Sim Foo Yoke v Ketua Pengarah Pertubuhan Keselamatan Sosial (BA-24NCvC-1863-08/2024)

04.12.2018 yang menolak rayuan Sim Foo Yoke untuk Pencen Penakat dan/atau Faedah Orang Tanggungan ke atas kematian orang berinsurans Wong Kok Wan (No. K/P: 520430-08- 5059) (Sijil Kematian bernombor: J278174) (Si-mati). Dan Dalam perkara Surat Jemaah Rayuan Keselamatan Sosial bertarikh 06.12.2018. Dan Dalam perkara Sim Foo Yoke adalah balu kepada orang berinsurans Wong Kok Wan (No. K/P: 520430-08-5059) (Sijil Kematian bernombor: J278174) (Si-mati) yang mana perkahwinan di antara Sim Foo Yoke dengan Wong Kok Wan (Si-mati) tidak didaftarkan di bawah Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976. Dan Dalam perkara pembayaran Faedah Orang Tanggungan kepada seorang bernama Yau Yook Foong oleh Pertubuhan Keselamatan Sosial ke atas kematian orang berinsurans Wong Kok Wan No. K/P: 520430-08- 5059) (Sijil Kematian bernombor: J278174) (Simati). Dan Dalam perkara perkahwinan orang berinsurans Wong Kok Wan (No. K/P: 520430-08-5059) (Sijil Kematian bernombor: J278174) (Si-mati) dengan Yau Yook Foong tidak didaftarkan di bawah Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976. Dan Dalam perkara Wasiat terakhir Wong Kok Wan (No. K/P: 520430-08-5059) (Sijil Kematian bernombor: J278174) (Si-mati) bertarikh 10.06.2015. Dan Dalam perkara Seksyen 20A Akta Keselamatan Sosial Pekerja 1969. Dan Dalam perkara Seksyen 26 Akta Keselamatan Sosial Pekerja 1969. Dan Dalam perkara Seksyen 91 Akta Keselamatan Sosial Pekerja 1969. Dan Dalam perkara Seksyen 25(2), Perenggan 8, Jadual kepada Akta Mahkamah Kehakiman 1964. Dan Dalam perkara Aturan 3 Kaedah (5) Kaedah-Kaedah Mahkamah 2012. Dan Dalam perkara Aturan 2 Kaedah 1 Kaedah-Kaedah Mahkamah 2012. Dan Dalam perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012. ANTARA SIM FOO YOKE (NO. K/P: 641121-10-6582) …PLAINTIF DAN KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL …DEFENDAN JUDGMENT Introduction [1] This is the Plaintiff’s application for an extension of time to file an appeal against the decision of the Social Security Appellate Board (“SSAB”) rendered on 4 December 2018. The Plaintiff only filed her Originating Summons on 28 August 2024, a staggering 5 years and 8 months after the SSAB's decision. While it is undisputed that the Plaintiff has the right to appeal under the law, the law clearly stipulates that any such appeal must be filed within 60 days of the decision. To say that the Plaintiff has slept on her rights is an understatement. It appears that she has effectively "put her case to sleep," having made no effort whatsoever to assert her legal rights within the prescribed timeframe. This extraordinary delay reflects a flagrant disregard for procedural rules and a complete failure to exercise even the most rudimentary level of diligence. [2] Nevertheless, it was still contended by the Plaintiff before this Court that her application for an extension of time ought to be allowed and predictably, the Defendant has urged this Court to dismiss the Plaintiff’s application. The Posers [3] The predominant issue in this Originating Summons is whether this Court has the jurisdiction to extend the time to file an appeal pursuant to section 91(3) of the Employees’ Social Security Act 1969. [4] If the answer to the above principal issue is in the affirmative, the issue that follows is whether this is a proper case for this Court to exercise its discretion to allow the Plaintiff’s application for an extension of time. Arising from this consequential issue are questions such as whether there were extenuating circumstances which explain the delay and/or public policy considerations to justify an extension of time. The Pertinent Background Facts [5] The Plaintiff had first filed a claim with the Social Security Organisation for dependency benefit or survivor’s pension on the death of an insured person, that is, one Wong Kok Wan (“deceased”) due to an industrial accident. The Plaintiff and the deceased were married according to the Chinese custom and tradition in April 1985. It was not disputed that the marriage between the Plaintiff and the deceased was never registered in accordance with the Law Reform (Marriage & Divorce) Act 1976. [6] The Social Security Organisation only allowed the Plaintiff’s claim for funeral benefit in the amount of RM2,000.00. However, the Social Security Organisation did not allow the Plaintiff’s application for survivor’s pension or dependency benefit for the death of the deceased on the sole ground that the Plaintiff’s marriage with the deceased was not registered under the Law Reform (Marriage & Divorce) Act 1976. That decision was made on 7 May, 2018. [7] The Plaintiff thereupon made an appeal against that decision by the Social Security Organisation to the SSAB and the latter dismissed the Plaintiff’s appeal on 4 December, 2018. The Case for the Plaintiff [8] The grounds advanced by the Plaintiff in the present application, in support of her application for an extension of time, are twofold. [9] The first is premised on the contention that there were extenuating circumstances which explain the delay. [10] The second argument is based on public policy considerations. The Mitigating Circumstances [11] The Plaintiff alluded to the following pertinent facts in support of her present application. [12] After the decision to dismiss the Plaintiff’s appeal was made by the SSAB, the Plaintiff claimed to have received a statement from the Social Security Organisation on the payment of dependency benefit to a person named as Yau Yook Foong for the death of the deceased. Yau Yook Foong is the first wife of the deceased. According to the Plaintiff, the statement from the Social Security Organisation on the payment of dependency benefit to Yau Yook Foong for the death of the deceased was sent to the Plaintiff’s house address. [13] In the Plaintiff’s Affidavit in Support of her application in Enclosure 2 at paragraph 21, (and at para 3.20 in of her written submission in Enclosure 12), the Plaintiff claimed that “Saya juga mendapati bahawa Yau Yook Fong merupakan isteri terdahulu Wong Kok Wan (Si-Mati) yang mana perkahwinannya juga tidak didaftarkan mengikut undang-undang”. [While this assertion may be true, the Plaintiff has notably omitted to mention that the marriage between Yau Yook Fong and the deceased took place prior to the coming into force of the Law Reform (Marriage and Divorce) Act 1976.] [14] The Plaintiff went on to submit that after having received the statement from the Social Security Organisation on the payment of dependency benefit to Yau Yook Foong on the death of the deceased, she obtained the advice of solicitors on 20 August, 2024 “and only then the Plaintiff knew that the Plaintiff ought to file an appeal to this Honourable Court through the service of a solicitors”. [15] On the vindicating circumstances which explain the delay, the Plaintiff put forward the following additional points in support of her Originating Summons: • … meskipun surat Jemaah Rayuan Keselamatan Sosial bertarikh 06.12.2018 telah menyatakan bahawa Plaintif mempunyai 60 hari untuk membuat rayuan ke Mahkamah (selepas penolakan rayuan Plaintif oleh JRKS, Plaintif tidak mempunyai pengetahuan ke atas haknya pada masa itu, kerana surat tersebut tidak menyatakan bahawa Plaintif tidak langsung boleh membuat rayuan ke Mahkamah Yang Mulia ini selepas luput tempoh masa 60 hari tersebut. • Lebih-lebih lagi, pada masa itu, (iaitu pada sekitar 06.12.2018) Plaintif percaya bahawa proses rayuan Plaintif ke Mahkamah adalah sama seperti dengan proses rayuan Plaintif ke Jemaah Rayuan Keselamatan Sosial, iaitu hanya perlu mengisikan borang sahaja. Justeru itu, pada masa itu, Plaintif tidak berjumpa dengan peguam bagi mendapatkan nasihat ke atas rayuan ke Mahkamah. • Plaintif telah cuba untuk mendapatkan borang rayuan ke Mahkamah daripada Pertubuhan Keselamatan Sosial tetapi Plaintif tidak diberi sebarang jawapan mahupun sebarang borang untuk Plaintif merayu kepada Mahkamah Yang Mulia ini. • Plaintif hanya menyedari bahawa Plaintif perlu mendapatkan peguam untuk membuat rayuan ke Mahkamah apabila Plaintif berjumpa dengan peguam pada 20.08.2024. • Selanjutnya, pada masa 2018 dan 2019 Plaintif amat sedih ke atas kehilangan suami yang disayangi akibat daripada kemalangan ngeri yang menyayat hati Plaintif. Lebih-lebih lagi, pada masa itu juga, Plaintif terpaksa mengambil alih pengurusan syarikat Wong Forklift Hire & Services Sdn. Bhd. selepas kematian Wong Kok Wan (Si-mati) tersebut yang menyebabkan Plaintif tidak mendapatkan nasihat peguam bagi membuat rayuan ke atas keputusan tersebut pada masa yang lebih awal. • Pada masa itu juga terdapat masalah serta pertikaian keluarga di antara Plaintif dengan isteri lain Wong Kok Wan (Si-mati) iaitu Yau Yook Foong serta dengan anak-anak Yau Yook Foong ke atas aset Wong Kok Wan (Si-mati) sehingga pihak Plaintif tidak dapat menumpukan perhatian ke atas kes tuntutan dengan Pertubuhan Keselamatan Sosial Pekerja tersebut, lalu Plaintif tidak mendapatkan nasihat peguam bagi membuat rayuan terhadap keputusan tersebut pada masa yang lebih awal. The Public Policy Considerations [16] Although the Plaintiff had conceded that she has not lodged her appeal against the decision of the SSAB within 60 days from the date of the decision, nevertheless, in the interest of justice the Plaintiff ought to be given leave to extend time to file an appeal on the grounds that first, the Plaintiff’s proposed appeal raises several pertinent questions of law, where the determination of such questions of law will be in the interest of the public, second, the Employees’ Social Security Act 1969 is a piece of social legislation and third, the granting of an extension of time for the Plaintiff to appeal against the decision of the SSAB “would not prejudice the Defendant since the Defendant would be able to further defend the proposed appeal by the Plaintiff (if the Plaintiff were given an extension of time)”. However, “a refusal of an extension of time to the Plaintiff would deprive the Plaintiff to claim the dependency benefit for the death of Wong Kok Wan (deceased) forever”. The Defendant’s Contentions [17] The Defendant has structured their arguments on three main grounds. [18] First, the Defendant asserted that the Plaintiff has filed the present Originating Summons without providing any reasonable explanation or evidence to justify the substantial delay in its filing. In the absence of such an explanation, the Defendant argued that the Originating Summons amounts to nothing more than a mere afterthought and should be dismissed on this basis alone. [19] Second, the Defendant contended that, even if the Originating Summons were allowed, “there are no merits to the Plaintiff's appeal against the decision of the SSAB.” [20] Third, the Defendant averred that it will suffer serious prejudice if the Plaintiff’s application is allowed. Lack of Reasonable Explanation or Evidence [21] It was the Defendant’s contention that the inordinate delay was due to the Plaintiff’s lackadaisical attitude or indolence. The Defendant referred this Court to a number of authorities, including Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 AMR 846; [1997] 1 CLJ 396; [1996] 1 MLJ 223; [1996] 2 MLRA 91, a decision of the Court of Appeal, and the High Court decisions in Ong Guan Teck & Ors v Hijjas [1982] CLJ Rep 616; [1982] 1 MLJ 105; [1981] 1 MLRH 237 and Saeed U Khan v Lee Kok Hooi [2000] AMEJ 0026; [2000] 7 CLJ 454; [2001] 5 MLJ 416; [2000] 2 MLRH 817. [22] Based on the legal principles enunciated in the above case, the Defendant submitted that the Plaintiff has failed to provide any reasonable justification to warrant the exercise of this Court's discretion to extend the sixty-day time limit for filing an appeal under section 91(3) of the Employees’ Social Security Act 1969. According to the Defendant, this is evident from the following facts: • The Plaintiff was immediately made aware of the 60-day timeline to appeal against the decision of the SSAB, with the notice of this deadline clearly attached together with the decision of the SSAB when it was issued on 4.12.2018; • The decision of the SSAB issued on 4.12.2018 together with the 60-day timeline to appeal against the same, was also notified to the Plaintiff through a letter from the SSAB dated 6.12.2018; and • The Plaintiff had only appointed her solicitors on 20.08.2024. [23] Admitting that the Plaintiff had made attempts to provide some justification for the delay in filing the Originating Summons, the Defendant fervently argued that these allegations were nothing more than bare allegations, lacking in supporting evidence/documents for the same. On this point, the Defendant cited the case of lnsas Bhd & Anor v Raphael Pura [2000] 1 AMR 784]; [1999] 4 MLJ 650; [1999] 2 MLRH 392. Lack of Merits [24] It was the Defendant’s contention that the issues raised by the Plaintiff in his proposed appeal are “not substantial questions of law but are instead issues of fact and/or issues of law alone which are peculiar to this case, and which can be resolved by way of settled principles of law”. The Defendant’s stance was that the Plaintiff's appeal is without merits and that the Plaintiff is not a "dependant" under section 2(3) of the Employees’ Social Security Act 1969 and hence section 26 of the same Act has no application. Serious Prejudice [25] The Defendant's argument of serious prejudice is grounded in the principle that public policy demands finality in litigation. The Defendant contended that if the Originating Summons is allowed, it would compel the Defendant to defend a claim that is not only devoid of merit but has also failed to comply with the mandatory statutory timeline required for such appeals. According to the Defendant, these statutory timelines are designed to ensure the swift resolution of disputes, and any relaxation of these timelines would undermine this fundamental objective. The Applicable Law [26] Of particular relevance to the present application and issues before this Court is the provision in section 91 of the Employees’ Social Security Act 1969. This section provides as follows:

(1) Save as expressly provided in this section, no appeal shall lie from an order of the appellate boards set up by or under this Act.

An appeal shall lie to the High Court from an order of an appellate board set up by or under this Act if it involves a substantial question of law.

The period of limitation for an appeal under this section shall be sixty days from the date the order is made. [27] A consideration of the primary issues in this present Originating Summons also requires this Court to examine the provisions in section 25(2) of the Courts of Judicature Act 1964. [28] This provision reads as follows: Powers of the High Court

25.

Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written Jaw in force within its local jurisdiction.

Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. [29] Paragraph 8 of the Schedule to the Courts of Judicature Act 1964 states as follows: Time

Power to enlarge or abridge the time prescribed by any written law for doing any act or taking any proceeding, although any application therefore be not made until after the expiration of the time prescribed: Provided that this provision shall be without prejudice to any written law relating to limitation. The Decision of this Court [30] The essence of the Plaintiff’s application lies in her request for this Court to extend the statutory limitation period of sixty days, as expressly prescribed under section 91(3) of the Employees’ Social Security Act 1969, for filing an appeal pursuant to section 91 of the same Act. [31] A plain reading of section 91 of the Employees’ Social Security Act 1969 makes it clear that no appeal shall lie against an order of the appellate boards established under the Act unless two conditions are met: first, the appeal must involve a substantial question of law; and second, it must be filed within sixty days from the date of the order. Jurisdiction to Extend Time [32] The Defendant relied the on the Supreme Court case of Majlis Peguam & Anor v Tan Sri Dato' Mohamed Yusoff Bin Mohamed [1997] 3 AMR 2151; [1997] 3 CLJ 332; [1997] 2 MLJ 271; [1997] 1 MLRA 302 (“Tan Sri Dato' Mohamed Yusoff Bin Mohamed”) for the proposition that “a prescribed time in any written law is always presumed and construed as mandatory unless there is express power in that particular law to abridge or extend” and that “the general provision in para 8 of the Schedule is a power-conferring provision which has no pre-condition except that it must be exercised in accordance with any existing written law or rules of court relating thereto”. In addition, the Defendant also referred this Court to another High Court decision in Ooi Bing Lai lwn Ketua Pengarah Pertubuhan Keselamatan Sosial [2021] 1 LNS 2297; [2021] MLJU 2721; [2021] MLRHU 2206, a decision affirmed by the Court of Appeal. [33] This Court posed the question of whether there are examples or instances of prescribed timeline in a given statute or written law containing express power to abridge or extend time to counsel for the Defendant. Perhaps, reference may be to Part III of the Limitation Act 1953, where instances for extension of time are found. [34] In the present application under consideration, section 91(3) of the Employees’ Social Security Act 1969 provides in clear terms that the period of limitation for an appeal under this section shall be sixty days from the date the order is made. It does not contain any express power to extend time. When read with the provision in section 91(1) of the same Act that states that “Save as expressly provided in this section, no appeal shall lie from an order of the appellate boards set up by or under this Act”, the inference is that this Court is not empowered to extend the time as provided in section 91(3) of the Employees’ Social Security Act 1969. [35] This begs the question of whether the provision in Order 3 rule 5 of the Rules of Court 2012 may be invoked by the Plaintiff? The answer is to be found in Order 3 rule 5(1) itself, which provides as follows: Extension of time (O. 3, r. 5)

5.

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings. [36] It is apparent that Order 3 rule 5 applies to situations where the time is prescribed in the Rules of Court or in any judgment. [37] The Plaintiff did refer this Court to a recent decision of the High Court in Mohamad Basri Izan Said Mohammad lwn Ketua Pengarah Pertubuhan Keselamatan Sosial [2023] AMEJ 0702; [2023] CLJU 689; [2023] MLJU 783; [2023] MLRHU 576 where the High Court held that it has the power to extend the 60-day period under section 91(3) of the Employees’ Social Security Act 1969. [38] However, the Defendant submitted that the High Court in this case did not consider the decision of the Supreme Court in Tan Sri Dato' Mohamed Yusoff Bin Mohamed for if it had done so, “the High Court would have reached a different conclusion on this issue”. [39] Having considered the above authorities, this Court is of the considered view that it does not possess the jurisdiction to enlarge the sixty-day time period as prescribed in section 91(3) of the Employees’ Social Security Act 1969. Substantial Question of Law [40] The Plaintiff has impressed upon this Court that the appeal she is seeking to bring before the High Court involves a substantial question of law. Citing a number cases, the Plaintiff further emphasized that the question of law raised in this appeal (if indeed an extension of time is granted) remains unsettled. As noted in paragraph 24 above, the Defendant refuted such a contention. [41] During the hearing of this application, this Court has repeatedly observed that the cases cited by counsel, particularly for the Plaintiff, are not pertinent to the central issue under consideration. Since this Court has resolved the prevailing issue in the negative, any opinion it may hold on the substantive merits of the appeal is rendered inconsequential. Public Policy and Prejudice [42] Much has been said about the Employees’ Social Security Act 1969 as a piece of social legislation, a characterization that is beyond dispute. The Act was undoubtedly enacted to provide social security in specific contingencies and to address related matters. However, as the body entrusted with managing insurance claims and benefits, public policy dictates that contributors must comply with the requirements of section 91(3) of the Act. Failure to do so would unfairly compel the Social Security Organisation, and the SSAB in particular, to defend appeals brought years after a decision has been rendered, undermining the principles of finality and procedural fairness. Costs [43] Having considered the overall circumstances of the case, this Court is of the view that it is fair and appropriate to make no order as to costs. Dated: 9 January, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Adrian Oswald a/l Rajendran for the Plaintiff (Messrs. Adrian, Syuhada, Sia & Associates) Muhammad Suhaib bin Mohamed Ibrahim for the Defendant (Messrs. Skrine)