Tribunal for Solid Waste Management Services

Tribunal for Solid Waste Management Services

THE TRIBUNAL

The establishment of the Tribunal for Solid Waste Management Services is under the Solid Waste And Public Cleansing Management Act 2007. Membership of the Tribunal comprises of a Chairman and a Deputy Chairman from amongst members of the Judicial and Legal Service and not less than 5 other members to be appointed from amongst persons who are members of or have held post in the Judicial and Legal Service or advocates and solicitors and who have not less than 7 years’ standing. Any member of the Tribunal may resign by giving written notice to the Minister. The Act also provides for the payment remuneration or allowances to members of the Tribunal, and the remuneration shall be charged on the Consolidated Fund. The jurisdiction of the Tribunal to be exercised by the Chairman, the Deputy Chairman or any member of the Tribunal as determined by the Chairman, sitting alone. It also provides that where the presiding person dies or is unable to complete the proceedings, a claim shall be heard afresh unless the parties agree that the proceeding be continued by another member of the Tribunal.

COMMENCEMENT OF PROCEEDINGS AND JURISDICTION

The commencement of the proceedings by any interested person (i.e. “interested person” under the Act which means the Corporation, any licensee, owner, occupier, local authority and solid waste generator in respect of solid waste management services provided under this Act) for a claim under this Act is by lodging the claim in the prescribed form together with the prescribed fee, for any matter concerning his interests or any loss suffered or damages incurred which includes the recovery of charges, fees or levy under this Act. The jurisdiction of the Tribunal to determine a claim lodged under the Act where the total amount in respect of which an award of the Tribunal is sought does not exceed fifty thousand ringgit. The Tribunal does not have jurisdiction in respect of any claim for the recovery of land, or any estate or interest in land and which there is a dispute concerning the entitlement of any person under a will or settlement, or on intestacy, goodwill, chose-in-action or any trade secret or other intellectual property right. The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from any claim for the recovery of charges, fees or levy of solid waste management services by the licensee or the Corporation or disputes arising from any charges, fees or levy imposed for solid waste management services between the licensee or the Corporation and the owner, occupier, local authority or solid waste generator. The extension of jurisdiction of the Tribunal to hear and determine claims exceeding fifty thousand ringgit in amount or value if the parties have entered into an agreement in writing that the Tribunal shall have jurisdiction to hear and determine such claim. For the abandonment of a claim as exceeds fifty thousand ringgit in order to bring the claim within jurisdiction of the Tribunal. Where a claim is lodged with the Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless the proceedings before the court were commenced before the claim was lodged with the Tribunal; or the claim before the Tribunal is withdrawn, abandoned or struck out.

THE PROCEEDINGS

The Secretary to the Tribunal shall give notice of the day, time and place of hearing in the prescribed form to the claimant and the respondent upon a claim being lodged. The Tribunal may assess whether it is appropriate for the Tribunal to assist parties to negotiate an agreed settlement in relation to the claim. The Tribunal is required to approve and record the settlement where the parties have reached an agreed settlement and the settlement shall then take effect as if it was an award of the Tribunal. At the hearing of a claim every party shall be entitled to attend and be heard. No party shall be represented by an advocate and solicitor at a hearing unless in the opinion of the Tribunal the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by an advocate and solicitor, but if one party is subsequently allowed to be represented by an advocate and solicitor then the other party shall also be entitled. All proceedings before the Tribunal shall be open to the public. The Tribunal may hear and determine the claim before it notwithstanding the absence of any party to the proceedings if it is proved to the satisfaction of the Tribunal that a notice of the hearing has been duly served on the absent party.

THE AWARDS

The Tribunal to make its awards without delay and where practicable, within sixty days from the first day the hearing before the Tribunal commences. An award of the Tribunal may require one or more of the following:

(a) that a party to the proceedings pay money to any other party;

(b) that money be awarded to compensate for any loss or damage suffered by the claimant;

(c) that costs to or against any party be paid;

(d) that interest be paid on any sum or monetary award at a rate not exceeding eight per centum per annum, unless it has been otherwise agreed between the parties;

(e) that the claim is dismissed.

Before the Tribunal makes an award under the Act, it may, in its discretion, refer to a Judge of the High Court a question of law relating to any of the following matters (a) which arose in the course of the proceedings; (b) which, in the opinion of the Tribunal, is of sufficient importance to merit such reference; and (c) the determination of which by the Tribunal raises, in the opinion of the Tribunal, sufficient doubt to merit such reference. The Tribunal is required to give its reasons for its award in a proceeding. Orders and settlement of the Tribunal shall  be recorded in writing. Every agreed settlement and every award made by the Tribunal shall be final and binding on all parties to proceedings and  shall be deemed to be an order of a Sessions Court or Magistrate’s Court and be enforced accordingly by any party to the proceedings. It is a criminal penalty to any person who fails to comply with an award made by the Tribunal within the period specified by the Tribunal. The Tribunal, the members of the Tribunal or any person authorized to act for or on behalf of the Tribunal exercising any power under the Act are protected from actions, suit or prosecution if the acts were done in good faith.