Petitioner Advocates:Honey Tan Lay Ean,Tay Kit Hoo ,Respondent Advocate: Harpal Singh Grewal,Dhanesh Subramaniam Nair,Sharanpreet Kaur Parmjit Singh

Key Points from the Judgment

Case Details and Citation
- Federal Court decision in Civil Appeal No: 02(i)-48-08-2023(N), decided on 09-02-2024. (!)

Questions of Law for Determination
- Whether petitions for judicial separation or divorce under the Law Reform (Marriage & Divorce) Act 1976 (Act 164) and Divorce and Matrimonial Proceedings Rules 1980 (DMPR) may be filed in English only. (!)
- Whether all other cause papers in such matrimonial proceedings may be filed in English only. (!)
- If answers to (i) or (ii) are negative, whether filing in English only is an irregularity curable by court directions to file in Bahasa Malaysia. (!)

Court's Answers to Questions
- First two questions answered affirmatively; third question unnecessary. (!)

Jurisdiction Despite Academic Nature
- Appeal proceeded despite respondent's argument of academic status due to withdrawal of judicial separation petition and joint divorce petition with decree nisi. (!)
- Courts may hear academic appeals on public law matters involving significant legal principles, especially to avoid confusion from lower court decisions. (!)
- Judicial notice taken of numerous pending and anticipated matrimonial proceedings affected by Court of Appeal decision via stare decisis. (!)
- Lack of uniformity in practice across High Courts (e.g., Kuala Lumpur/Penang accept English filings, Malacca rejects). (!)
- Implications extend to winding-up petitions under Companies (Winding-Up) Rules 1972, as Registrar's Circular applies there too. (!)
- Respondent's strike-out application dismissed. (!)

Factual Background
- Respondent filed ex parte application for interim custody on 7 January 2022; granted on 24 January 2022 but lapsed without service. (!)
- Respondent refiled similar application on 27 January 2022. (!)
- Appellant filed application on 24 March 2022 to set aside ex parte order, citing lack of urgency, non-disclosure, and rule non-compliance. (!)
- Appellant filed application on 18 April 2022 for interim guardianship, custody, care, control, and access; consent order recorded. (!)
- High Court dismissed appellant's set-aside application (encl 20) for failure to file National Language translation within ordered time. (!)

High Court Decision
- Dismissal based on O 92 rr 1(1) and (4) Rules of Court 2012 requiring translation, even in urgent cases within 2 weeks. (!)
- Registrar's Circular No 5 of 1990 not overriding; dismissal due to non-compliance after 3 months, not initial English filing. (!)
- Failure to translate is irregularity to be remedied. (!)
- Unavailability of DMPR translation irrelevant after 30+ years since s 8 National Language Act amendments. (!)

Court of Appeal Decision
- Registrar's Circular administrative, cannot prevail over O 92 r 1(1) Rules of 2012. (!)

Registrar's Circular No 5 of 1990
- Permits petitions and proceedings for divorce/matrimonial, bankruptcy, and company winding-up to be filed in English until relevant rules translated and gazetted. (!) (!) (!) (!)
- Remains valid; confirmed in Circular No 153/2019 for family law matters as DMPR untranslated. (!)

Legal Framework and Analysis
- Matrimonial proceedings governed by Act 164 and DMPR (made under s 108(1) Act 164); DMPR untranslated, English authoritative. (!) (!)
- Rules of High Court 1980/Rules of Court 2012 made under s 17 Courts of Judicature Act 1964, but do not apply to proceedings with specific rules. (!)
- National Language Acts 1963/67 s 8 permits English use in interests of justice. (!) (!)
- Practice Direction No 2 of 1990 facilitated s 8 amendments for urgent/pending proceedings. (!)
- O 92 r 1 Rules of 2012 applies only to documents under "these Rules" (Rules 2012). (!) (!)
- Rules 2012 expressly excluded from matrimonial proceedings by O 1 r 2(2) (generalia specialibus non derogant). (!) (!) (!)
- O 94 r 2 and Appendix C item 5 confirm Act 164/DMPR rules prevail over Rules 2012. (!) (!) (!)
- DMPR r 105 empowers Chief Justice directions for uniformity in matrimonial practice. (!)
- DMPR r 3 applies prior High Court Rules "subject to these Rules" and with modifications, but Rules 2012 self-exclude. (!) (!)
- Circular ensures uniformity and justice; litigants entitled to rely on it for English filings. (!) (!) (!)
- Non-compliance with translation frustrates Circular's purpose, denying access to justice. (!) (!)
- Applies to all cause papers in matrimonial proceedings, not just petitions. (!)

Outcome
- Appeal allowed; lower court decisions set aside. (!)