The High Court dismissed the appeal and refused to invoke Order 1A to overlook appellants' failure to serve the notice of appeal within the prescribed time when the rules are intentionally ignored by the appellants.
Facts of the Case
The plaintiff who was riding a motorcycle on 9 January 2003 was injured in a motor vehicle accident involving a car driven by the first defendant and a lorry driven by the third defendant. The second defendant was the registered owner of the car and the third defendant was the registered owner of the lorry. The plaintiff suffered serious injuries commenced an action against the drivers and also the vehicle’s owner. On 7 November 2008, the session court found the first defendant 100% liable for the collision and awarded the plaintiff with RM1,018,494 for special and general damages including loss of income and costs of nursing care. The claims against the other defendants were dismissed. The first defendant and second defendant (driver and owner of the car) (“Appellants”) appealed against the decision.
The notice of appeal was filed on 18 November 2008 within 14 days time limit but it was served on the plaintiff on 1 December 2008 which was 10 days late. Appellants applied for a 4 days extension to serve the notice of appeal in January 2009 and it was granted by the Court. At the hearing of the appeal, the plaintiff/respondent raised a preliminary objection claiming that the notice of appeal was served out of time in breach of Order 48 rule 2(3) of the Subordinate Courts Rules 1980 (“SCR 1980”) (repealed). The appellants urged the Court to invoke Order 1A and Order 2 rule 3 of the Rules of the High Court 1980 (“RHC 1980”) (repealed) to overlook the delay on the grounds that it did not cause any substantial miscarriage of justice. The respondent further submits that the appeal was defective because appellant failed to notify the third and fourth defendant being parties directly affected by the appeal.
Issue of the Case
Whether Order 1A and Order 2(3) of RHC 1980 can be invoked to regularise the delay in serving the notice of appeal?
Whether the third and fourth defendants should have been served?
Judgment of the Case
First Issue: Whether Order 1A and Order 2(3) of RHC 1980 can be invoked to regularise the delay in serving the notice of appeal?
Order 48 rule 2(3) of SCR 1980 [Currently Order 55 rule 2 of the Rules of Court 2012 (“ROC 2012”)] stipulates that the notice of appeal must be filed in court and served on the respondent within 14 days. The notice of appeal served by the appellant to the respondents were 10 days late and an extension of only 4 days were obtained. Thus, the respondent had raised a preliminary objection on the competency of the appeal. Appellants has urged the Court to invoke Order 1A of the RHC 1980 [similar to the current Order 1A of the ROC 2012] and Order 2 rule 3 of the RHC 1980 [similar to the current Order 2 rule 3 of the ROC 2012] to overlook the delay on the grounds that it did not cause any substantial miscarriage of justice.
Order 1A of the RHC 1980 states:
“In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.”
Order 2 rule 3 of the RHC 1980 states:
“A court or judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of noncompliance of any of these Rules unless the court or judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice.”
Appellants submits that the delay can be excused by the Court as long as there is no substantial miscarriage of justice caused. In contrast, the respondent submitted that the appeal is not proper because of the delay and cited cases which decided that delay in serving a notice of appeal to the respondent is fatal.
In Beauford Baru Sdn Bhd v Gopala Krishnan a/l VK Gopalan [2002] 6 MLJ 134; [2002] 3 CLJ 686, the court held that the purpose of Order 1A is ‘to provide for smooth administration of the due process of litigation and the administration of justice by way of substantial merits of the case and not on merely procedural technical objections’ The High Court then referred to several cases where Order 1A had been invoked to regularise various breaches of court rules.
In Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-haj v Datuk Captain Hamzah bin Mohd Noor and another appeal [2009] 1 MLJ 625; [2009] 4 CLJ 329, the Federal Court had occasion to consider the applicability of Order 1A to breaches of court rules. In that case, the plaintiffs failed to comply with Order 6 rule 7(2A) of the RHC 1980 before applying to renew the writ. The court held that compliance with Order 6 rule 7(2A) is mandatory and that Order 1A cannot be invoked to supersede it when a party had intentionally disregarded it. Zaki Tun Azmi CJ said as follows in the said case:
“The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as Order 1A of the RHC is for the court or judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. Order 1A of the RHC cannot be invoked when a party intentionally disregards in complying with the rules. Otherwise, parties would be encouraged to ignore the rules. Thus in this case, Order 1A of the RHC does not apply as the respondents had intentionally disregarded Order 6 rule 7(2A) of the RHC for their own reasons.”
The Federal Court ruled that the phrase ‘technical non-compliance’ is a reference to non-compliance with a rule which is not fundamental or mandatory in nature. In the current case, the High Court held that the requirement to serve the notice of appeal on the respondent within the prescribed time is mandatory. The facts are also clear that the appellant knew that they were late in serving the notice of appeal as they had applied to extend the time to serve. However, appellants only sought to extend another 4 days. Therefore, the late service of the notice of appeal was never regularised. Even after the appeal was fixed for hearing, no further application was made by the appellants to extend the late service of notice of appeal. The Court therefore are of the opinion that the appellants had intentional disregard the court rules. Thus, Order 1A should not be allowed to be invoked to regulate their failure to follow the rules. On this ground alone, the High Court dismiss this appeal.
Second issue: Whether the third and fourth defendants should have been served?
The respondent had included the third and fourth defendants in his claim at the lower court. During submission, appellants had attempted to pin liability on the third defendant but the Sessions Court found the first appellant to be wholly liable for the collision. The notice of appeal filed by the appellants states that the appeal is against the entire decision of the Sessions Court Judge. Hence, the appeal is also against the decision to discharge the third and fourth defendants from any liability. In the memorandum of appeal, the appellants also blamed the third and fourth defendants for causing the collision.
In the event that this appeal is heard, the court may wholly or partially shift liability to the third and fourth defendants. However, the Court would not be able to make appropriate order because the appellant failed to joint the third and fourth defendants in this appeal by serving them with the notice of appeal. Order 49 rule 6 RHC 1980 provides that:
“The notice of appeal shall be served by the appellant within the time limited for the filing of appeal on all parties directly affected by the appeal or their respective solicitors. It shall not be necessary to serve parties not so affected.”
[Current rules regarding appeals to High Court from Subordinate Court is govern under Order 55 of the ROC 2012]
The High Court held that the notice of appeal is defective as the third and fourth defendants as parties directly affected by the appeal had not been notified. Thus, any potential order against them would breach the principle of natural justice as they are not been given any opportunity to be heard. Thus, the respondent’s preliminary objection succeeds.
Principle of the Case
The Court held that Order 1A cannot be invoked to overlook mandatory rules of the Court when a party had intentionally disregarded it.