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  • Writer's pictureGavin Jayapal

An op-ed on Asia Pacific v MMC [2020] 2 MLJ 1

On 31.01.2020, the Federal Court pronounced the decision of Asia Pacific v MMC [2020] 2 MLJ 1.



Via this short piece, I propose to dissect the decision. I believe that it has caused considerable anxiety, with some practitioners (and even a judge or two, I am told) stating that all pre-trial interlocutory applications are non-appealable.



I personally know of lawyers who have withdrawn appeals premised upon the belief that Asia Pacific pre-empted interlocutory appeals.



Are interlocutory decisions appealable, after Asia Pacific?


The answer is a resounding yes, with a small caveat.



Practitioners would do well to read the decision in-full. The same is a very erudite piece which sets-out the law and clarifies certain aspects very well.



Asia Pacific sought to deal with a very specific, niche form of interlocutory application, wherein an amendment application mid-stream the trial process is being appealed against.


[95] … moved an application to amend their claim in the instant action to add a claim for special damages …The High Court allowed the application on 13 June 2017. Following the High Court’s decision, the plaintiff withdrew the appeal dated 17 March 2017 and discontinued Suit 38. The defendants in the meanwhile appealed to the Court of Appeal against the decision of the High Court in allowing the amendment application. On 5 January 2018, the Court of Appeal allowed the appeal by the defendant. This appeal has been brought by the defendants against that decision with the leave of this court.
[97] I should also note that the amendment application was brought when the trial was already heard in midstream in which six witnesses out of eight had already testified at the relevant time.

In short, the HC had allowed an amendment application mid-stream the trial process. The Court of Appeal had overturned the HC decision and a motion was moved before the FC. Leave was granted and all parties were before the FC for an appeal proper.


At the hearing in the Federal Court, Counsel for the Respondent raised a preliminary issue, as to whether the Court of Appeal even had the necessary jurisdiction to consider the appeal (i.e., whether the COA could overturn the HC's decision to allow the amendment application).


[99] This appeal came on for hearing before this court on 15 July 2019. in the course of opening their case, learned counsel for the appellant informed the court that he would like to raise a preliminary issue. The question that learned counsel had raised by way of the preliminary issue basically involved only one albeit rather significant question. Stated shortly, it concerns the question of whether the order made by the High Court on 13 June 2017 in allowing the appellant’s application to amend the re-amended statement of claim is appealable. The preliminary point in effect seeks to pull the rug out from under the feet of the respondent at the very beginning of the appeal proceedings before this court.

The core issue confronting the FC was whether the COA even had jurisdiction to consider the appeal once the HC Judge had allowed the amendment application.



The core of the preliminary issue goes to the reading of Section 3 CJA, read together with Section 67 CJA.



Section 67 sets-out the civil jurisdiction of the COA:



67. Jurisdiction to hear and determine civil appeals
(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought.
(2) The Court of Appeal shall have all the powers conferred by section 24A on the High Court under the provisions relating to references under order of the High Court.

Reference is then made to Section 3 CJA:



“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties;

The question was, was a grant of an amendment application mid-stream trial an appealable issue, given the specific wording of Section 3?


The upshot of the FC’s decision was that no, it was not. Such an application which had been granted (or dismissed), would not be appealable. The FC stated as follows:


[13] The present position in the law holds that an appeal does not lie against a decision in an amendment application made in the course of a trial and, further, such a decision does not finally dispose of the rights of the parties. In my opinion, the judgment in Kempadang, which is the decision of this court represents the law on the subject matter as we apply today.

What should an aggrieved party do then?


Quite simply, an aggrieved party should take the same up on appeal as a whole, upon the conclusion of trial.


[11]… It has to be noted here that an aggrieved party would not be prejudiced by the filtering effect of s 3 of the CJA as it would still be open to the aggrieved party to raise the offending ruling in the appeal proper at the conclusion of the entire trial (see Karpal Singh a/l Ram Singh v Public Prosecutor [2012] 5 MLJ 293).
[152]… In other words, a decision to allow this appeal does not mean that the respondent have reached the end of the road on the matter in dispute in this appeal for they may raise the ruling of the High Court as part of their grounds of appeal (see Datuk Seri Tiong King Sing at p 854 para 14).

What about interlocutory appeals pre-trial?


Interlocutories dismissed or allowed pre-trial are fully open to appeal.


Brevity may be Asia Pacific’s only fault. The FC has clearly stated that interlocutories before trial are appealable. However, the fashion in which this was done leads me to believe that the FC thought the point so trite, that it was not worth lengthy discussion:

[148] Further, the Federal Court authorities on amendment applications relied on by the respondents can be distinguished from the present appeal. In Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324; [1983] CLJ Rep 300 the case was decided before the definition of ‘decision’ in s 3 of the Act was amended by Act A1031 to add the excluding clause thereto. Next, the amendment application in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301; [2015] 8 CLJ 1 was made on the eve of trial. I fully accept that any application which is made at such a juncture are not caught by s 3 of the Act and are therefore appealable (see Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals [2017] 3 MLJ 350; [2017] 5 CLJ 707).

If one was to peruse Wong Kie Chie [2017] 3 MLJ 350, this becomes apparent:


DECISION
[42] We will deal with the preliminary question of whether the recusal order is a ruling. If as contended by the respondents the recusal order is a ruling, then it is not appealable as it is not a decision within the meaning of s 3 of the CJA 1964.
[43] According to the appeal record, the parties appeared before the learned judge on 18 January 2016 for the conduct of the cross-examination proceedings. After the parties had introduced themselves and before the commencement of the proceedings the learned judge made his recusal order. Clearly, the recusal order was not made in the course of the trial or hearing within the meaning of s 3 of the CJA 1964. We are fortified in our view in that an order to that effect was subsequently drawn up and sealed by Senior Assistant Registrar of the High Court, Sibu. Accordingly, we hold that this court have the jurisdiction to hear and determine the appeals pursuant to s 67(1) of the CJA 1964.

As such, the FC emphasised that even decisions made at the door of trial (but before witnesses were called) would not be caught by Asia Pacific.



The conclusion



From the above, FC made it abundantly clear that only the grant or dismissal of am application midstream trial would be non-appealable. The trial process must have begun and one would reasonably infer that this would only be when the first witness has been called and evidence has been led (Ultra Dimension v Sepadan Tuah [2000] MLJU 321).

The decision in Asia Pacific has been affirmed by Tebib Mostapa v Hulba-Danyal [2020] 4 MLJ 721:


Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1; [2020] 1 LNS 57 (FC) the Federal Court considered the question of whether a High Court’s decision to allow an amendment application made in the course of a trial is appealable to the Court of Appeal. In determining that the High Court’s decision is not appealable, the Federal Court said that it was necessary to consider other relevant provisions which are directly related to or are found in immediate connection with the definition of the word ‘decision’ in ss 3, 50 (on jurisdiction to hear and determine criminal appeals), s 67 (on jurisdiction to hear and determine civil appeals), and s 68 (on non-appealable matters) of the CJA 1964.

The dissenting judgment of His Lordship David Wong, FCJ



Asia Pacific must be read meticulously. I would also heartily recommend practitioners to look at the dissenting judgment of His Lordship David Wong, where the learned Judge put-forth a very emphatic and powerful rebuttal. With the greatest of respect, I believe that the analogy put-forth by His Lordship David Wong at paragraphs 68 and 69 of the Judgment may have led practitioners to believe that Asia Pacific encompasses all interlocutory applications:


[68] In the grander scheme of things, it has been an endless struggle to determine what is meant by the phrase ‘finally disposes of the rights of the parties’ in s 3 of the CJA. If at all such a test is to be employed within our borders, then it would be up to the legislative branch or the Rules Committee to come up with detailed provisions carefully crafted to that effect. As far as the law stands at present in Kempadang, there will invariably be civil applications which may not necessarily finally dispose of the rights of parties but may still and ought to be appealable nonetheless. [69] Strictly by way of analogy, an application to consolidate proceedings under O 4 of the Rules of Court 2012 is one such example. The primary purpose behind the consolidation of proceedings is to potentially avoid inconsistent decisions litigated by two different courts over a set of overlapping facts. See MCAT Gen Sdn Bhd v Celcom (Malaysia) Berhad [2007] 8 MLJ 277; [2007] 10 CLJ 356 and Baring Futures (singapore) Pte Ltd (in liquidation) v Deloitte & Touche (A Firm) & Anor [1997] 3 SLR 312. It is questionable whether consolidation proceedings finally dispose the rights of parties but should the application be refused it would certainly cause injustice to parties should they be denied the opportunity to appeal against the refusal to grant such an order. Rationalising whether a decision on consolidation of proceedings is appealable or not on the basis whether it ‘finally disposes of the rights of the parties’ is, in the context of civil appeals, an overly tenuous exercise unsupported by clear legislation to that effect.

I respectfully venture that the usage of this analogy may have caused confusion.

Consolidation applications are commonly made prior to the trial process beginning.

In utilising such an example, I respectfully venture that practitioners who failed to read the learned Judge’s preceding paragraphs (where His Lordship clearly distinguished between mid-trial and pre-trial applications) would have been flummoxed. Potentially, a better analogy would be applications to stay proceedings, recall a witness, adduce fresh evidence, amend one’s pleadings, amend one’s issues to be tried, etc.


I must admit here that I raised Asia Pacific as a preliminary issue requiring determination by the Court of Appeal (in an appeal where I was responding). I am very grateful that the learned panel dismissed the preliminary issue (and then proceeded to dismiss the Appellant's appeal). Closer reading of the decision upon dismissal by the COA has led to this piece.


One lives and one learns.


GAVIN JAYAPAL

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