www.ipsofactoJ.com/highcourt/index.htm [2001] Part 4 Case 15 [HCM]     

 

HIGH COURT OF MALAYA

 

Metrobus Nationwide Sdn Bhd

- vs -

The Commercial Vehicles Licensing Board

Coram

FAIZA TAMBY CHIK J

30 NOVEMBER 2000

Judgment[a]

Faiza Tamby Chik, J

  1. The applicant has filed an application to the court by way of notice of motion praying among others, for leave for the following relief:

    1. two orders of certiorari to quash the decision of the first respondent contained in a letter dated January 27, 2000 ("first decision") which revoked the license for the applicant's bus bearing the registration number BDW 8414 ("Bus") and the decision of the second respondent contained in a letter dated April 14, 2000 ("second decision") which dismissed the applicant's appeal against the first decision;

    2. an order of mandamus directing the first respondent to withdraw the revocation of the license for the Bus; and

    3. any order or relief under s 25 read with paragraph 1 of the Schedule to the Courts of Judicature Act 1964.

  2. On August 23, 2000 the learned Senior Federal Counsel from the Attorney General's Chambers raised a preliminary objection against this application on the ground that it has been filed out of time.

  3. The applicant relied on the following facts[b] to oppose the preliminary objection:

    1. the first respondent granted a license for the Bus for the period from October 1, 1993 to September 30, 1998;

    2. the applicant applied to the first respondent by a letter dated April 23, 1998 for a confirmation of all its bus schedules and routes;

    3. in a meeting held on May 25, 1998 by the Deputy Minister of Entrepreneur Development and attended by the applicant's representatives, the Government's decision to maintain the status quo of all bus operator companies in Klang Valley for at least one year was announced;

    4. the first respondent renewed the Bus license for the period from October 1, 1998 to September 30, 1999;

    5. the first respondent served a notice dated April 7, 1999 on the applicant to show cause why the license for the Bus should not be suspended or revoked under s 265(2) of the Commercial Vehicles Licensing Board Act 1987 ("CVLBA") on an allegation that the applicant had operated the Bus on an unauthorised route;

    6. the applicant by a letter dated April 19, 1999 to the first respondent stated that it would like to make written representations to answer the notice to show cause and the applicant also explained that the Bus was not operated on an unauthorised route;

    7. the applicant applied to the first respondent by a letter dated May 17, 1999 to renew the license for 42 buses including that for the Bus;

    8. the first respondent by a letter to the applicant dated October 6, 1999 rejected the renewal application without giving reasons;

    9. the applicant appealed against the rejection of renewal application by a letter dated October 8, 1999;

    10. the second respondent allowed the applicant's appeal and renewed the license for 42 of the applicant's buses, including that for the Bus, for three years but suspended the license for four of the applicant's buses, including that for the Bus, for three months;

    11. the first respondent renewed the license for the Bus for the period from October 26, 1999 to October 25, 2002;

    12. the first respondent decided in a meeting on December 23, 1999 to revoke the licence for the Bus and the decision was conveyed to the applicant by a letter dated January 27, 2000 ("first decision"); and

    13. the applicant appealed against the first decision and the second respondent purportedly rejected the appeal ("second decision") in a letter to the applicant dated April 14, 2000. The applicant received the second decision only on April 21, 2000.

  4. This application was filed on June 2, 2000 - exactly six weeks from the date the applicant received the second decision but seven weeks from the date of the second decision.

  5. The preliminary objection is based on the ground that this application has been filed out of the six-week period as stipulated in Order 53 r.1A of the Rules of the High Court 1980 ("RHC")[c]. The preliminary objection is based on the following decisions:

  6. It is to be observed that a literal and ejusdem generis construction of Order 53 r.1A clearly shows that Order 53 r.1A applies only to "certiorari to remove any judgment, order, conviction or other proceedings" and a purposive interpretation of Order 53 r.1A would support the construction that the six-week time period should run from the date of the applicant's receipt of the second decision and not from the date of the second decision; and Order 53 r.1A confers a discretionary power on a Judge to extend the time period to make an application and I am of the opinion that the facts of this case justify such an extension of time.

  7. Order 53 r.1A reads as follows:

    Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made within 6 weeks after the date of the proceeding ...

    The phrase "other proceedings" should be interpreted by the ejusdem generis rule. The preceding words "judgment, order, conviction" specifically refer to a category of court orders which is final in effect. As such, the seemingly general words "other proceedings" in Order 53 r.1A should not be construed in a general manner but instead they should be interpreted ejusdem generis by referring to the genus as stated in the specific and preceding words of "judgment, order, conviction".

  8. The following cases illustrate the ejusdem generis rule of interpretation.

    First, the question of the right to appeal. Under s 307(1) of the Criminal Procedure Code any person dissatisfied with any judgment, sentence or order pronounced by the Magistrate in a criminal case may appeal to the High Court against any such judgment, sentence or order. There is no argument, in my opinion, that the ejusdem generis rule applies to the "order" which is preceded by the words 'judgment' and 'sentence'. The order must therefore be a final order in the sense that it is final in effect as in the case of a judgment or a sentence. The test for determining the finality of an order is to see whether the judgment or order finally disposes of the rights of the parties.

    Regulation 3 of the Regulations states -

    The following shall be the definitions of and the standards of strength, weight, quality or quantity, as the case may be, of the foods and drugs specified in this Regulation or of any ingredients or component parts thereof-

    (v)

    TEA -

    (i)

    Tea shall be the leaves and leaf-buds of various species of Tea, prepared by the usual trade processes.

    (ii)  

    Tea shall yield not more than seven parts per centum nor less than four parts per centum of ash, of which at least one-half shall be soluble in water. It shall yield at least thirty parts per centum of water-extract. It shall not contain spurious, or exhausted, or decayed, or mouldy leaves or stalks, or any Prussian blue, or lead, or any compound of lead or other matter for facing or for any other purpose.

    If it is the intention of the law that tea should not contain any colouring matter, it should say so clearly, such as for example under the definition of "vinegar" which is to be found under Reg 3(v)(iii), where it clearly says:

    It shall not contain any foreign substance or colouring matter except caramel.

    I am further of the view that the words "other matter" found in Reg 3(v)(ii) of the regulations should be read ejusdem generis with "Prussian blue, lead or compounds of lead" which according to the Deputy Public Prosecutor are poisonous or deleterious to the human body. According to a well established rule of construction of statutes, general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the legislature. In other words the general expression is to be read as comprehending things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended.

    In Re Clark, the Court of Appeal had to interpret the words "or otherwise" found in s 3 of the Married Women's Property Act 1882 which stated:

    Any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband for valuable consideration in money for money's worth have been satisfied.

    It was submitted to the court that the words "or otherwise" enlarged the preceding words "for the purpose of any trade, or business carried on by him", and the true construction of the section was that where money was lent or entrusted by a wife to her husband for any purpose the wife could not prove in competition with the other creditors of the husband. The Court of Appeal rejected that argument and held that the section did not apply to a loan by a wife to her husband for purposes unconnected with his trade or business. Vaughan Williams LJ in that case said -

    The construction which we are today placing upon this section is. in my opinion a construction which we ought to arrive at by applying the ordinary cannons of construction. The rule that. where there are general words following particular and specific words all of one genus, the general words are presumed to be restricted to the same genus as the particular words, is a familiar rule of construction. In my judgment, that familiar rule is based upon a principle which applies to the section now before us. In this section there is a specific proposition followed by the general words "or otherwise". Now it seems to me that, just as where there are general words following particular words, the general words are presumed to be restricted to the same genus as the particular words; so where there is a specific proposition followed by general words, the general words ought to be presumed, unless there are some words which led to a contrary conclusion, to be restricted to the matter that is covered by the specific proposition. The fact is that general words in a section of this sort can hardly avoid being ancillary in their nature. When one looks at a clause like this it is quite plain that the words "or otherwise" are ancillary to the specific proposition which precedes them, and it seems to me that where there are ancillary words of that sort it is a sound and wholesome rule not to give such a construction to the ancillary words as will wipe out or do away with the specific proposition with which the clause commences.

  9. Therefore applying the ejusdem generis rule of construction, the phrase "other proceedings" in Order 53 r.1A should only mean court proceedings which are final in effect and not administrative decisions. Accordingly, Order 53 r.1A does not apply to the first and second decisions in this case which do not concern court proceedings. A literal reading also does not support the application of Order 53 r.1A to this case. The following authorities clearly show that the term "proceedings" refers to "court proceedings" and not to administrative proceedings or administrative decisions:

    In several cases it seems to have been assumed that a distress falls with the words "... any other action or proceeding... pending against the company,... " in s 226(b) of the Companies Act 1948. ln In re Bellaglade Ltd [1977] 1 All ER 319, Oliver J expressed surprise at this. In the instant case counsel for the respondents reserved in the courts below the right to argue before Your Lordships that a distress was not a "proceeding" within the meaning of this section. In the event he did not avail himself of the opportunity. In these circumstances it would be inappropriate to express a concluded opinion. But as at present advised I presume to share the surprise of Oliver J. The Companies Act 1948 is a statute dealing with technical matters, and one would expect the words therein to be used in their primary sense as terms of legal art. The primary sense of "action" as a term of legal art is the invocation of the jurisdiction of a court by writ, "proceeding" the invocation of the jurisdiction of a court by process other than writ. Furthermore, "action or proceeding" in s 226(b) must presumably have the same meaning as the same words in s 226(a), where they undoubtedly refer to the invocation of the jurisdiction of a court.

    Proceedings.

    The word "proceeding" ordinarily relates to forms of law, to the modes in which judicial transactions are conducted.

    A "proceeding" is defined as the instrument whereby the party injured obtains redress for wrongs committed against him, either in respect to his personal contracts, his person or his property.

    A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right.

    In its general acceptation, "proceeding" means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, mode of deciding them, of opposing judgments and of executing. Ordinary proceedings intend the regular and usual mode of carrying on a suit by due course of common law.

    In its general acceptation, a proceeding is an act which is done by the authority or direction of the court, express or implied; an act necessary to be done in order to attain a given end; a prescribed mode of action for carrying into effect a legal right; performance of an act, wholly distinct from any consideration of an abstract right; the form and manner of conducting judicial business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action, from its commencement to the execution of judgment. [See 26 M 589 (FB); 11 WR 209, 146 IC 653=1933 Rang 292; 1 ALJ 428; 13 IC 175.

    The word "proceedings" is a very general one, it is not limited to proceedings other than the civil proceeding, and civil proceedings other than suits. When applied to suits, it may be used to mean the suit as a whole or it may be used, and often is used, to express the separate steps taken in the course of a suit the aggregate of which makes up the suit. [26C 267 (FB).]

  10. I am of the view that the literal rule of interpretation does not favour applying Order 53 r.1A to administrative decisions which do not involve court proceedings. If the Rules Committee has indeed intended Order 53 r.1A of the RHC to apply to administrative decisions, the Rules Committee would have clearly and expressly used the term "decisions" in Order 53 r.1A. It is pertinent to note that the Rules Committee has expressly provided for the use of the term "decision" in Order 56 r.1(1) of the RHC. This shows that the Rules Committee must have intended to exclude "decisions" from the scope of Order 53 r.1A.

  11. The amendment to Order 53 by the Rules of the High Court (Amendment) 2000 ("Amendment Rules") is significant[d]. The new Order 53 r.3(6) reads as follows:

    An application for judicial review shall be made promptly and in any event within 40 days from the date when the grounds for the application first arose or when the decision is first communicated to the applicant ...

    Order 53 r.3(6) shows that if the Rules Committee has intended the previous Order 53 r.1A to apply to administrative decisions, the Rules Committee could have easily and expressly provided as such. The fact that the previous Order 53 r.1A did not apply to administrative decisions has now been changed by the new Order 53 r.3(6).

  12. A comparison between the previous Order 53 r.1A of the RHC and the position in England also supports this view. Order 53 r.1(1), r.4(1) and r.(2) of the English Rules of the Supreme Court before the amendment in 1978 read as follows:

    14.1 Orders 53 r.1(1) provided:

    An application for-

    (a)

    an order of mandamus, prohibition or certiorari, or

    shall be made by way of an application for judicial review ...

    14.2 Order 53 r.4(1) provided:

    Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review ... the Court may refuse to grant -

    (a)

    leave for the making of the application, or

    (b)

    any relief sought on the application, ...

    14.3 Order 53 r.4(2) provided:

    In the case of an application or an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.

  13. It will be observed that our Order 53 r.1A is very similar to Order 53 r.4(2) of the previous RSC. As such, our Order 53 r.1A, like Order 53 r.4(2) of the previous RSC, should apply only to "applications for certiorari to quash judgment, order, conviction or other proceeding" and not to applications for certiorari to quash administrative decisions. As far as I know it is significant to note that there are no English cases which had applied Order 53 r.4(2) of the previous RSC to administrative decisions. In 1978, the previous RSC has been amended and Order 53 r.4(1) of the present RSC ("present RSC") reads as follows:

    An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose ...

  14. I am of the view that a perusal of the language of Order 53 r.4(1) of the present RSC supports the construction of our Order 53 r.1A. The wording of Order 53 r.4(1) of the present RSC does not confine the scope of that provision to "applications for certiorari to quash judgment, order, conviction or other proceeding", unlike our Order 53 r.1A; and the words "in any event" appearing in Order 53 r.4(1) of the present RSC make it very clear that such a provision on time to file judicial review applications should be applied generally.

  15. Likewise such a provision does not apply to an application for certiorari to quash administrative decisions. The clear words of Order 53 r.1A of the RHC does not apply to this application which also prays for an order of mandamus to direct the first respondent to withdraw the revocation of the license for the Bus; and any order or relief under s 25 read with paragraph 1 of the Schedule to the Courts of Judicature Act 1964 ("CJA"). In this respect, the decision of the Federal Court in R Rama Chandran v The Industrial Court of Malaysia [1997] 1 AMR 433 is relevant where at p 462 line 45 - p 463 line 29, Eusoff Chin, CJ said:

    In Malaysia, the High Courts are conferred with similar powers by paragraph 1 of the Schedule to the Courts of Judicature Act 1964 which states:

    Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.

    The procedure relating to an application for certiorari is laid out in Order 53 of the Rules of the High Court.

    I cannot find any provision in the Courts Judicature Act 1964, the Rules of the High Court 1980 or the Act expressly or impliedly prohibiting the High Court from granting any relief as provided for in the Act when quashing an award of the Industrial Court. The court cannot override an express provision of the law, but if there is no express provision in the statute, then the court can exercise its powers in a suitable case. This is precisely the approach taken by the Federal Court in Zainal Abidin v Century Hotel [1982] 1 MLJ 260, where it relied upon paragraph 6 of the Schedule to found the mareva jurisdiction.

    I should go further and consider the provisions of Order 92 r.4 of the Rules of the High Court 1980 which provides:

    For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the High Court to make any order as may be necessary to prevent an abuse of the process of the court.

  16. If the Rules Committee has intended Order 53 r.1A to apply to applications for mandamus and also to applications for relief under s 25 read with paragraph 1 of the Schedule to the Courts of Judicature Act, the Rules Committee would have clearly and expressly provided as such. In particular, the new Order 53 r.1(1) clearly states that it "shall govern all applications seeking relief specified in paragraph 1 of the Schedule to the [CJA]" (paragraph 1 of the Schedule to the Courts of Judicature Act provides for, among others, the order of mandamus and certiorari).

  17. The Interpretation Acts of 1948 and 1967 ("IA") applies to Order 53. This is because according to s 2(1)(e) of the IA the RHC is a subsidiary legislation made under the Courts of Judicature Act which has been revised under the Revision of Laws Act 1968. Order 53 of the RHC does not prescribe a time limit to make an application for certiorari to quash administrative decisions. Nor does Order 53 of the RHC provide a time period to file application for mandamus or relief pursuant to paragraph 1 of the Schedule to the Courts of Judicature Act. As such s 54(2) of the IA applies in this case. Section 54(2) of the IA states as follows:

    Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed ...

    and it is observed that this application has been filed with all convenient speed and at this ex parte stage, the respondent could not have filed any affidavit to the contrary. Also, there is no conflict between Order 53 of the RHC and the IA and as such the maxim of statutory interpretation generalia specialibus non derogant does not apply to support the submission that Order 53 of the RHC should be preferred over the IA.

  18. The respondent relied on cases that were decided prior to the present Federal Court decision in R Rama Chandran v The Industrial Court of Malaysia. It is pertinent to note that the following rulings were made in Rama Chandran. Eusoff Chin CJ stated at p 465:

    It is clear that the High Courts and the Federal Court have adopted a liberal and progressive approach in certiorari proceedings, and I find that where the particular facts of the case warrant it the High Court should endeavour to remedy an injustice when it is brought to its notice rather than deny to an aggrieved party on purely technical and narrow grounds. The High Court should mould the relief in accordance with the demands of justice.

    and Edgar Joseph Jr FCJ stated at p 484:

    On the other hand, having regard to the rapidly developing law in applications for judicial review, whenever legally permissible, we must demonstrate a willingness to mould the remedies available to suit the justice of the case. It is observed that the cases supporting the preliminary objection did not consider the following matters:

    1. The literal meaning of Order 53 r.1A of the RHC;

    2. Order 53 r.1A of the RHC was not construed in ejusdem generis manner;

    3. The comparison between Order 53 r.1A of the RHC and the English legal position; and

    4. The application of s 54(2) of the IA.

  19. The following cases relied on by the respondent in support of the preliminary objection may be distinguished as follows:

  20. It is also to be noted that the Federal Court that decided Mersing Omnibus Co Sdn Bhd was not the highest court in Malaysia at that time. This is because at the time of the appeal to the Federal Court in Mersing Omnibus Co Sdn Bhd, a further appeal could still be made to the Privy Council. This is unlike the decision in Rama Chandran which was decided by the highest court in the country. Needless to say, the High Court decision in Abdul Malik is only a High Court's decision.

  21. In Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower [1983] 2 MLJ 54 the court cited in support the House of Lords decision in Griffiths v Secretary of State for the Environment [1983] 1 All ER 439.

  22. However, Griffiths may be distinguished as follows:

    1. the statutory provision decided upon in Griffiths was s 245(1)(a) of the Town and Country Planning Act 1971 ("TPCA") which reads as follows:

      245.

      (1)

      If any person-

      (a)  

      is aggrieved by any action on the part of the Secretary of State to which this section applies... he may, within six weeks from the date on which... the action is taken ... make an application to the High Court ...

    2. Griffiths did not interpret the previous Order 53 of the English Rules of the Supreme Court;

    3. In Griffiths, the appellant applied for planning permission to erect a farm house. The application was rejected by the relevant local authority. The appellant then appealed to the Secretary of State for the Environment ("SSE") who rejected the appeal by a letter dated December 8, 1980 ("SSE's decision") which was received by the appellant only on December 13, 1980. The appellant applied to the court against the SSE's decision ("appellant's application") but the application was made after the expiry of the six-weeks period from December 8, 1980 but within six weeks from December 13, 1980.

      Lord Bridge delivered the majority judgment of the House (Lord Scarman dissented). According to Lord Bridge, the six week period commenced on the date when the SSE's decision was "typed, signed and date-stamped" and not on the date when the SSE's decision was communicated to the appellant (p 447A-H). I am of the view that the majority decision in Griffiths can be justified by the words "... six weeks from the date on which ... the action is taken" in s 245(1)(b) of the TPCA which clearly meant that the six-week limitation period begun from the date of the SSE's decision and not the date when the appellant received SSE's decision. It is to be noted that there is no equivalent to s 245(1)(b) of the TPCA in Malaysia;

    4. Griffiths can also be distinguished on this ground as stated by Lord Bridge (p 447A-C):

      It is appropriate ... to test the validity of this conclusion by considering the consequences to which a contrary construction of [s 245(1)(b) of the TPCA] would lead. The vital factor to bear in mind is that, when (SSE) makes a decision on a planning appeal ... a multiplicity of parties may be affected. In all planning appeals ... there will at least be the appellant and the local planning authority. But in many cases there will also be the owner or owners of land affected, who may be different persons from the applicant... and the tenants... These parties are entitled to make representations... This seems ...to point to the extreme improbability of Parliament having intended that the date when the action is taken for the purposes of s 245 should be determined by the date on which the notice is given to a multiplicity of parties, which would presumably mean the date when the last necessary notice was given.

      (Emphasis added)

      In this case, the multiplicity of parties consideration does not arise; and

    5. It is also to be noted that in Griffiths, the SSE's decision was a dismissal of the appellant's appeal for planning permission. The appellant could always make a new application for planning permission and this was recognised by Lord Bridge (p 447D). Unlike Griffiths, if the applicant in the instant case was time-barred, the consequences to be borne by the applicant in this case are severe.

  23. I think that Mersing Omnibus Co should not be followed on the following grounds:

    1. Mersing Omnibus Co had wrongly relied on Griffiths when the Federal Court stated as follows:

      It is abundantly clear that the date of the proceedings in the matter before us for the purposes of Order 53 r.1A is ex visceribus verborum the date of the Minister's decision ... The very point we have taken was considered ... in (Griffiths case) ...

      That Griffiths case was based on TPCA which has no equivalent in Malaysia.

    2. The Federal Court in Mersing Omnibus Co also stated at p 88A-F as follows:

      The validity of [the contention of the appellant's counsel] must be tested by considering the consequences to which it would lead. Invariably and ex necessitate rei a decision of the Minister under... the Industrial Relations Act ... affect two or more and perhaps a multiplicity of parties ... it would be virtually impracticable and well nigh impossible to ascertain a settled and agreed date of communication of a decision as this would vary from party to party according to when it received notification of the decision. This would entail attributing different dates of the decision for different persons and ipso facto manifest the extreme improbability of the Rules Committee having intended that the date of the proceeding for the purposes of Order 53 r.1A should be determined by the date on which notice is severally given to a multiplicity of parties and thereby providing in effect different periods of time for different parties for the purposes of apply for leave for certiorari ..." Such a ground given in Mersing Omnibus Co case, I think is actually the multiplicity of parties consideration as stated in Griffiths case. Once again, the multiplicity of parties consideration does not arise in this case.

  24. Moreover, Order 53 r.1A should be given a purposive interpretation. This would mean that the six-week period commenced on the date when the applicant received the second decision and hence, this application was made within the time stipulated in Order 53 r.1A. A purposive construction of Order 53 r.1A would prevent injustice as the applicant actually received the second decision. In Soon Kong Meng v Lee Thye [1996] 3 AMR 3755, at p 3760 Peh Swee Chin FCJ stated:

    In our view, words in a statute ought to be construed in a sense in which they best harmonise with the subject of the statute in which also, the object of the statute is to be attained, even though sometimes the said sense is not strictly in accordance with the ordinary general meaning of the words used. The result from this is that any words in a statute, in order for them to accord with the intention of the legislature, could be extended or restricted realistically as the case may be, on their interpretation.

    The two points raised respectively in the two Supreme Court cases cited above were decided not strictly in accordance with the general ordinary meaning of the words used in the statute or documents, but construed with attainment of their object in mind.

  25. Edgar Joseph Jr FCJ in Lim Phin Khian v Kho Su Ming [1996] 1 AMR 281, at p 298 said:

    Accordingly, applying a purposive interpretation to s 17, it is my view that Parliament intended that so long as there is a judgment, order or decision of the High Court, given on or before June 23, 1994, and an appeal against the same has been brought whether on or before or even after such date, it is the Federal Court and not the Court of Appeal which is invested with the jurisdiction to hear and determine the same. This interpretation has the great merit of being simple, clear and uniform and should - subject of one qualification which I shall deal with in the final paragraph of this judgment - certainly avoid the sort of manifest injustice to litigants in the position of the present appellant ... It is, therefore, the interpretation which I should adopt.

  26. The qualification stated by Edgar Joseph Jr FCJ in Lim Phin Khian did not apply in this case. In the Federal Court in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 AMR 2871, at p 2887 lines 29-32, Gopal Sri Ram JCA ruled as follows:

    That the justice of the case should be the overriding consideration is axiomatic. After all, courts exist to do justice according to the law applied to the substantial merits of a particular case. And rules of court and of practice are created to facilitate the attainment of justice, not its obstruction.

  27. I am of the opinion that a purposive interpretation of Order 53 r.1A of the RHC is in consonance with the "liberal and progressive approach" expounded by Eusoff Chin CJ in Rama Chandran.

  28. The words "delay is accounted for to the satisfaction of the court or judge to whom the application for leave is made" in Order 53 r.1A confers a discretionary power on me to extend time even if there has been no formal application for extension of time. This is because if the Rules Committee requires a formal application for extension of time to be made before the court exercises its discretion to extend time, the Rules Committee would have clearly and expressly provided as such. This can be seen from the Amendment Rules, in particular the new Order 53 r.3(6) which expressly states:

    ... provided that the court may, upon application and ..., extend the period of 40 days.

  29. The absence of any requirement of a formal application in Order 53 r.1A clearly shows that my discretion to extend time is not fettered by the lack of a formal application. It is useful to look at paragraph 3 of the notice of motion where the applicant prayed for "any or relief which is just and appropriate". I am of the view that I have a very wide discretion to extend time for the applicant to make this application under the general relief prayer. I am fortified in my view by the decision of the following cases.

    The statement of claim, as amended on November 3, 1980 pursuant to the respondent's application by summons-in-chambers contains the following paragraphs:

    (5)

    And the plaintiff claims damages for -

    1. loss of earnings;

    2. prospective loss of earnings;

    (7)

    Wherefore the plaintiff claims:

    1. Special Damages amounting to $3,300.00;

    2. General Damages:

    3. lnterest at rate of 6% per annum from date of filing of writ to date of realisation;

    4. Costs;

    5. Any other relief which this Honourable Court deem fit to grant.

    From these two paragraphs of the statement of claim it is obvious that the respondent's solicitors treated the claim for loss of earnings as falling into two categories -

    1. pre-trial loss, which they described it as "loss of earnings", and

    2. future loss of earnings, which they referred to as "prospective loss of earnings".

    But instead of pleading the pre-trial loss of earnings (or "loss of earnings" as they described it) as an item under special damages, they erroneously pleaded it as an item under general damages. This is purely a technical mistake, which in our view did not in any way affect the substance or prejudice the appellant - see Order 2 (effect of non-compliance) of the Rules of the High Court 1980. We cannot see how the respondent should be deprived of his right by a purely technical error on the part of his solicitors, who were not up-to-date with this aspect of legal technicalities. In any case prayer (e) in paragraph (7), "Any other relief which this Honourable Court deem fit to grant" must not be treated as a mere ornament to readings devoid of any meaning. We think that this prayer and the prayer for "loss of earning" in paragraph 5(a) should entitle the court to make such an assessment.

    In his statement of claim, the appellant has also prayed for 'further or other relief as this Honourable Court thinks fit'. In Lim Eng Kay v Jaafar Mohamed Said [1982] 2 MLJ 156 at p 160, a prayer in a statement of claim read 'Any other relief which this Honourable Court deems fit to grant.'

    Salleh Abas FJ (as he then was) said that this prayer 'must not be treated as a mere ornament to pleadings devoid of any meaning'. I am of the view that the same may be said of the like prayer in the present case. This court should, in my judgment, award the appellant such relief as is appropriate in the circumstances of the case.

    In arriving at this conclusion, I have not overlooked the decision in Mokhtar v Arumugam [1959] MLJ 23 CA, where the following statement of principle from the judgment of Fry J in Cargill v Bower [1978] 10 Ch D 502 at p 508 was applied:

    You cannot, under a general prayer for further relief obtain any relief inconsistent with that relief which is expressly asked for.

    As it happens, there is, in the present case, no inconsistency between the relief which I propose to award to the appellant and the other relief he has expressly claimed. For that reason, I abstain from deciding this case upon my own view of the wider role which, I belief, courts should play in moulding relief to suit the justice of a particular case, especially in the field of public law.

    We therefore allow the appeal and set aside the order the Judge. However, we agree with Mr. Ngeow that it is not proper, in the circumstances of the present case, to grant an order in terms of the appellant's summons. Accordingly, we decline the relief sought in prayers 1, 2 and 3 of the appellant's summons. This is, however, an appropriate case for the exercise of the powers conferred upon us by s 69(4) of the Courts of Judicature Act 1964. We therefore act upon the prayer for further or other relief contained in the appellant's summons and grant injunction restraining the respondents from implementing the impugned resolutions passed on December 31, 1998.

    The plaintiff/appellant has clearly demanded the correct sums. The statement of claim was amended to include the exact sums expended on the receiver and manager amounting to RM83,623.69. Although this sum was not specifically included as an item in the summons-in-chambers, I hold that this item ought to be allowed as it has been shown to have been expended. This item ought to be allowed under prayer (c) which prays for any other relief as the honorable court deems fit and proper. I am of the view that there is no defence in this case.

  30. It is also to be observed that according to the maxim generalia specialibus non derogant, which has been applied in the following cases, the specific provision of Order 53 r.1A should prevail over the general provision of Order 3 r.5.

    The Dangerous Act 1952 (Revised 1980) is an Act specifically designed to regulate the importation, exportation, manufacture, sale and use of, inter alia, dangerous drugs, and 'to make special provisions relating to the jurisdiction of courts in respect of offences thereunder and their trial, and for purposes connected therewith'. In other words, the Act is in substance a special law passed by Parliament in derogation of the rights of a person concerning the granting of bail in an otherwise ordinary case. We further note in particular that s 41 B of the Act is an entirely new section introduced by the Dangerous Drugs (Amendment) Act 1978 (Act A426) and became operative on February 10, 1978. Generalibus specialia derogant is a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law. (See also PP v Chu Beow Hin). The provisions of s 3 of the Criminal Procedure Code which counsel for the respondent seeks to rely on has no relevance whatsoever to the matter in issue before us.

    There is another compelling reason for holding that the respondents have no caveatable interest in the land. It lies in the rule of construction expressed in the maxim generalibus sepcialia derogant. Where there are provisions of written law, one general and the other specific, then, whether or not these two provisions are to be found in the same or different statutes, the special or specific provision excludes the operation of the general provision.

    Another rule of construction which is relevant to the present enquiry is expressed in the maxim generalia specialibus non derogant, which means that when there is a conflict between a general and special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn, at p 205 thus:

    The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.

    See also PP v Chew Siew Luan [1982] 2 MLJ 119.

  31. In the existing state of facts, I am satisfied that for the following reasons a strong case has been established to warrant this court in enlarging the time for making this application:

    1. The first respondent did not give the applicant a right of hearing before making the first decision;

    2. The first respondent breached s 25(1) of the Commercial Vehicles Licensing Board Act 1987 (Act 334) (CVLBA) when the first decision was made because the first respondent did not consider any of the matters stated in paragraphs (a) to (c) of s 25(1) of the CVLBA, and also did not consider any of the matters stated in the proviso to s 25(1) of the CVLBA;

    3. The first respondent in making the first decision did not take into account the relevant consideration of the suspension of the Bus license. In other words, the first respondent did not consider that the applicant has already been punished in respect of the bus;

    4. The first decision was "unreasonable" in the Wednesbury sense because the applicant has already been punished in respect of the Bus; and

    5. The first and second respondents did not give any reasons for the first and second decisions;

    6. The applicant received the second decision on April 21, 2000 which was only one week after the expiry of the six-week period as stipulated in Order 53 r.1A of the RHC: and

    7. There is no prejudice to the respondents if the court is to extend time.

  32. For the above stated reasons the preliminary objection is hereby dismissed with costs and an order in terms of the application is hereby granted.

Cases

Rama Chandran, R v The Industrial Court of Malaysia [1997] 1 AMR 433; Abdul Malik v Registrar of Societies, Malaysia [1989] 1 MLJ 67; Bolton Finance Bhd v Kenneth James Sanker [1997] 5 MLJ 7; Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 AMR 2871; Commissioner of Income Tax v Shahzada Nand & Sons [1966] SC 1342; Jaffar Mohd Ali v Jasatera Bhd [2000] 2 AMR 1523; Griffiths v Secretary of State for the Environment [1983] 1 AII ER 439; Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437; Lim Eng Kay v Jaafar Mohamed Said [1982] 2 MLJ 156; Lim Phin Khian v Kho Su Ming [1996] 1 AMR 281; Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 2 AMR 969; Maleb Su v Public Prosecutor [1984] 1 MLJ 311; Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower [1983] 2 MLJ 54; Public Prosecutor v Chew Siew Luan [1982] 2 MLJ 119; Public Prosecutor v Pengurus Hong Trading & Co [1985] 1 MLJ 366; Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168; Soon Kong Meng v Lee Thye [1996] 3 AMR 3755; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617.

Legislations

Malaysia

Commercial Vehicles Licensing Board Act 1987: s.25(1), s.265(2)

Courts of Judicature Act 1964: s.25, para. 1 of Sch.

Interpretation Acts 1948 and 1967: s.2(1)(e), s.54(2)

Married Women's Property Act 1882: s.3

Revision of Laws Act 1968

Rules of the High Court 1980: Ord.53 r.1(1), r.1A. r.3(6), r.5, Ord.56 r.1(1)

Rules of the High Court (Amendment) 2000

United Kingdom

Rules of the Supreme Court: Ord.53 r.1(1), r.4(1), r.(2)

Town and Country Planning Act 1971: s.245(1)(b)

Authors and other references

The Law Lexicon with Legal Maxims, 1993

Representation

Wong Kian Kheong and Anita lbrahim (Lee Hishammuddin) for Applicant

Ahmad Kamal Mohd Shahid (AG's Chambers) for Respondents

Notes:-

[a] An edited version.

[b] The Judge extracted the facts from the affidavit filed by the applicant (Court Enclosure 3).

[c] Counting from the date of the second decision.

[d] The Amendment Rules came into effect only on September 21, 2000 and so they do not affect the application before the court.

This decision is also reported at [2001] 3 AMR 3742

all rights reserved

taiking.thing pte ltd