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Sorry, Out of Time!: Leave application for Judicial Review was dismissed due to inordinate delay in filing the application & Ignorance of the Law is Not an Acceptable Reason

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21 March 2023

“Court’s discretion to extend the time under Order 53 Rule 3(7) of the RoC 2012 must be exercised cautiously for “a good reason””

Teoh Alvare together with Loh Qiao Wen from Zul Rafique & Partners’ Employment and Industrial Relations Practice Group successfully represented Pertubuhan Peladang Kebangsaan (“the Respondent”) at the High Court in respect to the Respondent’s former employee’s (“the Applicant”) application for an extension of time and leave application for judicial review against his dismissal by the Respondent.

BRIEF FACTS
In Yuslie Bin Mohd Yusop v Pertubuhan Peladang Kebangsaan[1], by a letter dated 5.10.2018, the Respondent communicated its decision to dismissal the Applicant with effect from 5.10.2018.

The Applicant’s application for judicial review was only filed on 15.10.2021, which was 3 years (36 months) later after the Respondent’s decision was communicated to the Applicant.

According to Order 53 Rule 3(6) of the Rules of Court 2012 (“RoC”), an application for judicial review shall be made promptly and in any event within 3 months from the date when the grounds of application first arose or when the decision is first communicated to the Applicant.

As such, the Applicant filed an application for, inter alia, an extension of time to file his judicial review according to Order 3 Rule 5 and Order 53 Rule 3(7) of the RoC 2012 and leave application for judicial review. The reasons provided for the Applicant’s inordinate delay in filing his application for judicial review are as follows:
 
1. The Applicant first had filed an unfair dismissal case at the Industrial Court subsequent to his dismissal. However, the Applicant had withdrawn his case at the Industrial Court as the Industrial Court does not have the jurisdiction to hear his case since the Respondent is a government agency.
 
2. After the withdrawal, the Claimant assumed that he was unable to claim compensation for his alleged unfair dismissal from the Respondent.
 
3. The Applicant’s alleged financial difficulties to obtain advice and services of legal practitioners due to Covid-19 pandemic and his unemployment.

HIGH COURT’S DECISION
On 9.2.2023, the High Court held that the Applicant’s leave application for judicial review was made out of time and in contravention to Order 53 Rule 3(6) RoC 2012.

Wherein, the High Court held that Applicant’s following conduct or the reasons put forth by the Applicant for his inordinate delay are not good reason for the High Court to allow the extension of time to file leave application for judicial review:
 
(a) The Applicant’s own ignorance to the law that the Industrial Court was not the forum to hear his dismissal case. The Court held that:
 
“[21] The fact that the applicant had filed his claim against the respondent at the Industrial Court, which he subsequently found out not to be the correct forum as the respondent was a public body, in fact is ignorance on the part of the applicant. This ignorance of the law is no excuse. In short, this court cannot consider the fact that the applicant had filed his claim in the Industrial Court as a good reason for the delay in filing this judicial review application. 
 
[22] After the withdrawal of the claim at the Industrial Court, the applicant stated that he assumed he had no avenue to file his claim against the respondent. This too in the view of this court, demonstrated the applicant's lack of knowledge pertaining to the issues of filing his claim. As stated in the earlier paragraphs and the risk of repetition, ignorance of the law is no excuse. Moreover, this court is of the considered view there were other avenues available to the applicant. The applicant could, this court opines, have sought legal advice from the Legal Aid Department. Unfortunately, the applicant did not consider this avenue.” 
 
(b) Lack of financial capabilities; and
 
(c) The Covid-19 pandemic and the movement control order imposed by the Government. The High Court took cognisance that the movement control order was effective from 18.3.2020 until 3.5.2020. Subsequently, the restricted movement control order was in force from 4.5.2020 until 9.6.2020. Finally, the recovery phase of movement control order was implemented on 10.6.2020 until 312.2020. The application to file the judicial review was made on 15.10.2021. There is a period between the movement control order and the filing of the application for judicial review (i.e. 15.10.2021) which has not been explained to the Court.

Accordingly, the High Court dismissed the Applicant’s application for extension of time. Consequentially, the Applicant’s application seeking leave for judicial review was also dismissed.

KEY TAKEAWAY
An application for judicial review ought to be filed within the time limit prescribed by Order 53 Rule 3(6) of the RoC 2012, i.e., promptly and in any event within 3 months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. Further, the court’s discretion to extend the time under Order 53 Rule 3(7) of the RoC 2012 must be exercised cautiously for “a good reason”.

For more insight into this area of law, please contact our Partner in our Employment Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare
[1] [2023] MLRHU 247

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