Why Federal Court leave applications must be held with counsel

Can Federal Court leave applications be heard without counsel? The answer is “no”. Here are my reasons.

On March 26, the deputy registrar of the Federal Court had reportedly said that all
leave applications to the Federal Court will be heard without counsel being present. No
doubt the chief justice meant well, but the move fell prey to legal fatalities. What are
those?

Once a senior counsel, as he departed the Federal Court, threw a verbal squib at
colleagues saying: “These judges treat a leave application by focusing on the verb rather than the noun. They asked me to ‘leave’.”

His attempts to “move” a court had been met with a court that was, on that occasion,
unmoved.

“To move a court” means to “apply to the court”.

If what the chief registrar says is right, the Federal Court does not even wish to have
counsel “move the court”. This has caused considerable consternation at the Bar. Why?

Legal practitioners consider the Federal Court leave application as the most difficult area of litigation. It has many pitfalls.

What law is there to help us answer the question? One has to look at the sources of law that regulate the conduct of the Federal Court.

If the sources of law give that power to the court, then the judges may use the power. If
the sources do not, the judges cannot use their power. Do they have that power?

The several sources of law

These are several sources of law that grant jurisdiction and powers to judges.

1. The Federal Constitution.

2. Acts of Parliament, especially the Courts of Judicature Act 1964 (CJA). This is the primary act relating to the courts. If other written laws, acts or rules conflict with the CJA, the CJA takes precedence.

3. The Federal Court Rules 1995 (FCR) regulate Federal Court proceedings. They explain what the judges and the litigants can, or cannot, do. The FCR also includes forms. These are statutory precedents on how applications should be made. The courts have always considered the forms to be part and parcel of the FCR.

Let us deal with the first one.

First source: what does the constitution say?

Article 121(2) states that the Federal Court shall have jurisdiction to determine appeals in
accordance with the jurisdiction conferred to it “by federal law”.

Since the constitution says the Federal Court can act “in accordance with the jurisdiction
conferred to it by federal law”, we now turn to Acts of Parliament.

Second source: the Courts of Judicature Act

An important provision, 74(1), says “(Every) proceeding in the Federal Court shall be heard and disposed of” (by a panel of three judges, etc).

The phrase “heard and disposed of” implies that the judges themselves have a right to
pose questions to counsel before they decide. Hence, to dispose of a matter with mere written arguments serves only to stultify the development of the law in important cases.

Next, note the word “heard”; what does “heard” mean? You know the answer to that.

That is not the only place that the word “heard” occurs. One clause to Section 75(1) states “that the chief justice may … direct that any appeal be heard at any time and in any place in Malaysia”.

Several points are important in Section 75. Again the word “hear” appears in Section 75(1) which states that the chief justice may direct that “any appeal may be heard at any time and in any place in Malaysia”.

A well-established legal principle states that a court, to act with fairness, must “hear both
sides” (“audi alteram partem”). No legal maxim ever said, “Do not hear both sides at all”.

Both the provisions of Section 74 and 75 of the CJA have been breached. Thus, when the judiciary decided that leave applications could be “heard” in the absence of counsel, both the provisions of Section 74 and 75 have been breached.

But there is a further difficulty in Sections 96 and 97(3). The normal – and minimal – quorum of judges in a Federal Court is a panel of three judges (Section 74 CJA).

When leave applications are heard in the absence of counsel, why would judges enter
the court at all? it would be difficult to know whether the applications had been heard by
the usual quorum of three judges, or if in reality only one judge sat to make the decision,
for Section 97(3) allows a single judge to hear a leave application.

Third source: the rules of the Federal Court

The rules state how a leave application is to be filed – it is by filing a Notice of Motion.

The rules prescribe how a notice of motion should appear. Rule 98(1) of the FCR states: “All applications to the court shall unless otherwise provided be made by motion and shall be heard in open court.”

I trust that you did not miss the word “shall be heard”, and the next phrase, “in open court”. If counsel for the parties are absent, how is a motion to be heard, and why have an open court when neither counsel nor parties are present?

Why would not three judges, in their chambers, decide the fate of any leave application?

These applications are to be heard, as the law says, in open court.

Second, the rules require that “a Notice of Motion shall be substantially in Form 11” (Rule 98(2), which brings us to Form 11. It is Form 11 that is immediately relevant. Form 11 sets out how a notice of motion should look like.

What it says is illuminating: It says: “Take notice that on… the … day of… 19… at… o’clock in the forenoon or as soon thereafter as he can be heard Mr A … of counsel for the above-named… will move the court for an order (etc).”

First, you would have noted the word “heard”. Second, you would have seen that even the rules require that a particular named counsel, Mr A, is to “move the court for an order for leave”.

So that puts the entire question on a plain footing. The Federal Court cannot discard the presence of counsel.

Then, there is the Legal Profession Act 1976 – every advocate has a right of audience before the courts. The Legal Profession Act grants a mandatory right to every advocate and solicitor to appeal and place his client’s case in the best light before the Federal Court.

It says: “Any advocate and solicitor shall, subject to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia (Section 35(1)”.

As the Federal Court is bound to exercise its jurisdiction within the written law of the federation, it cannot dismiss this right out of hand.

The Federal Court represents the apex structure in the judicial system. It is not unreasonable to expect that judges who sit at the highest posts in the judiciary are the very best the nation has to offer.

They also need to be deeply learned in the law, particularly in constitutional law and the laws relating to the ever-present disputes of commerce, and therefore commercial law.

Our Federal Court judges need to be scholars of the law. Their knowledge is, or should be, second to none. Most of them are.

It is from commerce that a great many disputes arise – and these have to be resolved by the court ballads and plays that are written on it, one of which is a Shakespearean play, Merchant of Venice. There, Shakespeare relished in the many complications in the law and brought them to life.

The nation profits when the judges expound clear principles of law in commercial disputes, particularly upon litigants who demand a “pound of flesh”. The law is an organic, living thing – and leave applications lend it vitality. The law never stands still, it is in constant motion.

This is why leave applications – and counsel’s arguments on them – are crucial. A hearing of a leave application is a golden opportunity for the growth of the law.

It is the leave questions that give the Federal Court a golden opportunity to view the throbbing heart of the law. It is then that the judges can examine whether the law, or a legal vessel, is correctly placed, so as to increase the efficient and equitable trade of the nation.

The leave application affords the apex court an opportunity to inspect whether a “legal” ventricle, atrium, aorta or vena cava needs to be cleared of any blockage, so that the principles of the constitution flows through them, carrying within their corpuscles the spirit of the Rule of Law.

It is at that point that the Federal Court judges decide whether these disputes need to become the subject of further examination, study, and scholarship. How can all this be achieved without the assistance of highly specialised counsel? Especially when they are absent?

It has been said before that counsel appearing before the court has to be of the highest class. Not necessarily the oldest. So also, the judges who sit in judgment over exceedingly difficult questions of law should be the very best: they should be the Navy Seals that the Bench, the Bar, and the Attorney-General’s Chambers can provide.

Does one need to cite the Oxford Dictionary to discover what “hear” means? The reader knows what the word means. I think it is a word redolent of the human organ, the ear. I may be wrong, but what you think?

In conclusion, we saw that the relevant federal law, in Section 74 and 75 of the Courts of Judicature Act, expressly uses the word “hear”. The Federal Court Rules and Form 11, likewise, use the word “hear”. These provisions clearly stipulate that counsel must be present and heard during leave applications.

And there you have it.

GK Ganesan is an FMT reader.

The views expressed are those of the author and do not necessarily reflect those of FMT.