On 1 October 2022, the Courts of Judicature (Amendment) Act 2022 came into force. One salient amendment to the Courts of Judicature Act 1964 (“CJA”) was the amendment to section 68(1) CJA. This amendment resulted in the insertion of additional categories of matters for which no appeal shall be brought to the Court of Appeal.
 
One such category of non-appealable matters was the right to appeal against any dismissal of an application to strike out any writ or pleading under the new paragraph (f) of section 68(1) CJA. With this amendment, it was widely believed that the door has firmly shut on any appeals being brought against the dismissal of a striking-out application. Failure to convince the Judge at first instance would, it was thought, inevitably result in trial proceedings.
 
On 9 September 2025, the door swung ajar. This was in light of the Federal Court’s decisions in MT Ventures Sdn Bhd & Another v QM Print Sdn Bhd (Civil Appeal No. 02(i)-6-03/2024(W)) and Azinal Sdn Bhd v Jannath Gani & 2 Others (Civil Appeal No. 02(i)-17-06/2024(W)), which were both heard together.
 
The primary issue in these appeals was whether the Appellants still had a right to appeal the dismissals of their respective applications to strike out pleadings notwithstanding the insertion of section 68(1)(f) CJA.
 
In considering this issue, the Federal Court framed the question as one on whether section 68(1)(f) CJA is to be read literally and in a grammarian fashion, or to be construed holistically and purposively in line with the object and purpose of the entirety of the CJA in relation to civil appeals.
 
At the outset, the Federal Court accepted that a literal reading of section 68(1)(f) CJA would result in the wide-held belief that all decisions of the High Court dismissing a striking-out application would be unappealable. However, the Federal Court found that the purposive interpretation approach, in line with section 17A of the Interpretation Acts 1948 and 1967, would give rise to a different construction, and was the manner of interpretation to be preferred.
 
In giving a purposive interpretation to section 68(1)(f) CJA, the Federal Court first examined the Federal Court’s decisions of Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 and Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1. The Federal Court noted that the panel of Judges hearing both matters had read section 67 CJA harmoniously with section 3 CJA to limit the general right of appeal only to judgments and orders, and excluded rulings made in the course of trial which did not finally dispose of the rights of parties from being challenged on a stand-alone appeal.
 
Flowing from this, the Federal Court went on to hold that an interpretation of the now amended section 68 CJA would also require a harmonious reading with sections 3 and 67 CJA. In reading the provision in such a manner, the Federal Court drew a distinction between applications which were dismissed because further oral evidence is required to determine the same, in contrast with matters which can be dealt with on a preliminary point.
 
The Federal Court, in an unexpected twist, held  that  parties are entitled to a right to appeal where a ruling on a striking-out application would conclusively determine the rights of a party without oral evidence being required. In reaching this conclusion, the Federal Court held that the effect of section 68(1)(f) CJA was only to bar appeals against dismissal of applications where no rights have finally been disposed of and further oral evidence was required. In elaborating on the types of matters that would fall within the former category, the Federal Court gave the following examples of preliminary points of law that could finally determine parties’ rights in a striking-out application without requiring a trial/further evidence: 

In outlining these examples, the Federal Court opined that a literal reading of section 68(1)(f) CJA would mean that parties will have to go through unnecessary expense, cost and time of the trial if a striking-out application founded on such matters was dismissed, given the need for oral evidence to be taken on matters which could be dealt with preliminarily. This would then defeat the purpose of the amendment to section 68 CJA, which is to expedite the clearing of cases.
 
In conclusion, the Federal Court highlighted that when read in a harmonious manner with sections 67 and 3 of the CJA to give effect to the purpose of the amendment, the barrier enacted by section 68(1)(f) CJA would only apply in cases where the High Court determines that further oral evidence is needed to arrive at a decision which finally disposes of the parties’ rights. However, where the striking out is targeted at a specific point of law which has the capacity to determine the entire case finally, the right of appeal accrues and parties may take a second bite at the cherry.
 
In reaching this conclusion, the Federal Court recognised that this interpretation may suggest that the amendment to insert section 68(1)(f) CJA was an act of Parliament in vain as it was already the established legal position under Kempadang Bersatu and Asia Pacific Higher Learning Sdn Bhd that there was no right of appeal against matters that did not finally dispose of the rights of parties. In allaying such concerns, the Federal Court held that the amendment was made due to the practical, not the legal, uncertainty of the position pre-amendment. Therefore the amendment had a purpose - to clarify the entrenched position in law that generally no appeals are available where no rights of the parties would be finally disposed of. Therefore, where the rights of the parties remain and determination is merely deferred to the conclusion of the trial, there is no right of appeal.
 
The ultimate result of the Federal Court’s decision is that parties would now have to examine whether the dismissal of a striking out application by the High Court was due to a need for further oral evidence, or because of a perceived erroneous decision on a preliminary point of law which, in the party’s eyes, does not require oral evidence. It is anticipated that this would see a renewed increase in appeals against striking-out applications as lawyers seek to frame the appeal on the basis that the claim is obviously unsustainable on preliminary points of law which could be determined without the need of further oral evidence. This may have the effect of defeating the intended purpose of section 68(1)(f) CJA as it would undoubtedly increase the caseload in the Court of Appeal compared to the prior position where it was believed there was a full restriction on such appeals. However, there is a silver lining. In the event the matter is disposed of summarily on appeal, there will be a decrease in matters fixed for trials therefore freeing the High Court’s calendar which should assist in resolving the current backlog issues faced by the same.
 
 
Case Note by Nimalan Devaraja (Partner) of the Dispute Resolution Practice of Skrine.