Amendments to pleadings during trial are non-appealable as they do not finally resolve parties' rights under section 3 of the CJA.

[1] This is an appeal against the decision of the learned Judicial Commissioner in dismissing an appeal which arose from the decision of the learned Sessions Court Judge premised on a preliminary objection by the respondents and the third party that the matter before him was non-appealable. The Sessions Court Judge had dismissed the appellant's notice of application for leave to amend the statement of claim with costs of RM500.00.

[2] We heard the appeal on 11 March 2016 and reserved judgment to give due consideration to the submissions of the respective counsel. We have since done so and now give our decision together with our grounds.

Background Facts

[3] The appellant and the respondents were involved in an accident in which the appellant sued the respondents in the Sessions Court claiming for general and special damages for tort allegedly committed in a road accident.

[4] The trial of the aforesaid suit had commenced on 9 October 2014 and one witness had given evidence. The trial was not completed in one continuous session and subsequent dates were given by the trial judge for continuation of the trial. Before the date of commencement of the continuation of trial, the appellant filed a formal application to amend the writ and the statement of claim dated 6 June 2013 to include additional claim for 'cost of professional care'.

[5] The learned Sessions Court Judge dismissed the application for amendment resulting in an appeal to the High Court. At the High Court, the respondents and the third party raised a preliminary objection premised on the contention that the aforesaid decision of the learned Sessions Court Judge is not a decision within the definition of s 3 of the Courts of Judicature Act 1964 (CJA) and hence non-appealable.

[6] The learned High Court Judge sustained the preliminary objection and his reason is as follows:

"In the present case, it is obvious that the learned SCJ's decision was made in the course of a trial or hearing which does not have the effect of finally disposing the rights of the parties. As such, this decision does not constitute a "decision" for the purpose of s 3 of CJA and would render it to be non- appealable."

Our Grounds Of Decision

[7] Learned counsel for the appellant submitted that an application to amend pleadings is not caught under s 3 of the CJA as the Rules of 2012 allows for such application to be made at any stage of the proceedings including after trial and before the handing down of the decision. He also referred to numerous cases which had gone right up to the apex courts of the country which had dealt with applications of pleadings.

[8] The cases are referred to as follows:

(a) Court of Appeal's case: Raphael Pura v. Insas Bhd & Anor, 2001 MarsdenLR 1542 - an appeal from the decision of the High Court dismissing the appellant's application to amend his statement of claim.

(b) Federal Court's case: Raphael Pura v. Insas Bhd & Ors, [2003] 1 MLJ 513 - an appeal from the decision of the High Court dismissing the appellant's application to amend his statement of claim.

(c) Court of Appeal's case: HSBC Bank Malaysia Bhd v. Macquarie Technologies (Malaysia) Sdn Bhd & Another Appeal, [2004] 4 MLJ 398 - an appeal from the decision of the learned High Court Judge dismissing an application to amend the defence.

(d) Court of Appeal's case of JR Lincks College Of Higher Education v. Majlis Perbandaran Melaka, [2008] 3 MLJ 541 - an appeal by the appellant/plaintiff against the High Court's refusal to grant its application for leave to amend the name of the plaintiff in the writ o