Mejar (B) Sawaludin bin Lamin v 1. ) Majlis Angkatan Tentera (WA-25-227-09/2018)

(d), 28, 30, 31 dan 33 Angkatan Tetap (Pencen, Ganjaran dan Faedah-Faedah Lain) 1982; Dan Dalam perkara Seksyen 187 Akta Angkatan Tentera 1972; Dan Dalam perkara Artikel 137 Perlembagaan Persekutuan; Dan Dalam perkara Aturan 53, kaedah 3 dan Aturan 5, kaedah 3, Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara Mejar (B) Sawaludin bin Lamin ANTARA Mejar (B) Sawaludin bin Lamin …Pemohon DAN

Majlis Angkatan Tentera 2

Lembaga Perubatan Khas Markas Angkatan Tentera Bahagian Perkhidmatan Kesihatan 3. Markas Tentera Udara Malaysia 4. Kementerian Pertahanan Malaysia 5. Kerajaan Malaysia … Responden-Responden JUDGMENT Application [1] This is the Applicant’s application for leave to file the application for “judicial review regarding the Respondent’s decision, or any of them, dated 4 June 2018 and known to the Applicant on 7 June 2018.” [2] The grounds of the application are:

that the Applicant is suffering pain from post-concussion syndrome or shell shock syndrome as a result of a crash of the Alouette 111 helicopter which was navigated by the Applicant on 11 November 1977;

(ii) that Madam Justice Azizah Binti Nawawi had on 17 November 2017 allowed the Applicant’s application for judicial review no 25-76-03/2014 against the Armed Forces Council, the Health Service Division of the Special Medical Board of the Armed Forces, the Royal Malaysian Air Force Headquarters, the Ministry of Defence and the Government of Malaysia (Respondents in the said judicial review); 3

(iii) that pursuant to the terms of the Order of the Court on 17 November 2017, the Special Medical Board of the Armed Forces was to review its decision within 45 days from the date of the Order by giving the “benefit of the doubt” to the Applicant as regards to his entitlement to his disability pension;

(iv) that the Special Medical Board of the Armed Forces had decided that the Applicant’s percentage was 20% and the payment of monthly disability pension would take effect from 11 April 2018;

that the medical reports by the psychiatry expert from Tuanku Mizan Armed Forces Hospital and an independent expert neuropsychiatrist show that the Applicant’s percentage of disability was between 45% and 80%;

(vi) that the Armed Forces Council, the Special Medical Board of the Armed Forces, the Air Force Headquarters and/or the Ministry of Defence had not given their grounds of decision regarding the Applicant’s percentage of disability; and

(vii) that the Applicant has a right to pension, gratuities and/or other benefits as allocated by the Regular Forces (Pensions, Gratuities and Other Benefits) Regulations 1982. 4 [3] Having considered the application and the submission of the parties, this Court had dismissed the application for leave with no order as to costs. The Salient Facts [4] This case arises from my earlier decision in WA-25-76-03/2014, which reads: “25-153-07/2013 Mejar (B) Sawaludin bin Lamin vs 1) Majlis Angkatan Tentera 2) Lembaga Perubatan Khas Markas Angkatan Tentera, Bahagian Perkhidmatan Kesihatan 3) Markas Tentera Udara Diraja Malaysia 4) Menteri Pertahanan Malaysia 5) Kerajaan Malaysia [Didengar Bersama] 25-76-03/2014 Mejar (B) Sawaludin bin Lamin vs 1) Majlis Angkatan Tentera 2) Lembaga Perubatan Khas Markas Angkatan Tentera, Bahagian Perkhidmatan Kesihatan 5 3) Markas Tentera Udara Diraja Malaysia 4) Menteri Pertahanan Malaysia 5) Kerajaan Malaysia Tarikh:

17.11.2017 Kand:

Permohonan Semakan Kehakiman (Substantive) (Clarification) Applicant: Mr. M.S.Dhillon R1- R5: FC, Pn. Krishna Priya Venugopal Mahkamah: for decision – full grounds on appeal [1] In Suit 25-153-07/2013, the Applicant is seeking to quash the decision of the respondents which finds that the applicant‟s injury is not attributable to service. The applicant is also seeking a mandamus to compel the respondent to decided that the applicant‟s injury is attributable to service, a mandamus directing the MAT to award disability pension and disability gratuity and a declaration that the applicant suffered and suffers from post-concussion syndrome as a result of the crash on 12.11.1977. [2] The applicant joined TUDM in 1968. The applicant was involved in a crash in 1977 due to technical failure. Thereafter, the applicant had to undergo a yearly medical examination and he was certified fit to continue with service until 1984, when he resigned as a short commission officer with no pension. [3] However, about 28 years after retirement, he applied for a medical board to be set up to review if his injuries are related to the crash in 1977. On 31.5.2012, the “Lembaga Penentuan Sebab Kesihatan” (LPS) affirm that the illness suffered by the applicant is not connected to the 1977 crash. The applicant had appealed to 6 the Ministry vide a letter dated 27.8.2012. Thereafter, the Lembaga Perubatan Khas (LPK) was set up and came to similar findings. Hence the applicant filed this application. [4] The relevant provision is regulation 30(1) of the 1982 Regulations, which provides that the MAT may grant a disability pension or disability gratuity in respect of a disablement of a member attributable to service. Regulation 31(1) provides that before the member may be granted a disability pension, the Medical Board must certify that the disablement is attributable to service. [5] The applicant complained that the decision of the LPK is illegal as the LPK did not make the decision itself, but had reviewed the decision of the LPS, and had referred back the matter to the LPS which subsequently agree with the decision of the LPK. On this issue however, this is not a ground stated in the Statement to support the application. As such, the applicant cannot rely on a ground not stated in the Statement. Be that as it may, it cannot be said that the LPK had abandoned its jurisdiction, as under regulation 31(1), the role of the LPK is to certify as to whether the disablement is attributable to service or not. In this case, the LPK has decided that it is not attributable to service and therefore it cannot be said that the LPK had acted without contrary to regulation 31(1). [6] The next issue is whether the disablement is attributable to service, and not whether the 1977 crash was the only cause or the main cause of the applicant‟s disability. This is premised on regulation 31(2) which provides that the onus is not on the member but the benefit of any reasonable doubt shall be given to the claimant. [7] In its finding the LPK held as follows: “19. Lembaga membuat kesimpulan bahawa: 7

Keadaan pesakit sekarang adalah disebabkan oleh pelbagai factor seperti disenaraikan di perenggan 17a hingga 17e dan bukan hanya disebabkan oleh “Post Concussion Syndrome with PTSD” selepas kemalangan pesawat (Tugasan Tentera) sahaja.

“Post Concussion Syndrome with PTSD” hanya boleh dijadikan penyebab utama jika pesakit diberikan „benefit of the doubt‟ bahawa beliau ada mengalami „loss of consciousness‟ akibat impak kemalangan.” [8] In paragraph 12 of LPK report, LPK is of the opinion that “keputusan samada pesakit diberikan „benefit of the doubt‟ adalah diatas budibicara Lembaga Penentuan atau Majlis Angkatan Tentera selepas ini.” [9] I am of the considered opinion that this is a misdirection by the LPK. The LPK is tasked to certify as to whether the disablement is attributable to service or not, and in so deciding may give the benefit of any reasonable doubt to the claimant. But in this case, the LPK said that „benefit of the doubt‟ is within the discretion of either the LPS or the MAT, after the decision of the LPK. [10] In the premise, I find that the LPK has misdirected itself of its jurisdiction under regulation 31(2). In the premise, I will quash the decision of the LPK. I hereby order that the LPK is to review its decision within 45 days from today and to also take into account the final issue as to whether the „benefit of the doubt‟ be given to the applicant in the circumstances of the case. [11] In view of my finding, I will make no other orders and cost of RM3,000.00 to be paid by the respondents to the applicant. …sgd… (Azizah Nawawi)” 8 [5] Arising from the above Order, the Applicant’s case was reviewed by the Respondents. Following the review, the Applicant was informed that the Majlis Angkatan Tentera’s (“MAT”) decision is as follows:

that the Cause Determination Board had determined that the Applicant’s injury was connected to the crash and that he would be entitled to his disability compensation of 20% with an ex-gratia supplement of 21%; and

(ii) that the Applicant’s disability compensation is in the sum of RM447.08 per month. [6] Being dissatisfied with the said decision, the Applicant filed this application to review the latest decision of the MAT. Findings of the Court [7] During the case management on 8.10.2018, the learned Federal Counsel had raised two (2) objections to the Applicant’s application for leave:

That there was a delay of 6 days in the filing of the application; and

(ii) That the application is defective as the Applicant had not complied with Order 53 r 2 of the Rules of Court 2012 (“ROC 2012”) 9 [8] Thereafter, the Applicant filed a further affidavit affirmed on 5.11.2018, and states, inter alia, as follows: “7. I refer to the Respondent‟s first ground of objection. On 7 September 2018 at 12.37pm, my solicitors had e-filed the ex parte originating summons for leave to commence judicial review under code 24….

Upon extraction of the sealed Statement under Order 53 Rule 3 on 12 September 2018, my solicitors had seen a type-written order printed on the front page of the Statement which read as “Peguam, Perkara ini telah difailkan dalam dokumen type yang salah. Semakan Kehakiman sepatutnya difailkan dalam Kod 25…”

On 13 September 2018, my solicitors re-filed the said documents under Code 25.. …..

I refer to the Respondent‟s second objection. I am advised by my solicitors and I verily believe that my Affidavit complies with the provisions of Order 25 Rule 3(2) of the Rules of Court 2012 in that it verifies the facts relied by me as set out in the Statement under Order 53 Rule 3.” [9] With regards to the 1st objection, since there was a mistake in the filing of the initial application and that the delay was only for 6 days, I will invoke my discretion to extend time for the Applicant to file this application. [10] The 2nd preliminary objection of noncompliance with Order 53 r 3 (2) of ROC 2012, which reads: 10 “An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.” [11] Order 53 r 3 (2) requires the Applicant to file an affidavit in support to verify the facts that he want to relied on. From the affidavit in support affirmed by the Applicant, the Applicant merely refer to the documents that he had exhibited. There are no facts stated in the affidavit. [12] In fact, when the Applicant filed a supplementary affidavit, the Applicant again failed to state the facts which forms the background and the basis of his application for judicial review. This is clearly against O 53 r 3 (2) which requires the Applicant to state/verify the facts that he wants to rely on. [13] In Tuan Hj Sarip Hamid & Anor v Patco Malaysia Bhd [1995] 2 MLJ 442, Edgar Joseph Jr FCJ held as follows: “ ..we would add that it is a counsel of prudence for a lawyer drafting his application under Or 53 r1(2) RHC, 1980 to ensure that it contains substantial particulars of the facts and matters on which he intends to rely in support of his application. He should also ensure that his affidavit in support of his application is as detailed and 11 comprehensive as the circumstances permit, and it should exhibit all the documentary exhibits which are truly relevant and upon which he intends to rely.” (emphasis added) [14] In Tan Soon Teck & Ors v Pegawai Daerah Kota Tinggi & Anor [2015] 10 MLJ 53, the High Court held as follows: “[17] It is implicit in O 53 r 3 that an affidavit verifying the facts must disclose all material facts particularly the decision that is being challenged, the subject matter of decision and the law alleged to have been infringed for the decision to be quashed in certiorari proceedings.” (emphasis added) [15] Premised on the above cases, the onus is on the Applicant to affirm an affidavit to verify all the facts that he wants to rely on to support his application. [16] However, the Applicant takes the position that the facts that are relied by the Applicant are set out in paragraphs 4 to 27 of the Statement under Order 53 r 3 of the ROC 2012, and in paragraph (5) of the Affidavit in Support, the Applicant said this: “Saya dengan hormatnya merujuk kepada Pernyataan Menurut Aturan 53 Kaedah 3 yang difailkan bersama ini dan menentusahkan fakta-fakta yang terkandung di dalam pernyataan itu.” 12 [17] However, I am of the considered opinion that the Statement may only contain the “name and description of the applicant, the relief sought and the grounds on which it is sought”. The supporting facts are to be deposed in the affidavit in support. [18] In Musa bin Keran v. Public Service Commission Malaysia [1995] 4 MLJ 451, the High Court held as follows at page 459: “… Indeed, the general rule is that at the hearing the court will not allow the applicant to rely on any grounds or seek any relief not set out in the statement (O 53 r 3(1) of the RHC). In Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304 (FC), Chang Min Tat FJ (as he then was) delivering the judgment of the Federal Court castigated the failure of the applicant (the Hospital) to file a statement of grounds, thereby allowing the applicant to „roam at large, well outside its proper confines.‟ Towards this end, Chang Min tat FC (as he then was) said that the High Court should not have resorted to the affidavit for the grounds on which the application was brought, as the rule was clear that all grounds had to be set out in the statement.” (emphasis added) [19] Therefore, I am of the considered opinion that the Statement should only contain the grounds relied by the Applicant, whereas the supporting facts should be affirmed in an affidavit. Therefore, the failure of the Applicant to file an affidavit verifying all the facts to support the application, amount to a breach of Order 53 r 3 ROC

Added to that, despite filing a supplementary affidavit, the 13 Applicant still failed to affirm the facts which formed the basis of the application. [20] The Applicant also submit that pursuant to Order 2 r 1 (2) of the ROC 2012, any noncompliance should not nullify the proceedings. In Musa bin Keran (supra), the Court held as follows at page 463: “Next, it was argued that certain grounds in the affidavit of the applicant …. Should not be relied upon by the applicant as these grounds were not specified in the statement in encl 2. There is merit in this argument…. Without the statement and the affidavit, the applicant cannot go far. His application for certiorari has to fall flat on the ground..” [21] Order 53 r 3 of ROC 2012 clearly provides that an application for leave must be supported by a statement containing the grounds of the application and an affidavit verifying the facts. Without these documents, the application must collapse as these documents forms the basis of the application. Noncompliance with these requirements are grave and serious as to render the whole application a nullity. [22] Premised on the reasons enumerated above, I find that there is merit in the preliminary objection and the application for leave is dismissed with no order as to costs. 14 Counsels/Solicitors for the Appellant Manmohan S. Dhillon [Tetuan PS Ranjan & Co, Kuala Lumpur] Counsels/Solicitors for the Respndent FC, Puan Krishna Priya a/p Venugopal [Jabatan Peguam Negara, Putrajaya REFERENCES: 1) Tuan Hj Sarip Hamid & Anor v Patco Malaysia Bhd [1995] 2 MLJ 442 2) Tan Soon Teck & Ors v Pegawai Daerah Kota Tinggi & Anor [2015] 10 MLJ 53 3) Musa bin Keran v. Public Service Commission Malaysia [1995] 4 MLJ 451 (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2)