JUDGMENT

Zaki Tun Azmi CJ:

[1] By this motion, the applicant, relying on r. 137[1] of the Rules of the Federal Court 1995, sought to move the court for an order to set aside its decision of 11 September 2009 and to order a re-hearing of the appeal. Two grounds were canvassed before us. First, it was alleged that there was a breach of natural justice as the parties were not heard on the essential points of decision and secondly, it was regarding the lack of jurisdiction of that panel of the Federal Court to de facto overrule the earlier decision of the leave panel of the Federal Court to grant leave on those questions.

[2] According to the applicant, on the first issue, the decision arrived at by the Federal Court in the appeal was not even argued before the court. Hence, it is a breach of the Audi Altera Partem as the very point that the court considered was thought of by the court itself. In any case if the court were to decide that there is a new issue, the proper procedure would be to invite the parties to address the issue in writing or by relisting the case for hearing on such points.[2]

[3] As for the second issue, it was argued that the court did not have the jurisdiction to review the suitability of the questions framed and already approved by the leave panel. By doing so, it was seen to overrule the decision of the leave panel.

[4] The respondent disagreed by submitting that the grounds of judgment of the Federal Court in hearing of the appeal proper was sound and should not be disturbed. As such, this application should be dismissed with costs.

[5] Our duty at this stage is to identify whether this application meets the threshold of r. 137 of the Rules of the Federal Court 1995. In so doing, we would have to rely on the circumstances under which r. 137 of the Rules of the Federal Court 1995 is allowed.

[6] Such circumstances are well established. In Asean Security Paper Mills Sdn Bhd v. Mitsui Sumitomo Insurance (Malaysia) Bhd[3], Abdul Hamid Mohamed FCJ (as he then was) said at para 14:

That leads us to the instant application. What is this applicant seeking to do? It is simply to ask this court to exercise its review jurisdiction to set aside the decision of this court overturning the finding of facts made by the Court of Appeal and reinstating the decision of the trial judge on the facts. That is clearly outside the scope of the review jurisdiction of this court. To allow the application is to invite all the vices that this court has been repeatedly warning against ie, there will be no finality in its judgment and, it will encourage judge-shopping.

[7] In short, there must be a finality to a decision when the matter is brought to Court. I said in Asean Security Paper Mills Sdn Bhd at para 45:

There must be a finality to deciding any dispute. It cannot be reviewed ad infinitum. It must end somewhere and in our system, it is the Federal Court. If there is any intention that r. 137 be read as conferring appellate jurisdiction, this court cannot also sit as an appellate court to hear appeals from itself. (See art. 128 of the Federal Constitution and the decisions of the Federal Court in the cases of Abdul Ghaffar Md Amin v. Ibrahim Yusoff & Anor [2008] 5 CLJ 1 and Sia Cheng Soon & Anor v. Tengku Ismail Tengku Ibrahim [2008] 5 CLJ 201.

[8] I have also cited Lord Wilberforce's view regarding review in the House of Lord's decision in Fitzleet Estates LTD v. Cherry (Inspector of Taxes)[4] which was referred to in Denish Madhavan v. Public Prosecutor (Rayuan Jenayah No. 05-72-2005) which is yet to be reported. There I said the following:

[10] In Fitzleet Estates LTD v. Cherry (Inspector of Taxes), Lord Wilberforce said the following regarding review of House of Lord's decisions:

My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has b