6 Things About Leave in Judicial Review Applications

by | Jun 15, 2022 | Law

1. Leave is required before an applicant can proceed with a judicial review application

Order 53 Rule 3(1) of the Rules of Court 2012 provides the following:

“An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.” (Emphasis ours)

2. A leave application is made ex-parte

Order 53 Rule 3(2) of the Rules of Court 2012 states:

“An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.” (Emphasis ours)

 3. Notice of the leave application must be given to the Attorney General

Order 53 Rule 3(3) of the Rules of Court 2012 expresses the following:

“The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.” (Emphasis ours)

4. The Attorney General, if he elects to appear, can appear and be heard

Notwithstanding the fact that an application for leave is an ex-parte application, the Attorney General has a right to be heard even at the leave stage.

In Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207:

“Further, in a judicial review application, under O 53 of the Rules of Court 2012, the application must be served on the attorney general. This rule is based on the principle that judicial review is a principal tool of ‘public law’ applicable to ‘public’ bodies. As public bodies impliedly attract public interest and the guardian of public interest is the attorney general, this makes the attorney general a nominal party in all judicial review applications. The intention of the rule is to ensure that the attorney general vets all judicial review applications in order to ascertain if his participation is warranted. Whether the attorney general elects to appear or not is solely his discretion and if he elects to appear, the court is bound to give a hearing: Kanawagi a/l Seperumaniam v Dato’ Abdul Hamid bin Mohamad [2004] 5 MLJ 495.”[1] (Emphasis ours)

5. Very low threshold for leave

In Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato Seri Ahmad Fairuz bin Dato Sheikh Abdul Halim [2011] 6 MLJ 490, the Federal Court opined that:

“ … At the leave stage without the need to go into depth of the abundance of authorities, suffice for us to state that the threshold for the granting of such leave is very low. Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion (see Association of Bank Officers, Peninsular Malaysia v Malaysian Commercial Bank Association [1990] 3 MLJ 228, Bandar Utama Development Sdn Bhd & Anor v Lembaga Lebuhraya Malaysia & Anor [1998] 1 MLJ 224, Mohamed Nordin bin Johan v Attorney-General Malaysia [1983] 1 MLJ 68 and JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134).”[2] (Emphasis ours)

The Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296 was similarly of the view that:

“… Without the need to go into depth the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome.”[3] (Emphasis ours)

6. The subject matter of the judicial review application must be justiciable

In Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443, the Federal Court had the occasion to consider the issue of justiciability and held that:

“[49] The issue of justiciability in an application for leave for judicial review was considered in great detail by Mohamad Ariff Md Yusuf J (as he then was) in Tengku Muhammad Fakhry Petra Ibni Sultan Ismail Petra v Yang Maha Mulia Pemangku Raja Kelantan & Ors [2011] 1 MLJ 128:

Non-justiciable Issues

In connection with the unconstitutionality of legislation, we have seen that even where a fundamental right has been invaded by a statute, the individual who is affected thereby may not have a remedy from a Court of Law, because the issue involved is not justiciable.

… The most prominent amongst non-justiciable issues are those which are known in the U.S.A. as ‘political questions’, which means that the subject matter of the question is such that it is not capable of a judicial determination (at p 256).

The learned authors of De Smith’s Judicial Review (6th Ed) have also appropriately observed in this connection that despite the wholesome development of administrative law, ‘the fact remains, however, that there are some issues which are inherently unsuited to adjudication’ and in this category of case, ‘the Court acknowledges that the litigation process and the expertise of the Court are unsuited to resolving the question in hand’ (at p 121).

A good definition of ‘justiciability’ can also be found in Chris Finn, ‘The Concept of ‘Justiciability’ in Administrative Law’ in Groves & Lee, Australian Administrative Law (2007):

The term ‘justiciability’ refers to the suitability for, or amenability to, judicial review of a particular administrative decision or class of decisions. The term derives from the common law and reflects a series of self-imposed judicial restraints, themselves founded in a view as to the appropriate constitutional balance between the respective roles of the executive and the judiciary. Thus, a matter may be deemed ‘non- justiciable’ by a Court which feels that its resolution either is beyond the institutional competence of the Court or would involve stepping outside its appropriate constitutional role (at p 143).

[50] There are certain areas which the court is reluctant to delve into. These include the power of the state to enter into treaties and conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of Parliament and the appointment of Ministers. Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to be examined by the courts.”[4] (Emphasis ours)

In the event the subject matter of a leave application is non-justiciable, the courts are likely to dismiss the application.

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Asylum Access Malaysia & Amnesty International Malaysia’s Judicial Review Application

by | Mar 1, 2021 | Law

Asylum Access Berhad (Asylum Access Malaysia) and Aimal Sdn Bhd (Amnesty International Malaysia) [collectively referred to as “the Applicants“] recently filed a judicial review application against the Director General of Immigration, the Home Minister, and the Government of Malaysia[1] over the planned repatriation of 1,200 Myanmar nationals (“Impugned Decision“).[2]

The Applicants successfully obtained an interim stay of the repatriation on 23rd February 2021[3] but the success was shortlived as, on the same day, 1,086 Myanmar nationals (out of the 1,200) were nevertheless repatriated by the Immigration Department in collaboration with the Royal Malaysian Navy, National Task Force, and the Myanmar Embassy.[4]

The Immigration Department’s actions received widespread criticism in light of the interim stay granted by the High Court.[5] The Immigration Department was legally represented by the Attorney General’s Chambers when the interim stay was granted and had full knowledge of the same.[6]

The interim stay has since been extended until 9th March 2021, the date on which Yang Arif Dato’ Sri Mariana binti Haji Yahya will deliver her decision on whether the Applicants should be granted leave to proceed with their judicial review application.[7]

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Stay of Industrial Court Monetary Awards

by | Nov 4, 2020 | Law

In cases of unfair dismissal or constructive dismissal, if the Industrial Court finds in favour of a Claimant, the Industrial Court would generally award backwages and compensation in lieu of reinstatement.

In Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758, the Court of Appeal noted:

“In industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work. In such a case, the Industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or back wages, as it is sometimes called. It is to compensate the workman for the period that he has been unemployed because of the unjustified act of dismissal. Second, there is an award of compensation in lieu of reinstatement.”[1] (emphasis mine)

The Industrial Court could possibly award monetary compensation in trade disputes. For example, the Industrial Court in Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v Assunta Hospital [Industrial Court Case No. 21(26)(13)/3-455/15][2] ordered the Company to make a one off payment of RM1,000.00 to selected confirmed employees.

The Industrial Court’s decision was affirmed by the High Court in Assunta Hospital v Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta & Anor [Kuala Lumpur High Court Judicial Review Application No. WA-25-215-05/2019].

For the purposes of this article, any Industrial Court Award ordering the payment of monetary compensation will henceforth be referred to as an “Industrial Court Monetary Award.”

Stay

When an Industrial Court Monetary Award is challenged at the High Court via judicial review, it is not uncommon for the Applicant/Company to apply for a stay of the Industrial Court Monetary Award.

For example, in Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 5 MLJ 113, the Federal Court noted in passing that the High Court had granted a stay of the Industrial Court Monetary Award:

“The appellant questioned his dismissal in the Industrial Court and in Award No 179 of 1993, dated 16 June 1993, that court ruled in his favour and held his dismissal to be without just cause or excuse. The appellant was awarded compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. A stay on the award was granted pending further proceedings in the High Court.”[3] (emphasis mine)

In Sungei Wang Plaza Sdn Bhd & Anor v Ngeow Voon Yean & Anor [1997] MLJU 261, Abdul Kadir Sulaiman J (as His Lordship then was) noted in his judgement:

“On 16th June 1993 the Industrial Court handed down the impugned award holding that the dismissal of the first Respondent was without just cause or excuse and awarded him with compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. Aggrieved with the terms of the award, the Applicant filed this application and obtained a stay of the order of the Industrial Court until the determination of the application.”[4] (emphasis mine)

The purpose of the stay is to disallow the Claimant/Union, amongst others, from pursuing non-compliance proceedings against the Applicant/Company pursuant to Section 56 of the Industrial Relations Act 1967.

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Commentary on Sundra Rajoo’s Judicial Review Application

by | Jan 1, 2020 | Law

On 31st December 2019, former director of the Asian International Arbitration Centre (AIAC), Datuk Prof Dr N. Sundra Rajoo (“Sundra Rajoo”) succeeded in his judicial review application against the decision of the Attorney General’s Chambers (“AGC”) to charge him with three counts of criminal breach of trust[1]  involving over RM1 million belonging to AIAC.[2]

The effect of this decision, until and unless a stay of the High Court’s decision is obtained, is that inter alia the criminal breach of trust case against Sundra Rajoo in the Sessions Court has to come to an end.

Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the Attorney General in exercising his discretion to prefer charges against the appellant is not amenable to judicial review.”[3]

On appeal, the Court of Appeal was “of the view that the issues raised by the appellant might on further consideration turn out to be an arguable case in favour of granting the reliefs sought for by the appellant.”[4]

The case was then sent back to the High Court and heard on its merits. It was reported that Yang Arif Dato’ Seri Mariana Yahya held that the Attorney-General (“AG”)’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence is subject to  judicial review.

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