Chapter 39 - Appeals Flashcards Preview

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1
Q

APPEALS

Overview

A

1) Right to appeal
2) Appeals to HC from Subordinate Courts
3) Appeals to HC from Registrar
4) Appeals to CA from Judge-in-Chambers in HC
5) Appeal to CA from HC
6) Appeal to FC
7) Issues on appeal

2
Q

xx

A

xx

3
Q

APPEALS

Right to appeal

A

Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors & Megat Najmuddin bin Dato Seri Dr Megat Khas v Bumiputra (M) Bhd:

  • The right of appeal is a creature of statute, i.e. an aggrieved party has no automatic or common law right of appeal.
  • His right of appeal must come strictly within the four corners of the relevant statutory provision, which is found in the CJA 1964.
  • It also means that the court does not have any inherent jurisdiction to hear an appeal.
4
Q

APPEAL TO HIGH COURT

Overview

A

1) From subordinate courts on decision made after trial
2) From subordinate courts on interlocutory application
3) From Registrar on any judgment, order or decision
4) Issues on appeal to High Court

5
Q

APPEALS TO HIGH COURT FROM SUBORDINATE COURT

Overview

A

1) General
2) On decision made after trial
3) On interlocutory application

6
Q

APPEALS TO HIGH COURT FROM SUBORDINATE COURT

General

  • Jurisdiction
  • Pre-requisites
  • Question of law
  • Quantification of the amount
A

1) The Rules:

O.55

2) Jurisdiction of HC to hear appeal from sub-courts - S.27 CJA:
- Appellate civil jurisdiction of HC shall consist of hearing appeals from sub-courts.
3) Pre-requisites - S.28 CJA:

  • No appeal for amount or value of subject-matter of less than RM10k except with question of law.
  • Appeal on maintenance of wives or children shall lie regardless of the amount.

4) Whether questions of law must be specified in notice of appeal - Neoh Choo EE v Vasalasamy Govindasamy (CA):
- it was not necessary for questions of law to be formulated in the Notice of Appeal.
5) Whether amount in dispute includes interests & costs - Kannaya v Teh Swee Eng:
- the phrase “value of the subject-matter” in s.28 does not include interest and costs.

7
Q

APPEALS TO HIGH COURT FROM SUBORDINATE COURT

On decision made after trial

A

O.55, r.2 & r.3:

1) Mode - O.55, r.2 & r.3(1):
- Notice of appeal, Form 11

2) Time to file - O.55, r.2:
- 14 days from date of decision

3) Which court - O.55, r.3(1):
- Court appealed from

4) Hearing - O.55, r.2:
- by way of re-hearing

5) Service - O.55, r.3(4):
- 14 days from the date of decision.

8
Q

APPEALS TO HIGH COURT FROM SUBORDINATE COURT

On interlocutory applications

A

O.55, r.5:

1) Where:
- To a Judge in Chambers in HC.
2) Mode:
- Notice of Appeal in Form 11A.
3) Where to file:
- Registry of the court appealed from.
4) Time to file:
- 14 days from the date of decision.
5) Service:
- Within 14 days.
6) Record of appeal:

When:
- 1 month after filing notice.

Contents:

  • Application for the decision.
  • All pleadings filed.
  • Affidavits in support or in opposition of the application.
  • Order or draft decision of the decision appealed from.

Shall not include:

  • Notes of evidence;
  • Grounds of judgment;
  • Any memorandum of appeal.
9
Q

APPEALS TO HIGH COURT JIC FROM REGISTRAR

Overview

A

1) What can be appealed
2) Procedures
3) Further appeals

10
Q

APPEALS TO HIGH COURT JIC FROM REGISTRAR

What can be appealed

A

O.56, r.1(1):

  • Any judgment, order or decision of the Registrar of High Court.
11
Q

APPEALS TO HIGH COURT JIC FROM REGISTRAR

Procedures

A

r.1(2)(3)(3A):

How: 
Form: 
Time: 
Service: 
Hearing:
12
Q

APPEALS TO HIGH COURT JIC FROM REGISTRAR

Further appeals

A

S.67 & 68(1) CJA:

1) S.67 CJA: CA shall have the jurisdiction to hear appeals on decision from High Court in its appellate jurisdiction subjected to conditions thereof.
2) S.68(1) CJA: No appeal for amount less than 250k except with leave.

13
Q

ISSUES ON APPEAL TO HIGH COURT

Overview

A

1) Service of notice of appeal
2) Extension of time
3) Adducing fresh evidence

14
Q

ISSUES ON APPEAL TO HIGH COURT

Service of notice of appeal

A

1) The law - O.55:
- Within 14 days.
2) Importance of service - Lee Ian v Lim Yoon Loy & Ors:

  • An appeal cannot come into existence without the notice of appeal being filed in Court, as well as a copy of it being served on the respondent within the prescribed period.
  • The two acts cannot be done simultaneously, but they must be done within the same period.
  • The time limited to serve the notice of appeal is 14 days from the date of decision.
15
Q

ISSUES ON APPEAL TO HIGH COURT

Failure to serve notice of appeal

A

Lee Ian v Lim Yoon Loy & Ors:

  • The failure by the respondents’ solicitors to serve a copy of the notice of appeal on the appellant & failure to apply for extension of time to serve the notice until nearly 6 years after the event was a mistake which was not rectified.
  • The High Court should not have granted the stay pending the hearing of the appeal because in law there was no appeal pending as no appeal had come into existence as a result of failure to serve the notice of appeal on the appellant.
16
Q

ISSUES ON APPEAL TO HIGH COURT

Extension of time

A

1) Powers under CJA - Lee lan v Lim Yoon Loy & Ors:

  • the application for extension of time could be properly made to the High Court;
  • High Court has power under S.8 of the Schedule CJA.
  • The grant of extension of time is discretionary to be exercised by the Judge in each particular case.
  • There must be sufficient grounds for the Court to grant an extension of time to serve the notice of appeal.

2) Powers under Rules - Cosway v Gan Poh Im (CA, 2006):
- By virtue of O.3, r.5(1), the court has a discretion to extend time.
3) Factors for consideration - Pearson v Chen Chien Wen Edwin:

  • LENGTH - the length of the delay;
  • REASONS - the reasons for the delay;
  • CHANCES OF SUCCESS - the chances of the appeal succeeding if time for appealing is extended; and
  • DEGREE OF PREJUDICE - the degree of prejudice to the would be respondent if the application is granted.
17
Q

ISSUES ON APPEAL TO HIGH COURT

Adducing fresh evidence

A

1) The rules:
- O.56, r.1(3A) (from Registrar to J-I-C)
2) The test - Ladd v Marshall:

COULD NOT BE OBTAINED AT TRIAL:

  • it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

IMPORTANT INFLUENCE:

  • 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; and

CREDIBLE:

  • the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
    3) Test - Lan Soo Sun v Government of Malaysia (FC, 1970):

Three conditions must be fulfilled:

  • 1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
  • 2) 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) Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
    4) Scope of test - Milik Perusahaan Sdn Bhd & Anor v Kembang Masyur Sdn Bhd:
  • the principles governing an appeal from a registrar to a judge-in-chambers are now the same as an appeal from a trial on the merits in the HC to CA.
  • The rule is fesh evidence is not admissible unless the conditions set out in Ladd v. Marshall are met.
  • O.56, r.1(3A) is a statutory codification of the principles laid down in Ladd v. Marshall.
18
Q

APPEALS TO COURT OF APPEAL

Overview

A

1) What appeals can be made to CA
2) Appeals to CA from J-I-C in HC
3) Appeals to CA from HC on decision made after trial
4) Issues on appeal to CA
5) Appellate powers of CA

19
Q

APPEALS TO COURT OF APPEAL

What appeals can be made to CA

A

1) Appeals to CA from JIC in HC;

2) Appeals to CA from HC on decision after trial.

20
Q

APPEALS TO CA FROM JIC IN HC

Overview

A

1) The jurisdiction to hear appeal
2) Non-appealable matters
3) Procedures

21
Q

APPEALS TO CA FROM JIC IN HC

The jurisdiction to hear appeal rules

A

1) Jurisdiction under CJA - S.67 CJA:
- CA shall have the jurisdiction to hear appeals on decision from High Court in its appellate jurisdiction subjected to conditions thereof.
2) Jurisdiction under Rules - O.56, r.2:
- Subject to S.68 CJA, a party may appeal to CA against any judgment, order or decision made by a JIC.

22
Q

APPEALS TO CA FROM JIC IN HC

Non-appealable matters

A

1) The law - S.68 CJA:

No appeal for:

  • judgment less than 250k except with leave;
  • consent judgment or order;
  • judgments on costs except with leave.
  • judgment declared final;
  • interpleader summons except with leave.

2) Quantification of value RM250k - Harcharan Singh v Ranjit Kaur:

  • Sum of damages claimed / amount of claim: first reference point.
  • No sum: value of subject-matter in the claim.
  • All else fails: judgment sum.

3) Quantification of value RM250k - Foong Yong Kok v Prudential Assurance Malaysia Berhad:
- damages to be assessed as prayed for by the Plaintiff cannot be factored into the value of the claim because damages are consequential and not the subject matter of the claim.

23
Q

APPEALS TO CA FROM JIC IN HC

Procedures - obtaining leave & failure to obtain leave

A

1) Procedures to obtain leave:

  • How:
  • When - r.16 RCA: Where leave is required, the application for such leave may be made to the Court before expiration of the time limited for bringing the appeal (i.e. 14 days) or within such enlarged time as the Court may allow.

2) Failure to obtain leave - Amer Mohideen Dawood v Sneh Bhar:

  • Tha appeal in this case is held to be incompetent as no leave to appeal was obtained from the Court of Appeal.
  • Incompetent appeal will be struck out.

3) Failure to obtain leave - recent, CA 2020 - Foong Yong Kok v Prudential Assurance Malaysia Berhad:

  • The appeal by the Plaintiff was incompetent due to the failure to obtain leave of this Court to appeal which was fatal.
  • The Plaintiff’s appeal was dismissed with costs without considering the merits.

SOLUTION:

  • apply for EOT
  • apply for leave to appeal again.
24
Q

APPEALS TO CA FROM JIC IN HC

Procedures - appeal procedures

A

xxx

25
Q

APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL

Overview

A

1) Jurisdiction to hear appeal
2) Non-appealable matters except with leave
3) Procedures - obtaining leave
4) Procedures - appeal procedures

26
Q

APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL

Jurisdiction to hear appeal

A

S.67 CJA:

  • The party aggrieved with any “judgment or order” of the HC may appeal to CA;
  • This is subjected to limitations in S.68(1).
27
Q

APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL

Non-appealable matters

A

1) The law - S.68 CJA:

No appeal for:

  • judgment less than 250k except with leave;
  • consent judgment or order;
  • judgments on costs except with leave.
  • judgment declared final;
  • interpleader summons except with leave.

2) Quantification of value RM250k - Harcharan Singh v Ranjit Kaur:

  • Sum of damages claimed / amount of claim: first reference point.
  • No sum: value of subject-matter in the claim.
  • All else fails: judgment sum.

3) Quantification of value RM250k - Foong Yong Kok v Prudential Assurance Malaysia Berhad:
- damages to be assessed as prayed for by the Plaintiff cannot be factored into the value of the claim because damages are consequential and not the subject matter of the claim.

28
Q

APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL

Procedures - obtaining leave & failure to obtain leave

A

1) Procedures to obtain leave:

  • How:
  • When - r.16 RCA: Where leave is required, the application for such leave may be made to the Court before expiration of the time limited for bringing the appeal (i.e. 14 days) or within such enlarged time as the Court may allow.

2) Failure to obtain leave - Amer Mohideen Dawood v Sneh Bhar:

  • Tha appeal in this case is held to be incompetent as no leave to appeal was obtained from the Court of Appeal.
  • Incompetent appeal will be struck out.

3) Failure to obtain leave - recent, CA 2020 - Foong Yong Kok v Prudential Assurance Malaysia Berhad:

  • The appeal by the Plaintiff was incompetent due to the failure to obtain leave of this Court to appeal which was fatal.
  • The Plaintiff’s appeal was dismissed with costs without considering the merits.

SOLUTION:

  • apply for EOT
  • apply for leave to appeal again.
29
Q

APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL

Procedures - appeal procedures

A

xxx

30
Q

APPELLATE POWERS OF CA

Overview

A

1) Hearing appeal as re-hearing
2) Disturbing a finding of fact
3) Raising a new point
4) Adducing fresh evidence - appeal from decision of a trial in HC
5) Adducing fresh evidence - appeal from interlocutory application
6) Draw inferences & make any order
7) Order of a new trial
8) Dealing with immaterial error
8) Reviewing own decision

31
Q

APPELLATE POWERS OF CA

Hearing appeal as re-hearing - law & scope

A

1) The law - S.69 CJA:

  • Appeals shall be heard by way of re-hearing;
  • Has the discretionary power to receive further evidence;
  • Further evidence may be received via oral examination, affidavit, deposition taken before an examiner or commissioner.

2) Scope - Dato’ Tan Chin Woh v Dato’ Yalumallai V. Muthusamy:

  • The power of the CA is only to draw inferences of facts and to make an order which ought to have been made by the HC.
  • The power is essentially limited to making of inferences of facts from the facts as found by the High Court.
32
Q

APPELLATE POWERS OF CA

Hearing appeal as re-hearing - principle

A

1) Principle - Powell v Streatham Manor Nursing Home:

  • CA does not rehear the witnesses & only reads the evidence and rehears the counsel.
  • The onus is upon the appellant to satisfy the court that his appeal should be allowed;
  • CA will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way.

2) No audio-visual advantage - Clarke v Edinburgh Tramways Co:

  • When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, irrespective of whether the judge makes any observations with regard to credibility or not.
  • If the appellate judge cannot be satisfied in his own mind that the judge with those privileges & audio-visual advantage was plainly wrong, then it appears to be his duty to defer to his judgment.
33
Q

APPELLATE POWERS OF CA

Disturbing a finding of fact - general rule

A

UEM Group v Genisys Intergrated Engineers Pte Ltd (FC, 2010):

  • An appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision.
  • A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence.
34
Q

APPELLATE POWERS OF CA

Disturbing a finding of fact - exceptions

A

1) Renal Link Sdn Bhd v Dato’ Harnam Singh:

If court of appeal is convinced that:

  • there was no judicial appreciation of the evidence by the trier of fact; or
  • that the audio-visual advantage reserved to a trial judge had been missed or that the findings made do not accord with the probabilities of the case when taken as a whole;

it would be open to the appellate court to intervene and upset the findings made by a trial judge.

2) Kerajaan Malaysia v Global Upline Sdn Bhd (CA, 2016):

  • The failure to consider the entirety of the evidence and material issues or the failure to make findings of fact or the making of bare findings of fact will invite appellate intervention.
  • Such omissions by a trial judge will require the appellate courts to take on the role of first instance judge and review the evidence in its entirety afresh.
35
Q

APPELLATE POWERS OF CA

Disturbing a finding of fact - test

A

1) Plainly wrong test - Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd (FC, 2015):
- an appellate court could interfere with findings of fact by the trial court is “the plainly wrong test” principle.
2) Scope of test - Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd:
- In the following circumstances, an appellate court will intervene to rectify that error so that injustice is not occasioned.

  • (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and
  • (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example;

i) WRONG PREMISE:
the judgment is based upon a wrong premise of fact or of law;

ii) INSUFFICIENT JUDICIAL APPREACIATION:
there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

iii) OVERLOOKED INHERENT PROBABILITIES:
the trial judge has completely overlooked the inherent probabilities of the case;

iv) COULD NOT HAVE OCCURRED:
that the course or events affirmed by the trial judge could not have occurred;

v) UNWARRANTED DEDUCTION:
the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

vi) FUNDAMENTALLY MISDIRECTED:
the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion.

3) Kerajaan Malaysia v Global Upline Sdn Bhd:
- A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence.

36
Q

APPELLATE POWERS OF CA

Disturbing a finding of fact - examples

A

1) Reviewing exercise of discretion - Vasudevan v Damodaran & Ratnam v Cumarasamu:

  • Duties are confined to those normally exercisable where the lower court has a discretion;
  • i.e. court is not justified in setting aside or varying an order simply because it may think it might have come to a different conclusion on similar material.

2) Reviewing a finding based on affidavit evidence - China Airlines v Maltran Air Corp Sdn Bhd:

  • A finding of fact at trial depends upon the credibility of witnesses;
  • A finding of fact in affidavit depends upon inferences drawn from other facts.
  • In the latter case, an appellate court will more readily interfere with the trial judge’s findings of fact and form an independent opinion than in the case of the former.
37
Q

APPELLATE POWERS OF CA

Raising a new point - law & scope

A

1) General rule - r.18(1):

  • memorandum of appeal shall set concisely and under distinct heads the grounds of objection to the decision appealed against;
  • it shall also specify the points of law or fact which are alleged to have been wrongly decided.

2) Non-compliance with r.18(1) - Bar Malaysia v Neasarani T Singara Thevar (2015):

  • The MOA did not comply with r. 18(1) of the Rules of the Court of Appeal 1994 and the main submission of the appellant was nowhere to be found in the MOA.
    In consequence, the appeal must be dismissed in limine.
    It is trite that the strict rules to the MOA do not permit the appellant to travel out of what has been said in the MOA.

3) Exception - r.18(2) RCA:
- The appellant shall not without the leave of the Court put forward any other ground of objection, but the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
4) Scope of r.18(2) - Pengusaha Tempat Tahanan Perlindungan Kamunting v Badrul Zaman:

  • r.18(2) allows a new point to be raised by the parties for the first time before it where the interests of justice so require.
  • Interests of justice in any particular case depend on the peculiar facts of the case.
  • e.g. The justice of a case will ordinarily lie in favour of allowing a point of law that goes to the jurisdiction of the court to be raised for the first time at the appellate stage.
38
Q

APPELLATE POWERS OF CA

Raising a new point - when & test

A

1) When - Pengusahan Tempat Tahanan Perlindungan Kamunting v Badrul Zaman:
- By virtue of r.18(2), new point can only be raised with leave of the court & the categories of cases that fall under the exception are not closed.
2) Test to justify - Subramanyah AJ Kamppiah v Bank Negara Malaysia:

  • To justify the new point to be raised on appeal, it must be shown that the new point comes within the established exceptions;
    i. e. jurisdiction, illegality or where, if the evidence on which the appellate court is asked to decide, would fully support the new plea.
39
Q

APPELLATE POWERS OF CA

Raising a new point - examples

A

1) Jurisdictional point - Luggage Distributors v Tan Hor Teng:

  • justice would, in the usual way, favour the admission of a point that goes to the jurisdiction of the trial court;
  • This is because neither consent nor waiver may confer jurisdiction where none exists;
  • It is not in the interests of justice that a judgment of a court lacking jurisdiction should be permitted to stand.

2) Defence of illegality - Koperasi Pegawai Pegawai Kerajaan Negeri Perlis Bhd v Wan Kiah @ Wan Noriah bt. Mahat:
- when defence of illegality can be raised for the first time during an appeal interfering with a part of the judgment of the learned judge not forming the subject of an appeal in determining the appeal before it.

40
Q

APPELLATE POWERS OF CA

Adducing fresh evidence - appeals from decision made after trial

A

1) S.69(1) CJA:
- discretionary power to receive further evidence by oral examination, affidavit, or deposition taken before an examiner or commissioner.
2) S.69(3) CJA:

  • Further evidence may be admitted on special grounds only;
  • Leave of court must be obtained.

3) Principles under Rules - r.7(3A) RCA:
- Further evidence shall not be admitted unless the Court is satisfied that—
(a) at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) 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”.
4) Test - Ladd v Marshall:

COULD NOT BE OBTAINED AT TRIAL:

  • it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

IMPORTANT INFLUENCE:

  • 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; and

CREDIBLE:

  • the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
    5) Test - Lan Soo Sun v Government of Malaysia (FC, 1970):

Three conditions must be fulfilled:

  • 1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
  • 2) 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) Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
41
Q

APPELLATE POWERS OF CA

Adducing fresh evidence - appeals from interlocutory applications

A

1) The law - S.69(2) CJA:
- Fresh evidence may be given without leave on interlocutory applications.
2) William Jacks & Co (M) Sdn Bhd v Chemquip (M) Sdn Bhd:

  • The conditions laid down in Ladd v Marshall does not apply to appeals on interlocutory decisions.
  • In hearing interlocutory appeals, this court has a full and general discretion whether to admit fresh evidence.

3) Tsoi Ping Kwan v Loh Lai Ngoh & Anor:
- Ladd v Marshall test applies to cases where further evidence is sought to be admitted at the appellate level after a trial on merits & does not apply to interlocutory matters.

42
Q

APPELLATE POWERS OF CA

Draw inference & make any other orders

A

1) The law - S.69(4) CJA:
- Court may draw inference of facts & make any order as the case requires.
2) Application - Dato’ Tan Chin Woh v Dato Yalumallai:

  • Power under S.69(4) is subject to the overriding discretion of the court to do justice.
  • The power is essentially limited to making of inferences of facts from the facts as found by the High Court;
  • It is clear from the reading of the said section that it does not confer on the Court of Appeal the power to substitute pleadings of party in any circumstance.
43
Q

APPELLATE POWERS OF CA

Order of a new trial - power to order

A

S.71(1) CJA:

  • Except as hereinafter provided, CA shall have the power to order a new trial.
44
Q

APPELLATE POWERS OF CA

Order of a new trial - when should NOT be ordered

A

S.71(2) CJA

  • improper admission or rejection of evidence;
  • miscarriage or wrong only affects part of the matter.
45
Q

APPELLATE POWERS OF CA

Dealing with immaterial error - power to deal

A

S.72 CJA:

  • No judgment shall be reversed or varied for immaterial error or minor irregularity.
46
Q

APPELLATE POWERS OF CA

Order of a new trial & dealing with immaterial error - test to order a new trial

A

Dr. Hari Krishnan v Megat Noor Megat Ishak:

  • The combined effect of S.71 & 72 is to place the burden on the party seeking retrial to satisfy the court that there was some substantial wrong or miscarriage of justice occasioned by the trial court, which has affected the merits or the jurisdiction of the court.
  • Therefore, the test is substantial wrong or miscarriage of justice which has affected the merits or jurisdiction of the court.
  • A retrial or a rehearing should not be easily ordered.
  • Appellate courts are advised to avoid ordering a retrial, merely on account of a non-speaking judgment by the trial judge or the absence of any finding of fact on a particular issue.
  • In such a situation, it is the duty of the appellate court to endeavour to make its own finding of fact, based on the evidence available in the record of appeal.
47
Q

APPELLATE POWERS OF CA

Reviewing own decision - the law

A

1) r.28B RCA:

  • where it is the apex court;
    decision to refuse or grant leave to appeal is final & binding on parties, unless it is the apex court.
  • in such a case, it is still open for review.

2) Only if it is the apex court - Dee Bee Yoke v Nick Abu Dasuki Hj Abu Hassan:

  • CA has an inherent jurisdiction to review its own decision in circumstances where it is the apex court.
    Ref. Ramanathan Chelliah v PP:
  • “It is now settled that the Court of Appeal has jurisdiction to review its own decision .. in cases where there is no further recourse to a party”.
48
Q

APPELLATE POWERS OF CA

Reviewing own decision - the test

A

Taylor v Lawrence:

1) APPROPRIATE:
- Discretion is confined to the cases in which it was appropriate for the jurisdiction to be exercised.
2) AVOIDANCE OF REAL INJUSTICE:
- When review is required to avoid real injustice in exceptional circumstances.
3) ACHIEVING OBJECTIVES:
- Review is required when it is necessary to achieve the dual objectives of an appellate court, namely to:

i) correct wrong decisions so as to ensure justice between the litigants involved; and
ii) ensure public confidence in the administration of justice, not only by remedying wrong decisions, but also by clarifying and developing the law and setting precedents.

4) ENFORCEMENT OF RULES OF PRACTICE:
- A court had to have such powers in order to enforce its rules of practice, suppress any abuses of its process and defeat any attempted thwarting of its processes.

49
Q

ISSUES IN APPEAL TO CA

Overview

A

1) Quantification of the minimum amount
2) Failure to obtain leave
3) Defective notice of appeal
4) Unrelated issues raised on submission

50
Q

ISSUES IN APPEAL TO CA

Quantification of the minimum amount

A

1) Yai Yen Hon v Teng Ah Kok & Sim Huat Sdn Bhd (FC):

  • since the claim was over RM100,000 (previously it was RM100k instead of RM250k), leave was not required regardless of how much it was finally awarded.
  • FC also held that the amount adjudged at the trial (i.e. judgment sum) assumes little or no significance.
  • Followed in:
  • Teresa Manohary v Tan Ah Lek;
  • Lam Kong Co Ltd v Thong Guan Co Pte Ltd:

2) Harcharan Singh v Ranjit Kaur:

  • Sum of damages claimed / amount of claim: first reference point.
  • No sum: value of subject-matter in the claim.
  • All else fails: judgment sum.

3) Foong Yong Kok v Prudential Assurance Malaysia Berhad:
- damages to be assessed as prayed for by the Plaintiff cannot be included into the value of the claim because damages are consequential and not the subject matter of the claim.

51
Q

ISSUES IN APPEAL TO CA

Failure to obtain leave

A

1) Amer Mohideen Dawood v Sneh Bhar:

  • Tha appeal in this case is held to be incompetent as no leave to appeal was obtained from the Court of Appeal.
  • Incompetent appeal will be struck out.

2) Failure to obtain leave - recent, CA 2020 - Foong Yong Kok v Prudential Assurance Malaysia Berhad:

  • The appeal by the Plaintiff was incompetent due to the failure to obtain leave of this Court to appeal which was fatal.
  • The Plaintiff’s appeal was dismissed with costs without considering the merits.

SOLUTION:

  • apply for EOT
  • apply for leave to appeal again.
52
Q

ISSUES IN APPEAL TO CA

Defective notice of appeal

A

Deepak Jaikishan v A/ Santamil Selvi Alau Malay (2017):

  • An objection pertaining to the notice of appeal being defective and/or bad in law could be undertaken by way of a mere preliminary objection:
  • r.27 RCA states that all applications to the CA must be made by way of a motion as provided for in Form 4 in the First Schedule to RCA 1994.
53
Q

ISSUES IN APPEAL TO CA

Unrelated issues raised on submission

A

1) General rule - r.18(1):

  • memorandum of appeal shall set concisely and under distinct heads the grounds of objection to the decision appealed against;
  • it shall also specify the points of law or fact which are alleged to have been wrongly decided.

2) Non-compliance with r.19(1) - Bar Malaysia v Neasarani T Singara Thevar (2015):

  • The MOA did not comply with r. 18(1) of the Rules of the Court of Appeal 1994 and the main submission of the appellant was nowhere to be found in the MOA.
    In consequence, the appeal must be dismissed in limine.
    It is trite that the strict rules to the MOA do not permit the appellant to travel out of what has been said in the MOA.

3) Exception - r.18(2) RCA:
- The appellant shall not without the leave of the Court put forward any other ground of objection, but the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
4) Scope of r.18(2) - Pengusaha Tempat Tahanan Perlindungan Kamunting v Badrul Zaman:

  • r.18(2) allows a new point to be raised by the parties for the first time before it where the interests of justice so require.
  • Interests of justice in any particular case depend on the peculiar facts of the case.
  • e.g. The justice of a case will ordinarily lie in favour of allowing a point of law that goes to the jurisdiction of the court to be raised for the first time at the appellate stage.
54
Q

xxl

A

xx

55
Q

APPEAL TO FEDERAL COURT

Overview

A

1) Jurisdiction to hear appeal
2) Leave to appeal
3) Question for appeal
4) Requirements to appeal - stage 1 - threshold requirements
5) Requirements to appeal - stage 2 - substantive requirements
6) Appellate powers of Federal Court
7) Inherent jurisdiction of Federal Court
8) Procedures to appeal to FC

56
Q

APPEAL TO FEDERAL COURT

Jurisdiction to hear appeal

A

1) The law:
- S.96 CJA
2) Scope:

  • There is no automatic right to appeal from the Court of Appeal to the Federal Court.
  • The intending appellant must first obtain leave from the Federal Court to appeal.

3) Pre-requisites - Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd:

  • leave to appeal must be against the decision of the Court of Appeal;
  • the cause or matter must have been decided by the High Court exercising its original jurisdiction;
  • the question must involve a question of law which is of general principle not previously decided by the Federal Court; and
  • the issue to be appealed against has been decided by the Court of Appeal.
57
Q

APPEAL TO FEDERAL COURT

Leave to appeal

A

1) Rationale for requirement of leave - Datuk Syed Kechik Syed Mohammed v Board of Trustees of Sabah Foundation:
- Federal Court exercises its sensitive power to grant leave to appeal in civil cases sparingly.
2) Granting leave - Datuk Syed Kechik Syed Mohammed v Board of Trustees of Sabah Foundation:
- FC will not grant such leave unless both of the following criteria are satisfied by an intending appellant:

    • (1) the judgment of CA has raised a point of general principle which the FC has not previously decided or a point of importance upon which further argument and a decision of the FC would be to public advantage; and
    • (2) if the point is decided in favour of the intending appellant, there is a prima facie case for success in the appeal.
58
Q

APPEAL TO FEDERAL COURT

Questions for appeal

A

1) Drafting question for appeal - Sabah Forest Industries Sdn Bhd v UNP Plywood Sdn Bhd:

  • Parties must exercise extreme care and caution in drafting questions for appeal under section 96(a) CJA.
  • If the questions did not have the effect of affecting the outcome of appeal, the court might decline to answer them.

2) Importance of drafting proper question - Joceline Tan Poh Choo & Ors v Muthusamy:

  • Whether there is a likelihood of succeeding in appeal would depend on the issue to be raised in the appeal & on the manner in which the question for appeal is framed.
  • Question must be so framed as to incorporate a point of law which has the effect of reversing findings made against the intending appellant without any further evaluation of the evidence.
  • The answer given to the question must be such that it has the effect of reversing the judgment & it is only then that the question of success in the appeal can arise.
59
Q

APPEAL TO FEDERAL COURT

Requirements to appeal - threshold requirement - overview

A

1) Meaning of “any judgment or order” in the exercise of original jurisdiction
2) Meaning of “in the exercise of HC’s original jurisdiction”

60
Q

APPEAL TO FEDERAL COURT

Meaning of “any judgment or order” in the exercise of original jurisdiction

A

1) Overview - Fawziah Holdings v Metramac:
- Decision of whether to grant leave or not under S.68(1)(a): not an appealable decision under S.96(a), as it is purely an exercise of discretion (as per Auto Dunia).
- Decision of whether leave is required or not under S.68(1)(a): an appealable decision under S.96(a), as it involves the examination of substantive issues on the matter.
2) Decision based on exercise of discretion - Auto Dunia Sdn Bhd v Wong Sai Fatt (FC)
- FC had no jurisdiction to grant leave under s.96(a) because the Court of Appeal’s exercise of discretion, pursuant to s.68, is not a “judgment or order” within the meaning of s.96(a).
3) Decision pending appeal - Fawziah Holdings v Metramac:

  • the word “any” in s. 96(a) makes it applicable to every judgment or order of the Court of Appeal;
  • Therefore, a decision made by CA in a pending appeal comes within the ambit of “any decision” in S.96(a).
61
Q

APPEAL TO FEDERAL COURT

Meaning of “in the exercise of HC’s original jurisdiction”

A

Matter begins in tribunals - Tio Chee Hing v United Overseas Bank (Malaysia) Bhd:

  • the critical issue is whether the High Court was exercising its original jurisdiction or appellate jurisdiction when hearing the matter.
  • One has to look at the High Court when hearing the matter, whether it hears it as an appeal or it is trying it in its original trial jurisdiction.
  • If it hears it as an appeal, the decision is NOT appealable to FC.
62
Q

APPEAL TO FEDERAL COURT

Requirements to appeal - substantive requirements - overview

A

1) Guidelines on substantive requirements
2) When is leave not normally be given
3) Other considerations

63
Q

APPEAL TO FEDERAL COURT

Guidelines on substantive requirements

A

Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd:

  • Whether there has been a consistent judicial opinion which may be uniformly wrong e.g Adorna Properties Sdn. Bhd. v. Boonsom Boonyanit
  • Whether there is a dissenting judgment in the CA.
  • Leave to appeal against interpretation of statutes will not be given unless it is shown that such interpretation is of public importance.
64
Q

APPEAL TO FEDERAL COURT

When is leave not normally be given

A

Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd:

  • In interlocutory appeals.
    where it merely involves interpretation of an agreement unless this Court is satisfied that it is for the benefit of the trade or industry concerned;
  • the answer to the question is not abstract, academic or hypothetical;
  • either or both parties are not interested in the result of the appeal; and
  • if it so obviously appears that the appeal will inevitably fail.
65
Q

APPEAL TO FEDERAL COURT

Other considerations for leave

A

Joceline Tan Poh Choo & Ors v Muthusamy:

  • The next matter for consideration if there is a prima facie case for success
  • This would depend on the issue to be raised in the appeal & on the manner in which the question for appeal is framed.
  • The object of making appeals subject to leave is to prevent frivolous and needless appeals;
  • Leave to appeal on a proposed question will therefore not be granted if there is no hope of success.
66
Q

APPELLATE POWERS OF FEDERAL COURT

Overview

A

1) Incidental directions & interim orders
2) Order a new trial & immaterial errors
3) Raising a new point
4) Adducing fresh evidence

67
Q

APPELLATE POWERS OF FEDERAL COURT

Incidental directions & interim order

A

S.80 CJA:

  • any incidental directions not involving proceedings;
  • any interim order to prevent prejudice.
68
Q

APPELLATE POWERS OF FEDERAL COURT

Order a new trial & deal with immaterial errors

A

1) Power to order - S.100(1) CJA:
- Except as hereinafter provided, FC shall have the power to order a new trial.
2) When should not be ordered - S.100(2) CJA:

  • improper admission or rejection of evidence;
  • miscarriage or wrong only affects part of the matter.

3) Immaterial errors - S.100(3) CJA:
- No judgment shall be reversed or varied for immaterial error or minor irregularity.
4) Test to order - Dr. Hari Krishnan v Megat Noor Megat Ishak:

  • the test is substantial wrong or miscarriage of justice which has affected the merits or jurisdiction of the court.
  • A retrial or a rehearing should not be easily ordered.
  • Appellate courts are advised to avoid ordering a retrial, merely on account of a non-speaking judgment by the trial judge or the absence of any finding of fact on a particular issue.
  • In such a situation, it is the duty of the appellate court to endeavour to make its own finding of fact, based on the evidence available in the record of appeal.
69
Q

APPELLATE POWERS OF FEDERAL COURT

Raising a new point

A

1) General rule - r.57(1) RFC:

  • memorandum of appeal shall set concisely and under distinct heads the grounds of objection to the decision appealed against;
  • it shall also specify the points of law or fact which are alleged to have been wrongly decided.

2) Non-compliance with r.57(1) - Bar Malaysia v Neasarani T Singara Thevar (2015):

  • The MOA did not comply with r. 18(1) of the RCA (in pari materia with r.57(2) RFC) and the main submission of the appellant was nowhere to be found in the MOA.
  • In consequence, the appeal must be dismissed in limine.
  • It is trite that the strict rules to the MOA do not permit the appellant to travel out of what has been said in the MOA.

3) Exception - r.57(2) RFC:
- The appellant shall not without the leave of the Court put forward any other ground of objection, but the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
4) Scope of r.57(2) - Pengusaha Tempat Tahanan Perlindungan Kamunting v Badrul Zaman:

  • r.18(2) (in pari materia r.57(2) RFC) allows a new point to be raised by the parties for the first time before it where the interests of justice so require.
  • Interests of justice in any particular case depend on the peculiar facts of the case.
  • e.g. The justice of a case will ordinarily lie in favour of allowing a point of law that goes to the jurisdiction of the court to be raised for the first time at the appellate stage.
70
Q

APPELLATE POWERS OF FEDERAL COURT

Adducing fresh evidence

A

1) Test - Ladd v Marshall:

COULD NOT BE OBTAINED AT TRIAL:

  • it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

IMPORTANT INFLUENCE:

  • 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; and

CREDIBLE:

  • the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
    2) Test - Lan Soo Sun v Government of Malaysia (FC, 1970):

Three conditions must be fulfilled:

  • 1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
  • 2) 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) Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.
71
Q

INHERENT JURISDICTION OF FEDERAL COURT

Overview

A

1) The law & scope
2) Power to review own decision under r.137
3) Test & ground to review decision under r.137
4) Examples & application of r.137

72
Q

INHERENT JURISDICTION OF FEDERAL COURT

The law & scope

A

1) The law:
- r.137
2) Scope - Badan Peguam v Kerajaan Malaysia:

  • r.137 “does not confer any new jurisdiction but is merely declaratory of the jurisdiction inherent in it at common law.”
  • resort to the inherent jurisdiction cannot be had in the face of express statutory provisions;
  • the inherent jurisdiction of a court forms part of procedural and not substantive law;
  • the inherent jurisdiction may be resorted to only in cases where a procedural injustice has been occasioned.
  • The exceptional circumstances in Asean Paper Mill are examples of such procedural injustice.
73
Q

INHERENT JURISDICTION OF FEDERAL COURT

Power to review own decision under r.137

A

Halaman Perdana Sdn Bhd v Tasik Bayangan Sdn Bhd:

  • The jurisdiction of FC under r.137 is limited to reviewing its own decision.
  • The basis to review its own decision under r.137 so is also very stringent.
  • It may only allow a review of its own decision in order to prevent injustice or to prevent an abuse of the process of the court.

In summary:

  • FC has the jurisdiction to review its own decision;
  • it did not have jurisdiction to review decisions of other courts including CA; and
  • the CA has the jurisdiction to review its own decision in circumstances where it is the apex court.
74
Q

INHERENT JURISDICTION OF FEDERAL COURT

Test & ground to review decision under r.137

A

Asean Security Papermills Sdn Bhd v Mitsui Summoto Insurance (Malaysia) Bhd:

  • In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstance in which a review may be made.
  • The grounds are:
  • Where there is coram failure.
  • Where the decision had been obtained by fraud or suppression of material evidence.
  • Where there is an infringement of statutory law.
  • Where application for review has not been heard by the Federal Court but, through no fault of the applicant, an order was inadvertently made as if he had been heard.
  • Where bias has been established.
75
Q

INHERENT JURISDICTION OF FEDERAL COURT

Example - not to determine whether FC had acted correctly or not

A

Dato’ See Teow Chuan v Ooi Woon Chee:

  • r.137 is not to consider if the FC had acted correctly or not as it did because that would tantamount to going into the merit of the case.
76
Q

INHERENT JURISDICTION OF FEDERAL COURT

Example - cannot review decision on merit

A

Kerajaan Malaysia v Semantan Estates Sdn Bhd (FC, 2019):

  • the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstances.
  • The inherent power cannot be invoked to review its own decision on its merit.
77
Q

INHERENT JURISDICTION OF FEDERAL COURT

Example - not to review CA’s decision

A

Sharikat Galian Razak Sdn. Bhd. v Magical Capital Sdn. Bhd:

  • r. 137 is not applicable to review the Court of Appeal’s decision.
78
Q

INHERENT JURISDICTION OF FEDERAL COURT

Example - wrong decision, uncertain decision or unjust decision

A

Merck Sharp & Dohme Group v Hovid Bhd:

  • It would be prudent to exercise such power when a former decision which is sought to be overruled is wrong, uncertain, unjust, outmoded or obsolete in the modern conditions.
79
Q

INHERENT JURISDICTION OF FEDERAL COURT

A

xx

80
Q

INHERENT JURISDICTION OF FEDERAL COURT

A

xx

81
Q

INHERENT JURISDICTION OF FEDERAL COURT

xx

A

xx

82
Q

APPEALS TO FEDERAL COURT

Procedures to appeal

A

xx

83
Q

CROSS-APPEAL

Overview

A

1) The law & scope
2) Procedures
3) Principles & application

84
Q

CROSS-APPEAL

The law & scope

A

1) Cross-appeal to CA:
r. 8 RCA
2) Cross-appeal to FC:
r. 49 RFC

3) Scope of the r.8 - Kabushiki Kaisha Ngu v Leisure Farm Corporation (CA):
- contentions under a notice of cross-appeal is limited to to effectively vary a decision appealed against, not set aside a judgment or order.

4) Cross-appealable decision - Pengerusi Suruhanjaya Pilihanraya Malaysia v. See Chee How & Anor (CA, 2015):
- a cross-appeal is only meant for variation of ‘the decision’ appealed against and not for variation, reversal or setting aside of any other decision of the High Court unrelated to the appeal filed by the appellant.

85
Q

CROSS-APPEAL

Procedures - cross-appeal to CA

A

1) The procedures - r.8 RCA:

  • notice of cross-appeal in Form 2, specifying the grounds.
  • Notice shall be given at any time after entry of the appeal and not more than 10 days after the service on

2) Failure to give notice:

  • If the respondent fails to give such notice within the time prescribed, he shall not be allowed, except by leave of the Court, to contend on the hearing of the appeal that the decision of the High Court should be varied;
  • However, the Court may in its discretion hear any such contention and may, if it thinks fit, impose terms as to costs, adjournment or others.
86
Q

CROSS-APPEAL

Procedures - cross-appeal to FC

A

1) The procedures - r.49 RCA:

  • notice of cross-appeal in Form 2, specifying the grounds.
  • Notice shall be given at any time after entry of the appeal and not more than 14 days after the service on

2) Failure to give notice:
- If the respondent fails to give such notice within the time prescribed, his cross-appeal may be dismissed.

87
Q

CROSS-APPEAL

Principles & applications

A

1) Kabushiki Kaisha Ngu v Leisure Farm Corporation:

  • Under r.8 of the RCA 1994, [D] cannot set aside the substantive finding of facts made by the High Court by way of notice of cross-appeal.
  • [D] may only set aside the substantive findings of the High Court by way of filing a notice of appeal under r 5 of the RCA 1994.
  • A cross-appeal under r.8 is limited to varying a decision appealed against, not setting aside a judgment or order.

2) Pengerusi Suruhanjaya Pilihanraya Malaysia v. See Chee How & Anor (CA, 2015):
- a cross-appeal is only meant for variation of ‘the decision’ appealed against and not for variation, reversal or setting aside of any other decision of the High Court unrelated to the appeal filed by the appellant.

88
Q

CROSS-APPEAL

Recent application

CA, 2021

A

Dr. H. K Fong Brainbuilder Pte Ltd v SG Maths Sdn Bhd & Ors:

Ref. to Kabushiki & Pengerusi Suruhanjaya Pilihanraya Malaysia:

  • Since what the first to third defendants seek to vary is a substantive finding of the court which relief is part of the counterclaim dismissed by the High Court, the defendants ought to have filed a notice of appeal against the dismissal of the counterclaim and not seek to vary the decision of the High Court by way of cross-appeal.

Decks in Civil Procedure Class (43):