Final bid by Highland Towers residents fails

19/04/2006T he Sun

PUTRAJAYA: The final attempt by the 82 Highland Towers residents to seek to review the verdict which held that the Ampang Jaya Municipal Council (MPAJ) was not liable for the tragedy came to an end yesterday when the Federal Court dismissed their appeal.

"We are unanimous in our decision, based on the applicants' questions and findings on facts oflaw, to dismiss the application," said Justice Datuk Alauddin Mohd Sheriff, who chaired the three-man panel of judges.

The other two judges were Justices Datuk Nik Hashim Nik Ab Rahman and Datuk S. Augustine Paul.

Highland Towers Owners and Residents Association president Dr Benjamin George did not appear surprised when told about the Federal Court decision

"That's the end of it," he said when asked if the residents were looking at other options to pursue their prolonged court battle, which became history yesterday.

Forty-eight people were killed in the tragedy, which took place on Dec 11, 1993.

George said the residents appealed against the Feb. 17 judgment as they wanted it to be reviewed.

The Federal Court then ruled that MPAJ was not liable for losses suffered by the residents, who had to evacuate Block Two and Three after the collapse of Block One.

It ruled that local authorities such as MPAJ were given full immunity under Section 95 (2) of the Street, Drainage and Building Act 1974 (Act 133) from claims of pre-collapse period.

Earlier, the residents lawyer, N. Rajendra, raised the question of whether the Federal Court can reconsider its written judgment.

He said based on an accepted principle of law, until an order is perfected, the court's jurisdiction to review the matter and to recall an order pronounced is "undoubtedly a matter of wide discretion".

Among the reasons he gave as to why the court should exercise its jurisdiction to reconsider its judgment:

» The findings of fact by the trial judge,

» MPAJ created a danger by requiring a diversion of the east stream,

» The drainage scheme on the hillslope behind Highland Towers (including the east stream) did not conform with the approved
drainage plan,

»The trial judge found that MPAJ's failings with regard to the east stream and the drainage on the hill slope behind Highland Towers
caused the collapse of Block One and the evacuation of Block Two and Three, and

» It is an established principle of law that a public authority that creates a danger in the course of exercising its statutory powers
will come under a common law duty to affected persons to remove that danger.

The counsel for MPAJ, V.S.Viswanathan, submitted that:

» The Federal Court cannot review its own previous decision unless it is shown that it lacked jurisdiction and unfair procedures was
adopted,

» There must be finality in litigation, otherwise there would be chaos in the administration of justice, and

» The Federal Court has considered all the issues before it gave the final decision.