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[No.105]
November 30, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
Under Utah law, as
predicted by the bankruptcy court, a bankruptcy petition preparer did not engage
in the practice of law, in violation of 11 U.S.C.A. § 110(k), by responding to
a pro se Chapter 7 debtor's basic questions about the preparation of his
bankruptcy schedules and statements, or by using specialized computer software
to create the schedules and statements, including Schedule C exemptions.
Alternatively, the court found that, because the petition preparer closely
and/or directly associated itself with a licensed attorney, it did not engage in
the "unauthorized" practice of law. Although the court acknowledged
that the opinions addressing this issue were uniform in finding that petition
preparers may not answer even basic questions about bankruptcy and may not use
computer software, the court concluded that "[t]here are strong policy
reasons to find otherwise."
In re Boyce
Under Mississippi
law, a casino was not responsible for the injuries a patron allegedly sustained
when, due to the alleged impediment of Christmas garland on the handrail, the
patron was unable to prevent herself from falling when she misstepped on the
stairwell. Placing garland on a banister was not such an inherently dangerous
activity that negligence was imputed to the casino. Furthermore, the casino was
not negligent for hanging Christmas garland on a staircase in an unobtrusive
manner.
Tucker v. Riverboat
Corp. Of Mississippi
A defendant's act of
sitting in the front passenger seat of a vehicle with her two-year-old son in
her lap did not rise to a level of a gross deviation of the standard of care, as
required to support the defendant's conviction for criminally negligent homicide
arising from the deployment of the air bag during an automobile accident, which
deployment resulted in the air bag breaking the child's neck. Although the
mother failed to perceive a substantial and unjustifiable risk in sitting with
her son in the front seat, such conduct did not rise to gross negligence. There
was nothing in the record showing that the defendant had actually read the
safety warnings regarding child restraint systems and the dangers of air bags.
Furthermore, the information regarding the dangers of air bags as it related to
children was relatively new at the time of the accident.
State v. Jones
In a matter of first
impression, the Superior Court of Pennsylvania has determined that a child
protective agency shall be held to a standard of reasonableness in its refusal
to consent to a petition for voluntary relinquishment of parental rights.
Additionally, the Court held that a trial court must independently review a
child protective agency's decision on a petition for voluntary relinquishment of
parental rights to determine if it is reasonable. In the case at bar, the trial
court erred in concluding that a standard of reasonableness did not apply to a
child protective's agency's decision to withhold its consent to a petition filed
by the child's adoptive parents for the voluntary relinquishment of their
parental rights, and thus a remand was required for a determination of whether
the agency's action in withholding its consent to the petition was reasonable.
In re J.F.
Health:
Patient's medical negligence claim, alleging that doctor's alleged sexual
assault of patient was not within standard of care that physicians owe patients,
could not stand independent of any medical malpractice claim
Under New Jersey
law, a patient's medical negligence claim, alleging that a doctor's alleged
sexual assault of the patient was not within the standard of care that
physicians owe their patients, could not stand independent of any medical
malpractice claim and, thus, should have been dismissed. Furthermore, the
patient's medical negligence claim was improperly based on an intentional act,
namely the doctor's alleged sexual assault of the patient. The allegations
involved intentional sexual activity, not accidental or negligent conduct. The
patient could not utilize a medical malpractice type theory to support a claim
based on an intentional act independent of a physician's practice or for a claim
of sexual assault.
Zuidema v. Pedicano
The failure of a
student at a private university to pursue administrative mandate precluded his
civil action for damages against the university after it suspended him for
allegedly copying the work of other students. Although the student alleged
claims in tort and contract, the basis for these claims arose from the
disciplinary hearing at the university, and since the university's judicial
charter required such a hearing to evaluate the charge of cheating, mandamus was
the appropriate remedy.
Gupta v. Stanford
University
Unaffiliated
registered voters, challenging the outcome of a judicial primary election as
unlawful by reason of the refusal of the principal political parties to permit
voting therein by unaffiliated voters, failed to establish by clear and
convincing evidence a substantial probability that the challenged practice
changed the outcome of the election, as required to a state cause of action
under state elections law. The unaffiliated voters failed to allege facts
indicating how unaffiliated voters would have voted, or indicating a turnout of
unaffiliated voters sufficient to alter the outcome of the judicial elections.
In addition, the state election laws permitting the exclusion of unaffiliated
registered voters from participation in judicial primary elections furthered the
state's legitimate interest in keeping partisanship out of judicial elections as
far as possible without abandoning the long-established infrastructure of
political party primaries, and did not violate the state or federal
constitutional equal protection rights of unaffiliated voters.
Suessmann v. Lamone
As a matter of first
impression, the Court of Appeals for the Ninth Circuit held that a district
court lacked jurisdiction to revoke a defendant's supervised release under the
statute allowing a district court to revoke supervised release beyond the term
of supervision, based upon a warrant issued during the term of supervision,
where the issuance of the bench warrant for the defendant's alleged violations
of supervised release was based upon unsworn allegations. The district court's
jurisdiction to revoke supervised release could be extended beyond the term of
supervision only if the warrant was issued upon probable cause, supported by
oath or affirmation, as required by the Fourth Amendment.
U.S. v. Vargas-Amaya
The evidence
supported the trial court finding that removing a child from the female former
domestic partner of the wife would be detrimental to the child's welfare, which
rebutted the presumption of the wife's parental fitness for custody, in divorce
case. The court looked at the fact that the child had resided exclusively with
the domestic partner for almost five years, the child had bonded with the
domestic partner, and the child testified that he did not want to live with the
wife and that he considered the domestic partner to be his mother.
Scott v. Scott
The dismissal of a
former client's action against an attorney for want of prosecution was automatic
as of the mandatory dismissal date, despite a stipulation by the attorney to
have the case removed from the court clerk's dismissal list and a pretrial order
to that effect. Neither the stipulation, the pretrial order, nor the clerk's act
in removing the case from the dismissal list had any legal effect on the
dismissal. The client was aware of the pending dismissal yet failed to file a
formal application to reinstate the case within six months after the dismissal.
This failure precluded the trial court from reinstating the case.
Duder v. Shanks
Manufacturers and
distributors of handguns, which were defendants in a public nuisance action
brought by the city of Chicago and Cook County, did not owe a duty to the public
at large to prevent firearms from ending up in the hands of persons who might
ultimately use and possess the weapons illegally, and thus such defendants were
not liable for public nuisance predicated on their allegedly negligent operation
of a lawful enterprise. The burdens placed on the defendants by such a duty
would be great, and it was not reasonably foreseeable that the activity of
criminals who illegally took firearms into a particular community would result
in a public nuisance.
City of Chicago v.
Beretta U.S.A. Corp.
Under Georgia law, a
special education teacher's supervision of students was a discretionary
function, and as such, the teacher was entitled to immunity. A negligent
supervision claim had been brought against the teacher by mentally handicapped
students. The students alleged that the teacher did not supervise her classroom
activities in such a manner as to protect the students from molestation by a
paraprofessional, who was employed to assist the students.
Harper ex rel.
Harper v. Patterson
The one-year
limitations period under the Local Governmental and Governmental Employees Tort
Immunity Act for personal injury actions against local public entities, rather
than the four-year limitations period in the Code of Civil Procedure for
construction-related tort causes of action against any body politic, applied to
a construction worker's personal injury claim against a metropolitan water
reclamation district, although the district was both a local public entity and a
body politic. It was irrelevant that the Code of Civil Procedure provision was
more recently enacted, and it did not matter which statute was more specific.
The legislature intended the Local Governmental and Governmental Employees Tort
Immunity Act to apply broadly to any possible claim against a local governmental
entity and its employees.
Paszkowski v.
Metropolitan Water Reclamation Dist. of Greater Chicago
News
A landmark trade
agreement has been signed between China and 10 other South East Asian member
countries at a summit in Laos. This agreement aims at creating the world's
largest free trade area by removing tariffs and committing countries to lower
tariffs on traded goods by 2010, but excludes thousands of "sensitive goods”,
such as sugar, iron, steel and cars, which governments are unwilling to include
in the agreement. Participants at the Association of South East Nations (Asian)
summit have announced plans to hold another regular East Asian summit. The new
summit, like the trade agreement, would aim at strengthening economic ties in
the region.
The Nature
Conservation Act has come into force in Scotland, mainly for increasing
protection for wildlife and the environment. The said Act increases penalties
for anyone damaging a protected site of scientific interest to £40,000.
Further, it also introduces new offences for safeguarding nesting birds,
badgers, whales and dolphins and makes it a criminal offence if anyone intends
to harm or destroy any of Scotland's bird, animal or plant life. According to
Ministers, this law would finally put Scotland at a cutting edge of
international biodiversity conservation.
In a recent move,
Oracle had challenged Peoplesoft's moves to thwart the takeover in the Delaware
Court. But this takeover bid has been considerably delayed, after the presiding
Judge ordered that he needed time to examine further evidence in the said case.
So far Peoplesoft has turned down six approaches from its rival. Further, Oracle
has the backing of Peoplesoft shareholders but the firm's board says that the
$9.2bn (£4.9bn) bid undervalues the business software company. About 61% of
Peoplesoft shareholders have accepted Oracle's offer of $24 a share. But
Peoplesoft has reiterated that it believed most shareholders - including those
who tendered their stock - thought the company was worth more than the Oracle
offer.
The Computer giant
Microsoft has launched a pilot scheme to replace counterfeit versions of Windows
XP with legal ones. Till the year-end, the Windows XP Counterfeit Project aims
at replacing software that would be found to be counterfeit, for free, but
subject to certain conditions. The first phase would be restricted to the UK and
to users with pre-installed copies of the operating system in PCs bought before
November. Further, Microsoft has also reiterated that any software could be sent
to it for analysis, if there were doubts regarding its legitimacy. This move
basically aims at detecting illegal traders and turning users of fake versions
of Windows into legitimate ones.
A New York Court has
thrown out legal cases against more than 30 companies, accused of having
illegally aided the apartheid-era during the period of the South African
Government. This was ordered mainly because the presiding Judge did not find the
existence of any violation of law in commercial links with South Africa. This
class action lawsuits has targeted firms including computer giant IBM and
banking giant Citigroup.
A recent study
(Bright Project), which was being conducted in the UK, has found no evidence
support the fact that genetically modified crops could harm the environment. The
said project looked at varieties of sugar beet and winter oil-seeds, which had
been engineered to make them tolerant of specific herbicides. These novel crops
were then compared with non-GM cereals grown in rotation. The project concluded
that the GM varieties, used in this way, did not deplete the soil of weed seeds
needed by many birds and other wildlife. And was in fact a potential benefit if
grown by farmers.
Microsoft is on the verge of
facing intellectual property rights claims if they used open-code software such
as Linux, which is freely available on the Internet and can be easily modified
by users. In addition, several other companies have also been threatened with
lawsuits for using Linux. According to sources, Linux has already violated at
least 228 patents. But, the Linux community has out rightly disputed these
claims, saying that Linux included certain codes, which were solely owned by
them.
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SEBI
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Secondary
Market Division
Circular No: SEBI/MRD/DOPS/CIR-41/2004
Dated 25.11.2004: For the prescribed model format of the Tripartite Agreement
between broker, sub-broker and clients, the requirement was said to be coming
into effect from December 01, 2004. But, as SEBI received representations from
stock exchanges, stock brokers and sub-brokers, requesting for extension of the
above deadline on account of significant software changes required, system
constraints and other administrative reasons and hence, this deadline has been
extended by one month.
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CBDT
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Notification No:
280/2004 Dated 16.11.2004: The CBDT published the Income Tax Fourteenth
Amendment Rules, 2004 amending the contents in Forms 3CA, 3CB and 3CD, effective
1st December 2004. Now, the furnishment of details, for the current year and the
previous year in respect of various items such as paid up share capital, share
application money, loans, liabilities, Balance sheet total, gross turnover, Net
Profit and taxes on income, has been made mandatory.
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CBEC Excise non Tariff
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Notification No:
38/2004-NT Dated 25.11.2004: Vide this notification the Central Government has
amended CENVAT Credit Rules, 2004, requiring only certain manufacturers of
specified excisable goods to file a Declaration furnishing information about
principal inputs required for manufacture of finished excisable goods once in a
year by 30th April each year.
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CBEC Customs Non Tariff
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Notification No:
132/2004-NT Dated 25.11.2004: The Central Government, via this notification,
exempted interest accrued on the customs duties payable on the capital goods,
components and spares of capital goods and material handling equipments, office
equipments, captive power plants authorised to be imported by an export oriented
undertaking or an Electronic Hardware Technology Park (EHTP) unit or a Software
Technology Park (STP) Unit and warehoused under Chapter IX of the Customs Act,
1962, at the time of clearance from Customs Bonded Warehouses under section 68
of the said Customs Act.
Notification No:
128/2004-NT Dated 19.11.2004: The Central Government has framed the Publication
of Daily Lists of Imports and Exports Rules, coming into effect on 20th November
2004. The Rules require the Commissioner of Customs to publish, a list of all
goods imported into or exported from a port functioning on the Electronic Data
Interchange (EDI) system, by exhibiting in the notice board or web site of the
Customs house.
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Department of Economic Affairs
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Notification No:
GSR755(E) Dated 19.11.2004: The Central Government through this notification
made further amendments in the Public Provident Fund Scheme, 1968. Now, every
subscription shall be made in cash or by crossed cheque or draft or pay order in
favour of the Accounts Office at the place at which the office is situated and
also, a subscriber to the Fund cannot nominate a trust as his nominee.
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RBI
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Notification No:
GSR757(E) Dated 07.07.2004: Reserve Bank of India on the face of this
notification, made certain amendments in regulations relating to transfer or
issue of any foreign security by a person resident in India.
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Ministry of Home Affairs
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Notification No:
GSR760(E) Dated 22.11.2004: The Central Government via this notification
specified rules to amend the Border Security Force, Chief Law Officers and Law
Officers Recruitment and Conditions of Service Rules, 1999. Medical fitness
requirements for the Law officers and the requirements of uniform and basic
training to them, were amended.
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Press Information Bureau
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Dated 22.11.2004:
India and Singapore discussed various aspects of possible areas of mutual
cooperation in tackling organized crime and terrorism of transnational nature,
and also agreed to expedite signing of Mutual Legal Assistance Treaty in
Criminal Matters.
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Supreme Court |
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The erstwhile
Government of Bihar came out with an Industrial Policy 1995 providing certain
incentives to newly set up industrial units in the small-scale sector. Clause
16.1 and Clause 16.2 of the said Industrial Policy provided for exemption from
Sales Tax on purchase of raw material and exemption of Sales Tax on sale of
finished products. The Commercial Taxes Department of the State Government
issued statutory notifications for implementation of the said Industrial Policy.
Later this Industrial Policy was amended for providing certain relief’s to
pipeline industries.
The respondents were
a small-scale industry and had obtained temporary Registration Certificate from
the General Manager, District Industries Centre, Dhanbad and applied before the
Joint Commissioner of Commercial Taxes (Admn.) for grant of the said exemption.
The Joint Commissioner granted the same with a condition that prior permission
from the State Government in the Industries Department was to be obtained. The
Joint Commissioner, after examining the application for issue of the eligibility
certificate, rejected the application on the ground that the respondent did not
obtain the required prior permission from the Industries Department. Later, the
Joint Commissioner also rejected the application filed by the respondent for
exemption from payment of sales tax on purchase of raw materials and exemption
from payment of sales tax on sale of finished products. The Joint Commissioner
rejected the application on the ground that no prior permission from the
Department of Industries has been issued.
The Supreme Court
while allowing the appeal held that the failure to comply with the requirements
was enough to dismiss the writ petition filed by the respondent. A mandatory rule must be strictly observed, substantial compliance
might suffice in the case of a directory rule. Further, the Court held that the
High Court had erred in allowing the writ petition filed by the respondent and
directing the grant of exemption in favour of the respondent.
Commercial Tax Officer and Ors.
The appellants
questioned the legality of the G.O.Ms No. 989 directing discontinuance of
purchase tax exemption in case of mills, which exceeded the ceiling of Rs. 300
lakhs during the period of five years, and Government letter, which made the
aforesaid G.O.Ms. No. 989 operative retrospectively. Initially the writ
petitions were filed before the High Court, but after constitution of the Tamil
Nadu Taxation Special Tribunal, these petitions were transferred to the said
Tribunal. The Tribunal after applying the principles of promissory estoppel and
legitimate expectation held that the withdrawal of benefit was not sustainable
in law.
While disposing the
case, the Supreme Court directed the Madras High Court to examine the legality
of the action in directing retrospective withdrawal of the benefit by a letter
of the Government.
The appellants were
carrying on the business of purchasing oil, on which excise duty had already
been paid, and further selling it after refining the same. Later, the
Superintendent of Central Excise called upon the appellants to pay excise duty. But
the appellants contented that since no manufacturing activity was involved, they
were not liable to pay any excise duty. The Assistant Collector was ordered to decide
the issue, which was decided against the appellants. Further, the Collector
(Appeals) and CEGAT declined to interfere with the order.
The Apex Court while
allowing the appeal held that even after refining the commodity, it still
remained vegetable oil, which did not involve any kind of manufacture, and hence
the product was not excisable.
The respondent had
filed a suit seeking declaration of an easementary right of access through the
property of the appellants. This suit was decreed against the appellants holding
that the plaintiff had acquired easementary right through prescription. Later,
an appeal challenging the said decree was allowed and the judgment of Trial
Court was set aside. Aggrieved by the said order the plaintiff filed a second
appeal, which led to restoration of the order of the Trial Court. The said order
was challenged by the appellants primarily on the ground that the way in
question was not being used as of right, and therefore, easementary rights could
not be claimed.
The Apex Court while
allowing the appeal held that since the plaintiff had made no specific plea that
she had been in peaceful and open enjoyment of the said way for the past 20
years, and that she had an alternate access available, easementary rights could
not be granted.
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High Courts |
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Chennai
The applicant was
carrying on the business of manufacturing handlooms, towels and lungis since
1975. The respondents in an application for their artistic symbol claimed use of
the same since 1974, further, this artistic symbol had also been advertised by
the respondents in
the trademarks journal and in the absence of any opposition was therefore,
registered. The respondents filed a suit alleging infringement of their trademark and
further, claiming use of the disputed trade-mark since 1982. On the other hand,
the applicants filed the present application for cancellation of the
registration of trade-mark of the respondents.
The Intellectual
Property Appellate Board at Chennai dismissed the application mainly on the
grounds that the trademark was registered after following due process as regards
registration of the said mark and that the parties had not pleaded any defect in
the registration procedure adopted by the registrar.
Himachal Pradesh
The appellant was in
the habit of maltreating his wife, who was in an advanced stage of pregnancy.
Later she was brought to the hospital with a history of the consumption of some
poisonous substance, like organo phosphorous poison. Further, 7 ante mortem
injuries were also revealed, which led to the death of both the child and his mother. The appellant along with his parents was tried for an offence under
section 120B and 302 of the Indian Penal Code. Later, though his parents were
discharged, the appellant was convicted on charges of murdering his wife and was
therefore, sentenced to rigorous imprisonment for life, with imposition of fine.
The appellant challenged the said order.
The High Court of
Himachal Pradesh gave the appellant the benefit of doubt and acquitted him since
the possibility of the deceased having committed suicide could not be totally
ruled out.
Kerala
A tenant and
landlord entered into an agreement to sell certain property. Later an advance of
Rs 25,000/- was also paid and a period of six months was fixed for executing the
assignment deed. A suit was filed by the tenant seeking specific performance of
the assignment deed. Further, another tenant in the same property filed a suit
against the landlords and the tenant/vendee seeking an injunction against sale
of the property. And therefore, a suit for specific performance was decreed.
An appeal against
the decree of the Trial Court was allowed by the High Court of Kerala with
remarks that the case has been disposed of in a callous manner, without going
into the entire records. Therefore, the matter was remanded for fresh disposal
in accordance with justice and good sense.
Cuttack
The parties entered
into an agreement by which the petitioner was required to act as a consignee
agent. Later the respondent unilaterally terminated the agency, and therefore, a
dispute arose. The parties asked for intervention of the court and appointment
of an arbitrator. Relying on an Supreme Court decision, the an application
challenging the jurisdiction of the court was dismissed.
While deciding
revision challenging the said decision the High Court of Orissa deprecated the
practice of mechanically following the ratio laid down in precedents without
considering the facts and circumstances of the given case and the case in hand.
And therefore, the case was remanded for fresh consideration.
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