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2022 MarsdenLR 510
HIGH COURT SABAH & SARAWAK BINTULU
SYARIKAT SEBANGUN SENDIRIAN BERHAD – Appellant
Versus
DATUK PATINGGI DR ABANG HAJI ABDUL RAHMAN ZOHARI TUN DATUK ABA.... – Respondent
[Judicial Review Application No: BTU-13NCVC-1/1-2021 (HC)]
An appeal does not operate as an automatic stay of proceedings; applicants must demonstrate special circumstances to warrant a stay.
Headnote:(A) Judicature Act 1964 – Section 73 – Rules of Appeal 1994 – Application for stay of judgment – The Respondent's application for a stay of judgment dated 7 December 2021 denied due to lack of 'special circumstances' required to grant such a stay – The underlying principle established is that a pending appeal does not automatically necessitate a stay of proceedings. (Paras 9, 10, 21, 23)
(B)
Special Circumstances – The Respondent failed to demonstrate exceptional circumstances to warrant a stay of judgment pending appeal – Found that the appeal would not be rendered nugatory without a stay, thus the appeal could proceed with necessary orders by the Court of Appeal. (Paras 10, 14, 18, 22)
(C)
Delay in Filing – The delay in filing the stay application contributed to the Court's decision to dismiss the Respondent's application, highlighting that timely applications are critical in such proceedings. (Paras 18, 25, 26)
Facts of the case:
The Respondent filed an application for stay after a judgment was rendered on 7 December 2021, asserting that without a stay, their appeal would be compromised.
Findings of Court:
The Court found no merits in the Respondent's application for a stay and deemed the reasons provided insufficient to support the contention of 'special circumstances.'
Issues
: The main issues addressed included whether the Respondent could demonstrate 'special circumstances' for a stay and whether the appeal would be rendered nugatory without such a stay.
Ratio Decidendi:
The court concluded that mere impending appeals do not justify stays and emphasized the burden on an Applicant for a stay application to show compelling reasons for such an order.
Result:
Application dismissed with costs in the cause.
JUDGMENT
(A) Preliminaries
[1] Pursuant to the Court's decision on the 7 December 2021 to allow the Applicant's application under encl 24 (Applicant's Notice of Application dated 21 May 2021), the Respondent have made an application to this Court on the 3 January 2022 under Enclosure 68 for the following reliefs:
(a) that the Judgment dated 7 December 2021 be stayed pending the final determination of the Respondents' appeal to the Court of Appeal against the said judgment;
(b) that an ad interim stay of judgment dated 7 December 2021 be granted pending the final determination of this application;
(c) all further proceedings in this action be stayed until the final disposal of this application;
(d) that the Respondents be given an extension of time to file and serve Affidavit in Opposition until the final disposal of this application;
(e) that the cost of this application to be in the cause, and
(f) such further or other Order as this Honourable deems fit.
[2] The brief grounds of this application are set out in the Respondents Affidavit affirmed by Azreen Fasya Binti Mohamad Abu Bakar on 3 January 2021 (Enclosure 69) which essentially are as follows:
(a) there are special circumstances for stay to be granted in that if the hearing of the proceedings continues with the State Minerals Management Authority (SMMA) being the 4th Respondent, the appeal would be rendered nugatory;
(b) it is just and expedient that the status quo be maintained pending the outcome of the Respondents' appeal to the Court of Appeal; and
(c) there are merits in the Respondents' appeal to the Court of Appeal.
[3] In opposing the application for stay, the Applicant averred as follows:
(a) The substantive judicial review application is ready for hearing when leave to commence judicial review was granted on 2 March 2021.
(b) The exchange of affidavits between the Applicant and the 1st to 3rd Respondents have long been exhausted for the substantive judicial review proceedings whilst no reply affidavit was filed by the 4th Respondent on or before 4 January 2022 being the deadline (ie 14 days from service of cause papers on 21 December 2021).
(c) The Respondents' affidavits filed in support of encl 68 cannot be affirmed by the state legal officer as it contained contentious matters;
(d) Without prejudice to the position taken above, encl 68 was not filed promptly;
(e) Enclosure 68 was filed about twenty six (26) days from the decision of this Honourable Court on 7 December 2021 ordering the inclusion or addition of SMMA as the 4th Respondent. The appeal filed by the Respondents was also served on the Applicant more than 3 weeks from the date of the Court's decision on 7 December 2021. In the absence of any explanation for such action, encl 68 appears to be filed for the purposes of delaying the expeditious disposal of substantive judicial review proceedings and it ought to be dismissed.
(f) Stay of proceedings pending appeal is an exception and not a norm. An appeal is not a stay. Merits of the parties' case are irrelevant. An applicant seeking stay of proceedings bears a heavier burden when compared to an application for stay of execution because stay of proceedings hinders expeditious disposal of an action;
(g) the appeal will not be rendered nugatory in the absence of stay as the appeal can still proceed and it remains open to the Court of Appeal to make any Order it deems fit upon hearing the appeal;
(h) the suspension of the substantive judicial review proceeding will be prejudicial to the Applicant given that any delay in the expeditious disposal of the substantive judicial review proceedings continues to harm the Applicant whose export business is paralyzed by the Respondents' acts and omissions; and
(i) there is no legal and factual basis to justify encl 68.
(B) Relevant Cause Papers
[4] The following cause papers were filed for the hearing of this Notice of Application:
(a) Respondents' Affidavit in Support affirmed by the state legal officer on 3 January 2022
