Reviewing the Jurisdiction to Review

Federal Court clarifies scope of the jurisdiction to review its own decisions (yet again).



In the recent case of Dato’ See Teow Chuan & 13 Ors v Ooi Woon Chee & 2 Ors (Civil Application No.: 02-11-2011(W), 22 May 2013), which is arguably better known as the ‘judicial plagiarism’ case (as to which, a more light-hearted commentary can be found here), the Federal Court took the opportunity to clarify (once again) the scope of rule 137 of the Rules of the Federal Court 1995 and the court’s inherent jurisdiction to review its own decisions.
As is common knowledge, the Federal Court is the final court of appeal in Malaysia. Its judicial function is to determine questions of law of public importance which is vital towards a coherent development of Malaysian law. Finality in litigation dictates that, to borrow with modification the words of the late Lord Rodger of Earlsferry, Foederati Atrium locutum: iudicium finitum
However, even the apex court must necessarily possess an inherent jurisdiction to review its own decisions in appropriate circumstances to prevent a miscarriage of justice or an abuse of process. Rule 137, which was meant merely to be declaratory of this inherent jurisdiction, thus provides:-
Inherent powers of the Court.
For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
The language of the rule is clear and simple enough. But the application of the rule in practice has been controversial and has led to a disproportionate amount of judicial time (and more importantly, costs to litigants) being wasted on, as will be seen later, a somewhat meaningless exercise of identifying the supposed boundaries of the rule. 
The problem stems from the fact that unsuccessful litigants before the Federal Court have, no doubt with the benefit of legal advice, come to view the rule as offering them a second bite at the cherry. The ingenuity of lawyers is such that there is no real difficulty in finding fault with the reasoning or some other aspect of the Federal Court’s decision in any given case, regardless of merits, and to cast such complaints in legal terms which suggest that a substantial miscarriage of justice has occurred. 
As a result, the Federal Court has been inundated with applications made pursuant to rule 137 to review its earlier decisions. Guidelines have been given, repeated, clarified and even contradicted by the Federal Court on numerous occasions (reference is made to these cases in the judgment of the Chief Justice in Dato’ See Teow Chuan), which in practice did little or nothing to deter litigants. In Amalan Tepat Sdn Bhd v Panflex Sdn Bhd [2012] 3 AMR 1, the Federal Court, in a decision which no doubt betrayed the animosity of that particular coram towards such applications and the extreme measures which they felt were necessary to stem the tide of hopeless applications, declared that the Federal Court had no power to review its own decisions, contrary to its earlier decisions which held otherwise.
In Dato’ See Teow Chuan, the Court observed that:-
There are conflicting decisions of this Court on the issue whether  this Court has the power, be it inherent or as conferred by r.137, to review its own decision. It is hoped that this case will put that issue to rest for good …” (at para [4]).
After reviewing the authorities, the Court then held that:-
“… [T]he inherent power of the Court to review its decision as declared in r.137 is a necessary power which is inbuilt or intrinsic in the court, as the court of justice. This power may be equated to the powers of the courts to dismiss an action for want of prosecution or to the power of court to strike out any pleading or indorsement of any writ in the action under the Rules of Court 2012. This inherent power is derived from the inherent jurisdiction of the court which is to do justice and to prevent any abuse of process. This power springs not from legislation but from the nature and constitution of the court as a dispenser of justice. And this inherent power can only be taken away by express provision in any written law.” (at para [10]).
The Federal Court then concluded that although the list of circumstances in which the court may exercise its inherent jurisdiction to review was not exhaustive, this jurisdiction would only be exercised in exceptional circumstances, the recognised circumstances thus far being bias, fraud or procedural unfairness.   
It is not easy to be optimistic about the extent to which this latest Federal Court judgment on rule 137 is capable of discouraging future applications. In a way, no amount of judicial refinement or clarification of the scope of this rule or its inherent jurisdiction will have much practical utility. It is submitted that the problem that needs to be addressed is not the scope or limits of rule 137 and the Court’s inherent jurisdiction. Rather, the real problems are as follows:-
  1. Lack of public confidence in the judiciary – Unless there is a general perception that litigants will receive a fair hearing, that they can be satisfied with the reasons given by the court for ruling against them, and the grounds of judgment delivered by the court (especially the apex court) are of a high quality, it is likely that unsuccessful litigants will continue to feel aggrieved and feel compelled to lodge applications for review; and 
  2. Lack of proper legal advice – The unsuccessful litigant’s legal advisers must be able to objectively assess the grounds of judgment given by the court and to advise a litigant against applying for review if such application is clearly without merit and hopeless. Unfortunately, in practice there is little or no incentive for lawyers to do so, since a “nothing to lose” mentality and prolonged court battle can only mean more legal fees. Once upon a time lawyers would, as a matter of integrity and professional ethic, discharge themselves if their clients persisted on pursuing a particular course of conduct despite (or in spite of) their advice. Those days are long gone.

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