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Court orders fresh hearing

Thursday, 19 January 2012 09:22am

©The New Straits Times (Used by permission)
by V. ANBALAGAN

At one juncture, only two of the three-man bench were sitting, says Federal Court judge

THE Federal Court, in a rare decision, ordered a fresh hearing of a leave application due to "quorum failure" by an earlier bench.

This was because the chairman of the three-man Federal Court bench which heard the application two years ago left his seat briefly while proceedings were in progress.

Federal Court judge Tan Sri Raus Sharif, who led a three-man panel yesterday, said there was a period where the leave applications were heard only by two judges.

"It was a clear violation of section 74 of the Courts of Judicature Act 1964.

"There has been a quorum failure," he said in his judgment, allowing a review application (under rule 137 of the Federal Court Rules) by law-yer Gurbachan Singh and his legal firm, Messrs Bachan and Kartar.

Others whose applications were allowed were Regal Establishment Sdn Bhd, Simpang Empat Plantations Sdn Bhd and MBf Finance Bhd.

The section states that a minimum of three Federal Court judges should be on the bench to hear and decide matters.

Raus said based on affidavit evidence, it could be safely held that the chairman of the three-man panel left the bench for a period of time be-fore returning to court.

He said the chairman, together with the other two members, continued to hear arguments before the matter was adjourned for decision.

"When the decision was delivered, it was a decision of a three-man panel," he said, setting aside the decision of the previous Federal Court bench which refused to grant leave to appeal to four applicants.

He said leave application to appeal against a Court of Appeal ruling would be reheard by a newly constituted panel of the Federal Court.

Gurbachan and three others had filed separate leave applications following the majority ruling by the Court of Appeal which held in favour of 217 purchasers of land plots in Simpang Empat Plantations in Teluk Intan.

Raus, who is also Court of Appeal president, in his judgment, said the court had been strict in invoking its inherent powers to review its own decision.

Gurbachan, in his application, cited a quorum failure, breach of natural justice and miscarriage of justice as grounds in his review application.

Raus said since the court was satisfied there was quorum failure, it found it unnecessary to consider other arguments.

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