The amendment to s 68(1)(f) of the Courts of Judicature Act does not bar appeals in the appellate jurisdiction, and claims involving public law elements must follow judicial review procedures.

Hashim Hamzah JCA:

Introduction

[1] For ease of reference, the parties to the present appeal shall be referred to as they were in the Sessions Court.

[2] The Plaintiff was a former employee of the 2nd Defendant, a local authority established under s 3 of the Local Government Act 1976 by the Penang State Authority. The 1st Defendant was an accountant with the 2nd Defendant's Finance Department. The Plaintiff retired from service on 19 April 2020.

[3] On 8 December 2020, which was a few months after he retired from service, the Plaintiff filed an action in the Sessions Court against the Defendants, claiming, among other things, that the Defendants had defamed him. The Plaintiff's cause of action against the Defendants was based on a letter issued by the 1st Defendant on 7 February 2019 in which a surcharge action for the loss of Government's movable assets was taken against the Plaintiff. A sum of RM429.68 was deducted in five equal amounts from his monthly salary, ie from February 2019 until June 2019. In his claim, the Plaintiff also sought the refund of the deducted salaries.

[4] On 23 August 2021, the Defendants filed an application to strike out the Plaintiff's writ and statement of claim under O 18 r 19(1)(b) and/or (d) of the Rules of 2012 ("ROC 2012"). On 15 April 2022, the Sessions Court allowed the Defendants' application with costs. The Plaintiff's writ and statement of claim were struck out.

[5] On 19 April 2022, the Plaintiff appealed to the High Court against the said decision of the Sessions Court. On 30 December 2022, the High Court allowed the Plaintiff's appeal and set aside the decision of the Sessions Court. The case was consequently remitted to the Sessions Court for trial.

[6] On 6 January 2023, the Defendants filed this appeal against the decision of the High Court.

Preliminary Objection

[7] Before us, the learned counsel for the Plaintiff raised a preliminary objection grounded on two of the following issues, namely:

a. whether the Defendants have a competent appeal before this Court by the recently amended s 68(1)(f) of the Courts of Judicature Act 1964 ("CJA 1964"); and

b. whether the Plaintiff was correct to file a defamation suit against the Defendants by way of writ action.

First Issue: Competency Of The Defendants' Appeal

[8] The learned counsel for the Plaintiff submitted that the Defendants' appeal before us is not competent by virtue of s 68(1)(f) of the CJA 1964. According to the learned counsel for the Plaintiff, the said provision relinquishes the Defendants' right to appeal against the decision of the High Court in which the Defendants' application to strike out the Plaintiff's writ and statement of claim was dismissed.

[9] The learned counsel for the Defendants, on the other hand, contended that s 68(1)(f) of the CJA 1964 does not operate retrospectively. It was further contended that the said provision is only applicable to applications decided by the High Court in its original jurisdiction and at the first instance, but not in its appellate jurisdiction.

[10] Therefore, the paramount issue to be determined is whether s 68(1)(f) of the CJA 1964 is applicable to this appeal.

[11] For ease of reference, s 68 of the CJA 1964 is reproduced below:

" Section 68 . Non-appealable matters.

(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(a) when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit except with the leave of the Court of Appeal;

(b) where the judgment or order is made by consent of parties;

(c) where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal;

(d) where, by any written law for the time being in force, the judgment or order of the High Court, is expressly declared to be final;

(e) where a High Court dismissed any application for a summary judgment;

(f) where a High Court dismissed any app