Some Interlocutary Application are Non-Appealable – The Case of Asia Pacific

The right for a party to appeal in civil matters from the High Court to the Court of Appeal flows from the section 67 of the Courts of Judicature Act 1964 (“CJA”). Section 68 of the CJA provides for ‘non-appealable matters’ where some matters would require leave of court whilst others are strictly non-appealable.

Recently, the Federal Court Asia Pacific Higher Learning Sdn. Bhd. v. Majlis Perubatan Malaysia & Anor [2020] 3 CLJ 153 made a landmark ruling on whether High Court decisions made in interlocutory applications, that do not finally dispose of the rights of parties, are appealable.

Background

In 2014, Asia Pacific Higher Learning Sdn Bhd (“the Plaintiff”), which owns and operates Lincoln University College brought an action against Majlis Perubatan Malaysia and Prof Dato’ Dr Wan Mohamed Bebakar (“the Defendants”) seeking general damages for the torts of negligence, breach of statutory duty and misfeasance in public office in carrying out its accreditation survey and evaluation of the medical degree programmes.

For clarity, there were multiple legal actions and appeals exchanged between the parties from 2014 till 2019, some involving the Minister of Health and the Government of Malaysia as co-defendants, all of which originated from the same subject.

In the current suit, some three years and two amendment applications later, the Plaintiff moved an application to further amend their statement of claim to add a claim for special damages (“Amendment Application”). This Amendment Application was made in the middle of full trial where six out of the eight witnesses had already testified. The High Court allowed the Amendment Application.

Aggrieved, the Defendants appealed the decision to the Court of Appeal which reversed the High Court’s decision. Briefly, the Court of Appeal opined that the Amendment Application was akin to a second bite at the cherry as it reintroduced the damages claimed in the previously dismissed judicial review proceeding and it was prejudicial to the Defendants as it altered the nature of the claim.

The full grounds of judgment for both the High Court and Court of Appeal decision can be found at [2020] 2 CLJ 346 and [2019] 5 CLJ 513 respectively.

Federal Court

The Panel presiding over this appeal was Azahar Mohamed CJ, David Wong Dak Wah CJ, Alizatul Khair Osman FCJ, Mohd Zawawi Salleh FCJ and Idrus Harun FCJ. At the time as of the decision, Alizatul Khair Osman FCJ had retired hence the decision was made by the remaining four panel pursuant to s. 78 of the CJA.

The Federal Court did no delve into the merits of the Appeal as the Plaintiffs raised a preliminary issue on the subject of jurisdiction; whether the Order by the High Court in dismissing the Amendment Application was appealable to begin with. The rationale for this submission stems from the interpretation of three provisions in the CJA, section 3, 67 and 68.

It was the Plaintiff’s position that this Appeal was not an appealable matter as the definition of ‘Decision’ in Section 67(1) of the CJA has to be read together with Section 3 of the CJA. Further reference was made to the Federal Court decision in Kempadang Bersatu Sdn Bhd v. Perkayuan OKS No. 2 Sdn Bhd [2019] 4 CLJ 131 which held that the phrase ‘judgment or order’ mentioned in Section 67(1) of the CJA is a ‘decision’ within the context of Section 3 of the CJA.

A result of this manner of interpretation would suggest that the word ‘Order and Judgment’ in Section 67(1) of the CJA excludes matters which does not finally dispose of the rights of the parties, which in the present case was the Amendment Application.

The Defendants’ submission was that Section 3 of the CJA is only applicable to criminal matters and not civil matters. Besides, Section 68(1) of the CJA clearly outlines non-appealable matters and an amendment application is not listed in the said provision as such it is appealable.

In a 3-1 decision, the Federal Court agreed with this submission by the Plaintiffs that Section 3, 67 and 68 are to be read harmoniously. Idrus Harun FCJ in dismissing the appeal held as follows:

…From a plain reading of s. 3 of the Act, a ‘decision’, ‘judgment’ or ‘order’ excludes a ruling made in the course of a trial or hearing that does not finally dispose of the rights of the parties.(para 31)

The correct approach is to read s. 67 with the definition of ‘decision’ in s. 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with s. 67 of the Act, such a ‘decision’, ‘judgment’ or ‘order’ which falls within the exclusionary words in the definition of the word ‘decision’ is, without any doubt, not appealable to the Court of Appeal. (para 45)

Section 68 of the Act is a further exclusion to the jurisdiction of the Court of Appeal in the form of the definition of ‘decision’ in s. 3 of the Act. The terms ‘judgment’ or ‘order’ in s. 3 of the Act should be transposed into s. 68 of the Act in stating the matters that are not appealable to the Court of Appeal. (para 50).

David Wong Dak Wah CJA was the dissenting Judge. His Lordship found merit in the Defendants’ arguments and opined that Section 3’s definition of ‘Decision’ only applies to criminal matters and not civil matters. His Lordship’s rationale was as follows:

The existence of s. 68 of the Act and the absence of the word ‘decision’ together with the failure to delete the words ‘judgment’ and ‘order’ in s. 3 and to substitute those words with ‘decision’ speaks volumes in that s. 3 of the Act was never meant to operate to limit the civil appellate power of the Court of Appeal….(para 116).

…It is neither incorrect nor unreasonable to say that s. 3 of the Act is the limitation on the Court of Appeal’s jurisdiction to determine criminal appeals and that that limitation does not apply to civil appeals. This is because, matters that are non-appealable are expressly provided for under s. 68 of the Act. (paras 113 &114)

…if such an interpretation were taken, there will be two provisions limiting appeals in civil cases ie generally in s. 3 of the Act and another specifically in s. 68 of the Act…

Concluding Remarks

The Federal Court’s decision means that a reading of Section 3 together with 67(1) of the CJA would result in the following interpretation:

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, 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.

In practical sense, this could mean interlocutory applications such as an amendment of pleadings (O.20, r.5) or security for cost (O.23, r.1) are non-appealable matters whilst interlocutory applications such as for summary judgment (O.14) and striking out of pleadings (0.18, r.19) are appealable.

Having said that, it is unclear what applications are considered to have “finally disposed of the rights of the parties” and what are applications that do not as there is likely to be disputes on this subject matter in future High Court cases.