PACIFIC & ORIENT INSURANCE CO. BERHAD v 1. ) AMEERUDDIN ARULNATHAN BIN ABDULLAH 2. ) VIJAYAKUMAR A/L GNANAMANI

Case Significance

Turns on whether a mandatory-sounding “hendaklah” (“shall”) in the appeal-filing rules nullifies a late notice of appeal, or whether the court's discretion to extend time under Order 3 rule 5 preserves the substantive right of appeal.

This High Court matter arose from a road-accident insurance dispute in which the insurer, Pacific & Orient Insurance Co. Berhad, sought to pursue an appeal but had filed its notice of appeal outside the time prescribed by the Rules of Court 2012. The court was asked to decide a question of appellate procedure rather than the merits of the underlying claim: whether a notice of appeal filed out of time is a nullity, and, if it is irregular, whether the court retains the power to regularise the filing and extend time after the period has expired.

The court's own framing of the issues, taken from the headnote, was expressed in Bahasa Malaysia. It described the dispute as one of “rayuan” (appeal) turning on “pemfailan lewat” (late filing) and a “permohonan menjadikan pemfailan teratur” (an application to regularise the filing), and it centred on the interpretation of the word “hendaklah” (“shall”) in the rules — in particular whether that word creates a “peruntukan mandatori” (mandatory provision) so that non-compliance renders the appeal “tidak sah dan terbatal” (invalid and void).

The competing provisions were Order 55 rule 2 of the Kaedah-Kaedah Mahkamah 2012 (the Rules of Court 2012), which fixes the time for filing, and Order 3 rule 5, which confers on the court a discretion to extend time even after it has expired. The court weighed whether the delay was “fatal”, whether any “prejudis” (prejudice) to the respondent could be compensated by an award of costs, and how far “budi bicara kehakiman” (judicial discretion) should be exercised in the “kepentingan keadilan” (interests of justice). The tension at the heart of the case is a familiar one: whether a technical breach of procedure should be allowed to extinguish a party's substantive right to have its appeal heard. The judgment is a useful illustration of how Malaysian courts read a mandatory-sounding “shall” against the overriding discretion to extend time, and of the balance drawn between procedural rigour and access to appellate review. The individual respondents are referred to here by their procedural role only.