An appeal under subsection 97(4) of the Courts of Judicature Act requires applicants to provide compelling reasons to justify overturning a single Judge's decision, adding a layer of scrutiny to such motions.

JUDGMENT

Zaleha Yusof FCJ:

Brief Background Facts

[1] The respondents had filed a suit (suit 42) at the High Court against the applicants for, inter alia, breach of fiduciary duty and a permanent injunction. Before the Statement of Claim was served on the applicants, the respondents obtained an Anton Pillar Order and a Protective Order against the appellants. Both orders were granted ex parte by the High Court.

[2] The applicants' applications to set aside the said two Orders and to dismiss the suit for failure to serve the Statement of Claim were dismissed by the High Court. However, the High Court directed the respondents to serve the applicants with a redacted Statement of Claim which the respondents did on 21 October 2020.

[3] The applicants' appeal to the Court of Appeal against the said decision of the High Court was also dismissed on 25 February 2021.

[4] Aggrieved, the applicants filed a Notice of Motion dated 9 March 2021 (Motion of 9 March 2021) for leave to appeal to the Federal Court pursuant to subsection 96(a) of the Courts of Judicature Act 1964 (Act 91). The said motion of 9 March 2021 was heard on 22 July 2021 before a single Judge of this Court pursuant to subsection 97(3) of Act 91. The single Judge dismissed the said motion of 9 March 2021 after hearing the submissions of the parties.

[5] Now before us, the applicants filed this Notice of Motion in enclosure [47] pursuant to subsection 97(4) to discharge the order of the single Judge dated 22 July 2021.

[6] Enclosure [47] was fixed for hearing before us on 15 March 2022.

Issue

[7] Whether there is any burden imposed on an aggrieved party against whom the decision by a single Judge was made under subsection 97(3) of Act 91, to show justification before his application under subsection 97(4) of the same Act can be allowed.

Submissions Of Counsel

[8] Learned counsel for the respondents raised a preliminary objection that encl 47 must be dismissed in limine.

[9] Learned counsel for the respondents, Encik Razlan contended that an order for discharge means the applicants are relieved from obligations as contained in the Order. Hence, there must be a positive Order or an active obligation contained in the Order sought to be discharged. In this case, he argued, the applicants' application for leave to appeal was dismissed. Upon the dismissal, there are no obligations, sanctions or limitations placed upon the applications. Therefore, he argued, the Order of this Court dated 22 July 2021 was not capable of being discharged.

[10] He further submitted that the said phrase "affirm, vary and discharge" also appear in ss 44 and 80 of Act 91. As those sections deal with interim, preservation or stay order pending the hearing of a full appeal at the Court of Appeal or the Federal Court, subsection 97(4) also must be read to limit its application for instances where there remains a pending proceeding such as an appeal before the Federal Court.

[11] Further learned counsel for the respondents submitted, the appellants had failed to show what was wrong with the decision of the learned single Judge. Nothing in the affidavit of the applicants made averment that the learned single Judge was wrong in her decision and the reasons for saying so.

[12] He cited the cases of Terengganu Forest Products Sdn Bhd v. COSCO Container Lines Co Ltd & Anor & Other Applications, 2010 MarsdenLR 1546 and the case of The Iran Nabuvat [1990] 3 All ER 9 to support his argument that an order made by a single Judge should not be overturned unless there are very strong and compelling reasons to do so.

[13] For the applicants, learned counsel Dato Seri Gopal Sri Ram submitted the general rule is, that all proceedings in the Federal Court shall be heard before a panel of three judges as provided under subsection 74(1) of Act 91. However, by virtue of the non-obstante clause found in subsection 97(3) of Act 91, that provision of subsection 74(1) is overridden. Subsection 97(3) allows a single Judge to hear an application