1. ) SITI NURSHAFIKAH BINTI ZULKIFLI 2. ) MUHAMMAD AL-RASYIDIN BIN MAT ANAFI v 1. ) MOHAMAD AZRUL BIN MOHD LOKMAN 2. ) HERN YI ANG ENTERPRISE

Case Significance

Confirms that, following the amendment to section 28(1)(c) of the Courts of Judicature Act 1964 which applies retrospectively, no appeal lies from a subordinate court's dismissal of an application to strike out a writ or pleading.

This High Court decision at Johor Bahru concerns the competence of an appeal against the refusal of a striking-out application, and turns on the effect of an amendment to section 28 of the Courts of Judicature Act 1964. The appellants had been the second and third defendants, and third parties, in a Sessions Court action arising from a motor-accident claim. They had applied under Order 18 rule 19 of the Rules of Court 2012 to strike out the third-party proceedings brought against them, the third-party notices having been issued pursuant to leave granted earlier and not set aside. The Sessions Court dismissed their striking-out application, and they appealed to the High Court. The preliminary and decisive question was whether the appeal was competent at all, given that section 28(1)(c) of the Courts of Judicature Act 1964, as amended, limits the right to appeal from a subordinate court to the High Court where the subordinate court has dismissed an application to strike out a writ or pleading (among other listed refusals). The court examined the legislative purpose reflected in the explanatory statement to the amending Act, which was to restrict appeals from interlocutory decisions that do not prejudice the parties' rights, and held that the amendment applied retrospectively. Applying the principle that a right of appeal is not substantive unless conferred by written law, drawing on authorities including Wan Sagar Wan Embong v Harun Taib, the court held that the appeal against the dismissal of the striking-out application was barred by section 28(1)(c). It concluded that the appeal was incompetent in limine and dismissed it with costs of RM7,000. The judgment is a useful statement that no appeal lies from a subordinate court's refusal to strike out a pleading following the amendment to section 28. The decision confirms that the retrospective operation of the amended provision forecloses appeals that would previously have been available against an interlocutory refusal to strike out, reinforcing the finality of such decisions at the subordinate-court level.