Ng Hoe Keong & Ors v OAG Engineering Sdn Bhd & Ors [2022] 3 MLJ 641

Ng Hoe Keong & Ors v OAG Engineering Sdn Bhd & Ors [2022] 3 MLJ 641

Federal Court (Putrajaya)

Appealing against decision by single judge of the Federal Court

1. The Respondents commenced proceedings in the High Court against the Applicants, alleging breaches of fiduciary duty and seeking, among other remedies, a permanent injunction. Prior to serving the Statement of Claim, the Respondents obtained an ex parte Anton Piller and protective orders from the High Court.
2. Subsequently, the Applicants applied to have both orders set aside and to strike out the suit on the ground that the statement of claim had not been served. The High Court, however, dismissed these applications and instead directed the Respondents to provide a redacted version of the Statement of Claim, which was then served on 21 October 2020.
3. The Applicants appealed this decision to the Court of Appeal, but their appeal was dismissed on 25 February 2021. Dissatisfied with the outcome, they filed a motion dated 9 March 2021 seeking leave to appeal to the Federal Court under paragraph 96(a) of the Courts of Judicature Act 1964 [Act 91]. The application was heard by a single judge of the Federal Court on 22 July 2021 pursuant to subsection 97(3) of the same Act, and after considering the submissions from both parties, the motion was dismissed.
4. Following that decision, the Applicants submitted a new motion (enclosure 47) under subsection 97(4) of Act 91, requesting the Federal Court to set aside the single judge’s ruling delivered on 22 July 2021.

Whether an aggrieved party, against whom a decision has been made by a single judge under subsection 97(3) of Act 91, is required to provide sufficient justification before their application under subsection 97(4) of the same Act can be granted.

Ratio

Whether an aggrieved party, against whom a decision has been made by a single judge under subsection 97(3) of Act 91, is required to provide sufficient justification before their application under subsection 97(4) of the same Act can be granted.

(a) In determining the matter, the Federal Court began by examining sections 74 and 97 of Act 91, emphasizing that section 74 is a general provision on the composition of the Federal Court, whereas section 97 introduced through the Courts of Judicature (Amendment) Act 1998 (Act A1031) is a specific procedural provision that allows a single judge to hear leave applications under subsection 97(3). Subsection 97(4) subsequently provides that any party dissatisfied with a decision made by a single judge may, within ten days, apply for the decision to be affirmed, varied, or set aside by a panel of at least three judges.

(b) The Court clarified that although this right exists, Applicants must demonstrate strong and cogent reasons before a panel of three judges may reconsider a single judge’s decision. Mere dissatisfaction or the assumption of an automatic right to rehearing is insufficient. Such an approach would open the floodgates for repetitive applications, undermining the legislative intent of section 97, which was enacted to expedite the disposal of leave applications and reduce judicial delays. This interpretation aligns with the Parliamentary Hansard (12 May 1998), where the Minister explained that the amendment aimed to streamline Federal Court procedures.

(c)  In support of its reasoning, the Federal Court referred to The Iran Nabuvat [1990] 1 QB 54 (CA), where Lord Donaldson MR articulated that a single judge’s grant or refusal of leave should not be overturned unless there are “very cogent reasons” such as misrepresentation, nondisclosure of material facts, or oversight of decisive statutory provisions or authorities. This principle was subsequently adopted in Malaysia in Terengganu Forest Products Sdn Bhd v COSCO Container Lines Co Ltd & Anor & Other Applications [2011] 1 CLJ 51, where the Federal Court held that reconsideration of a single judge’s decision must be justified by clear errors or exceptional circumstances.

(d) The Court further clarified that an application under subsection 97(4) effectively amounts to a review application, since the decision of a single judge is still a decision of the Federal Court. Consequently, the exercise of review jurisdiction is narrow and exceptional, as reaffirmed in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 6 CLJ 1, where the Federal Court emphasized that review may only be invoked to prevent a miscarriage of justice or abuse of process.

(e)  In conclusion, the Federal Court held that because the Applicants failed to provide any cogent or compelling justification showing that the single judge had erred in law or overlooked material facts, the motion under section 97(4) could not succeed. The application was thus dismissed, reaffirming that the limited scope of review under rule 137 and section 97 serves to preserve the finality and efficiency of judicial proceedings.

Preliminary objections by the Respondents were allowed and the notice of motion dismissed.

An application under subsection 97(4) of the Courts of Judicature Act 1964 is essentially a review application, and the Federal Court will only review its own decision in very limited and exceptional circumstances.