The transfer of case proceedings applies only between different High Courts, not divisions within the same court as per Item 12 of the Courts of Judicature Act 1964.

Appeal

[1] This appeal by the Kelantan State Government ("the plaintiff") challenges the decision of the learned judge of the High Court in dismissing the plaintiff's application which sought an order to re-transfer the plaintiff's action from the Civil Division of the Kuala Lumpur High Court to the Commercial Division of the same Court ("the re-transfer application").

Factual Background

[2] On 30 August 2010, a writ of summons together with the statement of claim was filed on behalf of the plaintiff in the Kuala Lumpur High Court. It was registered in the Commercial Division as Suit No. D-22NCC-1663-2010.

[3] The defendant, Petroliam Nasional Berhad ("Petronas"), then filed its defence. This was followed by the plaintiff's reply thereto. Thereafter, pleadings were closed.

[4] On 16 November 2010, the Government of Malaysia filed an application for leave to intervene and to be joined as second defendant in the High Court action ("the joinder application").

[5] The joinder application was fixed for hearing on 24 January 2011 before a judge in the New Commercial Court 5 (NCC5) of the commercial division.

[6] On 18 January 2011, during case management before the registrar, parties were notified that the managing judge had, pursuant to Practice Direction No. 1 of 2008 ("the PD"), transferred the action from the commercial division to the civil division of the same Court. This was confirmed by a letter dated 19 January 2011 from the deputy registrar of the commercial division to the deputy registrar of the civil division. Consequently, the hearing date ie, 24 January 2011 for the joinder application was vacated.

[7] On 25 January 2011, the Court notified the plaintiff's solicitors that the new number of the action is S-21NCvC-21-2011, and case management was fixed for 24 February 2011 at the New Civil Court 3 ("NCvC 3") of the civil division.

[8] Subsequently, the plaintiff filed the re-transfer application, which was dismissed by the learned judge of the civil division. Hence this appeal by the plaintiff.

Dismissal Of The Re-transfer Application

[9] Plaintiff's learned counsel Mr Tommy Thomas (assisted by Ms Nur Ashikin bt Abdul Rahim) relied on Item 12 in the Schedule to the Courts of Judicature Act 1964 to attribute an error to the learned judge of the High Court in dismissing the re-transfer application when:

(1) None of the parties in the High Court action had ever applied for its transfer from the commercial division to the civil division, and the transfer by the managing judge was not made judicially by way of normal hearing of arguments; and

(2) Although Petronas has not filed any affidavit in reply to the plaintiff's re-transfer application, the learned judge still proceeded to dismiss it.

[10] Learned counsel Tan Sri Dato' Cecil Abraham (Mr Rishwant Singh with him) took a neutral stand for Petronas.

[11] We identified the question for our decision as follows:

Upon a true construction of Item 12 in the Schedule to the Courts of Judicature Act 1964 ("Item 12"), and in view of Practice Direction No. 1 of 2008 ("the PD"), was the learned judge of the High Court correct in dismissing the plaintiff's re-transfer application?

[12]Item 12 merits reproduction as follows:

12. Transfer of Proceedings

Power to transfer any proceedings to any other Court or to or from any subordinate Court, and in the case of transfer to or from a subordinate Court to give any directions as to the further conduct thereof:

Provided that this power shall be exercised in such manner as may be prescribed by any rules of Court.

(Emphasis added)

[13] We are of the view that Item 12 is clear and unambiguous. The power conferred thereunder concerns the transfer of any proceedings to any other "Court". The meaning of