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FOCUS - 3 of 4 DOCUMENTS
 © 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal Articles

1999
Volume 4

[1999] 4 MLJ cxlv; [1999] 4 MLJA 145

LENGTH: 14666 words

TITLE: Article: RE-DEFINING THE APPELLATE ROLE OF FEDERAL COURT

AUTHOR: Dato' RR Sethu Advocate & Solicitor, High Court of Malaya The Superior Courts

TEXT: n1Our legal system has seen so many changes in recent years that one gets confused with the status
and place of the Federal Court. The court with that name 'Federal Court' first came into being with the
formation of Malaysia in 1963 with the enactment of the Courts of Judicature Act 1964. Prior to the
formation of Malaysia the hierarchy of courts in Malaya was the Supreme Court, which included both the
High Courts and the Court of Appeal. The final appeal was to the Privy Council when the value of the
subject matter was a mere RM500 or where it was a fit one for appeal. n2 n3 n4After the merger we had to
deal with Singapore, which had its own Court of Appeal and Sabah (then the Colony of North Borneo) &
Sarawak which together with Brunei had their own Court of Appeal. The formation of Malaysia involved the
re-organization of the legal system. This resulted in the Federal Court presided over by the Lord President.
The jurisdiction of the Federal Court was appellate, referral and original. The appeal was by way of re-
hearing and leave was required in respect of an interlocutory order made in chambers unless the judge had
within four days certified that he required not further argument or leave of the High Court or of the Federal
Court. n5 n6Throughout, the Malayan and the Malaysian system recognized two appeals from the High
Court. However in the 1970s there was a call for the abolition of appeals to the Privy Council. Malaysia
proceeded to abolish the appeals on constitutional matters to the Privy Council in 1971, followed by appeals
in criminal matters in 1981 and in civil cases with effect from 1 January 1985. The reason for the abolition of
the appeals to the Privy Council was more out of political and nationalist sentiments. The theme of the
nationalist sentiment was that our legal system had matured and there was no need to go to Downing
Street.With the abolition of appeals to the Privy Council the legal system had only one tier of appeal from the
High Court. The Bar had consistently called for the restoration of a second appeal-tier. In 1985, the Federal
Court was renamed the Supreme Court. Its jurisdiction remained the same except as to the alteration of the
value of the subject matter for unconditional right of appeal. n7 n8It took another decade before the country
obtained a two-tier appeal. By the first amendments in 1994, there was established the Court of Appeal and
the Federal Court. It is a moot point whether the Supreme Court was renamed the Court of Appeal or two
new courts were created. To overcome the problem of who should deal with the appeals then pending in the
Supreme Court a further amendment was made in December 1994 which then enjoined the Federal Court to
hear the appeals pending in the Supreme Court.

The (New) Federal Court - The First Amendment. n9The purpose of the present paper is to deal with the
jurisdiction of the Federal Court that was established in 1994, the present creature bearing that name. The
original provision as first enacted was the same as the provision for appeals to the Privy Council in civil
matters. Of course, there is an additional provision, on constitutional matters which was denied to the Privy
Council. Section 96 of the Courts of Judicature Act, under the first amendment, provided:

96 Subject to any enactments or rules regulating the proceedings of the Federal Court in respect of
appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the
leave of the Federal Court granted in accordance with s 97-
(a) from any final judgment or order in any civil matter where-
(i) the matter in dispute in the appeal amounts to or is of the value of two hundred and fifty thousand
ringgit or more; or the appeal involves, directly or indirectly, a claim to or respecting property or some
civil right of the like amount or value;
Provided that the Federal Court may summarily n10 refuse leave under sub-paragraphs (i) and (ii) if it
appears that the intended appeal in essence involves factual grounds; and(b) from any decision to the effect
of any provision of the Constitution including the validity of any law relating any such provision. n11 n12
n13This was a wholesome provision that gave a valuable right to any litigant to challenge the merits of the
decision. There was no statutory requirement of 'public importance'. Any question of law sufficed. The term
'final' in sub- paragraph (i) did not mean conclusion but 'finality' of the decision and this can extend to an
issue that had been decided as a preliminary issue as opposed to a mere ruling. Finality must be determined,
not by form but, by substance. is also no limitation as to the court from which the appeal came to the Court
of Appeal. Ordinarily, an appeal to the Court of Appeal comes from the High Court. However, an appeal in a
civil matter can reach the Court of Appeal from the sessions court where the value of the subject matter is in
excess of RM250,000 or with the leave of the court if below thatamount. This is important because the
sessions courts have unlimited jurisdiction in respect of matters involving landlord and tenant and claims for
personal injuries. These do raise very important questions of law. It may be that under the original s 96 the
litigants in the sessions courts (at least in respect of these matters) had three appeals but they cannot be
denied that right. Otherwise important questions of law that arise in the lower courts, either because of the
amount or the subject matter, cannot be dealt with by the Federal Court, the highest court in the land.

The Second AmendmentAs indicated, the source of the second amendment was Amendment Act A905/95.
Section 16 of the Act A905/95 amended s 96 by deleting the words 'enactments or' in the opening line of s
96. This was a cosmetic change without any effect. The substantial amendment was to paragraph (a) of s 96.
The existing paragraph (a) was substituted with the following:

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter
decided by the High Court in the exercise of its original jurisdiction; andoriginalThis amendment had the
following consequences: the value of subject matter has been deleted; claims as to property rights of like
value has also gone. The most important change was that the appeal from the decision of the Court of Appeal
was limited to a decision of the High Court in its jurisdiction. This means decisions that originated from the
subordinate courts and reached the Court of Appeal are incapable of appeal to the Federal Court. As we have
seen claims involving personal injuries and landlord and tenant cannot reach the Federal Court, no matter
how important the questions of law, and the Court of Appeal is the final appellate court for matters
originating in the subordinate courts. n14 explanatory memorandum, in the bill, for this amendment is
misleading. It says that the purpose of deleting the monetary value was to permit appeals in judicial review
cases, which under the unamended provision would not be appealable as there was no monetary value for
such cases. If this was the intention, there is no necessity to insert the words 'in the exercise of its original
jurisdiction'. It would have been sufficient to stop at 'the High Court' in the amendment. The omission of 'in
the exercise of its original jurisdiction' would have saved the judicial review cases as well as the appeals on
matters that originated in the subordinate courts. The object of the amendment was clearly to prevent a
further appeal for matters that originated in the subordinate courts. The pre-existing right of appeal should
have been preserved.There is also another complication in respect of constitutional issues. Under s 30 of the
Courts of Judicature Act 1964, a subordinate court may refer any constitutional question that arises in that
court to the High Court. The High Court may deal with it as if it arose in its original jurisdiction. However,
where the matter is not so referred and is dealt with on appeal by the High Court, then that issue could not
reach the Federal Court. The issue did not arise in the High Court in 'the exercise of its original jurisdiction'.
Section 96(b) would be a dead letter on the interpretation of s 96(a) that all appeals require leave of the
Federal Court and leave is a matter of discretion.This amendment went unnoticed and perhaps its effect was
not felt or understood. This amendment did not in any way limit the scope of the appeal once leave was
granted. Though the opening words of s 96 was 'subject to rules ... regulating appeals to the Federal Court'
there were no rules then enacted. The Federal Court Rules were made in late December 1995 but
retrospective to 24 June 1994! Until r 107 was enacted there was no need to identify the issues of law.Lopes
v Valliappa Chettiar n15 n16Under the original s 74, which governed appeals to the Privy Council, the
Privy Council had ruled in that leave to appeal was as of course once the conditions of the section had been
fulfilled. With the present amendment and in the light of the Rules of the Federal Court leave to appeal was
not as of course: the intended appellant had to demonstrate that the intended appeal was a fit one for appeal.
So leave to appeal was a matter of discretion: not one of right. Otherwise it would open the 'floodgates'; and
appeals, however unmeritorious, would be heard. Had the original s 96, as in the first amendment, been
maintained, there would be no room for this fear; the proviso would have filtered the quality of the appeals to
be admitted. n17 n18This second amendment also enabled the Federal Court to hear appeals pending in the
Supreme Court before the first amendment. It is interesting whether the Federal Court was a 'new' court. In
introducing the bill for the first amendment in the Dewan Negara on 17 May 1994 the minister said that one
of the purposes was to set out the powers of the Federal Court 'which was previously known as the Supreme
Court' following the establishment of the Court of Appeal. If the minister is correct, the Supreme Court was
renamed the Federal Court then the Federal Court could hear all appeals pending in the Supreme Court.
n19 n20However, the second amendment, debated in the Dewan Rakyat in December 1994, provided that
appeals pending in the Supreme Court before 24 June 1994 ought to be heard by Federal Court. Between 24
June 1994 and the passing of the second amendment, the Federal Court hadindeed heard and disposed of
appeals pending in the Supreme Court. One Member of Parliament raised the question, what was jurisdiction
of the Federal Court to hear and determine such appeals before the passing of the second amendment? The
minister"s response was telling:
... I want to ask [the Hon"ble Member, Mr Karpal Singh] if he is aware that the Federal Court was the
court that took over n21 the Supreme Court; not a different court created; the powers are the same. What is
changed by law is the Federal Court to the Supreme Court. ... we are making clear this provision so that it
would not be disputed ... n22It appears that it was Parliament"s intention that Federal Court was a
replacement of the Supreme Court and therefore, was not a 'new' court.The Third AmendmentThere was
further erosion of the right of appeal to the Federal Court by the 1998 Amendment. This, the third
amendment, has far-reaching consequences. It has denied rights of appeal to many. The third amendment is
considered next before dealing with the nature and functions of an appeal and what changes are necessary to
restore an adequate right of appeal.Many lawyers were taken off guard by this amendment when they
appeared to argue leave applications filed before the amendment. Section 8(2) of the Courts of Judicature
(Amendment) Act 1998 applied the amendment to pending applications for leave. As this amendment
affected substantive rights some comment is necessary. However, before considering its retrospectivity, the
third amendment to s 96 must be set out. Section 8(1) of the 1998 Amendment Act amended s 96(1). Section
8(1)(a) deleted the words 'granted in accordance with s 97'. This is an inconsequential amendment. It is the
amendment inserted by s 8(1)(b) that is important; it amended s 96(a). As amended s 96(a) now reads (the
amendments are shown in italics):

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter
decided by the High Court in the exercise of its original jurisdiction; and involving a question of general
principle decided for the first time or a question of importance upon which further argument and a decision
of the Federal Court would be to public advantage; or was the purpose of this amendment and why was it
necessary? Paragraph 6 of the explanatory memorandum to the bill must be reproduced in full:
Appeals from the High Court in the exercise of its original jurisdiction to the Court of Appeal are
automatic. However, appeals to the Federal Court from the Court of Appeal may only be made with the leave
of the Federal Court. Since 1886, the principles applied by English courts in granting leave have been those
principles which the proposed amendments seek to incorporate in s 96. These are sound principles which
have been followed by Malaysian courts. Putting these principles in the statute will eliminate lengthy
arguments and hasten the disposal of applications for leave to appeal. n23Nahar Singh v Pang Hon Chin
(No 2) n24Supreme Court PracticeWith the greatest respect to its draftsman one can join issue with that
passage. The source of that statement is the decision in . That was a case where an application for leave to
appeal to the Supreme Court was made under s 68; a similar application would now be made to the Court of
Appeal. The judge was not considering the principles governing an application for leave to the House of
Lords or even an application for 'special leave' to appeal to the Judicial Committee of the Privy Council. The
passage relied on by the judge as setting out the law was reproduced verbatim from the as follows:
Circumstances in which leave granted- The Court of Appeal will grant leave if they see a prima facie
case that an error has been made (see (1907) 123 LT Jo 202) or if a question is one of general principle,
decided for the first time (Ex p Gilchrist, In re Armstrong (1886) 17 QBD per Lord Esher MR at p 258) or a
question of importance upon which further argument and a decision of the Court of Appeal would be to the
public advantage (see per Bankes LJ, in Buckle v Holmes [1926] 2 KB at p 127) n25The first thing to note
about this passage is that the 1998 amendment had omitted the first part - 'prima facie case that an error has
been made'. Was the omission deliberate? Counsel has argued that the omission was such and they cannot be
blamed. Secondly, and more importantly, the two cases cited in that passage are merely instances or
illustrations and not exhaustive. Certainly, 'circumstances', cannot by any stretch of imagination be equated
to a 'principle' of general application. Clearly an error of law calls for intervention of an appellate court to put
it right. The appellate court must remedy an injustice, no matter what the cause. n26 elevation of the two
'circumstances' as a principle and incorporating them in s 96 causes grave injustice to litigants. If the Court of
Appeal does not decide a matter for 'the first time' then there is no appeal. Since a Court of Appeal is bound
by its own decisions there will be noopportunity for the Court of Appeal to decide anything new for the first
time. One would have thought that that would be the function of the highest court in the land, namely the
Federal Court. But here the Federal Court has been denied (or declines) such a role. By parity of reasoning,
the failure (or refusal) of the Court of Appeal to decide a novel point would not come within the terms of s
96(a) as now amended - it has decided nothing 'for the first time' to justify the Federal Court to grant leave.
n27 n28 n29However it appears that leave to the Federal Court is a matter of right under s 103E of the
Legal Profession Act 1976. The recent amendment to s 49 of the Land Acquisition Act 1960 also confers an
unconditional right of appeal to the Court of Appeal and thereafter to the Federal Court in respect of land
references to the High Court after 1 April 1998. References prior to that date had to proceed directly to the
Federal Court. The Court of Appeal seems to suggest that the conflict between the Land Acquisition Act and
the Court of Judicature Act was resolved by s 4 of the Courts of Judicature Act 1964 in favour of the latter.
This may not be correct and this might not be the proper place to discuss this conflict.

Nature of Appellate Process n30 n31 n32 n33 appeal is a generic term that may mean a review or a
rehearing. In modern common law system an appeal involves a 're-hearing'. Thus, an appeal is often a re-
hearing by a higher court of a matter decided by a lower court. This is how the appellate courts function. In
considering the role of an appellate court the way in which the court should function should not be lost sight
of. The object of such re-hearing is to redress an error. Of course, there are difficulties for an appellate court
to substitute its own decision on the facts. 'Rehearing' does not mean trial de novo with the witnesses being
heard all over again.Fleming v R n34The term 'by way of rehearing', however has different meanings. We
ought to be clear the sense in which this term should be applied to an appeal to a superior court. In the High
Court of Australia explained the phrase 'by way of rehearing':
The phrase initially was used in a different context to identify the procedure whereby, before a decree or
order was enrolled, the decision of a judge of the Court of Chancery was open to correction upon a re-
hearing by the same or another judge: Re St Nazaire Co; n35 Charles Bright v Sellar. n36 After enrolment
of the decree or order, a bill of review might be brought but only upon (i) an error of law appearing on the
face of the decree and without further examination of matters of fact; or (ii) a newly discovered matter which
'could not possibly have been used when the decree was made': Daniel, The Practice of the High Court of
Chancery. n37 A statutory provision that an appeal to a higher court be 'by way of re-hearing' was said by
Sir George Jessel MR to indicate that the appellant was 'not to be confined to the points mentioned in the
notice of appeal': Purnell v Great Western Railway Co n38 see also Stuckey & Irwin, Parker"s Practice in
Equity. n39The traditional meaning of re-hearing should be confined to the intermediate court of appeal. On
a further appeal, the second appeal, the court should not be troubled with attacks on findings of facts unless
there was a miscarriage of justice by the wrongful exclusion of admissible evidence. Nevertheless, the
second appellate court should be vested with power of rehearing and the right to receive fresh evidence
subject to the existing limitations.The nature of appeal should be borne in mind in discussing the function of
an appellate court. It is true that an appeal may mean either a re-hearing or a mere review.

The Appellate Role & Function n40The English legal system did not have a common system of appeals until
the Judicature reforms. An appeal is a 'crucial feature of the machinery of justice'. According to Sir Jack
Jacob:
The underlying basis of an appeal, which is a plea from one judicial authority to a higher authority, is that
the decision of the inferior tribunal may be erroneous or wrong and ought to be put right. The system of
appeals assumes the fallibility of courts, judges and juries who may make mistakes about law or fact or both
and provides for a hierarchy of courts to correct such mistakes.
Every appeal that is lodged may be regarded as the affirmation of faith in, or as an attack on, the judicial
process. On one view, it bears the mark of confidence that the mistaken judicial decision at first instance can
be duly remedied or corrected by a higher judicial authority, and on the other view, it carries the cry of a
defeated litigant who disparages the court at first instance for its mistaken judicial decision, which he is
compelled to seek to overturn. The appeal system provides the means of expression for both these extreme
views; it constitutes a crucial feature of the machinery of justice.The objectives of the an appeal in the
English system is also set out, though not exhaustively, by Jacob as follows:
(a) to provide a powerful corrective to any sense of grievance which the losing party may experience by
making available to him the means of correcting the judicial decision; (b) to advance the public and social
interests to correct erroneous judicial decisions which should not be allowed to stand, since otherwise they
might create a sense of injustice and unfairness and a loss of confidence in the administration of justice; (c)
to produce a correct and just result according to the law in the particular case; (d) to compel judges and other
judicial officers to be more careful when making decisions at first instance and to be judicial and reasonable
and to apply the law and not to be arbitrary; (e) in the English and common law systems in which the binding
character of judicial precedent plays such a crucial part, to enable the appellate tribunal to expand and clarify
the law responding to social changes, and to develop the law in a harmonious and consistent manner; (f) to
obtain a second judicial decision by the appellate tribunal consisting of greater number of judges, who are
considered to be more experienced and mature and who can, within the narrower compass of the appeal,
devote greater deliberation to the relevant facts and the law.In the same passage, Sir Jacob did not fail to
emphasize the importance of those objectives or reasons because 'there are many lawyers and others,
including judges, who would disfavour and discourage appeals'. All of those reasons and objectives apply to
any appellate tribunal. The explanatory memorandum to the bill for the third amendment has paid scant
regard to the public utility of an appeal, whether a first or second appeal, to redress a wrong suffered by a
litigant in the lower tribunal.Access to Justice n41Lord Woolf MR explained recently, both extra-judicially
and judicially, the public function of an appeal. In his Final Report, he states the purposes of an appeal as
follows:

1 An effective system for appeals is an essential part of a well-functioning system of civil justice.
There can be no doubt about the importance of the availability of appeals to ensure that redress can be
obtained for mistakes by a lower court ... .
2 Appeals serve two purposes: the private purpose, which is to do justice in particular cases by
correcting wrong decisions, and the public purpose, which is to ensure public confidence in the
administration of justice by making such corrections and to clarify the law and to set precedents. Smith v
Cosworth Casting Processes Ltd n42In Lord Woolf MR commented on the grant of leave to appeal. Leave
would be refused if there was no 'realistic prospect' ie that 'a fanciful or an unrealistic argument was not
sufficient'. He added, however:
The court could grant an application even if it was not so satisfied. There could be many reasons for
granting leave where the court was not satisfied that the appeal had any prospect of success. For example, the
issue might be one which the court considered should in the public interest be examined by the Court of
Appeal, or that it raised an issue which required clarifying.Woolf's Final ReportSmith v Cosworth Casting
Processes Ltd n43 n44That was a decision that was delivered shortly after the publication of the . At the
same time as the decision in , Sir Jeffrey Bowman's Committee was undertaking a review of the jurisdiction
of the Civil Division of the Court of Appeal in England and Wales. The Bowman Review was published in
September 1997 and was thus available when the third amendment was introduced. The contents of this
review are revealing; Bowman accepted the 'principles of the civil justice system' in the Woolf Report. The
Bowman Review conceded that:
There does not seem to be a great deal of authoritative written material about the purposes of an appeals
system. n45Apart from adopting the 'admirable summary' of Lord Woolf, the Bowman Review went further
to consider what was meant by a wrong decision. This is what Woolf called the 'private purpose' of the
appeals system. The conclusions of the Bowman Review bring to focus the purposes and uses of an appeal.

11 Conclusions about a particular aspect of a case may be wrong, but that will not always mean
that the outcome of the case or matter under consideration is also inappropriate. For example, the judge
might have misunderstood the effect of a particular piece of evidence, but he or she will not necessarily
reached the wrong decision overall. Normally the important point to establish is whether what has happened
means that a judgment or order should not be allowed to stand. We believe that before an appeal is allowed
there must be an error, unfairness or wrong exercise of discretion which has led to a wrong or unjust result.
12 When it comes to the public purposes of an appeal, an appeals system also helps to maintain the
standards at first instance. Whilst this emerges from Lord Woolf's statement, it deserves specific mention. On
the other hand we are less happy with the suggestion made to us that it is useful for a lower court to know
that there is a higher court to review its decision. This is acceptable if it means that the lower court fails to do
what it thinks is right because there can always be an appeal. n46Smith v Cosworth Casting Processes
LtdThe principles set out in , supra was welcomed by the Bowman Review but a rider was added to
interlocutory appeals since 'substantial delays' can occur 'in the progress of cases at first instance':
A balance has to be struck between the advantages of disposing of an issue at the interlocutory stage and
allowing an action to proceed to trial and, if necessary, hearing an appeal after trial. For example, a plaintiff
whose action was struck out would have to appeal successfully in order to continue with his action. On the
other hand, if the application to strike out failed, it could be an advantage to allow the action to continue
instead of incurring expense of an appeal. We believe that leave to appeal against an interlocutory decision
should be granted only if it is an appropriate stage of the proceedings for the particular appeal to be heard.
n47 n48 n49Two noted authors, Louis Blom-Cooper and Gavin Drewry had, some thirty years ago,
undertaken what must remain the first-ever extensive study of the House of Lords as a final appeal court. In
returning to this theme in 1999 they say:
The main and obvious role of first-tier appellate courts is to resolve problems in particular cases. The
function of the House of Lords is, however, the broader and deeper one of review and suspension rather than
of appeal - giving in-depth attention to a small number of particularly important and difficult cases and
enunciating authoritative legal principles for the guidance of the courts below and the general public. n50
n51Commonwealth Law ReportsIn Australia, under Gibbs CJ, s 35A of the Judiciary Act was amended in
1984 to abolish automatic rights of appeals to the High Court of Australia. Even then there were guidelines
that indicated grounds for special leave to appeal. These were: matter of public importance; difference of
opinion in Australian courts as to the state of the law; or that the intended appeal concerned the interests of
administration of justice. Yet the Bar was most unhappy. It is said that between June 1984 and November
1985 there were 80 applications for special leave; of these leave were granted in 26(some 32%) and some
48% that would have qualified under the former law as of right were denied leave. The volume of cases
reported in the indicates that leave must have been granted in many cases.

Strictures of the Third AmendmentSmith v Cosworth Casting Processes Ltd.So far I have dealt with the true
purpose and function of an appellate court. These are incongruous with the text of the third amendment. The
principles set out in the Woolf Report and the Bowman Review have not been adopted and indeed have been
denied by the third amendment. The explanatory memorandum of the bill for the third amendment has
obviously not taken into account the movements in England especially the decision of the Court of Appeal
inShigenori Ono v Thong Foo Ching n52Since the third amendment came into force almost all applications
for leave to appeal have failed. One solitary exception appears to be . Probably, leave was given because the
applicant (plaintiff in the High Court) was a foreign investor who had won in the High Court but failed in the
Court of Appeal. n53 n54 n55 n56 n57In an attempt to mitigate the rigours of the third amendment a
bench of the Federal Court seem to suggest that the principles governing the grant of leave under the third
amendment, though narrow, are not 'exclusive'. In Datuk Syed Kecik Syed Mohamed v The Board of
Trustees of the Sabah Foundation the defendant sought leave to appeal against the decision of the Court of
Appeal which had affirmed the decision of the High Court. The High Court had dismissed the defendant's
application to dismiss the plaintiff's claim for want of prosecution.Edgar Joseph Jr FCJ took the opportunity
to express views on both the procedural and substantive aspects of the jurisdiction to grant leave to appeal.
What is of immediate concern is what he said as to the ambit of s 96 (under the third amendment). The first
point made related to the status of the Federal Court as the 'apex court':
First of all, we should like to make the preliminary observation that the Federal Court as an apex court, is
a court apart, in the sense, that over and above its role as a tribunal of review, it performs a vital function of
supervising the process of judicial law-making which is such an integral part of our common law system
modified by statute. Lord Roskill in ReWilson n58FederalThen a reference was made to a passage in the
speech of , which the Judge thought applied a fortiori to the Federal Court. Lord Roskill had said that the
House of Lords in any given year can only determine a limited number of appeals and it was 'important for
the evolution of the law as a whole that those cases should be carefully chosen.'There are some comments to
be made on these observations. First, the 'judicial law-making role' is not at all referred to in the third
amendment except in the limited sense that this can only arise out of an issue decided for the 'first time' or
'further argument and a decision of the Federal Court would be to the public advantage'. Assuming that the
Federal Court is not a court of appeal but a 'tribunal of review', it is not explained whether 'review' excludes
redress of a miscarriage of justice.The quote from Lord Roskill was only dealing with one aspect of an
appellate function. It was not a licence to cover up miscarriages of justice. The House of Lords had indeed
reversed decisions of the Court of Appeal when the latter had reversed and upset High Court decisions on
facts. The fact that an apex court wants to spend much time on few cases is not a justification to deny the
cries for justice where a miscarriage of justice has occurred. Justice cannot be measured by the judicial time
available. Justice demands that judicial time must be made available.It is clear that 'error of law' instance had
been omitted from, and the s 96(a) was limited to the two situations reproduced in, the third amendment. It
has already been shown that explanatory memorandum to the bill amending s 96(a) was misleading. It is
part, not all, of the English practice since 1886 has been adopted even discounting the 1996 and 1997 judicial
and extra-curial developments.The response of the Federal Court to s 96(a) under the third amendment is as
follows:
So, does it mean that under s 96(a) all that an intending appellant for leave to appeal to the Federal Court
needs to demonstrate is that the judgement of the Court of Appeal raises a point of law of the kind
contemplated by the section and nothing more?
We think not. The paramount consideration is, of course, that the judgment of the Court of Appeal must
in the language of s 96(a) raise a question of general principle not previously decided by the Federal Court or
a question of importance on which further argument and a decision of the Federal Court would be to public
advantage but these criteria are, in our view, not exclusive. n59 (Emphasis added) n60 n61After finding
that there was no prospects of reversing the decision of Ian Chin J and that the order sought to be appealed
from was interlocutory, the Federal Court proceeded to lay down guidelines, 'for the avoidance of doubt'
without being 'exhaustive'. The court expressed these guidelines in terms of 'the utility of the decision of the
Federal Court':
Of cardinal importance would be the utility of the decision of the Federal Court on the question of law as
a means either to clarify and develop a general principle of law in a manner likely to provide the solution to
many different individual problems or of providing the answer to a specific question of a recurring nature in
practice.
Consequently, the mere fact that the judgment of the Court of Appeal has raised a point of general
principle does not necessarily make it appropriate for consideration by the Federal Court; for if a decision
depends on the application of a well established principle to an individual set of facts, a further appeal to the
Federal Court will be of no utility if it will do nothing to clarify or refine the principle, so as to make it
applicable to other situations in the future.
But if an intending appellant could demonstrate that the judgment of the Court of Appeal raises a point of
law of great general importance upon which there has been a consistent current of judicial opinion which
may have been uniformly wrong, that may well be enough for leave to be granted. Fisher v Oldham
Corporation n62 was a case where the question at issue was one of great importance to the public and
illustrates how 'a line of authorities' may gradually grow in the wrong direction because one important
precedent has escaped attention.
Similarly, a particular fact situation may be most unlikely to recur in the same form but yet may
exemplify a type of situation on which authoritative guidance of the Federal Court would be of great utility.
On the other hand, in the field of contract, in a 'one-off contract', to wit, a contract which has been
specially drafted for the parties to cater for a particular transaction in language which is unlikely to be
reproduced in future contracts, or a 'one-off situation', that is to say, a set of facts which is unlikely to be
repeated in practice, that would be a good ground for exercising the discretion against the grant of leave.
However, where the same point of law has already occurred in a series of current disputes, even if the
circumstances are only generally in pari materia, in other words, not precisely the same, there might well be
justification for the granting of leave to appeal to the Federal Court. The case for the grant of leave would, of
course, be stronger where the dispute turns upon the interpretation of contracts or clauses in general use in a
particular trade. n63Having adverted to the reluctance of the courts to decide on academic or hypothetical
issues, the judgment in the Sabah Foundation case proceeds to provide further examples when leave would
be granted and emphasized on 'public importance' and the need, in proper cases to 'restate' the law even if
there was no real doubt as to the law:
Again, a dissenting judgment in the Court of Appeal may be a decisive factor in considering whether to
grant leave to appeal. See eg George H Nolan (1956) (Pvt) Ltd v HA Watson & Co Ltd n64 in which leave
was granted 'in view of the difference of opinion.'
... Does it necessarily follow, that in all cases where there is no real doubt as to the law on a particular
point, leave to appeal must necessarily be refused? The answer to this argument is provided by these opening
remarks of Bankes LJ in Buckle v Holmes, n65 (a mundane case on the facts, in which the question was
whether a cat is an animal for whose trespass its owner is liable.) Here is what His Lordship said (at p 127):
We gave leave to appeal in this case, not because we thought there was any real doubt about the law, but
because the question was of general importance and one upon which further argument and a decision of this
court would be to public advantage.
It is obvious that the alternative statutory criteria for the grant of leave under s 96(a) merely repeats the
statement of principle enunciated by Bankes LJ quoted above.

The Effect of Sabah FoundationOne may be forgiven for thinking that the oracle has spoken but it would fall
on deaf ears. These observations of the Federal Court provide no more than cold comfort to the intending
appellants.Sabah Foundation n66 Sabah Foundation n67First, leave was refused in the case. It has always
been said that when refusing leave the court gives brief or no reasons at all. All that the court says when
refusing leave is purely obiter and not binding. The observations are not part of the ratio decidendi. A
subsequent court is not bound to follow. Indeed this dicta seems to have been ignored inapplications in leave
that came before the Federal Court subsequent to .Pang Hon ChinWhite BookWhite BookSabah
FoundationSabah FoundationSecondly, the reference to the English case law that preceded the third
amendment would be irrelevant. The courts would, as a matter of interpretation, have regard to the language
of the statutory provision only and not interpret the language with reference to the pre-existing practice. This
is the position even where the legislature codified existing principles of English law. It is worse in the
present case. The bill, though it not mention by name, obviously, referred to and the report of Pang Hon Chin
merely reproduced the summary in the and elevated the summary of the editors of the successive editions of
the to principles of law. The language of the third amendment does not permit the way it is (sought to be)
watered down in , however desirable or beneficial that course may be. If what is now suggested in was what
was intended then these should have been provided for expressly in the third amendment as specific
instances where leave may be granted.

Treatment of Applications for LeaveSabah FoundationJoseph Lee Henn Shen v Shearn Delamore & Co n68
n69 n70The 'guidelines' in for the grant of leave to appeal were not available in The issue there was the
interpretation of s 23 of the Courts of Judicature Act and, in particular, whether a defendant can bring third
party proceedings in Kuala Lumpur against a person resident in Sabah for matters that allegedly occurred in
Sabah. The High Court set aside third party notice on the ground that the Kuala Lumpur High Court had no
jurisdiction. On appeal by the Defendant, the Court of Appeal, by majority (and for different reasons)
reversed the judge and restored the third party notice. There was a dissenting judgment in the Court of
Appeal. n71 Brown v McLaughan n72 n73Lee Henn Shen v Shearn DelamoreAt first blush one would have
thought that leave should have been granted because it concerned the jurisdiction of the High Court. Further,
s 23 of the Courts of Judicature Act 1964 is an important provision of a public statute and one that affected
the interests of commercialrelationships between those resident and transactions effected in one part of
Malaysia and the proper High Court to deal with them. Again the Privy Council in granted special leave to
appeal on the ground that it raised 'a question on the construction of an Act, and one of general interest in
South Australia.' There was no prior decision either of the High Court or of the Federal Court on the
application of s 23 to third party proceedings. In this sense this point had arisen for the first time. To
compound the difficulty, one judge in the Court of Appeal had dissented and the High Court decision was
reversed. In the net result the decision was a draw - 2-2. Yet leave to appeal was refused. To the applicant in
Joseph the observations in Sabah Foundation had come too late.
The Proper Criteria for LeaveSabah FoundationSabah FoundationSrimati Bibhabati Devi v Kumar
Ramendra Narayan Roy n74The observations in seems to lay emphasis on the public purpose of the appeals
system and not on the private purpose. As already seen the private purpose is equally important. Even the
public purpose adverted to in is inadequate. The true purpose of an appeal to provide justice: a system of
judicature would fall into disrepute if there was no mechanism to remedy and an unjust result and put right
miscarriages of justice. The Privy Council adopted this test when granting special leave to appeal. Lord
Thankerton in delivering the advice of the Board in , a case of concurrent findings of facts, said:
... there must be some miscarriage of justice or violation of some principle of law or procedure. That
miscarriage of justice means such a departure from the rules which permeate all judicial procedure as that
which happened not in the proper sense of the word judicial procedure at all. That the violation of some
principle of law or procedure must be an erroneous proposition of law that if that proposition be corrected the
finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will
have the same effect. The question whether there is evidence on which courts could arrive at their finding is
such a question of law.
... the question of admissibility of evidence is a proposition of law, but it must be such as to affect
materially the finding ... . Privy Council, in that advice, immediately made an important qualification: that
what had been said was 'not a cast-iron one' and were 'illustrative only'. There 'may occur cases of such an
unusual nature as will constrain the Board to depart from the practice' of non-interference. Of course, that
cannot be said of s 96(a) which sets out in 'cast-iron' the conditions for grant of leave and not merely
illustrative. n75 n76 n77Prince v Gaynor:In summarising the practice of the Board, Lord Thankerton
reviewed a number of earlier cases before the Board. The fact there was a 'strong presumption: in favour of
the correctness of the decisions (appealed against) did 'not and ought not, to relieve this, court of last resort,
from the duty of examining the whole evidence, and forming for itself an opinion upon the whole case.' The
Board had interfered where it was shown 'with absolute clearness that some blunder or error is apparent in
the way in which the learned judges below have dealt with the facts and where it was established that the
judgments below were 'clearly wrong.' The Board had as early as 1882 made it clear in what circumstances
leave to appeal would be granted in
Where the case of gravity involving a matter of public interest, or some important questions of law, or
affecting property of considerable amount, or where the case is otherwise of some public importance or of a
very substantial character. n78 n79 n80Miscarriage of justice, as ground for appeal, is not new. In the
criminal justice system the instances are plentiful. In the eighties there were complaints of perverse verdicts
even though the appeals were dismissed by the appellate system. The Government of the UK had appointed a
Royal Commission of Enquiry into the whole criminal justice system under Viscount Runciman. The
Runciman Report, published in 1993, recommended a system for the review of criminal cases where there
were complaints of miscarriage of justice. The Criminal Cases Review Commission was established to deal
with complaints of miscarriage. Unfortunately, there is no such recommendation for civil cases. n81 n82
n83There must be a wider system of appeals in civil cases. Apart from the circumstances previously
mentioned, there are other reasons and circumstances for a further appeal. The fact that the intermediate
appellate court had reversed a decision of a lower court should entitle the successful party at first instance to
appeal to the court of last resort. Substantial sums are at stake should also justify the grant of leave where a
question of law was involved. Similarly, where there is an unresolved conflict of authorities either at first
instance or at the intermediate appellate level; there are examples of such conflict at both levels. Similarly,
whether developments in another common law system, especially in commercial matters, ought to be
adopted here.The existence of the judicature is the manifestation of the judicial power vested in the
Federation. Courts exercise that power to dispense justice. That function must, in the hands of the appellate
courts, include the power to correct the errors committed by the courts below where such errors are decisive
of, or materially affect, the result in the particular case. Even the Privy Council had taken a liberal approach
in civil cases as opposed to criminal cases. Dr Lushington in 1862 put it as follows:
With regard to the merits of the case itself, their Lordships certainly are inclined to come to the
conclusion that justice has not been very well administered in the present case; and, that supposing it to have
been a civil case, they would have had no hesitation whatever in recommending to her Majesty to allow an
appeal for the prupose of considering these proceedings, and of doing justice to the party complaining. But
this is a criminal case, and subject to very different considerations. n84What the court of last resort cannot
do is deny itself jurisdiction to ease its own workload by limiting the categories of appeals that it should
admit. Even in Australia, Mr Justice Hutley, writing extra-judicially, criticized this approach:
It is not without significance that new doctrines have emerged not in the intermediate courts of appeal (it
is their activities that the High Court had condemned) but in the High Court itself. The High Court of
Australia had until the Judiciary Act 1976 came into force been peculiarly oppressed by the ease of
appeals. ... In discouraging appeals it was seeking to protect itself. n85Dato Seri Anwar Ibrahim v PP
n86The stark truth was mentioned by NH Chan JCA in . That decision denied an appeal against the refusal of
bail on the basis that s 3 of the Courts of Judicature Act, as amended, (also part of the third amendment)
excluded rulings and interlocutory appeals in criminal matters. He questioned the wisdom of the denial of an
appeal. He said:
... everything will now depend on the judicial conscience of a single judge of the High Court who is to
exercise his discretion, not in opposition to, but in accordance with, established principles of law. But, what
is there to stop a renegade judge from knowingly misusing his discretion by exercising it in opposition to
established principles of law? Sadly, there is nothing that can be done under the law to correct such a
miscarriage of justice! We all know the famous aphorism of the historian, Lord Acton (First Baron Acton
1834- 1902): 'Power tends to corrupt, and absolute power corrupts absolutely.' -Letter in Life of Mandell
Creighton. Or, we can solace ourselves with the confident optimism if Lord Denning who says, 'Someone
must be trusted. Let it be the judges.' (Lord Denning, What Next in the Law at p 330). n87Is that enough -
to sit by and do nothing? What have the judges done to remedy the situation? Does not their silence provide
support to Sir Jack Jacob that the judges do discourage appeals? Even Griffith, the outspoken critic of the
English judiciary, seems to suggest that judges are outspoken:
The judges seldom give the impression of strong silent men wedded only to a sanctified impartiality.
They frequently appear - and speak - as men with weighty, even passionate views of the nature of society and
content of law. n88

Changes Necessary changes in the present system are not only desirable but are essential. The short period
after the third amendment has shown what a devastative blow it caused to the administration and
dispensation of justice. Deserving cases were denied leave to appeal. This state of affairs should beput right
immediately so that no further damage is done. For this purpose I propose three matters all of which are
related.

First, s 96 should be re-amended to give a wider right of appeal while retaining the leave requirement.

Secondly, the constitution of the Federal Court in hearing civil appeals ought to be altered.

Thirdly, there should be an alteration to any changes to the statutes affecting the courts and the rules of court,
wider consultation, including a new body to oversee reforms.

RestorationRight of appeal to the Federal Court, albeit with leave, ought to be restored to its pristine fullness
compatible with its status as a court of last resort and its primary purpose of dispensing justice. Increase in its
workload is not the criteria to cut down the range of appeals.allnauseamTherefore appeals must be permitted
in matters that exceed RM250,000 in value, irrespective of the court in which the appeal originated and in
matters which originated in the High Court provided that the intended appeal raised a question of law of
general application or importance or otherwise ought to be entertained in the public interest or in the interests
of justice. The category of cases for which leave should be granted must include (though not limited to) the
following which, it is emphasized ad , are merely illustrative and not exhaustive:

(a) where the issue has arisen for the first time in the courts below or in the Federal Court;
This formulation is necessary because the current formulation in s 96(a), 'decided for the first time' is
very unsatisfactory. What if the Court of Appeal refuses or fails to decide on a novel point of law? The terms
'has arisen' would take care of such refusal or omission to decide. The issue would still be open to be
ventilated in the Federal Court.

(b) where an existing principle or decision of the Federal Court (or a decision binding on the Federal
Court) requires to be reconsidered either by reason of new developments (including those in a another
jurisdiction where the law is in pari materia), change of circumstances or the existing decision was given
without proper thought or on erroneous assumptions;

(c) where there is a conflict of authorities at any level of the judicature system; or where there is a
dissent in the intermediate appellate court or where the intermediate appellate court had reversed the decision
of a court below it;

(d) where the law requires clarification or restatement;

(e) where there was a miscarriage or failure of justice by the misapplication of a principle of law or
procedure subject to the rider that no leave would be granted where such misapplication did not cause or
occasion a miscarriage of justice or unjust result. are cases where leave should properly be refused. Some of
these instances are:

(a) where the proposed appeal turns on a pure question of fact;

Even leave to appeal to the Privy Council has been refused on this ground. Of course, the emphasis is on
'pure question of fact', that is primary findings based on demeanour and credibility; findings of secondary
facts and inferences drawn would stand in a different position.

(b) where the issue is of construction of a private document not in general use and is unlikely to recur;

(c) concurrent exercise of discretion unless it was plainly wrong or founded on erroneous assumptions;

(d) where the challenge is confined to an order for costs;

(e) where the subject matter of the intended appeal has become academic or overtaken by events, thus
no longer alive;
 (f) where the intended appeal is not a suitable vehicle for the determination for the point of law sought
be raised;
This may arise in cases where the point of law raised incidentally or is entangled with issues of primary
facts found against the intended appellant; or where further evidence was required but not before the court.

(g) where the proposed issue, if decided in favour of the intended appellant, would not be decisive of
the substantive dispute in the intended appeal;

(h) where the intended appeal was against an interlocutory order which would not create any prejudice
to the intended appellant.
One must be careful here. If a party has struck out his opponent's claim or defence or obtained judgment
against his opponent, the opponent should have a right of appeal. 'Final' and 'interlocutory' must be
understood in relation to the order as opposed to the 'application'.It is essential that s 96(a) should be re-
amended to include the above so that there is no room for doubt as to the rights of the parties. Such an
amendment is not a choice but an imperative: litigants cannot be denied justice.Privy Council Teh Cheng
Poh v PP n89 n90 n91The amendment must also provide for the re-hearing of all applications for leave
that were dismissed under the third amendment. In Ismail b Abdul Hamid v OSK & Partners the Court of
Appeal had suggested that appeals struck on the ground, found to be wrong in that case, ought to be restored
and re-heard. After the declared the Emergency (Essential Criminal Trials) Regulations invalid,
Parliamentpassed Emergency (Essential Powers) Act 1979 which also provided for the appeals, already
disposed, to be reviewed by the Federal Court. The Teh Cheng Poh decision was indeed reviewed. There is
no reason why this cannot be achieved by a similar amendment to the Courts of Judicature Act.

Re-constituting the Bench of the Federal CourtAt the moment the Federal Court sits in three, though it began
to sit in a bench of five. It cannot be gainsaid that the development of the law rests with the Federal Court.
Consideration of new developments and re- consideration of existing principles require expertise. Given the
workload the judges of the Federal Court would not have much time to undertake research of their own.
Research is not confined to precedents but also to the development and flow of thought in the academia. It is
those in the academia who are also in touch with the pulse of society, the impact on, and the reaction of,
society to the law.Anderton v Ryan n92R v Shivpuri n93 n94Though the academics were one time
discarded and this had earned the protest of academics like Patrick Atiyah, they have now been invited to sit
in Law Reform agencies such as the Law Commission in England. The criminal law of attempts that took a
wrong turn in was brought back to its proper course in , following a scathing attack by the late Glanville
Williams in the pages of the Cambridge Law Journal.Kleinwort Benson v Lincoln City Council n95 n96
n97Law has become very sophisticated and much research has been undertaken on many aspects of the law.
Old values and diehard rules are being questioned. A recent example is the decision of the House of Lords in
that the English rule in the mid- nineteenth century was wrong in denying a remedy for payments made
under a mistake of law. The Scottish Law Commission had pointed to this error two years earlier. The
onslaught in the House of Lords in Lincoln County Council was led by Lord Goff of Chiveley, himself an
ex-Oxford don and a leading authority on the law of restitution. Bowman Review made an unusual
suggestion as to the constitution of the Court of Appeal:
A rather different consideration is whether there are those, not members of the judiciary at all, who might
have a significant contribution to make. Lawyers of outstanding distinction as academics or practitioners are
obvious examples. Their lack of judicial experience would not be a barrier, because it would be offset by the
other members of the Court. We think that there should be a discretion to invite such lawyers to sit as
members of the CA on occasions. We would not expect to see this power used very much, but its exercise
would help to strengthen even further the quality of the decisions in the CA. n98 n99Following the
publication of the Bowman Review, the Lord Chancellor"s Department ('LCD') released a consultation paper
on the proposals in the Bowman Review. The LCD referred to the above proposals in the Bowman Review
and invited comment:
In terms of implementation, the Lord Chancellor would envisage that the power to appoint such
individuals should rest with him. Appointments would be for an individual case on the basis that the
academic or practitioner is bringing knowledge or experience of particular relevance to that case. The Lord
Chancellor believes that the High Court qualification set out in s 71 of the Courts and Legal Services Act
1990, which is required for appointment as a Lord Justice of Appeal should be a prerequisite for such
appointments, on the basis that these will be exercising the same judicial power. Comment is invited,
however, as to whether this is considered to be unduly restrictive.
If the proposal to enable appointment of such individuals is pursued, the Lord Chancellor proposes to
stipulate that they can sit only as members of a three judge court. n100The invitation to academics to sit in
court to assist the judges would assist the court to arrive at rational and more informed decision. This would
also help steer the development of the law in the right direction. This innovation is one that is worth the
effort, at least, in the limited category of cases where the law has taken a wrong turn or where an extension
of existing principle is under consideration.

Wider Consultation & New Organ to the judicature system, especially to the jurisdiction and the civil
procedure of the courts affect everybody: the judges, lawyers and court users (ie the litigants). Most of all the
persons affected by, or those who suffer the changes are, the litigants. They are no longer the isolated
individual grocer, lender or property owner. There are now more organised and sophisticated litigants: the
banking industry, manufacturers, franchised distributors,developers, the insurers and the individual
consumer. The consumer movement too is strong and well organised. There are also other professional
groups who bear and face the brunt of the law. Ways must be found to provide for wide consultation on any
changes to the civil justice system.At the moment the changes in the law affecting the courts and procedure
are initiated or moved by the courts and, sometimes with the consultation of lawyers. There is no public
scrutiny of the intended changes. There is no public consultation. Whilst this restricted scrutiny may be valid
in the past, it is no longer true of modern society. The authorities must keep pace with the changes in society.
n101 n102Access To JusticeTherefore, it is suggested that any changes in the future must be subject to wider
scrutiny and public consultation. Of late in England, all the proposals leading to, and following, the Woolf
reforms have been subject to such comment and criticism. The courts exist for the resolution of disputes and
those most affected are the litigants. These litigants should be consulted before any changes are made. Given
the organised, more literate and more involved litigants, their views will be most valuable. It is their interests
that must be promoted. Litigation has come to be regarded as consumer product or service. Even Lord Woolf
conducted 'roadshows' to enlist the views of a wider audience. In his own final report, Lord Woolf recounted:
In the course of the inquiry there has been unprecedented consultation with all involved in the civil
justice system. ... judges, practitioners and consumers have worked together to hammer out new ways of
tackling problems and to contribute to what is proposed. I see a continuing need for such involvement in the
process of the implementation. n103One way of realizing the wider consultation is to establish a Civil
Justice Council under a separate legislation, such as a Civil Justice Act or Civil Procedure Rules Act. This
council can be presided by an official from the Ministry of Law and comprise of representatives of the
judges, the Bar and the industries and consumer groups. All intending legislation should be promoted by, or
brought to the attention and scrutiny, of this council.Interim Report on Access To Justice n104 n105
n106Lord Woolf in his recommended the establishment of a Civil Justice Council because his consultation
revealed that 'users of civil courts want to contribute to the system which exists for their benefit, and that
they have much to offer.' The Civil Justice Council in England was established under s 6(1) of the Civil
Procedure Act 1997 and its functions are set out in s 6(2), inter alia, to keep the civil justice system under
review, to consider how to make the civil justice system more accessible, fair and efficient, to advise the
Lord Chancellor and the judiciary on the development of the civil justice system and to refer proposals for
changes in the civil justice system to the Lord Chancellor and the Civil Procedure Rules Committee.
n107The members of the Civil Justice Council are drawn not only from judges, barristers and solicitors but
also from the academia, industry, trade union and consumer movement. In welcoming the setting up of this
Council Lord Woolf said:
The Civil Justice Council is the first body of its kind. Never before has a body been set up, comprising
members with such a wide range of interest in all parts of the civil justice system ... . This presents an
unprecedented opportunity to safeguard the future of civil justice and ensure that it meets the needs of the
public into the twenty-first century. n108This council will publicize the proposed changes and invite
comments thereon and later submit the report and recommendations to the government. In this way there will
be transparency and openness. The users of the system will have a greater and more direct say in the standing
and operation of the legal system. A wider and genuine public consultation would also instill and enhance the
confidence in the legal system. Even among lawyers, one cannot leave it to the Bar Council or the Bar
Committee to assess the advantages and disadvantages of any proposal. With the modern means of
communication and the availability of the internet and homepages, any proposal could be put on the website
and instant response invited.It is important that those responsible for enacting and implementing any changes
are aware of the impact on the court users who indeed pay for the service provided in the form of filing fees.
This would help create a system that is beneficial to the society and those using the court system.

Conclusion most immediate problem is to repeal s 96(a) in its present form and restore a more acceptable and
useful court of last resort in our legal system. The immediate repeal and substitution of that provision on the
lines suggested herein will provide satisfaction to the dissatisfied litigant and to public interest. The Federal
Court would then be able to play its full role as a true appellate court performing both the private and public
function of an appeal. Ultimately, there will be an avenue to remedy a miscarriage of justice. The other
changes proposed would help instill and enhance public confidence in the legal system.If the changes
suggested herein are not made to s 96 of the Courts of Judicature Act 1964, the Federal Court would become
irrelevant and redundant in civil matters. There would be no purpose in maintaining such a court if it cannot
play an effective and useful role in remedying injustice, miscarriages of justice and errors committed by the
courts below it. The Court of Appeal would become an unruly horse being not answerable to any higher
court. This is an unsatisfactory system. The sooner changes are brought the better. Otherwise there is a
serious deficit in our legal system.It is apposite to recall the words of VR Krishna Iyer, a former Justice of
the Supreme Court of India: n109The way in which Judge & Co (to use a Bentham phrase) is run in [sic is] a
matter of public concern and necessarily of public debate. Justice, justices and justicing are too important to
be left to the judges themselves to manage and mismanage.

Return to Text

FOOTNOTES:

n 1 For a study of the history of the Judicial Committee see PA Howell, Judicial Committee of
the Privy Council 1833-1876 (Cambridge UP, 1979).
n 2 See the Sarawak, North Borneo and Brunei (Courts) Order-in-Council 1951.
n 3 See Assa Singh v State of Johore (FC).
n 4 This provision created untold problems for litigants as to what was and what was not an
interlocutory order and a final order.
n 5 The calls for the abolition of the appeals and the (unrealized) call for a Commonwealth
Court of Appeals is analysed and discussed in David Swinfen, Imperial Appeals (Manchester UP,
1987).
n 6 The last civil case to get leave to appeal was City Investments Sdn Bhd v Sykt Tangnggunn
Koperasai Serbaguna Cupeacs Bhd (PC) though the last decision was that in Kheng Soon Finance
Bhd v MK Retnam Holdings (PC).
n 7 The provision in the Courts of Judicature Act 1964 as it then stood in 1994 was amended
by substituting the 'Supreme Court' with the words 'Court of Appeal'.
n 8 Secton 17 of the Courts of Judicature (Amendment) (No 2) 1994.
n 9 As inserted by the Courts of Judicature (Amendment) Act A886 of 1994.
n 10 This summary power of refusal was not found in the original s 74 dealing with appeals to
the Judicial Committee of the Privy Council.
n 11 White v Brunton [1984] 2 All ER 604 at p 606f per Lord Donaldson MR.
n 12 See eg Re Alwinco Products Ltd (CA); Murphy v Murphy (CA). Nor would an appeal lie
against the reasons for a decision, see Lake v Lake [1955] 2 All ER 538 (CA); the appeal lies against
the formal decision which is sought to be set aside or varied: Commonwealth of Australia v Bank of
New South Wales [1950] AC 294; Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30 Ind App
35 at p 39; Driclad Pty Ltd v Commissioner for Taxation of the Commonwealth of Australia (HCA). In
relation to a criminal case the definition of 'decision' which excluded a ruling was applied to deny the
right of appeal to challenge a decision calling upon an accused to enter his defence in Saad b Abas v
PP (CA). However, this limitation does not apply to civil appeals. Under s 67(1) an appeal lies against
any 'judgment or order' as opposed to a 'decision'. The word 'decision' does not appear in s 67(1). See
Tycoon Realty Sdn Bhd v Senwara Development Sdn Bhd (CA).
n 13 A good example is the removal of a private caveat under the National Land Code. Usually
an application for removal of a caveat is by an Originating Summons. Once the order for removal is
made, the Originating Summons is spent and the order is final order (ie has concluded the
proceedings). Where a civil suit is pending in respect of the subject land, an application for removal of
the caveat may be made by summons in chambers in that suit: Chi Liung & Son Sdn Bhd v Tong
Chong Fah & Sons Sdn Bhd . If an order for removal is made on such a summons in a pending suit,
the order though interlocutory in form would be final in substance in relation to the caveat and thus
appealable.
n 14 The President of the Court of Appeal had issued a Practice Direction which set out the
cases, though these had no monetary value, were appealable as of right: Arahan Amalan Mahkamah
Rayuan Bil 2/1996[1996] 2 MLJ xcvi. This shows that despite the value limit of the appeals to the
Court of Appeal, the categories of cases listed, in the Practice Direction, required no leave to appeal.
The same could apply to the Federal Court.
n 15 (PC)
n 16 See Kredin Sdn Bhd v OCBC (Malaysia) Bhd (FC).
n 17 YB Dato Wong Swee Wah
n 18 Dewan Negara Proceedings 17 May 1994 at p 106.
n 19 The member for Jelutong (YB Mr Karpal Singh) at sitting on 22 December 1994 at p 42.
n 20 Proceedings of the Dewan Rakyat on 22 December 1994 at p 43 (YB Dato' Syed Hamid
bin Syed Jaafar Albar.
n 21
'mengambillih'.
n 22
Perhaps the minister meant 'from the Supreme Court to the Federal Court'.
n 23 Both in the Dewan Rakyat (Proceedings 12 May 1998) at p 33 and in the Dewan Negara
(Proceedings 3 June 1998) at p 178 the minister moving the amendment bill repeated what was in the
explanatory memorandum that the principle underlying s 96 was practised by the courts in Britain.
n 24 .
n 25
This passage is taken from 1 Annual Practice 1957 at p 1283 and is also reproduced almost
verbatim in 1 Supreme Court Practice 1963 at p 1696.
n 26 See eg Henry v D"Cruz ; and Kumpulan Perangsang Selangor Bhd v Zaid b Hj Mohd Noh
(FC).
n 27 Federal Court Civil Application No 08-19-98 (J) noted in Infoline November/ December
1998 at p 55.
n 28 See Pentadbir Tanah Daerah Melaka Tengah v Mat Nayan bin Tak [1996] 2 MLJ 45
(CA).
n 29 The Courts of Judicature is a general statute whereas the Land Acquisition Act, the
Arbitration Act and the Legal Profession Act 1976 are special statutes: Chooi Mun Sou v Ng Seng
Kiok . Further, the ministerial statements in Parliament on the first and second amendments make it
clear that the Federal Court was a replacement of the Supreme Court. Thirdly, Parliament by s 4 of the
Courts of Judicature Act could not have curtailed the legislative power of a subsequent Parliament.
This violates the constitutional principle that one Parliament cannot bind a future Parliament: Ellen
Street Estates Ltd v Ministry of Health .
n 30 Blom-Cooper and Gavin Drewry, Final Appeal 44 (OUP 1972).
n 31 Ibid, at p 47.
n 32 Attorney-General v Sillem ; 11 ER 1200 at p 1209.
n 33 Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552
at p 560 (CA).
n 34 at pp 5-6
n 35
(1879) 12 Ch D 88 at p 97.
n 36
at pp 11-12.
n 37
5th Ed vol 2 at p 1422 (1871).
n 38
.
n 39
2nd Ed at pp 119-120 (1949).
 n 40 Jacob, The Fabric of English Civil Justice(Hamlyn Lecture 1986) pp 213-214.
n 41 HMSO July 1996.
n 42 The Times 24 March 1997; [1997] TLR 172; [1997] 4 All ER 840 (Practice Note) (CA)
n 43 This committee was appointed in October 1996 by Lord Mackay LC 'to carry out a full
review of the Civil Division of the Court of Appeal against the background of an increasing number of
applications and appeals and consequent delays in the hearing of appeals.' Specifically this committee
examined (a) the rules, procedure and working methods of the Civil Division; (b) the appropriateness
of the scope of the Court"s jurisdiction; (c) the appropriate constitution of the Court for different
categories of case; and (d) the legal and administrative support to the Court.'
n 44 Report to the Lord Chancellor - Review of the Court of Appeal (Civil Division)
(September 1997) (hereinafter 'Bowman Review') at p 23.
n 45
Bowman Review at p 25 para 8.
n 46 Ibid, at p 25 para 8.
n 47
Ibid, at p 39 para 38.
n 48 Blom-Cooper and Drewry, Final Appeal (Oxford, 1972) previously cited.
n 49 Gavin Drewry and Blom-Cooper, 'The Appellate Function' in Brice Dickson and
Carmichael, The House of Lords - its Parliamentary and Judicial Rolesat p 115 (Hart Publishing,
1999)
n 50 Joan Priest, Sir Harrry Gibbs - Without Fear or Favour p 103 (Sribblers Publishing,
1995)
n 51 Ibid, at p 107.
n 52 Federal Court Civil Application No 08-42-1998 (W) heard in February 1999 on an appeal
from Thong Foo Ching v Shigenori Ono (CA) the Federal Court appeal is registered as 02-02-1999.
n 53 Chong Siew Fai CJ (Sabah & Sarawak), Edgar Joseph Jr and Mohamed Dzaiddin FCJJ.
n 54 (FC).
n 55 (CA).
n 56 (Ian Chin J).
n 57 The delay in that case was not the plaintiff"s but was attributed to the court.
n 58 C-D.
n 59
[1999] 1 MLJ at p 262D-E.
n 60 Ibid, at p 263D-F.
n 61 Ibid, at p 334F-G.
n 62
.
n 63 But see R v Secretary of State for the Home Department, ex p Salem [1999] 2 All ER 42
(HL) where the House of Lords had ruled that the court can decide on matters that had become
academic if they relate to public law; the reluctance of the courts is limited to cases in private law.
This makes sense as public law affects the whole community.
n 64
(1965) Bar Transcript No 98.
n 65
.
n 66 See eg Kwong Yik Bank Bhd v Ansonia Management Associates Sdn Bhd [1999] 1 MLJ
366 (CA) which discarded the observations in Yupaporn Seangarthit v Neil Adam Campbell (CA) as
purely obiter because it was a case where leave to appeal was refused. This proposition is correct and
no doubt, the observations in Yupaporn were wrong. This does not alter the principle that in refusing
leave whatever said about the merits is not binding.
n 67 Only government are government-related appellants seem to have succeeded in
applications for leave such as Government of Sabah and the Sarawak Public Services Commission.
n 68 Federal Court Civil Application No 08-78-1997 (W).
n 69 United States of America v Shearn Delamore(Joseph Lee Henn Shen, Third Party) .
n 70 Shearn Delamore & Co v Joseph Lee Henn Shen (CA) Abdul Malek JCA dissented.
n 71 See Meer Reasut Hossein v Hadjee Abdoolah (1873) LR 2 Ind App 72 (PC). Counsel for
the applicant had argued that the 'High Court had no jurisdiction to quash the judge's order for review'
(p 73). Sir James Coville, who presided, said: 'The point is important, and enough has been said to
make it desirable that it should be discussed.'
n 72 (1870) LR 3 PC 458.
n 73 Ibid, at p 460 per Sir James Colville.
n 74 [1946] AC 508 at p 521 (PC).
n 75 Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry (1849) 4 Moo IA 431 at p
433.
n 76 Allen v Quebec Warehouse Company(1886) 12 App Cas 101.
n 77 Ibid, at p 105.
n 78
(1882) 8 App Cas 103 at p 105.
n 79 There are various materials, see eg Chris Mullin, Error of Judgment-The Truth About The
Birmingham Bombings (Poolbeg, 1987); Bob Wolfenden, Miscarriages of Justice (2nd Ed, 1989)
(Avon); Walker and Starmer, Justice in Error 1 et seq (Blackstone Press, 1993); Joshua Rozenberg,
'Miscarriages of Justice' in Eric Stockdale and Silvia Casale, Criminal Justice Under Stress at p 91
(Blackstone Press, 1992). For a defence of the system, see Louis Blom-Cooper, The Birmingham Six
and other cases (Duckworth, 1997) which also deals with the Criminal Cases Review Authority.
n 80 The Royal Commission on Criminal Justice - Report (Cm 2263) (HMSO) chapter 11
'Correction of Miscarriage of Justice' at p 180.
n 81 See Lumley General Insurance (NZ) Ltd v Oceanic Foods Ltd .
n 82 Sir Chunilal V Mehta & Sons Ltd v Century Spinning and Manufacturing Co Ltd AIR
1962 SC 1314.
n 83 The series of cases that went either way in the interpretation of O 49 r 6 as to whether a
memorandum of appeal was required and which appears to have been solved in Ansonia Management,
supra. There was also conflict of cases as to where the notice of appeal should be filed which also
arose under O 49 r 6 and appeared to be resolved in Ismail bin Abdul Hamid v OSK & Partners Sdn
Bhd (CA). The other notable conflict is the interpretation of O 32 r 13(2) as to timing of filing
affidavits in reply - from what date would time run: the date of service of the sealed copy of the
summons or the date of service of the unsealed copy. In Perbadanan Nasional Insurans Bhd v Pua
Lai Ong (CA) affirming (Faiza Tamby Chik J) the CA held that time ran from the date of the sealed
copy. This decision did not refer to an earlier decision of the CA in Structural Concrete Sdn Bhd v
Wing Teik Holdings Sdn Bhd (CA) (reported later) which expressly disapproved the High Court
decision inPua Lai Ong and held that time ran from the date of the unsealed copy of the summons.
The conflict remains unresolved.
n 84
R v Joykissen Mookerjee (1862) 1 Moo (NS) 273 at pp 295-96; 12 ER 704 at p 712.
n 85
Hutely, 'Appeals Within The Judicial Hirearchy' in AE Tay and E Kamenka, Law-making in
Australia 180 at p 203 (Edwards Arnold (Australia) Pty Ltd 1980).
n 86 (CA).
n 87
Ibid at p 341E-G. Quoted in another context by Frances Webber and Geoffrey Bindman, 'Anatomy
of Corruption' .
n 88
JAG Griffith, Politics of the Judiciary (4th Ed, 1997) (Fontana Press) at p 284. See also Kate
Malleson, The New Judiciary (Ashgate, 1999)at p 185: 'There is little doubt that the expansion of
judicial review in recent years would not have occurred without this culture if individualism which
has allowed senior judges to push boundaries and reshape the law.'
n 89 (PC).
n 90 Section 10 of the Emergency (Essential Powers) Act 1979.
n 91 (FC). For a discussion of the background of the Emergency (Essential Powers) Act 1979
see Rais Yatim, Freedon Under Executive Power in Malaysia (Endowment Publications, 1995)at p
223-236.
n 92 [1985] AC 560; (HL).
n 93 [1986] 2 All ER 534 (HL); Simon Lee, 'Bridging the Gap Between Theory & Practice' .
n 94 GL Williams, 'The Lords & Impossible Attempts, or Quis Custodiet Ipsos Custodes'
(1986) 45 Camb LJ 33.
n 95 [1998] 4 All ER 513; (HL).
n 96 Scottish Law Commission, Judicial Abolition of the Error of Law Rule and its Aftermath
Discussion Paper No 99 (February 1996).
n 97 Simon Lee (supra n 93) at p 491.
n 98
Bowman Review, (supra n 44) at p 56 para 8.
n 99 Civil Justice Reforms, Reform of the Court of Appeal (Civil Division): Proposals for
change to Constitution and Jurisdiction - A Consultation Paper (Lord Chancellor's Department, July
1998).
 n 100
Ibid, at p 7 paras 8-9.
n 101 Thomas, 'Civil Justice review - Treating Litigants As Consumers' (1990) 9 CJQ 51 '... it
remains a novel idea to characterise litigants as consumers of the civil justice system.'
n 102 John Peysner, 'Focus Groups and Analogue Vignettes: Modelling and Piloting in Civil
Procedural Reform' , 116.
n 103
Section 1 at p 12 para 20.
n 104 Chapter 27 at p 220.
n 105 Ibid, at para 4.
n 106 The Civil Procedure Rules Committee is established under s 2(1) of the Civil Procedure
Act 1997.
n 107 The list of the Council members, headed by Lord Woolf MR, can be found at the
Council"s website at <
n 108
As placed on the website.
n 109 VR Krishna Iyer, Access To Justice - A Case For Basic Change (BR Publishing
Corporation, 1993) at p vi.
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