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Case Update: Registrar does not have the power to make any order that would have the effect of disposing with finality an appeal from the Subordinate Court to the High Court

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29 October 2021

CIVIL PROCEDURE
Senior Assistant Registrar – Jurisdiction – Power – Appeal – Order – Subordinate Court –  Judge in Chambers – Effect of disposing with finality – Rules of Court 2012 – Subordinate Courts Act 1948 – Courts of Judicature Act 1964

Carsem (M) Sdn Bhd v Fatimah Binti Noordin
Civil Appeal No: AA – 12ANCVC-2-01/2021 | High Court
- see the grounds of judgment here

Facts After having their application for discovery and inspection of documents dismissed by the Sessions Court, solicitors for the Appellant, Carsem (M) Sdn Bhd (the ‘Appellant’) filed an appeal to the High Court. Solicitors for the Respondent, Fatimah Binti Noordin (the ‘Defendant’) subsequently filed an application to have the appeal struck out on the grounds that the notice of appeal and the record of appeal was filed out of time. A case management was conducted via e-Review before the learned Senior Assistant Registrar (‘SAR’) in which the SAR supposedly made an order disposing with finality the appeal being made. Solicitors for the Appellant argued that the appeal should not be disposed and that it was only fixed for case management while solicitors for the Defendant argued that the SAR cannot withdraw the decision and/or order that has been pronounced. The learned SAR then referred the matter to Judicial Commissioner Su Tiang Joo, hence this appeal.

Issue Whether the learned SAR has the jurisdiction and power to make an order which has the effect of disposing with finality an appeal from the Subordinate Court to a Judge in Chambers of the High Court?

Held In allowing the appeal, the learned Judicial Commissioner concluded that a Judge in Chambers for the purpose of Order 55 rule 5 (1) of the Rules of Court 2012 (‘ROC 2012’) includes a Registrar would result in absurdity because it would mean the learned Registrar’s alleged order of striking out the Appeal would be subjected to another appeal to yet another Judge in Chambers under Order 56 ROC 2012. The absurdity being that an appeal from the Subordinate Court to a Judge in Chambers can be heard by a Registrar and whose decision can be further appealed to another Judge in Chambers who would also include a Registrar. Further, the learned Judicial Commissioner pointed out that under the definition for Registrar in Order 1 rule 4 ROC 2012, it does not provide that it means a Judge. The underlying jurisprudence of the hierarchy of the judicial system was also a point raised by the learned Judicial Commissioner in concluding that it would not be in accord with such jurisprudence for the learned SAR to sit in appeal over the decision of a more senior judicial officer which in this case was a Sessions Court Judge. Taking the facts as a whole, the High Court decided that the learned SAR had merely articulated her thoughts and did not pronounce any decision and/or order and even if she had done so, it would be nullified and of no legal effect.

ZUL RAFIQUE & partners
{29 October 2021}

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