Back
2021 MarsdenLR 3528
HIGH COURT MALAYA KUALA LUMPUR
AMANGGUL PIRGUL – Appellant
Versus
RUSLAN ALIAS & ORS (ENCL 16) – Respondent
[Judicial Review Application No: WA-25-272-09/2020]
Judicial review amendment applications must comply with strict procedural rules; failure to do so results in dismissal of ineffective amendments.
Headnote:(A) Rules of Court 2012 – Order 20 r 5 and Order 53 r 7 – Amendment Application – Application to amend Leave Application for Judicial Review dismissed – Court held that the Leave Application did not fall under provisions allowing amendments and the proposed amendment was deemed useless – Judicial review applications must comply strictly with specified rules. (Paras 8-15, 21-22, 39)
(B) Procedural Requirements – A judicial review application must be filed in strict compliance with provisions – Any amendment without proper grounds is dismissed as it does not cure fundamental defects. (Paras 19-20, 36-37)
Facts of the case: The Applicant sought an amendment to the Leave Application for judicial review after objections from the AGC citing failure to request an extension of time. This amendment application was made after the AGC's objections.
Findings of Court: The court found that the application lacked proper grounds for amendment and was thus ineffective.
Issues: The main issues involved whether the amendment application was permissible under the Rules of Court 2012 and whether it was filed in a timely manner.
Ratio Decidendi: The court ruled that the amendment did not fall under the relevant rules for amendments and lacked substance, thereby dismissing the application as ineffectual.
Result: Application for amendment dismissed with no order as to costs.
JUDGMENT
(Enclosure 16)
Introduction
[1] The Applicant had on 12 November 2020 filed an application by way of Notice of Application (Encl 16) seeking inter alia for the following orders:
1.1 Bahawa Pemohon diberikan kebenaran meminda Permohonan Semakan Kehakiman (Lam p 1) bertarikh 23 September 2020;
1.2 Pemohon diberikan kebenaran memasukkan relif tambahan untuk perlanjutan masa memfailkan Permohonan Semakan Kehakiman (Lamp 1) di bawah relif-relif yang dipohon;
1.3 Kos adalah kos dalam kausa; dan
1.4 Lain-lain perintah yang sepatutnya dan Iain-lain yang difikirkan patut dan sesuai seperti yang ditentukan oleh Mahkamah Yang Mulia ini.
[2] In gist, the Applicant is seeking to add a prayer for the extension of time in the leave Application (Encl 1).
The Grounds Of Application
[3] The grounds for the proposed amendment are as follows:
3.1 The Applicant had filed the Leave Application within the stipulated time;
3.2 The Applicant in paras 34-35 of the Applicant's Affidavit for leave had offered reasons for the extension of time (if needed); and/or
3.3 The Applicant's technical error in not applying extension of time as a relief in the Leave Application.
Background Facts
[4] The Applicant on 23 September 2020 filed an ex-parte leave application (End. 1) for judicial review application.
[5] The Applicant then filed an Amendment Application (Encl 16) on 12 November 2020 after the Attorney General's Chambers (AGC) submissions had been filed and served to the Applicant's solicitors whereby AGC in objecting to the Leave Application had specifically highlighted the Applicant's failure to pray for the extension of time in the Leave Application.
[6] At the conclusion of the hearing, I dismissed the Applicant's Application (Encl 16). This judgment will contain the full reasons for the dismissal.
Preliminary Objections (PO) By The AGC
[7] At the outset of the hearing, the learned Federal Counsel (FC) raised a PO. The PO was premised on the following grounds:
a) no provision to amend Leave Application;
b) the amendment application is an afterthought; and
c) the proposed amendment is useless or ineffectual.
Decision Of The Court
No Provision To Amend Leave Application
[8] It is to be noted that the Applicant's application is made pursuant to O 20 r 5 and O 53 r 7 of the ROC 2012.
[9] Upon perusal of O 20 r 5 of the ROC 2012, it clearly provides for the general power of the Court to amend writ and pleadings with leave of the Court.
[10] Order 20 r 5 of the ROC 2012 states that:
"Amendment of writ or pleading with leave (O 20 r 5)
(1) Subject to O 15, rr 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such term as to costs or otherwise as may be just and in such a manner, if any, as it may direct"
[Emphasis Added]
[11] Reference is also made to O 6 r 1 and O 7 r 2 of the ROC 2012 which states as follows:
Form of writ (O 6, r 1)
1. Every writ shall be in Form 2.
Forms of originating summons (O 7, r 2)
2. (1) Every originating summons shall be in Form 5 or 6 whichever is appropriate.
[12] Order 1 r 4 of the ROC 2012 define pleading as follows:
"Pleading does not include a notice of application or a preliminary act".
[13] Having read the provisions above, I find that the Leave Application clearly does not fall under any of those rules mentioned above.
[14] Thus, I am of the view the Applicant cannot rely on O 20 r 5 of the ROC 2012 for the amendment of a Notice of Application for Leave for judicial review filed under O 53 of the ROC 2012.
[15] Further, it is to be noted that the Applicant's Leave Application was made under O 53 r 3 of the ROC 2012 but the said O 53 only provides for amendment of statement and not the other cause papers.
[16] Order 53 r 7 of the ROC 2012 provides as follows:
"Amendment (O 53, r 7)
7. (1) The Judge may allow the statement to be amended, and may allow further affidavits to be used if they deal with new ma
