Harold Tan examines the Federal Court's decision in Terengganu Forest v Cosco Container Lines.
 
The Federal Court in the case of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and Ors in a unanimous judgment delivered on 12 November 2010 by a special panel of 5 judges led by the Chief Justice Tun Zaki Azmi laid down several important guidelines for leave to be granted for an appeal to the Federal Court against a decision of the Court of Appeal pursuant to Section 96 of the Courts of Judicature Act 1964 (“CJA”).
 
The special panel had been set up at the request of some senior members of the Bar to resolve inconsistencies in the 2 previous judgments of the highest court of our land concerning leave to appeal to the Federal Court in Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors [1999] 1 MLJ 257 (“Syed Kechik”) and Joceline Tan Poh Choo & Ors v Muthusamy [2008] 6 MLJ 621 (“Joceline Tan”). 
 
Section 96 of the CJA reads:
 
"Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court -
 

 
In favouring the principles governing leave to appeal in Syed Kechik to the more restrictive ones in Joceline Tan, the special panel outlined the following guiding principles to be considered in all applications for leave to appeal against the decision of the Court of Appeal to the Federal Court:
 
(1)     Leave to appeal to the Federal Court must be against the decision of the Court of Appeal, and not directly against the decision of the High Court.
 
(2)     The cause or matter to which the leave application relates must have been decided by the High Court in the exercise of its original jurisdiction.
 
(3)     The matter must fall within one or both limbs of Section 96, that is, it must involve a question of law which is of general principle not previously decided by the Federal Court or involve a question of importance upon which a decision by the Federal Court would be to public advantage or both.
 
(4)     Where leave is sought on the ground of 'public advantage', the applicant need not show that the issue is a novel one but must satisfy the leave panel that it is a point of general public importance for which further argument is required.   
 
(5)     The issue to be appealed against must have been decided by the Court of Appeal.
 
(6)     The fact that a High Court decision has been reversed on appeal by the Court of Appeal or that a decision of the Court of Appeal is by majority with a dissenting judgment are relevant factors to be taken into account in favour of the Federal Court granting leave.
 
(7)     The special panel rejected the restrictive interpretation of Section 96 given in Joceline Tan that there must have been 2 inconsistent judgments of the Court of Appeal before leave could be given. The Federal Court held that Section 96 does not impose such a restriction and that it would not be correct for the court to do so.
 
(8)     A question that is of public importance will be given favourable consideration in a leave application.
 
(9)     The Federal Court should grant leave to appeal in cases where the decision of the Court of Appeal sought to be appealed against raises a point of law of great general importance based on a legal principle which has been uniformly wrong.
 
(10)   Leave to appeal against the interpretation of statutory provisions will generally not be given unless it is shown that such interpretation is of public importance.
 
(11)   As a general rule, leave will not be granted in interlocutory appeals for reason that interlocutory orders, particularly those orders that are not final, are normally discretionary and should not be interfered with.
 
(12)   Leave to appeal will normally not be given in cases which involve interpretation of the terms of an agreement unless the Federal Court is satisfied that the interpretation of such terms is important to the trade or industry concerned, and would likely arise again in other cases.
 
(13)   Leave to appeal will not be granted if the Federal Court is of the view that the appeal, even if leave is granted, will inevitably fail.
 
The Federal Court further held that once leave to appeal has been granted, the appellate panel should proceed to hear the appeal and ought not to revisit the issue of leave unless such leave was given erroneously because certain established law or statute which would lead the court hearing the appeal to dismiss the appeal in limine had not been brought to the attention of, or had been overlooked by, the leave panel.
 
CONCLUSION
 
The Terengganu Forest case is helpful as it sets out the prerequisites and general principles governing the application for leave to appeal against the decision of the Court of Appeal to the Federal Court under Section 96 of the CJA.
 
It is also a timely and significant pronouncement by the apex court of Malaysia of its acceptance of the principles governing leave to appeal in Syed Kechik and the rejection of the restrictive condition imposed in Joceline Tan that leave may only be given where there have been 2 or more inconsistent judgments of the Court of Appeal on the issue sought to be referred to the Federal Court.