Haidar Mohd Noor FCJ:

The issue before this court is in relation to a contempt of court not for breach of a particular order of court but for conduct of interfering with the due administration of justice or the course of justice by disposing the subject matter of a pending proceeding for mareva injunction.

The learned judge found on the facts that no contempt of court was committed and hence dismissed the application. The Court of Appeal found otherwise on the facts and ruled there was contempt of court and set aside the order of the learned judge. It remitted the case to the High Court for sentence. At first blush it would appear to be essentially a question of facts in which leave should not have been granted in this appeal as s. 96(a) of the Courts of Judicature Act 1964, has not been satisfied. That in fact was the stand taken by counsel for Jasa Keramat Sdn. Bhd. in opposing the leave application of Monatech (M) Sdn. Bhd. to this court.

We will first consider whether that is the correct position.

In this judgment we will refer the parties according to their positions in the High Court, that is, the appellant as 'the defendant' and the respondent as 'the plaintiff' and the three persons namely, the appellant's directors Khor Kok Boon and Mohd. Dzolkefli bin Jaafar Sedik and the appellant's general manager, Khor Kok Thye as the 'contemnors'.

When this court granted leave to appeal to the defendant on 8 January 2002, the question framed at p. 11 of the Appeal Record Volume 1 reads:

Whether a Defendant against whom an application for a Mareva injunction is pending in Court, is free to dispose of his assets until the moment, when the Mareva injunction is granted against him.

In the course of hearing the appeal, we pointed out to counsel for the defendant that we do not think the question as framed permits of any answer other than "It all depends", which is not very helpful. However, all concerned know that the real issue is whether in the circumstances of this case, the contemnors could be guilty of contempt of court and the question can, if necessary, be rephrased to raise that issue. (A-G v. Newspaper Publishing Plc. [1987] 3 All ER 276 at p. 290); Ismail v. Polish Ocean Lines[1976] 1 All ER 902, [1976] QB 893).

Counsel for the defendant attempted to seek leave of this court to amend the motion viva voce. Counsel for the plaintiff objected. We ordered the defendant to file a motion to seek leave of this court to amend or rephrase the original question.

Solicitors for the defendant accordingly filed a motion on 30 April 2002 to seek leave of this court to put in a consequential question framed as question (2). A copy of the motion was served on the solicitors for the plaintiff. The motion is supported by the affidavit of Mr. Sithambaram, counsel for the defendant, together with, inter alia, a copy of the original motion filed earlier on (marked as exh. "VS1") and the memorandum of appeal (marked as exh. "VS4").

The plaintiff's counsel put in an outline submission objecting to the defendant's motion.

After hearing counsel for both parties, we allowed the motion and ordered costs to follow the event of the appeal.

We allowed the motion by virtue of the discretionary power vested in this court under r. 57(2) of the Federal Court Rules 1995which provides the important concession to the appellant (defendant) by providing that 'the appellant shall not at the hearing without leave of the court put forward any other ground of objection ...'. This court had the occasion to consider r. 57(2)read with rr. 47(4)and 57(1)in YB Menteri Sumber Manusia v. Association of Bank Officers[1999] 2 CLJ 471, (distinguishing the Federal Court case of Sababumi (Sandakan) Sdn. Bhd. v. Datuk Yap Pak Leong[1998] 3 CLJ 503) wherein Edgar Joseph Jr, FCJ, speaking for the court said at p. 487:

Clearly, therefore, having regard to these provisions, the Federal Court has the powerand therefore the discretionto permit an appellant to argue a ground wh