- The bench also ordered both of them to pay RM70,000 costs to the Taman Bangsar RA.
PUTRAJAYA (May 9): A three-member Federal Court bench on Tuesday (May 9) unanimously dismissed an appeal for a claim of public and private nuisance by a house owner and his tenant in Taman Bangsar, Kuala Lumpur against the resident association (RA).
This follows their complaint that the move by the RA to erect physical barriers to the back lanes of their homes and boom gates to the entrance of the road had inconvenienced them, and the collecting of information of people coming and going into the area amounted to a violation of the Personal Data Protection Act.
Chief Justice Tun Tengku Maimun Tuan Mat in unanimously dismissing the appeal by owner P Ranjan and tenant Jude Micory Lobijin said the court felt that the findings made by the court below are intact, and that there is no compelling reason to disturb them.
“The bench declines to answer the questions, and we unanimously dismiss the appeal,” Tengku Maimun said.
The bench that also comprised Federal Court judges Datuk Seri Hasnah Mohammed Hashim and Datuk Rhodzhariah Bujang also ordered both of them to pay RM70,000 costs to the Taman Bangsar RA.
There were four questions of law posed by the duo, namely:
- Whether gated and guarded community schemes operated by RAs in public areas, including roads and facilities, without positive legislative provisions permitting such schemes are illegal and unconstitutional in light of the decision of the Federal Court decision in the case of the Home Ministry and others versus Penang state government;
- Whether RAs and their agents are forbidden by personal data law and identity card legislation from collecting personal data of people entering public roads and areas covered by the gated and guarded schemes;
- Can an RA rely on the defence of lawful authority to defeat a plaintiff's claim against it, among others, nuisance and breach of personal data laws when approvals by local authority have lapsed and/or refused;
- When a plaintiff appeals against the dismissal of its action against the defendant, is it imperative for the plaintiff to also appeal against the dismissal of the third-party proceedings between the defendant and the third party (Kuala Lumpur City Hall) in that action when the plaintiff has not sought any relief from the third party.
Counsel Datuk Bastian Vendargon for the two residents said although approval was given by Kuala Lumpur City Hall (DBKL) in 2017 for the gated and guarded community, the said area does not fall within the purview of it being gated as there were no proper gates or walls in place surrounding the area.
Vendargon also said that since DBKL had also questioned the approval given since the area is not gated as claimed, then the action by the association could be deemed not proper.
He further submitted that as a result of the barriers put up, it had resulted in the back lane and side roads being inaccessible to the residents and this violated their constitutional right under Article 9 concerning freedom of movement.
The senior counsel also highlighted the issue of security guards collecting the personal data of those entering into the compound of the area, saying it constituted a breach as only enforcement personnel like the police, customs, immigration and other authorities can do that.
Hence, Vendargon said his clients are entitled to the claim on public and private nuisance as such move by the RA had caused an inconvenience.
Lawyer Fahri Azzat, who represents the RA, said the plaintiffs or appellants should have brought the matter up with DBKL since they had approved the setting up of the scheme.
He further said the High Court and the Court of Appeal had found that the claim by the duo for public and private nuisance was not properly pleaded and hence was right in dismissing the claim.
Fahri also said the legal questions posed before the bench were academic and should not be entertained as the complaint on the personal data should have been brought up to the Personal Data Protection Commissioner and not the association.
He further said the lower courts (High Court and Court of Appeal) had agreed that this matter should have been brought up with the commissioner.
The lawyer for the residents also said the association is also taking up the matter with DBKL over a review of its decision and further pointed out that the High Court and Court of Appeal found that there are no proper laws over the guarded neighbourhood scheme which this area is.
In addition, Fahri said the Court of Appeal was also right in its decision that when the DBKL granted approval for the guarded neighbourhood scheme, it erases all the issues raised by the duo in regard to the implementation of the scheme, especially the issue of obstruction.
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