Judgment

Gopal Sri Ram, JCA

(delivering the judgment of the court)

1. There are three appeals before us. They are civil appeal Nos W-02-845-02 ("the first appeal"), W-04-151-02 ("the second appeal") and W-02-231-03 ("the third appeal"). The appellant in the first and second appeals is Rekapacific Bhd ("Rekapacific") while the Securities Commission and the Kuala Lumpur Stock Exchange are the respondents. In the third appeal, it is the Stock Exchange which is the appellant while Rekapacific is the respondent. The facts relevant to all these appeals are as follows.

2. Rekapacific is a public listed company. It was de-listed by the Stock Exchange for alleged breaches of listing rules. It appealed unsuccessfully to the Committee of the Stock Exchange. It also lodged a parallel appeal to the Securities Commission. But that appeal was not considered as the Commission left the matter to be dealt with by the Exchange. Rekapacific then took out an application for judicial review. Several voluminous affidavits were delivered by the parties. Then, in the course of those proceedings it applied for discovery of documents and later to interrogate the respondents and to cross-examine Md Nor Ahmad, the deponent of an affidavit delivered in opposition to the application for judicial review and one Selvarani Rasiah, a person mentioned by Md Nor Ahmad in his affidavit. The High Court refused both applications and this forms the subject matter of the first and second appeals. The High Court then granted a stay of the judicial review proceedings pending these appeals and that forms the subject matter of the third appeal. At the conclusion of the arguments on November 22, 2004, we dismissed the first and second appeals but allowed the third appeal.

3. In giving our reasons for our decision we think it appropriate to begin by looking at the nub of the learned judge's reasoning for refusing the applications for discovery, the administration of interrogatories and for cross-examination. This is what he said:

   All the interlocutory applications share a common theme. They seek to gain access to information that is not relevant and was not available to and not considered by KLSE during its decision making process leading up to its decision to de-list the securities of the applicant. The fact remains that the documents and information that the applicant seeks largely relate to matters which were not before the KLSE and were therefore not taken into consideration by the KLSE in arriving at the decision to de-list the applicant. Even if these documents are relevant, it is not necessary for the fair disposal of this matter.

4. The issue before us is whether the learned judge was wrong in adopting the aforesaid approach. Before addressing that question we think it useful to discuss the scope and practical effect of rule 6 of the new Order 53 that permits discovery and cross-examination. The first point to note is that these are new enabling provisions. As a matter of procedural history, certiorari and the other prerogative remedies were proceedings on the Crown side of the Queen's Bench Division and were not therefore civil proceedings. Section 2 of the Government Proceedings Act 1956 gives statutory recognition of this by excluding applications for prerogative remedies from the definition of "civil proceedings" in that Act. The consequence was that at common law, discovery, whether of documents or by way of interrogatories were procedurally not available in an application for prerogative remedies. So, we see Denning LJ saying in Barnard v National Dock Labour Board [1953] 2 QB 18 that "In certiorari there is no discovery, whereas in an action for a declaration there is."

5. The second point that needs to be made - and made quite emphatically - is that it is only in very rare cases that either cross-examination or discovery or both should be permitted in judicial review proceedings. This is because questions of fact arc rarely in dispute in judicial review proceedings. Of course, if there are any essential or fundamentally important questions of fact that are in serious dispute then the judicial review court would be entirely justified in ordering cross-examination to enable it to make the relevant finding of fact.

6. The same may be said of applications for discovery. It is now too well settled that where a public law decision is impugned on the ground of Wednesbury unreasonableness or of proportionality (as is the position in the present instance) it is for the public decision-maker to provide reasons to justify his decision. And where a public decision-maker fails to provide reasons, then the court is entitled to conclude that he has no good reason for making the decision in question. No authority is required for this proposition, but if there is need to cite authority, then it suffices to quote from the judgment of the Federal Court delivered by Abdoolcader SCJ in Pahang South Union Omnibus Co Bhd v Minister of Labour and Manpower [1981] 2 MLJ 199 where His Lordship said:

   The scope of judicial review is narrower and limited and it would be useful and apposite to reproduce in extenso the delightfully lucid and comprehensive exposition on this aspect by Lord Denning CA, in General Electric Co Ltd v Price Commission [1975] ICR 1, 12 (at p 12) when he stresses the supervisory nature of the jurisdiction: Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision, 'the courts will not themselves make the original findings of fact. They will not themselves embark on a re-hearing of the matter: see Healey v Minister of Health [1955] 1 QB 221. But, nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly: see In re HK (An Infant) [1967] 2 QB 617, 630 and R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417. The courts will ensure that the body acts in accordance with the law. If a question arises on the interpretation of words, the courts will decide it by declaring what is the correct interpretation: see Punton v Ministry of Pensions and National lnsurance [1963] 1 WLR 186. And if the decision-making body has gone wrong in its interpretation, they can set its order aside: see Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320. (I know of some expressions to the contrary, but they are not correct.) If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1007, 1061. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding - so unreasonable that a reasonable person would nor have come to it - then again the courts will interfere: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. II the decision-making body goes outside its powers, or misconstrues the extent of its powers, then, too, the courts can interfere: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside: see Sydney Municipal Council v Campbell [1925] AC 338. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons - in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly - see Padfield's case [1968] AC 997, 1007, 1061.

7. Since it is for the public decision-maker to give reasons for his decision, it is open to a court for the Just disposal of a judicial review application to require the decision-maker to make discovery of the material on which he based his decision. This would assist the court to determine whether any reasonable person similarly circumstanced as the decision-maker in question would have acted in like fashion.

8. Further, the general rule as to interrogatories is that

   although interrogatories must be confined to matters which are in issue, they may under some circumstances extend to facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. (See Marriott v Chamberlain [1886] 17 QBD 154; Osram Lamp Works Ltd v Gabriel Lamp Co [1914] 2 Ch 129. In considering whether the interrogatories should be allowed or not the court must consider whether they are designed to obtain admissions of facts which will reduce the issues, shorten the length of the trial and thus save costs, (per Gill CJ (Malaya) in Sheikh Abdullah b Sheikh Mohamed v Kang Kock Seng [1975] 1 MLJ 89.

9. In an application for judicial review, the "matters which are in issue" and "facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue" are ex necessitae rei confined to the grounds of review set out in the judgment of Lord Denning quoted in paragraph 6 of this judgment. And those are all matters which may, and in the vast majority of cases, must, be disposed of without the aid of discovery.

10. The current practice in England after the amendment to their Order 33 is set out at pp 254-257 of Richard Gordon's work "Judicial Review and Crown Office Practice" which is the locus classicus on the subject:

    Cross-examination Formerly it was exceptionally rare for applications to be made, or leave granted, for cross-examination in judicial review proceedings. In O'Reilly v Mackman [1983] 2 AC 237 however. Lord Diplock, at pp 282-283, took the opportunity to emphasise that: whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons, it should be allowed whenever the justice of the particular case so requires. Notwithstanding the generality of this statement there have been indications (both pre and post O'Reilly v Mackman) that the court will be slow to permit cross-examination under Order 53, note, for example, the comments of Watkins LJ in R v Jenner [1983] 1 WLR 873 as to the unsuitability of judicial review for assessing questions of face. For rare cases where cross-examination has been allowed see: R v Waltham Forest LAC, ex parte Baxter [1999] QB 419; R v Derbyshire CC, Exparte The Times Supplements [1991] COD 129. In George v Secretary of State for the Environment [1979] 77 LGR 689, Lord Denning CA observed that it would only be upon rare occasions that the interests of justice would require that leave to cross-examine be given. There were similar dicta in R v inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 at p 1027, and R v Board of Visitors of Albany Prison, ex parte Fell (unreported July 8, 1981). In R v Home Secretary, ex parte Khawaja [1984] AC 74 it was said that the interests of justice would rarely require the attendance of an overseas deponent for cross-examination. In R v Home Secretary, ex parte Patel [1986] Imm AR 208, Webster J deprecated the use of cross-examination of witnesses who needed an interpreter or whose first language was not English, (his decision was upheld at [1986] 1mm AR 513). Even in O'Reilly v Mackman Lord Diplock qualified the effect of his observations by indicating that the nature of the issues that normally arise on judicial review rarely requires cross-examination. The only expressly recognised exceptions to this (see: [1983] 2 AC 237 at p 282) were alleged procedural unfairness or a breach of natural justice. He warned that: .... the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are nor open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v Bairstow [1956] AC 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament .... These dicta, whilst rightly underlining the essence of the review process, appear to posit a somewhat narrow test for the exercise of the court's discretion to allow cross-examination. It is possible to envisage other situations where, applying Lord Diplock's test, the justice of a particular case may require cross-examination. In particular a conflict of evidence on the affidavits before the court may need to be resolved in order to investigate the factors affecting a decision and whether there has been an abuse of discretion. See e.g. the observations of Woolf J in R v Home Secretary, ex parte Rouse and Shrimpton (unreported, November 13, 1985). Contrast, though, R v Reigate JJ, Exparte Curl [1991] COD 66 where it was held that disputes as to events in magistrates' courts did not generally make cross-examination desirable. Discovery and inspection Parties seeking discovery and inspection of documents may experience more difficulty than in an ordinary action, notwithstanding the incorporation of Order 24 into judicial review proceedings. Whereas in most actions discovery occurs automatically under Order 24 r 1 and 2 there is no inherent right, in applications for judicial review, to orders for discovery or inspection. The retention of control by the court may indicate that such orders will be more difficult to obtain in cases under Order 53. Certainly this was the view of the Court of Appeal in R v Secretary of State for the Home Office, ex parte Harrison (unreported, December 10, 1987) where it was stared that on an application for judicial review discovery would be appropriate in fewer cases and was likely to be more circumscribed. In general, the following principles appear to govern the grant or refusal of discovery under Order 53: (a) Discovery will not be ordered so as to make good detects in the applicant's evidence, (R v Inland Revenue Commissioners, Ex parte Taylor [1988] COD 61; R v Secretary of State for Education, ex parte J [1993] COD 146; R v Inland Revenue Commissioners, ex parte National Federation of Small Employed and Small. Businesses Ltd [1982] AC 617 at p 635H). (b) One will seldom obtain full private law type discovery in a Wednesbury challenge, (R v Secretary of State for the Environment, Ex parte Smith [1988] COD 3). (c) By contrast, discovery will be ordered under Carder 53 where it is required so that the justice of the case may be advanced and where it is necessary for disposing fairly of the matter, (within the meaning of Order 24 r 8), (see R v Inland Revenue Commissioners, ex parte J. Rothschild Holdings Plc [1987] STC 163; R v Governor of Pentonville Prison, Ex-parte Herbage (No 2) [1987] QB 1077). (d) Discovery will also be ordered to go behind the contents of affidavits if there was some matter before the court which suggested that the contents of the affidavits were not accurate, (Re H, The Guardian, May 17, 1990). By contrast, discovery will not be ordered where there is no reason to doubt the bona fides or accuracy of the reasons given on affidavit) (see R v Secretary of State for the Environment, Ex parte Islington LBC [1992] COD 67; R v Secretary of State for Health, ex parte LB of Hackney [1994] COD 432). The most authoritative pronouncement remains chat of Lord Scarman in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 654. In relation to discovery under Order 53 he indicated that: .... Upon general principles, discovery should not be ordered unless and until the court is satisfied that the evidence reveals reasonable grounds for believing that there has been a breach of public duty: and it should be limited strictly to documents relevant to the issue which emerges from the affidavits. The second limb of this statement is unexceptionable. It is a guiding rule that discovery and inspection must be restricted to matters relevant to an existing dispute. Indeed, in judicial review proceedings it has been held that discovery must be central to the application, (see R v Secretary of State for the Home Department, ex parte Benson [1989] COD 329). It is, however, questionable whether, as a preliminary requirement, the court must attempt an evaluation of merits. Interlocutory relief will be granted only after leave has been given to apply for judicial review. In that sense therefore an applicant seeking discovery has, ex hypothesi, an arguable case for asserting a breach of public duty. In R v Secretary of State for Transport, ex parte ABH Road Safety Ltd [1993] COD 150 Schiemann J left open the possibility that, in an appropriate case, the grant of leave in judicial review may sometimes be taken to establish a prima facie ground of irrationality, thereby justifying an order for discovery. Certainly, following the grant of leave it is difficult to see what else the court can do when considering discovery/inspection beyond determining whether potentially discoverable documents are relevant to the issues between the parties. Given the two-stage procedure under Order 53 it may be that Lord Scarman was merely emphasising the overall hurdles to be surmounted before discovery could become available. Even if these hurdles are surmounted the doctrine of public interest immunity would appear to have more scope, having regard to the nature of judicial review, as a means of opposing an order for discovery in Order 53 proceedings.

11. We are of the view that the restraint suggested by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 in relation to ordering cross-examination and that suggested by Lord Scarman in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd in relation to making an order for discovery should be adopted by our courts when dealing with applications for these interlocutory reliefs in the course of an application for judicial review.

12. Returning to the present instance, we would make the following observations.

    • First, this is a case in which all relevant material based on which the Stock Exchange arrived at its decision is already with Rekapacific. There is therefore no necessity to order discovery.

    • Second, the further material of which Rekapacific requires the Stock Exchange to make discovery relates to other companies which are on an objective view of the matter wholly irrelevant to Rekapacific's application for judicial review.

    • Third, it is clear from the passage in the judgment of the learned judge already quoted that he adopted the approach recommended by the English authorities when exercising his discretion whether to grant or to refuse the appellant's applications.

    In these circumstances we are unable to discern any appealable error in the way in which discretion was exercised here. It must not be forgotten that in appeals of this sort, the initial jurisdiction of this court is one of review only and that we do not have an independent discretion of our own to exercise. It is only after an appellant has established a case for appellate correction that this court becomes entitled to exercise an independent discretion. That is certainly not the case here. The first and second appeals therefore fail.

13. As regards the third appeal, it has been amply demonstrated by the appellant therein that the learned judge misunderstood the nature of the order he was asked to make. Hence we find him saying that if a stay of the judicial review proceedings were not granted then Rekapacific would suffer injury through de-listing, which has been stayed pending disposal of those proceedings. But it was not the case of Rekapacific that it would suffer irreparable harm if a stay was not granted. Further, the de-listing of Rekapacific which will take effect if and when it fails in those proceedings would cause it or its shareholders no harm in real terms as it was plainly insolvent. Put another way, the shareholders of Rekapacific would suffer no loss of their investment by reason of the de-listing. The learned judge was therefore plainly wrong in directing a stay.

14. Before we conclude we must say in fairness to counsel for the appellant in the first and second appeals that as he began presenting his case, it became fairly obvious that his client's complaints relate to unfair treatment by the respondents to those appeals. As we have already said, the nature of learned counsel's case is that the decision made by the second respondent is one which no reasonable public decision-maker would make. Even a cursory perusal of the voluminous affidavits and exhibits delivered in this case show that the appellant has more than sufficient material to advance its case on the merits. But we must not, by our comment, to be taken as saying that the appellant will succeed on the merits of its application for judicial review. It may not. All that we are saying is that there is adequate material on which the appellant in the first and second appeals may proceed without the necessity of cross-examination or discovery.

15. For the reasons already given, the first and second appeals were dismissed and the third appeal was allowed. The respondents in the first and second appeals were awarded the costs of those appeals but with the rider that only one item of getting up was to be permitted by the taxing registrar. As for the third appeal, this was allowed with costs. The appropriate orders as to the deposits in court were made.

16. My learned brothers Abdul Aziz Mohamad and Mohd Ghazali Mohd Yusoff JJCA have seen this judgment in draft and have expressed their agreement with it.

Cases

Barnard v National Dock Labour Board [1953] 2 QB 18, CA; General Electric Co v Price Commission [1975] ICR 1, CA; Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, HL; O'Reilly v Mackman [1983] 2 AC 237, HL; Pahang South Union Omnibus Co Bhd v Minister of Labour and Manpower [1981] 2 MLJ 199, FC; Sheikh Abdullah Sheikh Mohamed v Kang Kock Seng [1975] 1 MLJ 89, FC.

Legislations

Government Proceedings Act 1956: s.2

Rules of the High Court 1980: Ord.53 r 6

Civil Procedure Rules 1998 [England & Wales]: Ord.53

Authors and other references

Gordon's, Richard, Judicial Review and Crown Office Practice

Representations

Malik lmtiaz Sarwar & Richard Yeoh (Ranjit Ooi & Robert Low) for appellant

Tommy Thomas for first respondent

N Navaratnam, Brendan Siva and Selena Chow (Kadir, Andri, Aidham & Partners) for second respondent

Notes:-

This decision is also reported at [2005] 2 AMR 489.