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23 June 2020
Section 67 of the Courts of Judicature Act 1964 sets out the right to appeal in civil suits. However, confusion commonly arises when deciding whether an order or judgment made by a high court in a civil matter is appealable. In the recent case of Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia,(1) the Federal Court clarified this issue by affirming the position taken in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd.(2) Thus, a decision made during a trial that does not finally dispose of the parties' rights is non-appealable.
In 2013 the minister of health cancelled the medical degree programmes offered by a university college and reduced the number of students for another such programme offered by the university college from 100 students to 70.
Asia Pacific Higher Learning Sdn Bhd (the plaintiff), which owns and operates the university college, filed a writ action in the high court against Majlis Perubatan Malaysia and Prof Dato' Dr Wan Mohamed Bebakar (the first and second defendants), alleging torts of breach of statutory duty and misfeasance in public office arising from the minister of health's wrongful action in cancelling the medical degree programmes and reducing the number of students. The plaintiff filed an application to amend its reamended statement of claim to add a claim for special damages in the sum of RM579,992,400 for the cancellation of the medical degree programmes offered by the plaintiff. The high court allowed the application.
The defendants appealed to the Court of Appeal, which allowed the appeal and reversed the high court's ruling. The plaintiff brought an appeal against that decision in the Federal Court with the leave of the court.
Before the appeal was heard by the Federal Court, the high court allowed the plaintiff's claim on the liability of the defendants in respect of torts of negligence, breach of statutory duty and misfeasance in public office. Accordingly, the plaintiff's application for assessment of damages had been fixed for case management pending the outcome of the appeal.
On appeal, the plaintiff (appellant) raised the preliminary issue of whether the order made by the high court in allowing the appellant's application to amend the reamended statement of claim was appealable. The Federal Court set out to answer this question.
The Federal Court ultimately held that the high court's decision to allow the amendment application was not appealable to the Court of Appeal.
In allowing the appeal, the Federal Court's decision was split with a majority of the federal court judges agreeing to the majority judgment and David Wong FCJ providing his dissenting judgment.
Idrus Harun FCJ, in delivering the majority judgment of the court, held that the present position in law shows that an appeal does not lie against a decision in an amendment application made in the course of a trial. Moreover, such a decision does not finally dispose of the parties' rights. It matters not if the decision is made at the conclusion of an interlocutory application as it was decided before a judgment on liability; hence, the aggrieved party still has the right of an appeal proper at the conclusion of the entire trial.
In making this decision, Harun referred to the principles enunciated in Kempadang and adopted a literal or plain meaning approach of interpretation of the relevant provisions – namely, Sections 3, 67 and 68 of the Courts of Judicature Act. Harun highlighted that this approach of statutory construction can help to ascertain the legislative intent behind the exclusionary clauses.(3)
By adopting this approach, Harun concluded that Section 68 of the Courts of Judicature Act does not exhaustively define the types of matter that are not appealable. Following the Federal Court in Kempadang, Section 3 must be read together with Section 67, which precludes an appeal against a non-final decision made in the course of a trial that does not finally dispose of the parties' rights.
When Section 3 is read together with Section 67, the word 'decision' applies to both civil and criminal appeals as it could not sensibly have been Parliament's intention to restrict the definition of 'decision' to criminal appeals.
A supporting judgment was delivered where it was ruled that in Kempadang, the Federal Court had resolved the uncertainty of whether Section 3 applies to civil appeals in the absence of the word 'decision' in Section 67(1) by holding that it is clear and unambiguous that the definition of 'decision' as per Section 3 applies to both civil and criminal appeals. It was further affirmed the pronouncement in Kempadang that the definition of Section 3, when read with Sections 67(1) and 68(1), acts as an additional exclusion, which precludes a litigant's right of appeal against a high court decision made in the course of a trial that does not finally dispose of the parties' rights.
David Wong FCJ, in delivering his dissenting judgment, held that on a proper and wholesome interpretation of Section 3 of the Courts of Judicature Act against Sections 67 and 68, Section 3 does not apply to civil appeals. Wong focused on Section 68, which expressly provides which matters are non-appealable, and emphasised that the absence of the word 'decision' in the relevant provisions (ie, Section 3) suggested that the legislature had intended for Section 3 to apply only to criminal appeals under Section 50 to the exclusion of Section 67.
Relying on Tycoon Realty Sdn Bhd v Senwara Development Sdn Bhd,(4) it was held that the court must not on its own initiative import words into the provision as this would encroach on the legislature's purview. Wong cited several other cases that followed the position in Tycoon Realty – namely, that the court is not empowered to read the word 'decision' into Section 67 of the Courts of Judicature Act when Parliament intentionally omitted it during the amendment made to Section 3 of the act.
Despite the position in Kempadang, it was highlighted that there will inevitably be civil applications which may not necessarily finally dispose of the parties' rights but may still and should be appealable nonetheless. One such example is an application to consolidate proceedings, as follows:
It is questionable whether consolidation proceedings finally dispose the rights of parties but should the application be refused, it would certainly cause injustice to parties should they be denied the opportunity to appeal against the refusal to grant such an order. Rationalising whether a decision on consolidation of proceedings is appealable or not on the basis whether it 'finally disposes of the rights of the parties' is, in the context of civil appeals, an overly tenuous exercise unsupported by clear legislation to that effect.
Favouring the Tycoon Realty conclusion, Wong disagreed with the legal position propounded by Kempadang and highlighted that the court in Kempadang had failed to consider its own prior decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case,(5) in which the same judge, Zainun Ali FCJ, had held that:
Applying the point made in Semenyih Jaya, Wong found that Section 3 of the Courts of Judicature Act does not display a clear legislative intent to restrict civil appeals beyond the restrictions already in place under Section 68 of the Courts of Judicature Act.
The Federal Court's ruling in Asia Pacific Higher Learning, coupled with the decision in Kempadang, has effectively expunged the principles set out in Tycoon Realty and several decided cases that support the opposing contention.
With the Federal Court's rulings in Asia Pacific Higher Learning and Kempadang, it is safe to say that the uncertainty surrounding the issue of appealability of high court orders or judgments fades and a reliable legal position is established for the benefit of the courts and legal practitioners alike (ie, a non-final decision made in the course of a trial that does not finally dispose of the parties' rights is non-appealable).
Arguably, the relevant statutory provisions on the right of appeal in the Courts of Judicature Act should be amended to include clear and unambiguous wording in light of the apex court's ruling in Asia Pacific Higher Learning. As the Courts of Judicature Act is the primary legislation prescribing the Malaysian courts' jurisdiction, law makers should clarify the applicability of such provisions by expressly stating or providing for the parties' rights and limits of appeal.
For further information on this topic please contact Gan Khong Aik or Ka Hui (Tommy) Lim at Gan Partnership by telephone (+603 7931 7060) or email (firstname.lastname@example.org or email@example.com). The Gan Partnership website can be accessed at www.ganlaw.my.
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