My debut Federal Court appearance
After my debut in the Court of Appeal and getting a few hearings at that level under my robe, my boss trusted me to conduct a hearing at the Federal Court, the most supreme court in Malaysia. It was a civil matter and involved an application for leave to appeal to the Federal Court, which is another way of saying ‘the Federal Court’s permission’. For civil cases, litigants need the Federal Court’s permission to appeal against a Court of Appeal decision. Where civil cases are concerned, there is no right of appeal against a civil Court of Appeal decision, unless the issue of law is a constitutional one. There is no such requirement for criminal cases. A person convicted in the High Court may appeal against that decision to the Court of Appeal and the Federal Court without having to obtain any permission. So an accused person has two rights of appeal. For civil cases, a losing party generally has one right of appeal; any further appeal requires the court’s permission. The Federal Court’s permission is required because section 96(a) of the Courts of Judicature Act 1964 (CJA64) makes it so. Permission is granted in two situations. The first is when there is a “question of general principle decided for the first time“. This is known as the novelty limb. Does the case involve a novel question of law? The second is when there is a “question of importance upon which further argument and a decision of the Federal Court would be to public advantage“. This is known as the public importance limb. Would further argument on this issue of law be to the public advantage? Both situations are mutually exclusive. As Tun Zaki Tun Azmi CJ said in the leading decision Federal Court on the application of section 96 CJA64 of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Another & Other Applications [2011] 1 CLJ 51, “If further argument is required it cannot be a novel issue.” If no such issues of law are present in the intended appeal, the chances of obtaining permission to appeal to the Federal Court are non-existent. Getting the Federal Court’s permission is a difficult thing. Applications are likelier to be dismissed than allowed. As it should be. Novel issues of law or legal issues where further argument is to the public advantage are uncommon qualities. I refer to legal questions that fit either category as unicorn legal issues. Have we got a unicorn here? Sticking a cone on top of a horse sometimes does the trick if counsel can get away with it. For an example of this see the Federal Court decision of Deepak Jaikishan v A. Santamil Selvi Alau Malay & Ors [2017] 5 CLJ 641. After all, whether the legal issue is a unicorn or not lies in the legal eye of the beholder. When I was tasked to argue against the application for the Federal Court’s permission, the leading authority at the time was the decision of Datuk Syed Kechik Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 CLJ 325. The difference between the Datuk Syed Kechik decision and the Terengganu Forest decision was the judges in the former decision took a more liberal and expansive approach to deciding whether to give Federal Court permission. This is how Justice Edgar Joseph Jr FCJ put it: The circumstances for granting leave applications in the Federal Court are not limited to the two situations stated in s. 96(a) of the Act. Whilst the situations stated therein, namely “a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage” constitute the paramount considerations, they are not exclusive. An assessment of the prospects of success should leave be given is an important factor which the Federal Court must also consider. This aside, leave may also be granted, inter alia, upon consideration (i) of the utility of the decision of the Federal Court on the question of law as a means either to clarify or develop a general principle of law (ii) that there was a dissenting judgment in the Court of Appeal (iii) of the need to authoritatively restate the relevant law. [My emphasis] Datuk Syed Kechik Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 CLJ 325, Held (2) Despite that Justice Edgar Joseph Jr did warn that despite such an approach the Federal Court would not give permission readily. It would be given only if one of the conditions in section 96(a) CJA64 was met and the applicant demonstrated a prima facie case for success in the appeal. That means the applicant must show his appeal might succeed if permission was given. Prima facie means first impression. Having considered all that, the judges in my early days of practice were less ‘technical’ in approach. My sense of it was they rode on intuition and indicia more than they adhered to the ligatures of law. They often applied heuristics especially in deciding applications for leave to appeal. The most prevalent one was the 1 – 1 rule; the High Court went one way and the Court of Appeal another. That difference of opinion usually was a sign the legal issues in contention possessed the qualities required by section 96(a) CJA64 – novelty or to the public advantage or both. If you had a 1 – 1 situation, you were likely to get Federal Court permission to appeal. I was sent to argue the matter for several reasons. First, our client had won resoundingly in the High Court and the Court of Appeal previously. It was a 2 – 0 situation. Dismissing the application the Federal Court’s permission was almost in the bag. Second, my boss probably had something more important to attend to because he did not even turn
