Chapter 39 - Appeals Flashcards
APPEALS
Overview
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
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APPEALS
Right to appeal
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.
APPEAL TO HIGH COURT
Overview
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
APPEALS TO HIGH COURT FROM SUBORDINATE COURT
Overview
1) General
2) On decision made after trial
3) On interlocutory application
APPEALS TO HIGH COURT FROM SUBORDINATE COURT
General
- Jurisdiction
- Pre-requisites
- Question of law
- Quantification of the amount
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.
APPEALS TO HIGH COURT FROM SUBORDINATE COURT
On decision made after trial
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.
APPEALS TO HIGH COURT FROM SUBORDINATE COURT
On interlocutory applications
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.
APPEALS TO HIGH COURT JIC FROM REGISTRAR
Overview
1) What can be appealed
2) Procedures
3) Further appeals
APPEALS TO HIGH COURT JIC FROM REGISTRAR
What can be appealed
O.56, r.1(1):
- Any judgment, order or decision of the Registrar of High Court.
APPEALS TO HIGH COURT JIC FROM REGISTRAR
Procedures
r.1(2)(3)(3A):
How: Form: Time: Service: Hearing:
APPEALS TO HIGH COURT JIC FROM REGISTRAR
Further appeals
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.
ISSUES ON APPEAL TO HIGH COURT
Overview
1) Service of notice of appeal
2) Extension of time
3) Adducing fresh evidence
ISSUES ON APPEAL TO HIGH COURT
Service of notice of appeal
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.
ISSUES ON APPEAL TO HIGH COURT
Failure to serve notice of appeal
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.
ISSUES ON APPEAL TO HIGH COURT
Extension of time
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.
ISSUES ON APPEAL TO HIGH COURT
Adducing fresh evidence
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.
APPEALS TO COURT OF APPEAL
Overview
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
APPEALS TO COURT OF APPEAL
What appeals can be made to CA
1) Appeals to CA from JIC in HC;
2) Appeals to CA from HC on decision after trial.
APPEALS TO CA FROM JIC IN HC
Overview
1) The jurisdiction to hear appeal
2) Non-appealable matters
3) Procedures
APPEALS TO CA FROM JIC IN HC
The jurisdiction to hear appeal rules
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.
APPEALS TO CA FROM JIC IN HC
Non-appealable matters
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.
APPEALS TO CA FROM JIC IN HC
Procedures - obtaining leave & failure to obtain leave
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.
APPEALS TO CA FROM JIC IN HC
Procedures - appeal procedures
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APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL
Overview
1) Jurisdiction to hear appeal
2) Non-appealable matters except with leave
3) Procedures - obtaining leave
4) Procedures - appeal procedures
APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL
Jurisdiction to hear appeal
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).
APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL
Non-appealable matters
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.
APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL
Procedures - obtaining leave & failure to obtain leave
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.
APPEALS TO CA FROM HC ON DECISION MADE AFTER TRIAL
Procedures - appeal procedures
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APPELLATE POWERS OF CA
Overview
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
APPELLATE POWERS OF CA
Hearing appeal as re-hearing - law & scope
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.
APPELLATE POWERS OF CA
Hearing appeal as re-hearing - principle
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.
APPELLATE POWERS OF CA
Disturbing a finding of fact - general rule
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.
APPELLATE POWERS OF CA
Disturbing a finding of fact - exceptions
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.
APPELLATE POWERS OF CA
Disturbing a finding of fact - test
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.
