Back
2009 MarsdenLR 2468
FEDERAL COURT PUTRAJAYA
PERBADANAN KEMAJUAN KRAFTANGAN MALAYSIA – Appellant
Versus
DW MARGARET DAVID WILSON – Respondent
[Civil Appeal No: 02(I)-11-2009(W)]
The court held that statutory bodies may engage both authorized officers and private solicitors for legal representation, interpreting 'may' in Section 35 as directory, not restrictive.
Headnote:(A) Perbadanan Kemajuan Kraftangan Malaysia Act 1979 - Section 35 - Legal Profession Act 1976 - Article 145 of the Federal Constitution - Authority of Attorney General's officers to represent statutory bodies in civil proceedings - Section 35 permits Federal Counsel and authorized officers to conduct litigation on behalf of the Perbadanan. The court addresses whether this section restricts representation to these officers exclusively or allows engagement of private solicitors as well. (Paras 3, 9, 10, 24)
(B) Statutory Interpretation - The interpretation of 'may' in legislation - The term does not categorically exclude hiring private legal representation for corporations, providing these provisions must be interpreted harmoniously with the general law allowing legal representation. (Paras 29, 31)
Facts of the case:
The plaintiff, established under the PKKM Act, challenged the interpretation of Section 35 after the Court of Appeal ruled it could not appoint private solicitors, impacting its litigation capacity.
Findings of Court:
The court ruled that Section 35 is not prohibitive and allows for private solicitors alongside specified officers, affirming the plaintiff's standing in court.
Issues: The court examined whether the plaintiff can be represented by private solicitors or is restricted to Federal Counsel and authorized officers.
Ratio Decidendi: The court determined that the word 'may' in Section 35 is to be understood as directory, allowing flexibility for representation.
Result: Appeal allowed; order from the Court of Appeal set aside, and the High Court's order restored.
[1] I had the privilege of reading through the grounds of judgment of my learned sister Heliliah Mohd Yusof FCJ in draft. I agree with her reasoning and her conclusion. However I would like to add a further reasoning to support that judgment.
[2] I do not need to deal with the backgrounds and the facts again as they are well spelled out in her grounds.
[3] The impugned s 35 of the Perbadanan Kemajuan Kraftangan Malaysia Act 1979 ("PKKM Act") is worded in a way it is done to enable or empower an officer of the Attorney General ie, a Federal Counsel to represent the Perbadanan Kemajuan Kraftangan Malaysia ("the Perbadanan") in any litigation. Without such provision, the Attorney General or his officers would not have the authority to do so. The Attorney General derives his powers from art 145 of the Federal Constitution ("FC"). Article 145(2) provides that it is the duty of the Attorney General to, inter alia, discharge the functions conferred on him by any written law. It is pursuant to this power that s 35 of the PKKM Act was enacted.
[4] The Perbadanan is a body corporate and by its nature has to be represented by an individual person. Section 35 (1) of the Legal Profession Act 1976 permits an advocate and solicitor to appear on its behalf. However, the Legislators deem fit that a Federal Counsel authorized by the Attorney General should also be permitted to represent the Perbadanan in any civil proceedings by or against the Perbadanan. Hence, without the said s 35 of the PKKM Act, such an officer will not be able to do so.
[5] I therefore answer the question (i) in the negative and question (ii) in the affirmative. The appeal is therefore allowed with costs. Deposit to be refunded to the appellant. The order of the Court of Appeal is set aside and the order of the High Court is restored. This case is remitted to the High Court for the continuation of the proceedings.
[6] This appeal raises an issue of interpretation. We became seised of the appeal following this Court granting the appellant leave to appeal against the decision of the Court of Appeal leaning in favour of the respondent. The chronology of events as found in the judgment of that Court is the following and the appellant and respondent will be referred to as the plaintiff and defendant respectively.
[7] The plaintiff is a body corporate established under the Perbadanan Kemajuan Kraftangan Malaysia Act 1979 (PKKM Act 1979). On 4 March 2005 the plaintiff obtained a judgment against the defendant, being a tenant of the plaintiff, to deliver vacant possession of premises rented out by the plaintiff to the defendant. The defendant who was also injuncted from entering the premises filed an application to set aside the judgment and obtained an ex parte interim order for stay of execution. This prompted the plaintiff to file an application to set aside the ex parte order.
[8] In the course of the hearing of the aforesaid applications before the trial judge the defendant raised a preliminary objection pertaining to Messrs Zain & Co being engaged to represent the plaintiff on the basis that the Messrs Zain & Co lacked locus standi to act as solicitors for the plaintiff in view of s 35 of Act 1979. The objection which was overruled by the High Court was however sustained by the Court of Appeal. At the outset of the appeal proper before us a Senior Federal Counsel from the Attorney General's applied to act as an Intervener and which application we allowed.
[9] The appeal pivots on a question of law namely the interpretation to be given to s 35 of the PKKM Act 1979. As submitted before us the question that is required to be addressed is:
Section 35 states
35. Civil Proceedings
Notwithstanding the provisions of any other written law:
(a) any person holding the appointment of Federal Counsel and authorised by the Attorney General for the purpose; or
(b) any officer of the Perbadanan authorised by the Chairman or Deputy Chairman of the Perbadanan for
