INDEMNITY

In United Overseas Bank Ltd v The “Maersk Katalin” [2026] 1 Lloyd’s Rep 18, the Singapore High Court reaffirmed that delivery of cargo without presentation of original bills of lading remains a fundamental breach, even where carried out against letters of indemnity. The Court held that LOIs merely shift commercial risk but do not authorise misdelivery, and rejected arguments of consent, ratification and causation. Significantly, the Court emphasised that the burden lies on the carrier to prove that the loss would have occurred in any event – a burden not easily discharged. The decision underscores the continued strict liability regime in misdelivery cases, particularly where banks as bill holders are involved.

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CONTRACT LAW – ‘UK COURTS’ MEANS ENGLAND: COURT UPHOLDS JURISDICTION DESPITE VAGUE CLAUSE

In SMT Global Logistics Ltd v Georgian Airlines LLC [2025] Lloyd’s Rep. Plus 89, the Commercial Court held that a clause referring disputes to “the court in accordance with current legislation of the United Kingdom” was a valid jurisdiction clause in favour of the High Court of England and Wales. The Court also confirmed that the Montreal Convention does not apply to pure contractual claims for non-performance, such as repayment and loss of profits. Emphasising a broad and commercially sensible interpretation, the Court enforced the parties’ choice of forum and refused to stay proceedings, reaffirming that jurisdiction clauses will be upheld unless there are overwhelming reasons to depart.

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14 July ,2026 No Comments
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