Pacific & Orient Insurance Co Berhad v 1. Mohamed Azmirullah Bin Mohd Azan (DA-11A-2-01/2018)

MOHAMED AZMIRULLAH BIN MOHD AZAN [Identity Card No.: 981105035041]

MUHAMAD LUKMAN BIN MAT NAWAWI [Identity Card No.: 980821035929] ... RESPONDENTS

There is before me an application in Encl 4 made by the appellant, Pacific & Orient Insurance Co Berhad purportedly under O 3 r 5 of the Rules of Court 2012 (“ROC”) to restore the appeal which was dismissed by the learned Deputy Registrar (“DR”) on 20.6.2018.

The application is supported by the affidavit (“AIS”) of Ravendran a/l Muthiah which was affirmed on 6.7.2018. Encik Ravendran is the solicitor having conduct of the matter on behalf 2 of the appellant. In response thereto, the respondents filed an affidavit in reply through their solicitor, Noor Nirman Hizwar bin Hussein, which was affirmed on 20.8.2018.

When the case was called up for case management (“CM”) on 20.6.2018 before the learned DR, there were no solicitors present on behalf of the appellant. Under the circumstances, the learned DR, presumably acting under O 34 r 6(1) of the ROC, dismissed the appeal. Hence the application in Encl 4.

In his AIS, Encik Ravendran affirmed that the solicitor in charge for the appellant on the said day, Nurhusniza Akmal binti Hussain, did not attend the CM due to a misunderstanding although she was within the Court’s premises. In para 6 of the AIS, Encik Ravendran said as follows: [6] Kami telah dimaklumkan oleh Cik Norhusniza Akmal Binti Hussain bahawa beliau tidak hadir ke kes ini untuk menyebut pada 20.6.2018 kerana terdapat silap faham walaupun beliau telah hadir ke Mahkamah pada hari tersebut.

Let me begin at the beginning. The application in Encl 4 is in my respectful opinion, premised on the wrong rule of the ROC. O 3 r 5 refers to the extension of time. It has nothing to do with the restoring of any appeal from the subordinate court to the High Court. The proper rule would be under O 55 r 10 (3) of the ROC. 3

Under the circumstances, a wrong intitulement in an application would render the application irregular; see Voon Nam Kwong 8 Anor v Selamat Maju Jaya Sdn Bhd [2002] 6 CLJ 453. However, in Dato' Ahmad Sudin v Dato' Ariffin Man [2014] 1 LNS 1434 the court went further and held that the failure to cite the specific provision of the law in the application would render the same to be defective. Abu Bakar Katar JC was of the view that: Plaintif perlu menyatakan peruntukan undang-undang yang berkaitan dan bukannya suatu alasan yang samar atau umum. I do not think it is awfully burdensome for the defendant to cite the proper provision in the ROC which the application was premised on. There was no oral application before me for the appellant to amend the application in Encl 4 either. A defective application, unless amended, is not a proper application before the court.

However, assuming that I am wrong in the aforesaid conclusion and for the sake of completeness, I will now deal with the application on merits. In Hewlett Packard Sales (M) Sdn Bhd v Active team Mould Engineering Sdn Bhd & Anor [2003] 1 MLJ 247, it was held that reinstatement of appeal under O 55 r 5(3) of the former Rules of High Court 1980 (“RHC”) (which is equivalent to O 55 r 10(3) of the ROC) is to be interpreted strictly by the courts. Reasons such as negligence of the 4 solicitors or their firm’s employees and the omission by a solicitor to be vigilant would not be accepted as acceptable explanations. Vincent Ng J (later JCA) outlined the three principles to be adhered to: On the second question, three pre-eminently trite principles have to be borne in mind in an application for reinstatement. Firstly, an applicant could not require a court to reinstate a struck out matter as of right — it is not merely a matter of partaking in an automatic formal exercise before the judge, with the opponent as spectator. Secondly, reinstatement involves an exercise of the court's discretion. Thirdly, there must be sufficient material before the court to enable it to found the exercise of its discretion. Counsel for D3 appears to be unaware of the first two principles and has clearly breached the third. I find a serious infirmity in the affidavit supporting the application for reinstatement ('encl 29') affirmed on 12 June 2002. On the question of, para 7(b) of encl 29 only contains a general and bare statement that there were in the appeal, without condescending to any particulars pertaining to the question of or to at least state, for example, that the merits are as set out in the defence or an earlier affidavit (if notice of intention to use same has been given). As encl 29 was totally devoid of such particulars, I am driven to hold that there is no material presented to this court to found any exercise of the court's discretion.

In the Court of Appeal case of Kesatuan Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd v Malaysia 5 Shipyard & Engineering Sdn Bhd & Anor [2010] 6 MLJ 306 CA the Court reiterated the aforesaid three principles.

Applying the law to the facts of the case, first, I do not accept that reason that there was a misunderstanding on the part of the mentioning solicitor for the appellant. In the first place, at an earlier CM on 24.5.2018, the appellant was represented by Encik Ravendran himself. I therefore cannot assent to the contention that there was a confusion in the CM date on 20.6.2018.

In any event, in Wong Koon Seng v Rahman Hydraulic Tin Bhd & Ors [2011] 4 MLJ 337 CA, the Court of Appeal dismissed the application for reinstatement of the appeal which was struck out by the court due to the absence of the appellant’s solicitors when the appeal was called up for hearing. As in the instant application, in the aforesaid appeal, the appellant's solicitors submitted that they did not attend the hearing date due to misunderstanding as to the correct time of the hearing date.

Secondly, there was nothing in the AIS that makes any reference to the merits of the appeal. Learned counsel for the appellant moves this Court for me to exercise my discretion. But there is no material before me to justify me exercising such discretion. In Malaysia Shipyard & Engineering, Zaleha Zahari JCA (later FCJ) made the following observation: Another infirmity in the affidavit filed in support of the application was this. It did not disclose any grounds to 6 justify the reinstatement of the two appeals. The affidavit merely averred at para 19, that the appeal should be heard on its merits ('demi keadilan kes') and a bare statement as to the court's discretionary powers.

I have gone through the AIS and with the exception of the assertion that this application would not prejudice the respondents that could not be compensated with costs, the deponent asserted nothing more. I have no hesitation whatsoever in concluding that this assertion is a mere bare statement that falls short from condescending in the merits of the appeal. The AIS did not condescend to any particulars within the meaning of the ratio in Hewlett Packard. The infirmity in the AIS in my considered opinion, cannot be cured.

For the aforesaid reasons, the application in Encl 4 is dismissed with costs of RM800 subject to allocatur.

The parties herein agreed that the decision in this application will bind another related and similar application in Encl 5 No. DA-11B-18-11/2017 (Appeal No. 18). In view of my decision in this application, the application in Encl 5 in Appeal No. 18 is also dismissed with costs of RM800 subject to allocatur. 7 Dated: 20 December 2018. (DATO’ WAN AHMAD FARID BIN WAN SALLEH) Judicial Commissioner High Court Kota Bharu Counsel: For the Appellant: Mr. Ravendran A/L Muthiah, M. Ravendran & Associates, No. 52A, Jalan Wawasan 2/3, Bandar Baru Ampang, 68000 Ampang, Selangor. For the Respondents: Mr. Noor Nirman Hizwar bin Hussein, Azizi Hizwar & Co, Lot 2954, Tingkat 1, Jalan Putra, Wakaf Bharu, 16250 Wakaf Bharu, Kelantan.