by Joshua Wu Kai-Ming | Oct 13, 2021 | Law
1. Its purpose is to maintain status quo
In Takako Sakao (f) v Ng Pek Yuen & Anor (No. 3) [2010] 2 MLJ 141, the Federal Court held:
“When viewed in its proper perspective, what s 80 is designed to address is a situation where there is either an application for leave to appeal or an appeal pending before this court the integrity of which is required to be preserved. It would be futile for an appellant or an intended appellant to prosecute his appeal or application for leave before this court if the subject matter of the appeal is dissipated or otherwise disposed of. Power is necessary in an appellate court, in particular the apex court, to preserve and maintain the status quo until the matter is finally disposed of. Section 80 does precisely that. It empowers us to make interim preservation orders to protect the integrity of an appeal or a leave application until it is finally disposed of.”[1]
2. The Court of Appeal and Federal Court are empowered to grant it pursuant to the Courts of Judicature Act 1964
Sections 44 and 80 of the Courts of Judicature Act 1964 provide the following:
“44. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.
…
80. (1) In any proceeding pending before the Federal Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Federal Court.” (Emphasis mine)
3. The High Court can grant it if the subject matter involves property
The High Court can also grant IPOs, albeit in more narrow circumstances, namely where the subject matter involves property.
Item 6 of the Schedule to the Courts of Judicature Act 1964 seizes the High Court with the:
“Power to provide for the interim preservation of property the subject matter of any cause or matter by sale or by injunction or the appointment of a receiver or the registration of a caveat or a lis pendens or in any other manner whatsoever.” (Emphasis mine)
4. It can take the form of injunctions
The Court of Appeal in Silver Concept Sdn Bhd v Brisdale Rasa Development Sdn Bhd (formerly known as Ekspedisi Ria Sdn Bhd) [2002] 4 MLJ 113 opined that:
“[Section 44 of the Courts of Judicature Act 1964] empowers this court to make interim orders to preserve the integrity of an appeal or other proceeding, including the very application under the section itself (see sub-s (2)). Such interim preservation orders may take the form of an injunction or other relief designed — in the words of the section — ‘to prevent prejudice to the claims of parties’.”[2] (Emphasis mine)
In Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd(previously known as Syarikat Teratai KG Sdn Bhd) [2006] 1 MLJ 435, the Court of Appeal ordered an injunction “… in the form of a post judgment Mareva injunction.”[3]
Meanwhile, in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147, it was in the form of an Erinford injunction.[4]
5. It would not be defective if granted by two (or more) judges of the Court of Appeal/Federal Court
In Wan Khairani bte Wan Mahmood v Ismail bin Mohamad & Anor [2007] 4 MLJ 409 (“Wan Khairani”), the 1st Respondent argued that the interim preservation order granted by the Court of Appeal was defective as it was granted by two Court of Appeal judges.[5]
Tengku Baharudin JCA (later FCJ), in delivering the majority judgment in Wan Khairani, held:
“Kemusykilan RP tentang perintah dibuat oleh dua orang hakim dijawab oleh s 38(1) CJA itu sendiri yang dimulakan dengan perkataan-perkataan ‘Subject as hereinafter provided’. Seksyen 44 CJA adalah salah satu peruntukan terkemudian yang dimaksudkan di mana keputusan yang dibuat oleh seorang hakim dianggap sebagai keputusan Mahkamah Rayuan — lihat sub-s (2). Jika perintah sedemikian sah dibuat oleh seorang hakim, maka mana-mana hakim dalam panel Mahkamah Rayuan boleh membuatnya. Ekorannya perintah sedemikian yang dibuat oleh dua orang hakim Mahkamah Rayuan adalah teratur dan sah.”[6] (Emphasis mine)
6. It cannot be granted if, in effect, it would render the appeal nugatory/academic
In Taipan Focus Sdn Bhd v Tunku Mudzaffar b Tunku Mustapha [2011] 1 MLJ 441, one of the legal questions posed to the Federal Court was:
“whether as a matter of law the Court of Appeal can make orders under s 44 of the Courts of Judicature Act 1964 which in effect renders the appeal nugatory or academic and/or is made pending the disposal of another suit which is not the subject matter of the appeal.”[7]
The majority (2-1) answered the leave question in the negative.[8]
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by Joshua Wu Kai-Ming | Aug 10, 2021 | Law
During the opening of the 2020 legal year, the Chief Justice of Malaysia, Tengku Maimun Tuan Mat, announced that the Judiciary was looking to substantially limit civil appeals in interlocutory cases:
“28. … Trivial appeals tend to have a “snowball” effect on the efficient disposal of trials as they clog up the system. For example, many cases in the High Court are aging because a single case has so many interlocutory appeals pending at the Court of Appeal and the Federal Court. This is a common feature throughout the country.
29. Applications for summary judgment and striking out are one such example. If the application is dismissed there appears to be no prejudice to the applicant as the case will proceed on the merits. The proposal to limit appeals in this respect is to avoid delays in the full trial of the action. Although at the discussion stage, there was significant resistance from both the Bar and Chambers to the introduction of this new mechanism, the proposal has already been approved at the Rules Committee stage and it only remains to be formalised.”[1] (emphasis mine)
The learned Chief Justice’s proposal is consistent with the Federal Court’s past decisions that the definition of ‘decision’ found in Section 3 of the Courts of Judicature Act 1964 (“CJA 1964“) has to be read together with the relevant provision in the CJA 1964 on appeals to the Court of Appeal.
In summary, the legal position as it stands is that a ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties is not appealable.
In Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585 (“Anwar Ibrahim”), the Appellant had sought to appeal against a ruling made by the trial judge in the course of a criminal trial.[2]
The trial judge had dismissed the Appellant’s application for the statement of the complainant, recorded under s 112 of the Criminal Procedure Code, to be produced for examination by the Appellant.[3]
A 3-man panel of the Federal Court dismissed the appeal on the basis that:
“The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial.”[4]
Shortly after that, the Federal Court in Karpal Singh a/l Ram Singh v Public Prosecutor [2012] 5 MLJ 293; [2012] 5 CLJ 537 (“Karpal Singh”) took the same position and held the following:
“A scrutiny of the scope of the term ‘decision’ in s 3 of the CJA reveals that its definition does not extend to the types of ‘judgments or orders’ which can be termed as ‘interlocutory’. In other words, if a judgment or order is not final, in the sense that it does not finally dispose of the rights of the parties in the trial, then it would not fall within the definition of the word ‘decision’ under section 3 of the CJA and thus not appealable …”[5] (emphasis mine)
The Federal Court went on to hold that a party dissatisfied with a ruling made in relation to an interlocutory application is not deprived of his/her right to appeal as he/she could appeal against the ruling after the trial.[6]
In Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor [2014] 6 MLJ 831 (“Ahmad Zubair”), the Appellant’s appeal was unanimously struck out by the Federal Court. In delivering the decision of the court, Raus Sharif PCA held:
“From the above explanation given by this court in the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor it is obvious that parliament is not oblivious to appeals which tend to stall proceedings and delay speedy disposal of cases. The new definition of the word decision in the amended s 3 of the CJA which we have laid emphasis to in the preceding paragraph does not include a judgment, order or ruling which does not finally dispose of the rights of the parties on the matters in dispute. With the amended s 3 of the CJA, appeals filed based on technical rulings which are interlocutory in nature are now things of the past. Such appeals are incompetent to be laid before the appellate court as it is clearly precluded by law.”[7] (emphasis mine)
Granted, Anwar Ibrahim, Karpal Singh, and Ahmad Zubair are criminal cases.[8]
In the context of civil cases, the Federal Court in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 (“Kempadang”) iterated that “Subsection 67(1) of the CJA must be read together with s 3 of the CJA.”[9]
Additionally, and more pertinently, the Federal Court observed that:
“… at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of s 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties.”[10]
If both elements are present then such a ruling would not be appealable.
In applying the two elements, a judge’s decision to dismiss a striking out application:
i. would have been made in the course of a hearing – namely the hearing of the striking out application; and
ii. does not have the effect of disposing the final rights of the parties – the matter would proceed to trial, where the Defendant(s) would still have an opportunity to oppose the Plaintiff’s/Plaintiffs’ case.
Thus, such a decision should not be appealable.
Zainun Ali FCJ, however, cautioned that not all orders given by the court pursuant to interlocutory applications filed by parties in the course of trial are non-appealable.[11]
Her Ladyship referred to the Court of Appeal’s decision in Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals [2017] MLJU 445 (“Mulpha International”) whereby it was held that the decision of the trial judge dismissing an application to strike out pleadings was not a ruling within the context of s 3 of the CJA although such application was filed in the course of the trial.[12]
The Court of Appeal in Mulpha International narrowly defined ‘ruling’ to mean any ruling made in the course of a trial upon objection raised by any party to the proceedings.[13]
In Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 (“Asia Pacific Higher Learning”), the Federal Court agreed with the Federal Court in Kempadang that the word ‘decision’ in Section 3 of the CJA 1964 should be read together with Section 67(1) of the CJA 1964.[14]
The Federal Court also held that:
“The correct approach … is to read s 68 with the definition of ‘decision’ in s 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with s 67 of the Act, such a ‘decision’, ‘judgment’ or ‘order’ which falls within the exclusionary words in the definition of the word ‘decision’ is without any doubt not appealable to the Court of Appeal.”[15]
Unfortunately, it was not discussed in Asia Pacific Higher Learning whether Mulpha International’s narrow definition of ‘ruling’ (which appeared to be cited approvingly in Kempadang) was correct.
If Mulpha International’s narrow definition of ‘ruling’ is correct, it would mean that decisions to dismiss pre-trial interlocutory applications would not amount to a ‘ruling’ and would thus be appealable regardless of whether it finally disposes of the rights of parties.
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by Joshua Wu Kai-Ming | Jun 15, 2021 | Law
In the past, I have argued that the English Court of Appeal decision in “[Ladd v Marshall [1954] 3 All ER 745] is redundant (at least in relation to introduction/admission of fresh/further evidence in the Court of Appeal and below) in light of the relevant legal provisions which have been introduced vis-a-vis the introduction/admission of fresh/further evidence.”[1]
Amongst others, Rule 7(3A) of the Rules of the Court of Appeal 1994 and Order 55 Rule 7 of the Rules of Court 2012[2] provides that new evidence shall not be admitted unless “the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of” the High Court or the subordinate court as the case may be [“Determining Influence”].
Meanwhile in Ladd v Marshall [1954] 3 All ER 745, “the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive”[3] (“Important Influence”).
The Determining Influence requirement clearly calls for a higher threshold to be met compared to the Important Influence requirement.
A piece of new evidence can have an important influence but not necessarily have a determining influence and the legal provisions which have been introduced, require the latter.
Unfortunately, some subsequent Court of Appeals and High Courts have incorrectly applied the Important Influence requirement rather than the Determining Influence requirement thereby muddying Malaysian jurisprudence on the admission of fresh/further evidence in the Court of Appeal and below.
Court of Appeal
Examples include:
i. Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi a/p Alau Malay @ Anna Malay (administratix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133;[4]
ii. Ho Min Hao & Anor v Ho Yee Chin & Anor [2017] MLJU 06;[5]
iii. Ting Sieh Chung @ Ting Sie Chung v Hock Peng Realty Sdn Bhd [2016] 5 MLJ 342;[6]
iv. Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643;[7] and
v. Mid Valley City Sdn Bhd & Anor v Arkitek Tenggara Sdn Bhd [2003] 1 MLJ 66[8]
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by Joshua Wu Kai-Ming | Jun 1, 2021 | Law
Applications to consolidate multiple suits are filed, amongst others, to “save cost, time and effort, and to make the conduct of several actions more convenient by treating them as one action.”[1]
Consolidation applications in the High Court and Subordinate Courts are governed by Order 4 of the Rules of Court 2012.
Order 4 Rule 1(2) and (3) of the Rules of Court 2012 provides the following:
“(2) An order for consolidation shall be made in Form 1 and shall direct that the cause or matter in which the application is made shall be carried on as or under such other cause or matter and that the title of such other cause or matter be amended by adding thereto the title of the cause or matter in which the application is made.
(3) Upon such order being made, the file of the cause or matter in which the application is made shall be transferred to and added to the file of such other cause or matter, and the copy of the order shall be left in place of the file so transferred, and a memorandum of the transfer shall be entered in the cause book against the cause or matter so consolidated.” (Emphasis mine)
Case law reveals that consolidation applications in the High Court and Subordinate Courts have been filed in:
i. The suit intended to be the main suit – for example, see Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Berhad [2020] MLJU 1576,[2] Five Star Heritage Sdn Bhd v Nai Ninn Sararaksh & Anor [2017] MLJU 1666,[3] and Sarawak Securities Sdn. Bhd. v Gerard Ding Sing Dac & Ors [2000] MLJU 403;[4] and
ii. The suit intended to be consolidated into the main suit – for example, see Selinsing Mining Sdn Bhd v Selinsing Gold Mine Manager Sdn Bhd & Ors [2016] MLJU 1201,[5] Ng Joo Soon @ Nga Ju Soon v Devechem Holdings (M) Sdn Bhd And Ors [2010] MLJU 1854.[6]
The former approach, however, is incorrect and is a common error.
The filing a consolidation application in the suit intended to be the main suit, is contrary to the wording of Order 4 Rule 1(2) and (3) of the Rules of Court 2012.
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by Joshua Wu Kai-Ming | May 4, 2021 | Law
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