Judgment

Nik Hashim FCJ:

Background

[1] This appeal came before us on 14 June 2006. The appeal is against the decision of the High Court Kuala Lumpur refusing the application of an ad hoc admission of the appellant, Cherie Booth QC to the Malaysian Bar pursuant to s 18(1) of the Legal Profession Act 1976 (the LPA) for the purpose of appearing in two Federal Court appeals: Metramac Corp. Sdn. Bhd. v. Fawziah Holdings Sdn. Bhd. (Civil Appeal Nos. 02-19-2006 (W) and 02-20-2006 (W)).

[2] The Court of Appeal which first heard the two appeals delivered its decision on 12 January 2006 in favour of Fawziah Holdings and awarded the sum of RM65,182,920 with interest and further decreed that sums due under certain 'future contracts' were to be assessed and paid to Fawziah Holdings. The decision of the Court of Appeal was reported in [2006] 1 MLRA 131, [2006] 1 MLJ 505 ; [2006] 2 AMR 1.

[3] In the course of its judgment, the Court of Appeal had made observations about certain third parties namely Tun Daim Zainuddin and Tan Sri Halim Saad who later applied to intervene in the Federal Court to expunge all the remarks made about them in the judgment.

[4] On 15 May 2006 the Federal Court gave leave to Metramac to appeal against the judgment of the Court of Appeal on the following three questions:

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(i) Whether the creation of a trust under the agreement amounts to an illegal reduction of its capital.

(ii) Whether the test adopted by the Court of Appeal in determining whether cl. 8 of the Signage Agreement is a stipulation by way of a penalty and/or a sum named in the contract for purposes of s 75 of the Contracts Act 1950 , is the correct test/or is exhaustive.

(iii) Whether the Court of Appeal's adverse remarks in the circumstances of the case showed a real danger of bias in the judgment arrived at against Metramac.

[5] And at the same time the Federal Court directed that the applications by the interveners to expunge the remarks are to be heard together with the appeals proper.

[6] This appeal comes direct to the Federal Court by virtue of s 19 of the LPA .

[7] The Attorney General, the Bar Council, the Kuala Lumpur Bar Committee, Metramac and the two interveners namely Tun Daim Zainuddin and Tan Sri Halim Saad, took a united stand to oppose the application. Their main ground of objection was that the appellant had no special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia.

[8] It is worthy of note that under s 19 of the LPA only the institutional bodies ie, the Attorney General, the Bar Council and the Bar Committee who are regarded as 'objectors' and the appellant applicant have a right of appeal to the Federal Court on a decision of the High Court under s 18(1) of the LPA . It therefore follows that the adversaries on the appeal like Metramac and the interveners are not entitled to object or support the appellant's applications. They may express their views which the Court must have regard to (see s 18(3) of the LPA ) but the Court is not bound by their views.

[9] At the conclusion of the arguments of all the parties, we, on 15 June 2006, unanimously dismissed the appeal with costs. Here are our reasons.

Special Qualifications Or Experience

[10]Section 18(1) of the LPA reads:

Notwithstanding anything contained in this Act, the Court may, for the purpose of any one case and subject to the following subsections, admit to practise as an advocate and solicitor any person who if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practise as an advocate and solicitor under this subsection unless:

(a) for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and

(b) he has been instructed by an advocate and solicitor in Malaysia.

[11] The onus is on the ap