Dr Lourdes Dava Raj a/l Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor [2020] MLJU 1144

Federal Court (Putrajaya)

Implication of a Court order against a person without serving notice

1. At the material time, the Appellant, Dr. Lourdes Dava Raj a/l Curuz Durai Raj, was the Chief Medical Service Officer and person in charge of Assunta Hospital, while the first Respondent, Dr. Milton Lum Siew Wah, was a Visiting Consultant Obstetrician and Gynaecologist at the same hospital.
2. The Second Respondent, the Malaysian Medical Council (“MMC”), is a statutory body established under section 3 of the Medical Act 1971, responsible for registering medical practitioners and regulating the medical profession. Under paragraph 4A(2)(b) and (c) of the Act, the MMC sets standards of medical practice and enforces professional ethics.
3. The issue arose when Dr. Lourdes circulated clinical summaries of six patients to several doctors for discussion during the Medical and Dental Advisory Committee meetings on 23 September and 9 December 2009. These meetings were meant to review morbidity and mortality cases to improve the hospital’s medical standards.
4. However, Dr. Milton objected, claiming the summaries were circulated without confidentiality safeguards and without patient consent, which he argued violated the MMC’s Code of Professional Conduct, the “Good Medical Practice” guideline, and the “Confidentiality” guideline. He lodged a complaint with the MMC President on 31 December 2009.
5. Based on this complaint, the MMC’s Preliminary Investigation Committee charged Dr. Lourdes with infamous conduct in a professional respect. In a letter dated 25 March 2013, he was given the choice to defend himself before the Committee or have the matter referred to the full MMC. He chose to appear before the Committee, and the inquiry was held on 20 May 2014.
6. In his statutory declaration dated 19 May 2014, Dr. Lourdes explained that he was newly appointed as the hospital head at the time and only realised the confidentiality issue after Dr. Milton raised it. He immediately stopped the practice and took corrective measures. He maintained that his actions were not malicious but intended for medical learning, and should not amount to infamous conduct.
7. The MMC, by majority decision, found that Dr. Lourdes had no case to answer, though it noted some procedural lapses and advised him to improve document handling. This decision was conveyed to him on 12 June 2014.
8. Believing the issue was settled, Dr. Lourdes took no further steps. However, Dr. Milton, dissatisfied with the outcome, later filed judicial review proceedings to challenge the MMC’s decision.
9. On 26 August 2014, Dr Milton was granted leave to commence judicial review proceedings to challenge the majority decision of the MMC that Dr Lourdes had no case to answer. In addition to seeking an order of certiorari to quash the said decision, Dr Milton further sought declaratory relief that Dr Lourdes was guilty of the alleged misconduct, together with consequential orders directing the MMC to hear Dr Lourdes’ mitigation and to impose an appropriate sanction. Notably, the judicial review proceedings were instituted solely against the MMC, and Dr Lourdes was not named as a party to the proceedings.

1. Whether an order made in a judicial review is invalid (a nullity) and should be set aside when a person directly affected by it was not served with Form 110 or given notice of the hearing, breaching Order 53 Rule 4(2) and the right to be heard under natural justice.
2. If yes, whether the rule in Hong Leong Bank Bhd v Staghorn Sdn Bhd [2008] 2 MLJ 622, which prevents intervention after a case has ended, applies when the order is a nullity and the intervention is made only to set it aside.

1. In deciding the first question of law, the Federal Court applied the principle from Muniandy a/l Thamba Kaunda & Anor v D & C Bank Berhad & Anor [1996] 1 MLJ 374 (FC), which states that an order made without giving a party the right to be heard amounts to a breach of natural justice, making the order null and void.
2. The Federal Court held that even though the case of Muniandy involved different facts, the same principle applied here. Under Order 53 Rule 4(2) of the Rules of Court 2012, any person directly affected by judicial review proceedings must be served with all relevant documents and given a chance to be heard. Since Dr. Lourdes was directly affected as the reliefs sought to overturn his acquittal by the MMC, declare him guilty, and direct a plea in mitigation the failure to notify him was a serious violation of his rights.
3. The Federal Court also found that the Court of Appeal had acted beyond its powers by substituting the MMC’s decision instead of sending the case back to the MMC for reconsideration. 
4. The Federal Court then affirmed the High Court’s observation that a professional body such as the MMC is best placed to regulate the conduct of its own members. Accordingly, the courts should be slow to interfere with the MMC’s decisions unless the decision is perverse, takes into account irrelevant considerations, fails to consider relevant matters, or violates the principle of proportionality, as recognised in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935.
5. Finally, the Federal Court rejected the argument that Dr. Lourdes’s earlier hearing before the MMC was sufficient, holding that the right to be heard applies at every stage that may affect a person’s rights, including judicial review proceedings. Since he was denied that right before the Court of Appeal, the resulting order was void for breach of natural justice.

2. If yes, whether the rule in Hong Leong Bank Bhd v Staghorn Sdn Bhd [2008] 2 MLJ 622, which prevents intervention after a case has ended, applies when the order is a nullity and the intervention is made only to set it aside.

1. The Court held that the principle in Staghorn was inapplicable because it dealt with intervention after proceedings had concluded and where the applicant had no legal interest in the subject matter. In Staghorn, the applicant company sought to intervene two years after a public auction had been completed, but the Federal Court rejected the application as the company had no ownership or proprietary rights in the land, and the proceedings were already functus officio.
2. By contrast, in the present case, Dr. Lourdes was directly affected by the Court of Appeal’s order, which reversed the Malaysian Medical Council’s finding of innocence and found him guilty of professional misconduct without giving him the opportunity to be heard. The Federal Court ruled that denying him intervention would perpetuate a serious breach of natural justice, citing the fundamental principle laid down in Kanda v Government of the Federation of Malaya [1962] MLJ 169 (PC) that every person whose rights are affected must be given a fair hearing.
3. The Federal Court emphasized that Staghorn should not be applied to cases involving void or null orders resulting from procedural breaches or denial of natural justice. Since Dr. Lourdes had no notice of the judicial review proceedings and acted promptly upon learning of the Court of Appeal’s decision, there was no delay or abuse of process on his part.
4. The Court further relied on Badiaddin Mohd Mahidin v Arab-Malaysian Finance Berhad [1998] 1 MLJ 393; [1998] 2 CLJ 75, in affirming that courts have the power to intervene in exceptional cases where a serious miscarriage of justice has occurred. This case was one such instance, as the Court of Appeal’s order was made in violation of the right to be heard.
5. The Federal Court also rejected the Second Respondent’s argument that res judicata or issue estoppel applied, distinguishing cases such as Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122 and North West Water Ltd v Binnie & Partners [1990] 3 All ER 547 (QBD), since Dr. Lourdes was not re-litigating the same issue but merely seeking the right to be heard in proceedings from which he had been excluded. Ultimately, the Federal Court held that the order of the Court of Appeal was a nullity because it was made in breach of Order 53 Rule 4(2) of the Rules of Court 2012 and the rules of natural justice.

The Court therefore allowed the appeal, set aside the Court of Appeal’s order, and reinstated the MMC’s original decision that had acquitted him of misconduct. Costs of RM40,000 were awarded against each Respondent.

When a Court makes an order against a person without serving notice or affording the right to be heard, that order is void for breach of natural justice. The rule in Staghorn barring post-judgment intervention does not apply where the order itself is a nullity, as intervention in such cases is necessary to prevent injustice.