[1].  Which court must determine what the test is?

It should be the Court of Appeal.¹ See ss. 67 and 68 of the Courts of Judicature Act 1964. See also the Federal Court decision in Lam Kong Company Ltd v. Thong Guan Co Pte Ltd [2000] 1 MLJ 129

[2].  Has the Court of Appeal decided what the test should be for the Leave under sec. 68(1) CJA?

The answer is, ‘No’.

[3].  The Nahar Singh test based on the two English cases of Gilchrist, and Buckle

Two cases are relevant: but they are diametrically opposed to each other. The first is an old High Court case: Pang Hon Chin  v. Nahar Singh.²[1986] 2 MLJ  145  There, the Defendant applied for leave to appeal under sec 68(1)(a).

The applicant did not realise that he was out of time. When the judge brought it to his attention, he abandoned this leave application. A ‘leave application’ means permission to appeal.

But the judge, Edgar Joseph Jr J, then took it upon himself to make ‘one or two general observations regarding applications for leave under section 68(1)(a).’³ibid., p.146 B, Left

This meant what the judge said was not ratio decidendi but obiter dicta.

It is in the course of his judgement the judge prescribes a three-limb test:

First, he says, an applicant must ‘demonstrate a prima facie case of error’.⁴He cites a reference: [(1907) 123 L.T. Jo 202] for that proposition.

To that, he adds an alternative second and third limbs.

The second limb, he says, requires ‘a question ‘general principle decided for the first time’.

The third ruled by Edgar J, requires, ‘a question of importance upon which further argument and decision of the Federal Court would be to the public advantage’.

Let us deal with the first limb, in support of which the judge quotes the English Court of Appeal decision in Ex parte Gilchrist In Re Armstrong [1886] 17 QBD 521.⁵The journal cites 528 as relevant page

[4].  Can a married woman be made a bankrupt?

On examination, we find that the court in Gilchrist did not at all refer to any right to file a ‘leave application’ under a statute like the CJA.

The issue before Gilchrist was peculiar. It required the construction of the Bankruptcy Acts 1883 and 1869 and on sec 1(5) of the Married Women’s Property Act 1882.

In English common law, a married woman could not be declared a bankrupt. However, if she traded separately from her husband, she could be.

In Gilchrist, a married woman, traded in a business separate from that of her husband. She was adjudged a bankrupt. Meanwhile, her relative left her a life interest in a property.

After her death, the property was to be passed to her descendants.

She had a right to appoint a trustee under a deed, but had not done so.

Was it her right to appoint a trustee, ‘property’ under sec.1(5)? If it was, her rights passed to the official assignee. If not, it was open for her to transfer her rights by way of a deed. Distinguishing a power of appointment over property – and the property itself, the Court of Appeal ruled that a right of appointment was not hers.⁶ See Esher MR, at p. 526.

Therefore, that right could not pass into the bankrupt’s estate.

In Gilchrist, the Divisional Court had refused to grant permission to appeal. It was because the judges thought they were ‘not wrong’.  On appeal, Esher MR chides them, saying that the Divisional Court’s jurisdiction to grant or refuse leave was not dependent on such a view, because the question was one of law that had arisen for the first time.

It is in this context that Lord Esher MR – whom Edgar J quoted – was dealing with an appeal from the Divisional Court. What Esher MR in fact said was–and it was obiter dicta –

“I desire to add this. The Divisional Court refused an application for leave to appeal from their decision, but leave to appeal was given by this Court. The jurisdiction which the judges of the Divisional Court have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not, I venture to suggest, a sufficient reason for refusing leave to appeal when the question involved is one of principle and they have decided it for the first time. If that was carried to its legitimate conclusion, they ought to refuse leave to appeal in every case.⁷At pp. 157 and 158.

You will note that the Court of Appeal in Gilchrist did not decide that every application for leave required a ‘question of law that had arisen for the first time’.

So, Mr Justice Edgar Joseph Jr., with respect, misunderstood the point behind Gilchrist.

[5].  The law of cats, dogs and birds

Next, Edgar J relied on the entertaining case of Buckle v. Holmes [1926] 125.

Buckle was a bit of a ‘pigeon fancier’. He also kept poultry.

Holmes, who lives a few doors away from him, reared a cat. The cat killed Buckle’s 13 pigeons and two bantams.

Buckle sued Holmes.

Was Holmes, as the owner of the cat, liable for the acts of his cat which had strayed from Holme’s land into Buckle’s property?

The Court of Appeal held that an owner of an animal, e.g. a cat or a dog–was not liable; for he was not bound to keep the animal from straying.

What had it to do with sec. 68(1)?

Nothing, really.

Bankes LJ thought the court should grant leave to appeal, “not because we thought there was any real doubt about the law, but because the question was one of general importance and one upon which further argument and decision of this court would be to the public advantage.” ⁸p.127

[6].  The difficulty in accepting Justice Edgar’s view of the  Gilchrist and Buckle tests

There are serious and irreconcilable differences in the way Edgar J formulates the Nahar Singh test.

First, these tests, taken together – sound identical to the test in sec 96(a) of the CJA–which expressly sets out a two-limb test for leave to appeal to the Federal Court.  One wonders whether Edgar J was influenced by the very high test in sec. 96 of the CJA –we can only speculate.

Second, assuming Edgar Joseph Jr J fell back on these two limbs, which he used as alternatives, we can see straight away that the test is very high. These two limbs require detailed arguments – admittedly on questions law – and which will discuss the merits of an appeal.  If so, how can it be ‘prima facie’, which stands so much lower as a test?

Third, the words in sec.68(1)(a) say nothing about an applicant requiring to prove, ‘a prima facie case of error’, or ‘a question of law that had arisen for the first time’, or indeed, ‘a question of general importance upon which further argument and a decision of the court would be to the public advantage’.

Fourth, a poorer person with a lesser amount in judgement has to overcome a steep test, while those with a larger judgement sail through to an appeal without so much as ‘by your leave’ are allowed to. That cannot be a fair test.

Finally, to agree with Edgar J’s conclusion would be to read into sec. 68(1) three high hurdles that even Parliament did not impose.

[7].  The latest test is in Country Garden Danga Bay Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2020] 4 CLJ 865

In 2020, the Court of Appeal formulated another test in Country Garden Danga Bay Sdn Bhd.

The Court of Appeal held that the leave process serves as a ‘filter against frivolous or unmeritorious proceeding’.

The relevant passage states:-

‘…(1)Section 68(1)(a) of the CJA states that no appeal shall be brought to the Court of Appeal (‘CA’) when the amount or value of the subject-matter of the claim (exclusive of interest) is less than RM250,000, except with the leave of the CA’.

‘Where appeals are filed without leave having been obtained, and where leave is required, the court has no jurisdiction to hear the appeal. The requirement for leave serves as a filter against frivolous or unmeritorious proceedings’. ⁹ Paragraphs 7 & 8

[8].  The heart of the Danga Bay test

Danga Bay departs from Edgar J’s test in Nahar Singh. Danga Bay substantially lowers the threshold of the test. It draws the line at any appeal that is not ‘frivolous’ or ‘unmeritorious’.

[9].  But the Danga Bay test itself is not free from doubt or error

First, these two words, ‘frivolous’ or ‘unmeritorious’, do not appear in the sec 68(1)(a) test.

Appeals involving a quanta valued at RM250,000.00, or more, pass through the Leave Threshold. The  ‘prima facie’ merits of their case are never tested. They require no ‘leave’, (no permission).  Yet, appeals whose claim quanta are lower than RM250,000.00 are tested even when such words as ‘prima facie’ standard do not appear in s.68(1)(a) at all.

One can hear the protest of some judges:

“If no test has been formulated, should we not structure our own?”

The answer is, of course, ‘Yes’.

But how high should the test be placed?

[10].  Do the words ‘frivolous’ and ‘unmeritorious’ mean the same thing?

The Court of Appeal in Danga Bay used the test by using two disjunctive adjectives: ‘frivolous’ or ‘unmeritorious’. The Court seemed to think that both these words had the same meaning. If we use these two words to illustrate the hurdle in a high jump, the court seemed to think ‘frivolous’ and ‘unmeritorious’ had the same height. So the applicant, in seeking permission to appeal, had to jump over a hurdle that had the same height.

Yet, in English, these two words have two different meanings: if you will, two different ‘heights’.

[11].  What does ‘non-frivolous’ mean?

‘Frivolous’, in plain language, means ‘trivial’. ‘Trivial’ means ‘time-wasting’.

In a range of meanings of the word, if you move a little to the left of the scale, it could mean ‘petty’.

If you move a little to the right of the scale, it could mean, ‘worthless’.

Do you want a familiar set of words? They are ‘obviously unsustainable’: and these were the words of Lindley LJ spoken 128 years ago in A.G. of Duchy of Lancaster v. London & North Western Railway [1892].¹⁰See  A.G. of Duchy of Lancaster v. London & North Western Railway [1892] 3 Ch. P. 277.

If you desire transpontine authority,¹¹It means, ‘Across the river’. This phrase is used to refer, in UK, the higest court in the land: at that time, the House of Lords. you need to look no further than the Federal Court which recently defined, ‘frivolous’, as

‘[giving rise] to no other inference than that that it is wholly indefensible or unsustainable’: ¹²See Tony Pua Kiam Wee v. Government of Malaysia & Anor Appeal [2020] 1 CLJ 337, at paragraph [39]

Fair enough: so that is a really low test.

[12].  Contrast all that with the meaning of ‘unmeritorious’

A ‘meritorious case’ means ‘a case that will succeed’.

An ‘unmeritorious’ case means, obviously, ‘a case that will not succeed’.

If you want an authority, you need to look no further than a recent Chancery Division case of Housemaker Services Ltd v. Cole and Another ¹³[2017] All ER (D) 51 (Apr), where the Chancery Division defined it as a case having ‘no real prospect of success’.

To determine that an appeal is ‘unmeritorious’ requires a full consideration of the merits of the case–which is as good as arguing the substantive appeal.

The word, ‘unmeritorious’, when applied, results in a far higher test–that is, far higher than ‘non-frivolous’.

If you contrast an ‘unmeritorious appeal’ with a ‘non-frivolous’ appeal, it stands to reason that a ‘non-frivolous’ appeal has a lower threshold than an ‘unmeritorious’ appeal.

 [13].  The proper test is therefore still left very much open…

I hope at some point the Court of Appeal requires this Court’s further consideration and determination.

[14].  What should be the test?

As a matter of practice, the Court of Appeal has always allowed leave in most sec 68(1)(a) applications: one supposes this is so as not to deprive an appellant of his right of appeal.

In my experience, the Court of Appeal has denied leave only in the most unusual circumstances – probably where the appeal was wholly unsustainable.

This is redolent of the O.18 r.19 RC 2012 test we see every day in the ‘striking out test’.  I think that should be the test.

The words, ‘unmeritorious’ or ‘non-frivolous’, should be, with respect, jettisoned, in favour of the well-worn phrase, ‘obviously unsustainable’. It is far better.

And if one weight the dicta of Harminder JCA who spoke for the Court of Appeal’s in Country Garden Danga Bay, the Court seems to point toward the O.18. r.19 RC 2012 test.

There our discussions must pause, until the Court of Appeal reformulates or refines its Danga Bay test.