UNIGAYA PROTECTIONS SYSTEMS SDN BHD v MOHD AZIZOL BIN ISMAIL

Case Significance

Illustrates the factors governing an application for an extension of time to appeal, the length of and reason for the delay, the merits and the prejudice to the other party, and the point that even a short but unexplained delay may be refused where it prejudices the party holding a favourable decision.

This High Court decision at Shah Alam concerns an application by an employer for an extension of time to file an appeal against a decision of the Director General of Labour. The Director General had, after a hearing at which the respondent was heard, allowed the respondent's claim and ordered the employer to pay RM7,819.53 for a balance of salary and salary in lieu of notice. The employer filed its notice of appeal four days out of time and sought an extension of time to regularise it, explaining that it had appointed solicitors shortly before the deadline and that its solicitors had been confused about where the notice of appeal was to be filed, causing the late filing. The court refused the extension. It weighed the length of the delay, the reason for it, the merits of the intended appeal and the prejudice to the other side. While four days was not an extreme delay, the court held that the delay nonetheless affected the respondent's right to the benefit of a judgment in the respondent's favour and would further delay the hearing of the appeal. It observed that there was no requirement that a notice of appeal be filed through a solicitor, so the employer had had ample time to file the notice itself and to appoint solicitors afterwards if needed, and that it could not assess the merits of the intended appeal because no appeal record had been filed. Finding the employer's other explanations also unreasonable, the court dismissed the application. The court's approach shows that the discretion to extend time is not exercised as of course, and that an applicant who cannot give a convincing reason for the delay, or demonstrate the merit of the intended appeal, cannot expect indulgence merely because the delay was brief. The judgment is a useful illustration of the factors governing an application for an extension of time to appeal and of the point that even a short, unexplained delay may be refused where it prejudices the other party.