BONIFAC LOBO A/L ROBERT V LOBO & ANOR v TRIBUNAL PENGURUSAN STRATA, PUTRAJAYA & ORS [2020] MLJU 1138

Federal Court (Putrajaya)

Judicial Review of Tribunal Award   

Facts

1.    Mr. Bonifac Lobo (“the Appellant”) was the chairman of the Joint Management Committee (JMC) of Silverpark Resort.

2.    Following the resignation of all other committee members, the Appellant remained the sole member of the JMC.

3.    New JMC (“the 3^rd to 9th Respondents”) was subsequently elected during an Extraordinary General Meeting (EGM), the validity of which the Appellant disputed.

4.    The Respondents initiated a suit at the High Court (“HC”) via Originating Summons No. 1047 (“OS 1047”) against the Appellant, seeking declarations –

(i)            that the resolutions and actions taken by the JMC during the period its composition was below minimum were invalid and unlawful; and

(ii)           affirming the validity of the EGM and their appointments.

5.    In parallel, the Appellant filed a claim before the Strata Management Tribunal, challenging the validity of the EGM and the actions of the newly constituted JMC.

6.    During the Tribunal proceedings, the Appellant filed an interlocutory order and sought to recuse the Tribunal President (the 2^nd Respondent) on the grounds of bias and denial of his right to be heard.

7.    The Tribunal ultimately dismissed the Appellant’s claim, as well as the recusal and interlocutory applications.

8.    Dissatisfied, the Appellant then sought judicial review in the HC to set aside the Tribunal’s Award, arguing that the Tribunal had breached the rules of natural justice. The HC dismissed his application for judicial review.

9.    The Appellant then appealed to the Court of Appeal (“COA”) which upheld the HC’s decision.

10.  Thus, the Appellant appealed to the Federal Court (“FC”).

Issues

1.    Whether there was a breach of the rules of natural justice?

2.    Whether the High Court erred in holding that if the procedural impropriety had been occasioned, the Court still has the discretion to refuse the remedy sought?

1.    Whether there was a breach of the rules of natural justice? (Leave Question 1)

(a) The FC held that the concept of natural justice centres on the right to a fair hearing, particularly the right to be heard and to respond before making a decision.

(b) Leave Question 1 was based on the allegation that the Tribunal breached natural justice. However, the learned HC judge found no such breach, determining that the President had allowed both parties to present oral submissions and respond to arguments, including on interlocutory matters.

(c)  The HC judge also clarified that no general rule prevented a judge or other tribunals from hearing its own recusal application, nor was the President required to provide supporting authorities before deciding. Even if an error had occurred, the Tribunal reached the correct decision on the merits, justifying the refusal of a certiorari order.

(d) The Court of Appeal affirmed the HC’s decision as there was no procedural impropriety.

(e)  The FC rendered the first issue as academic, especially since the case of Sangram Singh v Election Tribunal [1955] 2 SCR 1 (cited by the Appellants) was not raised in the courts below.

(f)    Therefore, the FC declined to answer Leave Question 1.

2.    Whether the High Court erred in holding that if the procedural impropriety had been occasioned, the Court still has the discretion to refuse the remedy sought? (Leave Question 2)

(a) The FC answered Leave Question 2 in the negative. The FC reaffirmed the principle laid down by the FC in the case of Hoh Kian Ngan v Mahkamah Persekutuan Malaysia & Anor [1996] 4 CLJ 687, that an application for a prerogative writ of prohibition is not an appeal and the Courts are not entitled to review the merits of decisions made by the Industrial Court.

(b) The FC was of the opinion that the Appellant had been afforded every reasonable opportunity to present their case before the Tribunal reached its decision and found no indication that the Appellants had been denied the right to a fair hearing.

(c)  While the HC may have erred in considering OS 1047, the FC held that the final decision was nonetheless correct and no injustice had resulted.

(d) Consequently, the Appellants were not entitled to judgment ex debito justitiae.

The FC dismissed the appeal with costs and upheld the decisions of the HC and COA.

Key Takeaways 

1.    The rules of natural justice bind tribunals. Therefore, failure to observe these principles renders decisions vulnerable to judicial review.

2.    A fair hearing includes the right to be heard, to respond to adverse remarks, and to submit relevant evidence.