A. Appeals From The Subordinate Court to the High Court
Three types of appeals will be dealt with: 1. Interlocutory Appeal from the Subordinate Court to the High Court; 2. Trial Appeal from the Subordinate Court to the High Court; and 3. Point Of Law Appeals i.e. appeal from Subordinate Court to the High Court concerning judgment sum of RM10,000 or less.
1. Interlocutory Appeal from the Subordinate Court to the High Court
Law & Drafting
This type of Appeals deals with appeals against the Subordinate Courts Decision other than Trial Judgment for example Summary Judgment, Striking Out, Amendment, Security For Costs etc - mainly interlocutory applications.
You appeal by filing a Notice of Appeal (together with the filing fee) within 14 days from the date of the Subordinate Court's Decision - Order 49 r 6 Subordinate Court Rules ('SCR').
Your Notice of Appeal should be like Form 140 in SCR.
Sufficient copies of your Notice of Appeal should be filed in the Subordinate Court and not the High Court - Ismail Abdul Hamid v. OSK & Partners [1997] 1 CLJ 583 CA - and serve 1 copy to the High Court and 1 copy each to the opponent lawyers.
Note: The act of 'Filing' means filing and service within the 14 days period - Soh Keng Hian v. American International Assurance [1996] 1 MLJ 191 CA.
If you do not serve your Notice of Appeal within the 14 days, then in LAW - there is no Notice of Appeal filed. The one act without the other renders the appeal incompetent. Soh Keng Hian v. American International Assurance [1996] 1 MLJ 191 CA. Make sure you file and serve your Notice of Appeal within the 14 days period.
Serve your Notice of Appeal by hand or by fax or by courier. Faxing the Notice of Appeal is valid - Public Bank v. Kuching Pharmacy [1998] 2 AMR 1458 & Section 3 Evidence Act - WHICHEVER METHOD IT IS - make sure it is within the 14 days period.
Note: Posting your Notice of Appeal within the 14 days period but received by the opponent lawyer after the 14 day period means your Notice of Appeal is out of time - Tong Lee Hwa v. Malayan Banking [1978] 1 MLJ 257 FC.
3 weeks after you filed your Notice of Appeal, file your Record of Appeal - Order 49 r.6 SCR.
Your Record of Appeal should include the documents mentioned in Order i.e. the Application, the Affidavits including its exhibits, all pleadings, order or draft order - Order 49 r. 6 SCR.
NO NEED TO FILE Memorandum of Appeal - and - NO NEED FOR Notes of Proceedings for these type of interlocutory applications - Kwong Yik Bank v. Ansonia [1999] 1 CLJ 337 CA. Rationale - the true purpose and objective in O. 49 r. 6 of the SCR is to provide for a summary and speedy disposal of appeals against decisions of the Subordinate Courts made in interlocutory proceedings.
Approach To An Interlocutory Appeal
Fundamental Rule
Whether you are the Appellant or the Respondent, make sure you know your facts - and - the Appeal Record.
Interlocutory appeals is by way of rehearing, to be dealt with as a hearing for the first time - WOSS Corporation v. Regent Furniture [2004] 1 LNS 171.
Make sure your issue has been pleaded or raised in the affidavits.
How to get the Judge's attention to listen to your Appeal?
This is where your opening address is crucial.
Your first 2 or 3 minutes would either make or break your Appeal OR may get the Judge's attention to hear you further.
Submit your Point which would interest a judge rather than submitting in the usual run of the mill manner.
DO NOT have a Script For your Appeal.
Make sure you know what points you want to submit.
Have an overall view of the entire case because - What happens when the Judge, having read the Appeal Record, asks you to immediately address a particular point? There GOES your Script.
You must answer and address the Judge's question. Always answer in the affirmative. Do not say 'I believe so' OR 'I think so'. Either it is a 'Yes' or 'No'.
If possible - Try raising 1 or 2 points for the Appeal.
Try raising the Most Simple & Obvious Point - It is easier for the Judge to capture the point - and also the Obvious Point is always the most effective point.
IF you say you have 7 points for your Appeal - that may cause the Judge to say:
7 points of Appeal!!!!!' - That may cause you an unpleasant start for your Appeal;
OR the Judge may say - 'Forget your 7 points - just address me on the main point'.
That is why your opening address - the first 5 minutes - are crucial.
Also it is how you put your point across. TAKE the following examples.
Approach To Avoid - Example No. 1 - say you are dealing with a standard banking case. If you say 'My Lord, the opponent failed to prove that interest was agreed.' This would cause the Appeal to falter as the Judge may have heard this argument before and may just dismiss your Appeal within a few minutes.
BETTER APPROACH - Example No. 2 - 'My Lord, this Appeal breaks new ground. The facts are the standard run-of-the-mill banking matter but my Appeal deals with a point of law only.' This may cause the Judge to hear you. Thereafter you may find you are submitting for more than 5 minutes.
Approach To Avoid - Example No. 3 - Say your Appeal concerns where the debt has been disputed. You start off by saying 'My Lord, for today's appeal, the background facts are as follows'. The Judge may say, 'never mind about that, go straight to the issue'. This may put you off in the way you wanted to submit in the first place.
Better Approach - Example No. 4 - Take the same situation and address it differently by saying 'My Lord, for my appeal, can judgment be given when my client already disputed the debt years ago?' This way you may have a good possibility of the Judge wanting to hear your arguments.
The Judge may react positively to you and may ask you - 'Right, if that is your case, show me where in the Appeal Record?' Then you immediately show the most important single document and read it.
Thereafter make your factual Submission by merging with the law by saying 'My Lord, although there are other letters in the Appeal Record disputing the debt but that letter referred to is the start of this dispute. This dispute not only raises a triable issue but it goes further namely it questions the very heart of the debt. Surely a trial. Federal Court Judgment of so and so deals exactly with this point.'
2. Trial Appeal from the Subordinate Court to the High Court
Law & Drafting
This Trial Appeal is an appeal against a Trial decision of the Subordinate Courts.
Again the same 14 days applies & the filing fee - Order 49 r 2 SCR. The same Form 140.
Filing & service of Notice of Appeal - the same as Interlocutory Appeal.
After filing & serving your Notice of Appeal, immediately write to the respective Subordinate Court to request for Notes Of Evidence and Written Judgment - Order 49 r 2 (3) SCR.
Once you receive Form 141 from the Subordinate Court saying that the certified copy of the Notes Of Evidence & Grounds of Judgment is ready then prepare the following: Within 14 days from receiving Form 141 - file in the High Court the Memorandum of Appeal (together with filing fee) and serve the Memorandum of Appeal to Subordinate Court and opponent - Order 55 r 2 & 4 (3) RHC and Shobri v. Ramalingam [1993] 1 MLJ 263.
In Subordinate Courts Appeal after Trial - the Memorandum of Appeal is filed separately i.e. within 2 weeks from receiving Form 141 - Elayachee v. Woo Siu Tip [1991] 3 MLJ 108.
Make sure you put down whatever relevant points of appeal in the Memorandum of Appeal even though you may only raise 2 points of appeal in your Submission stage before the Judge.
IF you don't then you may have to amend your Memorandum of Appeal. So better to be over-cautious than taking a cavalier approach. Put everything in first, you can choose later.
6 weeks after receiving Form 141, you prepare and file 2 copies of your Record of Appeal in the High Court and serve on opponent within the said 6 weeks - Order 49 r 3A(3) SCR.
Your Record of Appeal must contain all the documents listed in Order 49 r 3 A (1) SCR.
Make sure your Memorandum of Appeal is filed within the 2 weeks - and - then when you prepare your Record of Appeal, you can include your Memorandum of Appeal in the Record of Appeal.
It is no use saying since I am going to include the Memorandum of Appeal in the Record of Appeal anyway, then I need not file the Memorandum of Appeal because - Courts held that such Appeal will be dismissed - Samsuri v. Chew Kit Toh [1996] 1 MLJ 576.
BUT - It is nothing wrong to include the Memorandum of Appeal in the Record of Appeal when you have already filed your Memorandum of Appeal earlier within the 2 weeks time period. You can do more but do not do less.
Make sure when you file your Memorandum of Appeal or your Record of Appeal, pay the appropriate filing fee.
Approach To A Trial Appeal
Trial Appeals are different from an Interlocutory Appeal. At the appellate level, the High Court sitting as an Appellate Court are slow to interfere with the Subordinate Courts Trial Decision for example:
- The Appellate High Court will not disturb the finding of facts - Sivalingam v. Periasamy [1996] 4 CLJ 545 CA;
- question of fact which depends on credibility of witness will also not be disturbed by the High Court - Mohamed Hussain v. Pavadise [1956] MLJ 63 CA.
Note However: For Appeals at all levels - Illegality (Keng Soon Finance [1989] 1 CLJ 897 PC) or Question Of Law which does not require evidence (Lim Geak Liang [1997] 4 CLJ 405 FC) or Question Of Jurisdiction (Muniandy & Anor v Muhammad Abdul Kader [1989] 2 MLJ 416) can be raised at any stage even at the Appeal stage regardless whether it is pleaded or not.
So how do you approach your Trial Appeal?
Again your approach is crucial. Your start.
The way you open your submission in the Trial Appeal.
It is different from an Interlocutory Appeal.
It is easy to say 'My Lord, my first point is that the Learned Sessions Court Judge failed to consider the evidence carefully.' This may prompt the High Court Judge to say 'Mr. A, I have read the Appeal Record, there does not have any suggestion of that.' This may prompt you saying 'BUT My Lord, the Learned Sessions Court Judge accepted the evidence which is hearsay and unfortunately believed their witness who is an untruthful witness.' The Judge may respond by saying 'Well, there are other evidences which supports his findings.' This may go on which if you realize from the above, your point has not been addressed yet and by the time you know it, the Judge is dismissing your Appeal. So not only you did not effectively get your point across BUT your Appeal was over within a few minutes.
HOWEVER if you take a different approach say 'My Lord, I am not disputing on the facts. I am only going to say 1 point of law only and then I will sit down. Can the Lower Court grant judgment when the maker of all the documents to support the Plaintiff's Claim was never called?' OR
Another example - 'My Lord I am not disputing on the facts. My appeal is a pure interpretation point namely if the Condition Precedent in the agreement is not complied is the agreement void.' This may prompt the Judge to say 'OK, which clause. Where is it in the Appeal Record?' Then you immediately refer to the page number in the Appeal Record and the Clause. 'I refer to Clause X. I read Clause X.' Then go on to say, by reading this Clause, it shows it is a Condition Precedent. It needs to be complied. If the Condition Precedent is not complied, then the law intervenes. The law makes the agreement void. It does not matter whether the agreement says so. That law is section so and so of this particular Act. The Judge will say 'Show me that section.' You now realize, that you not only are progressing with your Appeal but you are also getting your submission across effectively.
3. Point of Law Appeals
Law & Drafting
Where the claim is RM10,000 or less, then you cannot appeal to the High Court except on the question of law - Section 28 Courts of Judicature Act 1968.
Whether it is Interlocutory Appeal or Trial Appeal - the same procedure on filing Notice of Appeal and Record of Appeal mentioned above applies.
Under Section 28 CJA - Whether a notice of appeal from a subordinate court should set out the questions of law which the appeal involves under section 28 CJA?
This is a question which is often raised by lawyers and Judges alike.
Previously for appeals below RM10,000 - it was thought that the notice of appeal in Form 140, should at least state in general form the question or questions of law that he wishes to appeal on - Malayan Banking v. Syed Ali [1991] 3 CLJ 2892 HC and Mohamad Safuan v. Mohd Ridhuan [1994] 2 MLJ 187 HC.
NOW - It is settled. NO NEED TO STATE the question of law in the Notice of Appeal - Neoh Choo Ee v. Vasalamany [2004] 3 CLJ 321 CA.
If it is a Trial Appeal - then the point of law will be in the usual way i.e. in the memorandum of appeal. It is that document that the High Court ought to have resort to - Neoh Choo Ee v. Vasalamany [2004] 3 CLJ 321 CA.
So make sure you draft your Memorandum of Appeal which has questions of law only.
IF it is an Interlocutory Appeal - you do not file your Memorandum of Appeal, so what do you do? Where are you going to frame your Questions Of Law?
You frame your Question in your Submission - OR - frame your Question in a separate sheet of paper and submit to the High Court Judge when your Appeal comes for hearing.
You can frame your Appeal Question like this, for example:
In a Striking Out Application under Order 14 rule 21 (1) (a), can the Subordinate Court refer to any evidence?
In this type of Point Of Law Appeal, it is best to frame 2 or 3 Questions only which covers your case rather than having 4 or 5 Questions.
In this way when your Appeal goes before the Judge, the Judge will be quite amenable to hear your Appeal.
Approach To Point Of Law Appeal
First, immediately refer to the 1st Question.
And then refer to a Court of Appeal or Federal Court decision unless it is a trite law position.
If it is an Appeal after Trial for less than RM10,000:
- show the offending Statements in the Grounds Of Judgment which violated the law; AND THEN
- show what happens if these matters were not there i.e. had the Magistrate not taken these matters, would the Judgment be different;
- Then make your conclusion.
If it is an Interlocutory Appeal: Take the example set out above, namely 'In a Striking Out Application under Order 14 rule 21 (1) (a), can the Subordinate Court refer to any evidence?'
Thereafter, you submit that 'the law is very clear. No evidence is admissible. Therefore the entire affidavits and exhibits in pages so and so in the Appeal Record should be disregarded and cannot be taken into account at all. Hence what we are left with, is the pleadings. I refer to pleadings in page so and so in the Appeal Record.' Read the pleadings. Then submit 'From the pleadings, can it be said that the Statement of Claim does not disclose a cause of action?'
Then you continue with your submission.
You realize from the above that within a short time you have effectively got your point across and the Judge will hear you further on your submission.
B. Appeals From The High Court To The Court Of Appeal
Three Types of Appeal will be dealt with: 1. Leave Application To the Court of Appeal seeking to appeal against the High Court Decision on matters originating from the Subordinate Court; 2. Leave Applications To The Court Of Appeal; and 3. Appeal from the High Court to the Court Of Appeal.
1 & 2. Leave Applications To the Court of Appeal (dealt with together)
Law & Drafting
Under Section 68 CJA, there are several instances where there is no Appeal at all namely:
- where the judgment is by consent - Section 68 (1) (b) CJA; or
- where written law declares High Court Judgment to be final - Section 68 (1) (d) CJA.
However there are other situations where you require Leave Of The Court Of Appeal:
- when the amount of the claim excluding interest is less than RM250,000 - Section 68 (1) (a) CJA;
- where the judgment relates to costs only which by law is left to the discretion of the Court - Section 68 (1) (c) CJA;
- interpleader issue - Section 68 (3) CJA.
File your Leave Application within 1 month from the date of the High Court Decision - R. 16 Rules of the Court of Appeal 1994 ('RCA').
File 7 copies of Leave Application in the Court of Appeal - 1 copy to the High Court and serve on opponent - R. 28 RCA. Do NOT FILE your Notice of Appeal unless you first get Leave From the Court of Appeal. For that you must first file your Leave Application and then succeed on it - only then you can file your Notice of Appeal.
Your Leave Application must be by way of Notice of Motion - R. 27 RCA. Use Form 4 in RCA.
Your supporting Affidavit For Your Leave Application should be:
- straight to the point; and
- most importantly - it should be such where the minute anyone reads it, they must say, 'Yes leave should be granted.'
Draft your Supporting Affidavit For Leave carefully.
Take time to draft. It is an art.
Keep an objective mind. Just because it is your client, that does not mean it is a good affidavit.
Get your colleague to read the Affidavit objectively without telling him of the facts and who you are representing. If your colleague says 'Yes leave should be granted' without asking any questions, then you have met your objective.
Leave will only be granted by the Court of Appeal if one of the following conditions exist - Pang Hon Chin v. Nahar Singh [1986] 2 MLJ 145 - and - Datuk Syed Kechik [1999] 1 CLJ 325 FC:
- where the applicant is able to demonstrate a prima facie case of error; OR
- if the question is one of general principle decided for the first time; OR
- a question of importance upon which further argument and a decision of the Court Of Appeal would be to the public advantage.
Approach
Remember you are dealing with Court Of Appeal Judges who are well versed with the law and who, most of them, went through the High Court stage process.
Approach your Leave Application in the similar fashion as the Point of Law Appeal. Use the approach in the banking run-of-the mill case example stated above.
However - WHAT IF THE Court of Appeal Judges say - 'both the High Court and the Subordinate Court have dismissed your Case. We have read your Leave Application, we find no merit. We are going to dismiss your Leave Application.'
What would you say? How would you react?
The tendency is either:
- to keep quiet and say 'Very well My Lords' and the Leave Application is dismissed; OR
- maybe you immediately react by saying 'But My Lords, my client's case is that there is no evidence and yet judgment is given against my client.' The Court of Appeal Judges may respond by saying 'Yes Mr. A but the affidavit has the particulars to support the Bank's case.' Now you would have realized your Leave Application is faltering.
The Court Of Appeal may take the approach in the Court of Appeal Case of Wong Yin v. Wong Mook [1948] MLJ 164 CA which held:
To obtain leave to appeal when the amount involved is below the statutory amount would-be appellants must show that a serious and important issue of law is involved. Leave should not be granted when there is a mere question of fact to be considered. It is better, on the balance, that some cases should be wrongly decided than that large sums should be wasted on litigation over trivial amounts. It is a question of the lesser of two evils.
Therefore - HOW - are you going to respond to the Court Of Appeal Judges in the situation stated above?
Approach very humbly by saying - 'My Lords, I know I have an uphill task for this Case. The facts and documents are all there. I won't even attempt to change it. What is there is there. May I just address 1 point only and then I will sit down. I seek Your Lordship's permission and indulgence.'
Then quickly submit your Point in the most effective and efficient manner to get the Judges' attention. If they are attracted by your submission, then they will pose further questions or allow you to submit further.
HOWEVER if they say that they are still not with you, then you have done your duty.
3. Appeal Proper To The Court Of Appeal
This topic covers the situation where the matter started at the High Court. You lost. Now you want to appeal to the Court of Appeal against the High Court Decision. How to go about it?
Law & Drafting
File your Notice of Appeal within 1 month from the date of Decision of the High Court - Rule 12 RCA.
File 8 copies in the High Court together with the filing fee plus deposit - and - give 1 copy by hand to the Court of Appeal Registry and 1 copy to the opponents - Rule 17 RCA.
Then immediately write to the Secretary of the High Court Judge requesting for the Notes of Evidence and Grounds of Judgment.
Then start preparing the draft Index for your Record of Appeal and serve it on the opponent - rule 18 (6) RCA.
Your Record of Appeal must contain those court documents listed in Rule 18 (4) RCA. Then file 7 copies in the Court of Appeal, your Record of Appeal within 6 weeks from the date you filed your Notice of Appeal - Rule 18 (6) RCA - and serve a copy to the opponent. NO NEED to serve on the High Court.
Also file the Chronology Of Events together with the Record of Appeal - Practice Direction No. 3 of 1992.
All this are done provided you received the Notes of Evidence within the 6 weeks.
If you have not received the Notes Of Evidence within 1 month after you filed your Notice Of Appeal, then you must write directly to the President Of The Court Of Appeal - and NOT to his Secretary - to request for extension of time to file your Record of Appeal pursuant to Practice Direction 1996 No. 1.
When you write to the President Of The Court of Appeal, you must state the following:
- Decision Date of the High Court;
- When you filed your Notice of Appeal;
- When you wrote to the Secretary of the High Court Judge to request for Notes Of Evidence;
- Furnish a copy of your Notice of Appeal and your letter to the Secretary of the High Court Judge;
- Carbon copy ('CC') that letter to the Opponent and to the Registrar of The Court of Appeal.
When the President Of The Court Of Appeal grants you the extension of time, the COA President's Letter would say that your Record of Appeal is to be filed within 3 weeks from the date you receive the Notes Of Evidence.
NOTE: there is a common MISCONCEPTION THAT you wait until you receive both the Notes Of Evidence and Grounds Of Judgment.
You only wait for the Notes Of Evidence. Once you receive the Notes Of Evidence, then you have 3 weeks to file your Record of Appeal.
IF you receive the Grounds of Judgment together with the Notes of Evidence, then that is a bonus. BUT do not wait for the Grounds of Judgment.
When the Grounds Of Judgment comes, then you can include the Grounds Of Judgment and file it as an Additional Appeal Record - Practice Direction No. 1 of 1996.
The President Of The Court Of Appeal extension is very clear. File your Record of Appeal within 3 weeks from the date you receive the Notes Of Evidence.
WHAT IF YOU FAILED to write to the President Of The Court Of Appeal for extension within the 1 month after you filed your Notice of Appeal.
THEN - you have no choice but to file an Application In The Court Of Appeal For Extension Of Time.
Thereafter, follow the filing time limits for your Written Skeletal Submission and the color coding for your Bundle of Authorities.
Approach To The Appeal Proper
There are 2 types of Appeals which the Court of Appeal will deal with:
- one is Interlocutory Appeal i.e. appeals against interlocutory applications like Summary Judgment, Striking Out, Amendment etc;
- Trial appeal i.e. appeal after Trial in the High Court.
Approach your Appeal in the similar fashion as the Interlocutory Appeal To the High Court against the Subordinate Court Decision OR the Appeal to the High Court against the Subordinate Court Trial Decision, as the case may be.
There is of course differences, namely, now there are 3 Judges you are dealing with rather than 1 single Judge in the High Court.
For example there may be times, where 2 or 3 judges are asking you in one go. WHAT do you do?
You must answer the Judges' question.
Answer them in priority as to who ask the question first. For example:
My Lords, I will first address Justice X question posed earlier. Thereafter I will address Justice Y's question.' In this way, the Judges will realize that you are addressing the questions posed rather than side stepping another judge. It will also show that you are well prepared in your Appeal.
These days at the Court Of Appeal, it is very business like. No need for jokes, poems, rhetoric or drama.
Go there - submit on your Appeal - go straight to the point.
Sometimes, whilst you are submitting your Main Interesting Point, a Judge suddenly asks you a question, you must answer. Regardless what you may think of that question, you must answer.
You can do a number of ways. For example: Example No. 1: 'My Lords, I pause here at my submission and answer Justice A's question' OR Example No. 2: 'My Lords, I understand Justice A's question, may I answer it in a moment because that is my next submission or would Justice A like me to respond now.' THEN wait for that Justice A's reply. If he says answer now, then you answer. BUT if he says, you can answer later, then answer later in your next submission. BUT Make sure you answer Justice A's question in your submission. AND THEN ask Justice A whether your submission has addressed his query earlier. DON'T say you will answer later and forget to answer or side step Justice A's earlier question. IT is not only disrespectful but also it is as though you are trying to avoid the issue which may turn against you later.
During your Submission you can either adopt the following approach:
- state your issue, refer to the evidence and then refer to the High Court Grounds of Judgment if available. Then state what the statute says and only then case law. Remember this is the Court of Appeal. The Court of Appeal want to deal with the Case and not a lecture on the law; OR
- state your issue and then refer to the High Court Grounds of Judgment and state what was decided - and then quickly refer to the evidence - show the contradiction or the lack of appreciation of the evidence and only then the case law.
Remember this is litigation. There is only 1 winner and 1 loser. No draws.
It is only natural to feel disappointed when you lose the case. Do whatever you do to get over your disappointment. BUT you must get over it, to focus on your next step for the Case or on your next case.
Whether you win or lose, it is the Judges' decision. As long as your Court Papers are in order and you have complied with the rules & procedures and you have submitted your Case then you have discharged your duty properly. You have done your duty to yourself, the Court and your client.
C. Appeal From The Court Of Appeal To The Federal Court
For this Topic C - the following areas will be dealt with: 1. Leave To Appeal; and 2. Appeal Proper To The Federal Court.
1. Leave To Appeal
Law & Drafting
If you want to appeal against the Court of Appeal decision whereby the matter commenced in the High Court, then you require Leave From the Federal Court to appeal - Section 96 CJA.
Your Leave Application should be filed 1 month from the date of decision of the Court of Appeal - Section 97 CJA.
8 copies of Your Leave Application should be filed in the Federal Court within the said 1 month - 1 copy should be given to the Court of Appeal - and - a copy each for your opponent - Rule 107 (1) & (3) Rules of the Federal Court ('RFC'). Your Leave Application must be made by Notice of Motion - Rule 107 RFC.
Your Supporting Leave Affidavit should have the Record of Appeal, the High Court Grounds of Judgment and the Court of Appeal Grounds of Judgment, if available - Rule 107 RFC.
Your Supporting Affidavit should be:
- Brief highlighting the main facts only;
- the Leave Questions.
Under Section 96 CJA - Leave will only be granted on the following conditions:
- question of general principle to be decided for the first time; OR
- question of importance upon which further argument and a decision of the Federal Court would be to public advantage; OR
- from any decision which effects any provision of the Constitution including the validity of any written law relating to any such provision.
Therefore - draft your Leave Question and Affidavit carefully. It is an art.
Your Leave Question should have more law BUT it must relate to your Case.
It is also important to note that the Federal Court have held that the conditions laid down in Section 96 is not exclusive - Datuk Syed Kechik [1999] 1 CLJ 325 FC.
List of Case laws stating further considerations on Leave To Appeal, are:
- An assessment of the prospects of success should leave be given is, of course, an important factor which the Federal Court would have to take into account i.e. you have a prima facie case for success - namely all you need demonstrate is that on first impression, the appeal might succeed. - Datuk Syed Kechik [1999] 1 CLJ 325 FC
- the degree of public importance and on the necessity of the legal issue being finally resolved by the Federal Court. - Datuk Syed Kechik [1999] 1 CLJ 325 FC
- the effect of the decision of the Federal Court on the question of law as a means to clarify and develop a general principle of law in a manner likely to provide the solution to many different individual problems or to provide an answer to a specific question recurring in practice in future - Datuk Syed Kechik [1999] 1 CLJ 325 FC
- in a 'one-off contract', which has been specially drafted for the parties to cater for a particular 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 refusing leave - Datuk Syed Kechik [1999] 1 CLJ 325 FC
- Federal Court does not sit to decide abstract or academic or hypothetical questions of law regarding which the parties are not in dispute - Datuk Syed Kechik [1999] 1 CLJ 325 FC
Approach
No need to submit on criteria of Section 96 or refer to the established cases of Syed Kechik. These are Federal Court Judges who hear Leave Application on a weekly or daily basis. They know the criteria for Leave. At the hearing of the Leave Application, so far as it is possible to do so, the argument should be brief, succinct and concentrated. Even the Federal Court in Syed Kechik case repeated this statement on how to deal with a Leave Application.
Go straight to the Leave Question and then focus your Submission where the Court of Appeal has erred in the Court of Appeal Judgment.
Every word of your Submission in your Leave Application is crucial.
The longer you submit, it would look like your Case is more factual based and therefore will not fall under Section 96 CJA. And there goes your Leave Application.
Do not regularly refer to many documents in the Leave Application stage. This would show that either your Case is more factual based and therefore Leave should be refused OR that you are not familiar in conducting Leave Application.
Leave Application submissions are different from Appeal Proper Submission.
2. Appeal Proper to the Federal Court after Leave is granted
Law & Drafting
Once Leave is granted, be vigilant on the directions given by the Federal Court on (Rule 108 RFC):
- When the Notice of Appeal is to be filed;
- the questions which ought to be heard in the Appeal;
- other directions be given as to when the Record of Appeal is to be filed.
If no directions given, then Rule 56 & 57 RFC applies i.e.:
- file 7 copies of your Notice of Appeal at the Court of Appeal Registry - Rule 56 (1) RFC - and serve 1 copy to the Federal Court Registry and - serve a copy on the opponent, within 1 month from the date Leave was granted.
- Your Notice of Appeal to the Federal Court should be like Form 3 of RFC;
- Out of abundance of caution state your Leave Questions in the Notice of Appeal
- Then you must file your Record of Appeal & Chronology of Events within 6 weeks from the date you filed your Notice of Appeal - Rule 57 RFC;
- Your Record of Appeal must consist of the Court documents listed in Rule 57 (4) RFC.
Thereafter your Appeal Proper will be heard.
A word of caution. Just because you have obtained Leave, that does not mean you are going to win your Appeal.
Sometimes the Appeal Proper Panel of the Federal Court may refuse to answer your Leave Questions at the Appeal Proper Stage. It has happened before. For example:
in The Minister of Human Resources v. Thong Chin Yoong and Another Appeal [2001] 3 CLJ 933 - The Federal Court granted leave to appeal and framed the following question for its determination. Objection was taken at the Appeal Proper stage. In allowing the objection, the Federal Court held that the Federal Court was asked to consider an issue which was not determined by the High Court as well as the Court of Appeal. To that extent, the proper order for the Federal Court to make is to decline to answer the Leave Question.
Also the Appeal Proper Panel of the Federal Court could reconsider the point whether leave ought to have been granted in the first place - Sri Kelangkota [2003] 3 CLJ 349 FC
Approach
Your Approach to the Appeal itself in the Federal Court should be similar to the approach to the one in the Court of Appeal. BUT remember always to refer to the Court of Appeal Judgment when you are making your submission.
ALSO - the hearing of the Federal Court Appeal is confined to the matters, issues or questions in respect of which Leave was granted - Rule 47 (4) RFC.
D. Finally - Extension of Time
If ever you failed to file your Notice of Appeal or Record of Appeal or your Leave Application within time, then you must file an Application in Court to seek permission from Court to file your respective Court document stated above. Be candid and honest why you failed to file your Appeal on time. Don't hide. Own up to your mistake, if it is your mistake. It happens to everybody. Nobody is perfect. Throw yourself at the mercy of the Court. Once you do that, the Court will be more sympathetic to your application.
Apart from that you must also remember the basic principles for your application for extension of time - Scott & English [1994] 2 MLJ 424. They are:
- length of delay;
- reasons for delay;
- the chances of the appeal succeeding if time for appealing is extended;
- degree of prejudice to the would be respondent if the application is granted.
Conclusion
With that, I wish all of you the best in dealing with Civil Appeals. Thank you
Advocate & Solicitor