PROCEDURE

Order 53 Rules of High Court 2012

Order 53 of the Rules of the High Court was repealed in the year 2000 and
substituted with a new provision. The Rules of the High Court 1980 was
recently repealed and replaced with the Rules of Court 2012.
With regard to the new Order 53 in the Rules of Court 2012, answer ALL the
following questions:
Explain the salient features of the new Order 53.
Application for Judicial Review

R1(1) provides for the application for judicial review - uniformity of

procedure, because previously different remedies have different locus standi.

Locus Standi

R2(4) provides that any person who is adversely affected by the action,
decision or omission of any body carrying out public function or duty has the
locus standi to apply for judicial review - wider scope to include action, decision
or omission. no limit on public authorities, therefore private bodies may come
under this as well. QSR Brands v Securities Commission: GSR introduced the
spectrum test, which includes public interest litigation.

Time limit

R3(6) application must be made 3 months from date grounds of appeal

arise / decision notified to applicant - an extension from the previous 40 days

R3(7) court may extend time upon application if got good reason

Cross Examination

R6 any party may apply for discovery of documents and crossexamination - important as can examine affidavit or sworn statements,
because witnesses are called and give evidence, during JR no more calling of
witnesses. Instead affidavits are signed.
Remedies

R5 empower court to award damages

R2(2) allows more than one remedy, either alternatively or jointly

R2(3) states that court can grant injunction or monetary compensation as

it sees fit

How and to what extent may judicial review of administrative action be

affected by the new Order 53?
R1(2) subject to Specific Relief Act
R2(1) no habeas corpus
R2(3) injunction subject to s29 Government Proceedings Act (no injunction
against government) and s54(d) Specific Relief Act (injunction cannot interfere
with public duty carried out by government department)
R3(6) time
R2(4) Who can file affected
R1(1) seems to suggest it reigns over Parent Act - if there are words that say
order 53 only to guide, not to interfere the substance of law. If it is to control the
substance, ultra vires. Justice GSR - rules are merely rules, in no way to come in
and interfere with power of court.
Sivarasa Rasiah (CoA) - judges should not forget the most important case merits and justice - not technical procedures proscribing it. Even if there is a
breach of rules, if there is a merit is more important, judges should overlook the
rules. Dangerous - if all courts only look at merits, rules wont be followed.
R2(1).

Discuss the validity of the new Order 53 vis-a-vis the Courts of Judicature
Act 1964 and the Federal Constitution
R1(1) inherent power statute only confer additional power
Statute cannot limit inherent power
ORDER 53
APPLICATION FOR JUDICIAL REVIEW
Application for judicial review (O. 53, r. 1)
1.
(1) This Order shall govern all applications seeking the relief specified
in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 and for the
purposes therein specified.
Comment:
This formulation will result in injustice, with the continuation of the harsh
regime established by Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah
Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 where Order 53 is
held to be the sole avenue for all public law claims. The rights of individuals to
take a writ action for declaratory relief under the inherent jurisdiction of the
Court (in addition to Order 53 procedures) is long established: see Tan Sri Haji
Othman Saat v. Mohamed bin Ismail[1982] 2 MLJ 177; Attorney-General of
Hong Kong v. Zauyah Wan Chik & Ors. [1995] 3 CLJ 35; [1995] 2 MLJ
620; Teh Guan Teik v Inspector General of Police [1998] 1 MLJ 137, FC should
be reinstated. See also CPR Part 54.2 and 54.3 which distinguishes between
when judicial review must be used and when it may be used.
(2)
This Order is subject to the provisions of Chapter VIII of Part 2 of the
Specific Relief Act 1950 [Act 137].
Comment:
It is unclear what this provision seeks to achieve. The Court of Appeal in Hong
Long Equipment ([1997]1 CLJ 665 @ 737e-f, 757d-h interpreted and reconciled
the apparent conflict in the Courts of Judicature Act (para 1, Sched which allows
writs of mandamus) and section 49 of the Specific Relief Act (which prohibits
writs of mandamus). The formulation in this Rule creates confusion. Everything

in the Rules ought to be subject to all Acts of Parliament there does not seem
to be reason for the Specific Relief Act to be singled out.
Applications (O. 53, r. 2)
2.
(1)
An application for any of the reliefs specified in paragraph 1 of
the Schedule to the Courts of Judicature Act 1964 (other than an application for
an order of habeas corpus) shall be in Form 109.
Comment:
The proviso relating to applications for habeas corpus should be in rule 1.
This rule also still leaves unclear the confusion over whether the prayer in Form
109 (Form 111A as it was before) is meant to ask for leave or for the
substantive relief. If the requirement for leave is to be retained, then the
reference to the Form should be in rule 3 as the Form to be used to apply for
leave.
Why not use same rules on joinder of parties, and of causes of action?
Liable to be set aside in the usual manner against the order granting leave.
(2)
An application for judicial review may seek any of the reliefs, including
a prayer for a declaration, either jointly or in the alternative in the same
application if it relates to or is connected with the same subject matter.
(3)
Upon the hearing of an application for judicial review, the Court shall
not be confined to the relief claimed by the applicant but may dismiss the
application or make any orders, including an order of injunction or monetary
compensation:
Provided that the power to grant an injunction shall be exercised in accordance
with the provisions of section 29 of the Government Proceedings Act 1956 [Act
359] and section 54 of the Specific Relief Act 1950.
(4)
Any person who is adversely affected by the decision of any public
authority shall be entitled to make the application.
Comment:
The Ahmad Jefri case referred to above show clearly that litigants have no
guidance on when they should use Order 53 and when they should use ordinary
writ actions. The difficulty in identifying the public nature of a decision of a

public authority or not was most recently seen in the Court of Appeal decision
in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2011] 4 CLJ 838, CA
per Low Hop Bing JCA which held that a notice for increased charges on the
grounds that a electricity metre had been tampered was not a decision of a
public authority. The High Court decision in Tekali Prospecting Sdn Bhd v
Tenaga Nasional Berhad [2002] 1 MLJ 113 (reversed on another point [2002] 2
MLJ 707) has a good discussion on when a public authority performs a public
function as opposed to a private one, citing several English decisions construing
the definition of a public authority in section 6 of the English Human Rights
Act 1998. The English CPR formulation of a decision, action or failure to act in
the exercise of a public function is therefore preferable.