GUNASAGARAN A/L RAJAMANICKAM v Ketua Eksekutif Pertubuhan Keselamatan Sosial (PA-16-6-05/2024)

This is an appeal under section 91 of the Employees' Social Security Act 1969 (ESSA). The Appellant: Gunasagaran, was dissatisfied with the decision of the Social Security Appellate Board Page 3 of 21 (Jemaah Rayuan Keselamatan Sosial) (SSAB) given on 13.3.2024. He filed a Notice of Appeal (NOA) with the High Court on 24.4.2024. He did so himself, without a solicitor.

His NOA asks this Court to reconsider the SSAB’s decision according to a medical report—nothing more.

Some five months later, and after this Court had already fixed 2.10.2024 as the deadline for him to file the Record of Appeal (ROA), Gunasagaran engaged solicitors. On 19.10.2024, his solicitors filed Enclosure 8 (Application). On its face, the Application asks for leave to amend the NOA to insert three questions said to be questions of law, for leave to file and serve the Amended NOA, and for leave to file the ROA 30 days from the date of any Order made.

SOCSO resists the Application. It says that the amendment is unnecessary because a NOA under the ESSA need not state a question of law at all, and that the Application is, stripped of its label, nothing but a late application to extend even more time to file the ROA—a deadline Gunasagaran had already missed twice, after being granted earlier extensions.

The question before me is: should the Application be allowed?

On 2.8.2023, Gunasagaran applied for invalidity benefits under the ESSA, producing medical reports from Hospital Bukit Mertajam.

On 24.8.2023, the Medical Board (Jemaah Doktor (Keilatan)) held that he was not suffering from invalidity.

On 12.10.2023, the Appellate Medical Board (Jemaah Doktor Rayuan (Keilatan)) upheld that decision.

Gunasagaran did not appeal against the Appellate Medical Board's decision to the High Court, as he should have under section 91 of the ESSA. Instead, he appealed to the SSAB.

On 13.3.2024, the SSAB held that it had no jurisdiction to interfere with the Appellate Medical Board's finding on invalidity, and dismissed his claim.

On 24.4.2024, Gunasagaran personally—without legal representation—filed a NOA with the High Court. The operative complaint in the NOA reads (translated) as a request that the High Court "gives reconsideration to the decision given in the said order so that the application can be approved according to the medical report, [and] approve [his] application for invalidity". It contains no question of law. (It is not certain as to whether “the said order” appealed against Page 5 of 21 was the decision of the Appellate Medical Board or the later decision of the SSAB.)

On 12.8.2024, Gunasagaran appointed solicitors to act for him. He filed a Notice of Appointment of solicitors on that date.

At the case management (e-Review) on 15.8.2024, Gunasagaran (through his solicitors) asked for more time to compile his appeal documents. This Court granted him an extension of time until 12.9.2024.

At the case management (e-Review) on 12.9.2024, Gunasagaran (through his solicitors) asked for a further extension of time to file his ROA. SOCSO agreed to an extension of time until 2.10.2024. This Court fixed 2.10.2024 as the extended deadline for Gunasagaran to file his ROA. But no ROA was filed by that date.

On 1.10.2024 (the day before the 2.10.2024 deadline), Gunasagaran (through his solicitors) wrote to Court, asking for a period of one month from 2.10.2024 to file an application to amend his NOA, specifically because the NOA did not pose a question of law. In the letter, they also made mention of an extension of time to file the ROA.

At the next case management on 7.10.2024, Gunasagaran (through his solicitors) reiterated his request for the period of one Page 6 of 21 month to file an application to amend his NOA. (There was no mention of an extension of time to file the ROA.)

SOCSO objected, and drew this Court's attention to the Court of Appeal's decision in Pentadbir Tanah Johor Bahru v. Tanah Sutera Development Sdn Bhd [2023] 4 MLJ 567 (CA); [2023] 6 AMR 361; [2023] 7 CLJ 615; [2023] MLRAU 114 (Pentadbir Tanah Johor Bahru), which held that a NOA need not state a question of law.

SOCSO asserted that Gunasagaran’s purported need to file an application to amend the NOA (on the ground that it did not pose a question of law) is an attempt to further prolong the appeal proceeding. SOCSO pointed out that Gunasagaran appointed solicitors to act for him on 12.8.2024 (about two months before); and he was given an extended deadline to file his ROA by 2.10.2024, but he failed to do so.

This court directed Gunasagaran to file a proper application for determination.

On 19.10.2024, Gunasagaran filed the Application, supported by his Affidavit in Support. The prayers sought include:

leave to make the Application;

leave to amend the NOA to insert three questions of law;

leave to file the Amended NOA within one week;

leave to serve it within two weeks;

leave to file the ROA within 30 days of any Order. Page 7 of 21 [21] On 4.11.2024, SOCSO filed its Affidavit in Reply. SOCSO stated that there is no legal requirement for the NOA to state a question of law, and that the Application is a tactic to delay these proceedings because Gunasagaran had failed to file the ROA within the time permitted, notwithstanding the extensions already granted until 2.10.2024. SOCSO further asserted that Gunasagaran was out of time to challenge the SSAB’s decision. SOCSO prayed that the Application be dismissed and the appeal be struck out with costs. [22] Gunasagaran filed an Affidavit in Reply—denying these assertions and maintaining that the delay was caused by SOCSO. THE LAW ON AMENDMENT OF A NOTICE OF APPEAL AND EXTENSION OF TIME No need to state questions of law in the NOA [23] Section 91(2) of the ESSA provides that "an appeal shall lie to the High Court from an Order of an appellate board” if it involves “a substantial question of law". Regulation 17(1) of the Employees' Social Security (Social Security Appellate Board Procedure) Regulations 1976 mirrors this: "there shall be no appeal to the High Court from an Order of the Board unless the order involves a substantial question of law”. Page 8 of 21 [24] What amounts to a "substantial question of law" for this purpose was considered by the Court of Appeal in Sathiaseelan a/l Nagappan v. Ketua Pengarah, Pertubuhan Keselamatan Sosial [2023] 5 MLJ 1 (CA); [2023] 5 AMR 844; [2023] 5 CLJ 416; [2023] 4 MLRA 282, which endorsed the guidance given by Justice Wong Kian Kheong in Patrick Ho Chang v. Pertubuhan Keselamatan Sosial [2019] 7 AMR 468 (HC); [2020] 1 CLJ 284; [2019] MLJU 1207; [2019] MLRHU 1212 (Patrick Ho Chang). I need not set out the non-exhaustive six-limb test; it suffices to note that it is a demanding standard, requiring an important or difficult question, or one that is genuinely arguable, and not a mere disagreement with findings of fact. [25] Whether that question must be stated in the NOA itself is a separate matter. But it is a matter on which the Court of Appeal has spoken with some clarity. In the case of Pentadbir Tanah Johor Bahru (supra), the Court of Appeal held, following its earlier decision in Santamil Selvi Alau Malay & Ors v. Dato' Seri Mohd Najib Tun Abdul Razak & Ors [2015] 4 MLJ 583 (CA); [2015] 4 CLJ 1016; [2015] 4 MLRA 385, that "there is no need for the appellant to disclose in his notice of appeal the issues or points or questions of law that he wishes to appeal against". The Court of Appeal went on to hold that it is sufficient if the questions of law are stated in the Memorandum of Appeal (MOA)— that is, within the ROA, not the NOA that precedes it. Page 9 of 21 Extension of time to file the ROA [26] On the question of extension of time, SOCSO relies on three case law authorities. First, in Bank Utama (Malaysia) Berhad v. Sistem Bis Komputer Sdn Bhd & Ors [1994] 3 MLJ 452 (HC); [1994] 3 AMR 2175; [1994] 4 CLJ 347; [1994] 2 MLRH 550 (Bank Utama), Justice James Foong held that an extension of time is a matter of discretion, to be exercised having regard to:

the length of the delay;

(ii) the reasons for the delay;

(iii) the merit of the appeal; and

(iv) the degree of prejudice to the respondent (the opposing side). [27] Second, in Ong Guan Teck & Ors v. Hijjas Kasturi [1982] 1 MLJ 105 (HC); [1982] CLJ Rep 616; [1981] 1 MLRH 237 (Ong Guan Teck), Justice Hashim Yeop A Sani held that the Rules of Court “must prima facie be obeyed” and “to justify an extension of time, there must be some material on which the court can exercise its discretion in favour of the applicant”; otherwise, the non-compliant party, in breach of the rules, would have “an unfettered right to extension of time”; this would “defeat the very purpose and object of the rules” on prescribed deadlines. [28] Third, in Abdul Hamid Mohd Amin v. Ramacon Corporation Sdn Bhd [2016] 3 CLJ 111 (HC); [2015] MLRHU 1116; [2016] AMEJ 0017 (Abdul Hamid Mohd Amin), Justice Gunalan Muniandy dismissed Page 10 of 21 an extension of time application and struck out the appeal, holding that "shall" provisions in procedural rules "are mandatory provisions that cannot be casually disregarded but must be strictly complied with and adhered to". [29] I am guided to apply these principles. Whether the label on the Application is "amendment" or "extension of time" is not the end of my enquiry—I must look at what Gunasagaran is actually asking this Court to permit him to do, and evaluate it against these principles. THE FIRST ISSUE: IS THE APPLICATION TO AMEND THE NOA ACTUALLY AN APPLICATION FOR EXTENSION OF TIME TO FILE THE ROA? [30] Gunasagaran submits that the Application "is not an extension of time application as stated by [SOCSO] but an application to amend the Notice of Appeal to fulfil the requirement under Section 91(2) ESSA", concerning posing a question of law in the NOA. He says that the Amended NOA, containing the relevant questions of law, needs to be “inserted into” the ROA before the ROA could properly be filed. [31] In other words, Gunasagaran submits that the prayer for the 30 days to file the ROA—is merely consequential. [32] I do not accept this submission. I find it untenable for this reason. Page 11 of 21 [33] On Gunasagaran's own chronology, the extended 2.10.2024 deadline for him to file the ROA had already been fixed, and had already lapsed—before the Application was even conceived. The Application was filed only on 19.10.2024. [34] He does not say that the “need” to amend the NOA (because it did not pose a question of law) was the reason he did not file his ROA by the 2.10.2024 deadline. In fact, it would be untenable for him to say that, because he appointed solicitors on 12.8.2024, almost two months before the already-extended deadline of 2.10.2024, but eventually simply failed to file the ROA. [35] Put differently, his application to amend could not be the reason his ROA was late (or not filed at all). The ROA was already late, and the application to amend followed, only as an attempt to pass over or bypass that lateness (actually, failure) after the event. [36] The prayer to file the ROA within 30 days of the Court Order, on its face, is simply an application for an extension of time to file the ROA, which Gunasagaran had already failed to file within time, or at all. [37] I therefore find that the Application is actually Gunasagaran’s application for an extension of time to file his ROA after-the-event, i.e. after he had failed to file his ROA by the extended deadline given to him to do so. Page 12 of 21 THE SECOND ISSUE: MUST THE NOA STATE A SUBSTANTIAL QUESTION OF LAW? [38] Gunasagaran's whole case for amendment rests on the premise that the NOA, as filed, is defective because it does not state a substantial question of law, and that this defect must be cured before the appeal can proceed. If that premise is wrong, the amendment application falls away entirely, since there would be no need to amend the NOA. [39] Gunasagaran seeks to distinguish Pentadbir Tanah Johor Bahru (supra) on the footing that it "does not concern appeals under the ESSA". I do not accept this distinction. [40] The reasoning in Pentadbir Tanah Johor Bahru (supra) is not confined to the Land Acquisition Act 1960; it turns on the structure common to civil appeals generally—that a NOA signals the intention to appeal and identifies the decision under challenge. But it is the MOA that contains the questions of law upon which the appeal is founded. And the MOA is a part of the ROA. Nothing in the ESSA, and nothing in Regulation 17(1) of the 1976 Regulations, requires the NOA itself to set out the substantial question of law. [41] I turn to Gunasagaran's reliance on Luggage Distributors (M) Sdn Bhd v. Tan Hor Teng @ Tan Tien Chi & Anor [1995] 1 MLJ 719 (CA); [1995] 2 AMR 969; [1995] 3 CLJ 520, for the maxim generalia Page 13 of 21 specialibus non derogant—that a specific statutory provision prevails over a general one. I accept the maxim as correctly stated. But I do not accept that it assists Gunasagaran here, because there is no conflict for the maxim to resolve. [42] Section 91(2) ESSA requires that the appeal involve a substantial question of law (the specific provision). The Rules of Court and the general practice recognised in Pentadbir Tanah Johor Bahru govern where and when that question must be articulated (the general provision). The two operate on different subject matters—one on jurisdiction to appeal, the other on procedure and form. There is no general provision here for the specific provision to override. [43] I find that the NOA, though inexpertly prepared by Gunasagaran, a litigant then unrepresented—was not defective for not posing a question of law. No amendment was required to cure any such defect, because it was not defective. The NOA did not need to state a question of law. THE THIRD ISSUE: HAS GUNASAGARAN SHOWN SUFFICIENT REASON FOR THE DELAY (FAILURE) TO FILE HIS ROA? [44] Having found that the Application is, in substance, one for extension of time, I turn to the four factors in Bank Utama (supra): length of delay, reasons for delay, meritS, and prejudice. Page 14 of 21 [45] As to length, the ROA fell due on the extended 2.10.2024 deadline. The Application was not filed until 19.10.2024, more than two weeks after the extended deadline. There was no explanation for the lateness (or the failure), except that the ground given for needing to amend the NOA is that the NOA must contain a question of law. But it is unnecessary to amend the NOA. [46] As to reasons, I have Gunasagaran's Affidavit in Support. It explains that he was unrepresented when he filed the NOA, that he was not told he could be represented at the SSAB hearing, and that he was not given an interpreter. What it does not do is explain why the ROA was not filed by the 2.10.2024 extended deadline. [47] Applying Ong Guan Teck (supra), there must be "some material on which the court can exercise its discretion in favour of the applicant". On Gunasagaran’s default in giving a cogent explanation for this default, I am not inclined to exercise my discretion in his favour. [48] I also do not accept Gunasagaran's submission (in his Outline Reply Submission) that the delay was caused by SOCSO, as SOCSO did not properly advise him how to prepare his NOA. Even if I were to consider this submission, at most, it merely explains why his NOA did not contain questions of law. It would not explain why, even after he appointed solicitors, the ROA was not filed by the 2.10.2024 extended deadline. Page 15 of 21 [49] I find, applying Abdul Hamid Mohd Amin (supra), that the rules governing the filing of the ROA are mandatory and must be strictly complied with. Gunasagaran has not discharged the burden of showing sufficient reason for his default on this specific, narrow point—why was the ROA not filed by the 2.10.2024 extended deadline—the only point that needed explaining. THE FOURTH ISSUE: IS THE DELAY (FAILURE) IN FILING THE ROA ATTRIBUTABLE TO SOCSO? [50] Gunasagaran submits that only he and SOCSO were involved in preparing the NOA, that the filing of the NOA was within SOCSO’s control, and that SOCSO had “a duty to advise” him to “ensure that section 91 of the ESSA is complied with”. [51] With respect, I am not able to accept this argument. SOCSO is Gunasagaran's opposing party in this appeal. It would be difficult to make a general finding that SOCSO owes him a duty to advise him on how to conduct his own case against itself. Such a duty may be an unusual one to impose on a litigant’s adversary. [52] In any event, this argument only concerns the NOA. It does not concern the ROA and the reasons that Gunasagaran did not file his ROA within the extended deadline given to him to file it even after he had obtained legal representation. Page 16 of 21 [53] I find that Gunasagaran’s delay (failure) in filing his ROA is not attributable to SOCSO, on the facts and circumstances of this Application. MERIT OF THE INTENDED APPEAL AND PREJUDICE TO SOCSO [54] I turn to the remaining two Bank Utama factors together. [55] As to merit, the three questions of law that Gunasagaran wishes to insert by amendment concern, in substance, whether the medical boards and the SSAB adequately considered the evidence before them. Questions of that character sit close to the line drawn in Patrick Ho Chang (supra) between a genuine question of law and a mere disagreement with findings of fact. [56] I do not need to resolve that question here, because I find that the Application fails on both the amendment and the extension of time points, regardless of the answer. [57] As to prejudice, SOCSO has, since at least as early as the case management (e-Review) on 15.8.2024, been proceeding on the footing that Gunasagaran’s appeal would be perfected by the 2.10.2024 extended deadline. There is real prejudice in requiring SOCSO to keep accepting extended deadlines to keep defending against an appeal that is not put into proper form (the appeal is without Page 17 of 21 a ROA), within the extended time limits that this Court had given Gunasagaran to adhere to. BALANCE OF JUSTICE [58] Order 1A of the Rules of Court 2012 (Rules of Court) compels me to “have regard to the overriding interest of justice”. And Order 92 Rule 4 behoves me to make Orders that “prevent injustice”. So, I consider the balance of justice when considering this Application. [59] What would happen if I allow the Application? SOCSO has, since 15.8.2024, conducted this appeal on the footing that it would be perfected—NOA and ROA completed—by the 2.10.2024 extended deadline. To allow the Application now (on this 8.5.2025 hearing date), would be to reopen a threshold issue which SOCSO would have already passed through and dealt with, seven months ago on the extended 2.10.2024 deadline. [60] To allow the Application would mean that SOCSO would be made to answer an Amended NOA which now raises three questions that it had not up until now had to meet, and to await a ROA that governs the three questions, with all conceivable issues related to them. [61] I find that this would cause real prejudice to SOCSO—not the abstract prejudice of a mere delay, but the concrete prejudice of Page 18 of 21 having to defend, afresh and at large, an appeal it was entitled to treat as closed for want of prosecution. [62] I must weigh the balance of justice on both sides of this Application, and not on one side alone. If I allow the Application, SOCSO suffers the prejudice alluded to above, and this Court would be permitting a mandatory time limit to be treated as not mandatory or no longer mandatory. [63] If I dismiss the Application, Gunasagaran loses the opportunity to insert three questions of law into his NOA. But as Pentadbir Tanah Johor Bahru (CA) instructs me—these questions of law were not required to be in the NOA in the first place. Gunasagaran could have posed these three questions of law in his MOA, incorporating the MOA into his ROA filed timeously (and within time). But he did not file his ROA. [64] The balance of justice, on the facts before me, favours SOCSO. The prejudice caused to Gunasagaran is, with respect, a peril which he has brought upon himself. The prejudice caused to SOCSO would be the loss of the finality of litigation that it was entitled to expect once the 2.10.2024 extended deadline for Gunasagaran to file his ROA went unmet. [65] Further, I cannot give Gunasagaran a greater latitude in complying with the prescribed procedure and the time limits, because Page 19 of 21 he began his appeal unrepresented, or because he is an individual litigant facing a large statutory organisation. I am compelled to decide this Application not by considering the relative size or resources of the parties, but by applying the Rules of Court and the case law authorities to the facts that the evidence proves. Procedural rules, time limits (deadlines), adjectival law—bind litigants equally, whatever their means and statuses. If I were to relax an extended mandatory deadline because of a perceived disparity between the parties, it would be akin to substituting sympathy for principle. CONCLUSION [66] I find that the Application is, in substance, a disguised application for a further extension of time to file the ROA; that the NOA was not defective for not stating a question of law, so that no amendment was required to cure it; that Gunasagaran has not shown sufficient reason for this failure to file the ROA by the 2.10.2024 extended deadline; that the delay is attributable to his own conduct and not to a duty owed to him by SOCSO; and that the balance of justice favours dismissing it. [67] I dismiss the Application in Enclosure 8, with no Order as to costs. [68] Finally, I note that Gunasagaran’s NOA (Enclosure 1) remains in existence and it awaits determination. Nothing in these grounds Page 20 of 21 should be taken as a ruling on the substantive merits of the appeal, which should be fairly heard and determined on its merits. Dated: 5 July 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA PULAU PINANG Solicitors for the Appellant : Dato’ Tharumarajah A/L Thiagarajan & Tan Jia Jun Messrs. T Tharuma & Assoc. Solicitors for the Respondent : Dalveena Korotana Messrs. Arnold Andrew & Co. Legislation referred to:

Section 91 of the Employees' Social Security Act 1969.

Regulation 17(1) of the Employees' Social Security (Social Security Appellate Board Procedure) Regulations 1976. Page 21 of 21 Cases referred to:

Pentadbir Tanah Johor Bahru v. Tanah Sutera Development Sdn Bhd [2023] 4 MLJ 567 (CA); [2023] 6 AMR 361; [2023] 7 CLJ 615; [2023] MLRAU 114.

Sathiaseelan a/l Nagappan v. Ketua Pengarah, Pertubuhan Keselamatan Sosial [2023] 5 MLJ 1 (CA); [2023] 5 AMR 844; [2023] 5 CLJ 416; [2023] 4 MLRA 282.

Patrick Ho Chang v. Pertubuhan Keselamatan Sosial [2019] 7 AMR 468 (HC); [2020] 1 CLJ 284; [2019] MLJU 1207; [2019] MLRHU 1212.

Santamil Selvi Alau Malay & Ors v. Dato' Seri Mohd Najib Tun Abdul Razak & Ors [2015] 4 MLJ 583 (CA); [2015] 4 CLJ 1016; [2015] 4 MLRA 385.

Bank Utama (Malaysia) Berhad v. Sistem Bis Komputer Sdn Bhd & Ors [1994] 3 MLJ 452 (HC); [1994] 3 AMR 2175; [1994] 4 CLJ 347; [1994] 2 MLRH 550.

Ong Guan Teck & Ors v. Hijjas Kasturi [1982] 1 MLJ 105 (HC); [1982] CLJ Rep 616; [1981] 1 MLRH 237.

Abdul Hamid Mohd Amin v. Ramacon Corporation Sdn Bhd [2016] 3 CLJ 111 (HC); [2015] MLRHU 1116; [2016] AMEJ

0017.

Luggage Distributors (M) Sdn Bhd v. Tan Hor Teng @ Tan Tien Chi & Anor [1995] 1 MLJ 719 (CA); [1995] 2 AMR 969; [1995] 3 CLJ 520.