Edgar Joseph Jr FCJ:

[1] This was a defendant's application for leave to appeal to this Court, following the refusal of the Court of Appeal to grant leave to apeal under s 68(1)(a), Courts of Judicature Act 1964 ('the Act') from the decision of the High Court, Ipoh, given in favour of the plaintiffs in a running down case where the decretal sum amounted to less than RM250,000.

[2] At the outset, Counsel for the respondents raised the preliminary objection that no appeal lay to this Court from such a refusal of the Court of Appeal.

[4] However, by s 68(1)(a) of the Act, a fetter is imposed on the right to bring such appeals where the value of the subject matter is less than RM250,000 for it provides that:

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.

[5] So far as the Federal Court, which is the ultimate Court of appeal, is concerned, in respect of appeals to it from the Court of Appeal in civil matters, its appellate jurisdiction flows from s 96 of the Act which provides:

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Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court granted in accordance with s 97

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction; and

(b) from any decision as to the effect of any provision of the constitution including the validity of any written law relating to any such provision.

[8] It follows that the answer to the question of law posed above, having regard to the circumstances of the present case, depended upon whether the refusal of leave by the Court of Appeal was a judgment or order within the meaning of s 96(a) of the Act. At the conclusion of the arguments, my view was that it was not.

[9] I was fortified in my conclusion by a number of English authorities to which I shall now refer.

may, upon obtaining the leave of the High Court, which leave may be granted by such Court, or any Judge thereof at chambers, in a summary manner, and upon being satisfied that a failure of justice will take place if the leave is not granted, submit the question of the proper amount of compensation to a jury.

[11] A perusal of the judgments in ex parte Stevenson shows that the Judge in Chambers had refused leave to appeal, and the Divisional Court had held that no appeal lay to it from his decision. The matter was then taken on further appeal to the Court of Appeal which comprised Lord Esher MR, Fry and Lopes LJJ.

[12] The following extracts from the judgments of their Lordships are particularly helpful and so I reproduce them.

[13] Lord Esher MR said this (at pp 610, 611):

It is clear that, in effect, the provision is that the party dis