Subashini a/p Thiyagarajan v Tadika Alam Inovatif (BA-16-57-07/2025)

Enclosure 12 is the Respondent’s application the strike out the Appellant’s notice of appeal dated 29.7.2025.

After careful consideration of the cause papers and submissions from both parties, the Court dismissed Enclosure 4. The following are the reasons for this decision.

The Appellant filed a claim against the Respondent at Jabatan Ketua Pengarah Tenaga Kerja, Subang Jaya on 5.5.2025 for arrears of the minimum wages from February 2020 to April 2025 in the sum of RM21,210.00. The claim was heard on 1st and 18th.7.2025 and on 21.7.2025, the Assistant Director General of Manpower allowed the Appellant’s claim in the sum of RM4,930.00.

The Respondent’s application is founded on O.92 r.4 Rules of Court 2012 (ROC). Their main ground for challenging the Appellant’s appeal and notice of appeal is that it failed to comply with O.55A ROC which governs appeals to the High Court under written law.

The Respondent argues that the Appellant’s right of appeal against the decision of the ADGM is premised on section 77 Employment Act 1955 (Act 265) which is written law.

The Appellant’s appeal which was instituted under O.55 ROC which governs appeals to the High Court from the Subordinate Courts is the wrong mode of commencement. This rendered the notice of appeal incompetent and the appeal an abuse of process.

The Appellant denies the Respondent’s contention and maintained that the mode of instituting her appeal was correct.

The Appellant argues that Enclosure 12 which was filed 5 months into the appeal, is inordinately late and that there was no explanation for the delay. Findings of the Court Delay in filing Enclosure 12

O. 92 r.4 ROC reads – “For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

This provision serves to preserve the High Court’s inherent power to make any order necessary to prevent injustice or to prevent an abuse of the process of the Court. O.92 r.4 ROC acts as a residuary power, ensuring that the court is not rendered helpless by the absence of a specific provision or by the technicalities of its own rules. It is a safeguard designed to ensure that the primary objective of the judiciary; the administration of justice; is never subverted by procedural manipulation or unforeseen gaps in the law.

O.92 r.4 ROC is typically invoked as a residuary source of power when existing rules or statutes are insufficient to address a specific situation.

The courts have consistently cautioned that this power is not a "blank cheque"; it cannot be used to override express statutory provisions or to circumvent a specific rule where one already exists. It remains an extraordinary remedy, to be exercised only when it is essential to ensure that the "fountains of justice" remain pure and that the court's process is not brought into disrepute.

In Badiaddin Mohd Mahidin & Anor v. Arab Malaysia Finance Berhad [1998] 1 MLJ 393, Mohd Azmi FCJ cautioned at 409 - “The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases, the normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception.”

Applications to strike out actions are usually premised on O.18 r.19(1) ROC. In the present appeal, the Respondent’s reliance on O.92 r.4 ROC to strike out the Appellant’s appeal cannot be said to be exceptional or that the alleged defect serious.

For this reason, this Court finds Enclosure 12 defective.

There are two provisions in the ROC that prescribe the procedure for bringing an appeal to the High Court, namely –

O.55 ROC regarding appeals from the Subordinate Courts; in particular, O.55 r.3(1) ROC which reads – “An appeal against a decision made after trial shall be substantially in Form 111 and shall be filed in the Court from which the decision is appealed.”; and

(ii) O.55A regarding appeals under written law; in particular O.55A r. 1(1) ROC which reads – “Where under any written law, an appeal is made from any decision of any person or body of persons to the High Court, the appeal shall be made to the High Court in the State where the decision was given by way of an originating summons stating the grounds of appeal and supported by an affidavit...”

This Court was mindful of –

the Court of Appeal decision in Austral Amalgamated Tin Bhd v. Abdul Wahab Kopon & Ors & Anor Appeal [2004] 2 CLJ 316, where Nik Hashim JCA (as His Lordship then was) held at 320 – “...the labour office is not a 'subordinate court' under the CJA... It is only an inquiry and not a court proceeding. It is therefore erroneous to classify the labour office as an 'inferior court'...”; and

(ii) that the right of appeal against a ADGM’s decision is provided under section 77 Act 265, which is a written law.

At first blush, reading the provision and the judgment alone, it would appear that the procedure for an appeal from the ADGM’s decision must comply with O.55A ROC.

Section 77 of Act 265 reads – “(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director General... such person may appeal to the High Court. (2) Subject to any rules made under section 4 of the Subordinate Court Rules Act 1955 [Act 55], the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require.” 21 This Court is of the view that the phrase “the procedure in an appeal... shall be the procedure in a civil appeal from a Sessions Court” mandates that the procedure for appeals from the ADGM’s decision be brought using the procedure under O.55 ROC. 22 It must be borne in mind that section 77 of Act 265 is a substantive statutory provision, whereas the ROC consists only of rules prescribing procedure. Section 77 of Act 265 must take priority over the ROC. For the Appellant Revathi Kannan Messrs Revathi & Partners For the Respondent Esther Ong Hui Chen Azhana Mohd Khairuddin Messrs Esther Ong, Tengku Saiful & Sree