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  • Writer's pictureAarthi Jeyarajah and Jayasri Ravichanthiran

Justice Rushed, Justice Crushed?


Recently, the House of Representatives (Dewan Rakyat) passed the Courts of Judicature (Amendment) Bill 2022 [1] (“Bill”) in the second and third reading on 25th July 2022 which includes significant amendments to the Courts of Judicature Act 1964 (“CJA”).


Whilst the Bills also introduces amendments to allow service of notices of appeal and record of proceedings (for criminal appeals) by way of electronic means, this article intends to focus on the amendments to Section 28 and Section 68 of CJA which potentially has a significant impact to litigants in civil matters.


1. The Proposed Amendments


For ease of reference, the proposed amendments to Section 28 and Section 68 of the CJA (as set out in the Bill) are reproduced below:-


Amendment to Section 28 -

“(1) No appeal shall lie to the High Court in any of the following cases:

(a) subject to any other written law, from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on a question of law;

(b) where a subordinate court dismissed any application for a summary judgment;

(c)where a subordinate court dismissed any application to strike out any writ or pleading; and

(d) where a subordinate court allowed any application to set aside a judgment in default.”


Section 68(1) is amended to insert the following—

“…

(e) where a High Court dismissed any application for a summary judgment;

(f) where a High Court dismissed any application to strike out any writ or pleading; and

(g) where a High Court allowed any application to set aside a judgment in default.”


(the above shall be collectively referred to as the "Proposed Amendments")


In summary, the effect of the Proposed Amendments are as follows [2]:

  • There will be no right to appeal against a decision of the subordinate Courts or High Court when a Summary Judgment Application (Order 14 of the Rules of Court 2012 ("RC 2012")) is dismissed;

  • There will be no right to appeal against a decision of the subordinate Courts or High Court when a Striking Out Application (Order 18 rule 19(1) of the RC 2012) is not allowed; and

  • There will be no right to appeal against a decision of the subordinate Courts or High Court when a Judgment in Default (JID) is set aside.


The Proposed Amendments clearly demonstrate the recognition that protracted litigation and frivolous applications ought to be avoided and matters that ought to be heard by way of trial (and on its merits) ought to proceed with the expediency that is expected by litigants. Further, restricting the appeals when the Court of first instance has determined that the dispute warrants a trial, appears to aim to increase efficiency of the determination of the dispute.


To a certain extent, this is in line with the principles applicable in determining such applications i.e. whether there are issues to be tried in respect of summary judgment applications or whether it is a “plain and obvious” case fit for striking out; or in the event that a JID is set aside, whether there is a valid defence that ought to be determined on the merits. Reference is made to the case of Bank Pertanian Malaysia Bhd v Gagnar Corp Sdn Bhd & Ors [3] where it was held as follows:-


“In our view, such arguments have been canvassed in Asia Pacific Higher Learning Sdn Bhd. The appellant is relying on the minority decision (dissenting judgment) and concluded the High Court’s decision was not made in the course of trial. In contrast, the majority judgment held that s 67(1) read with ss 3 and 68(1) of the CJA precluded a litigant’s right of appeal against a High Court decision in an amendment application made in the course of trial that does not finally dispose of the rights of parties otherwise, appeals against every decision of trial court, would indisputably delay the administration of justice.


However, there may be some concern with the proposed amendments, as these amendments could potentially prejudice the rights of parties in a civil suit.


2. Sample Scenarios


As an example, the effect of the Proposed Amendments are as follows:


If a Summary Judgment application is dismissed, the Plaintiff has no alternative other than proceeding immediately with a trial despite contending that the defence of the Defendant has no merits or is a sham defence. The philosophy behind such applications was discussed in the case of Woolley Development Sdn Bhd v Mikien Sdn Bhd [4], (referring to the earlier decision of Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [5]) where it was held as follows:


“a summary judgment procedure under O 14 of the RHC is not intended to shut out a defendant and should only be exercised in clear cases. We also adhere to this principle in coming to our decision. It must be emphasised conversely, that a plaintiff should not be put through the long-drawn costly process of a full trial in an action against a defendant who is without a bona fide defence. This is the philosophy behind a summary judgment procedure.”


Likewise, if a Striking Out application is dismissed, the Defendant is left with no option but to proceed to trial even though the Plaintiff’s pleadings may fall within one of the circumstances that would allow for such an application to be allowed. The case of Abdul Aziz bin Lebai Milin & Ors v Suruhanjaya Pengangkutan Awam Darat [6] discusses the approach taken in such applications:-

“The provision in O. 18, r. 19 of the RC 2012 is not designed as a mechanism for the defendant to force a preliminary hearing on the merits but is rather aimed at culling actions in plain and obvious cases, viz where there is no reasonable cause of action, and the striking out is done to avoid an unnecessary trial or where the claim is scandalous, frivolous or vexatious or an abuse of the Court process or where the defence raised is not arguable.”


3. Commentary


Whilst it has been said that the Proposed Amendments are introduced to, amongst others, increase efficiency and productivity in relation to judicial duties[7], the effects of not having a right to appeal against a decisions made in such instances, does remove a check and balance that an appellate court provides.


As the Bill has been approved before the House of Representatives, it is only a matter of time for the Proposed Amendments are incorporated into the CJA and takes effect. Hence, despite there being obvious advantages in the Proposed Amendments, it does bring about the question of whether justice rushed is justice crushed, and it will remain to be seen if these Proposed Amendments does indeed result in swifter determination of matters in Court and saving of time, costs and resources of litigants.


 

Aarthi & Associates is a legal firm dealing with varied civil and corporate disputes, including construction disputes, fraud litigation, injunctions and CIPAA claims. The firm's philosophy of "Providing Solutions", demonstrates a commitment to providing fast, effective and practical solution to disputes. Please visit www.aarthiassociates.com for more information and contact details.

 

References


[2] It should be noted that having no right to appeal against a decision of the subordinate Courts where the amount in dispute or the value of the subject matter is less than RM10,000 save for questions of law was a provision that existed before.

[3] [2021] 6 MLJ 931

[4] [2008] 1 MLJ 585

[5] [1987] 2 MLJ 183

[6] [2016] MLJU 1873

[7] This was stated by Datuk Wira Hajah Mas Ermieyati binti Samsudin [Deputy Minister in the Prime Minister’s Department (Parliament and Law)] during the 2nd reading of the Bill on 25.7.2022 at page 151: https://www.parlimen.gov.my/files/hindex/pdf/DR-25072022.pdf


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