1. Applications must be filed within three months
Order 53 of the Rules of Court (“ROC”) 2012 lays out the procedural aspects of judicial review applications.
Order 53 Rule 3(6) of the ROC 2012 provides the timeline for the filing of judicial review applications:
“An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” (Emphasis mine)
2. Extension of time applications should be sought where the timeline has passed
Order 53 Rule 3(7) of the ROC 2012 gives the Court the discretion to extend the time for judicial review applications provided there is a ‘good reason’:
“The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so.” (Emphasis mine)
The Court of Appeal in P Maradeveran a/l Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 2 MLJ 70 held the following on the ‘good reason’ test:
“Whether ‘good reason’ exists is primarily a question of fact for the presiding judge to determine having regard to the material before him … There is no mystery to the phrase ‘good reason’. It means correct or proper reason.”[1] (Emphasis mine)
The Court is not required to consider the merits of the case when considering an extension of time application: Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161.[2]
3. Non-compliance goes to the jurisdiction of the Court
In Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54, the Federal Court expressly held this:
“We took the point ourselves as it clearly goes to the jurisdiction of the court from which leave to apply for certiorari was sought as Order 53 rule 1(1) stipulates that no application for an order of certiorari shall be made unless leave therefor has been granted and rule 1A which we have already adverted to enacts that leave shall not be granted except in accordance with its specific provisions.”[3] (Emphasis mine)
The Federal Court in Ravindran v Malaysian Examination Council [1984] 1 MLJ 168 had a similar view:
“In our view the whole issue is clearly one of jurisdiction. In the event only the first consideration of the Judge is relevant. Since the Judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order of certiorari.”[4]
This was subsequently reiterated by the Federal Court in Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161, at para 30, and Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544, at pp. 579-580..
4. The actual date of what is being challenged has to be identified
Support for this proposition can be found in Abdull Hamid Embong JCA (later FCJ) judgment in Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 (“Abdul Rahman”):
“It is thus crucial to first identify definitely what the decision is that is sought to be impugned. This has to be the actual date (see Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1). The appellants’ interpretation towards the first respondent’s non-response to their letter makes no sense and far stretching one’s imagination. This would give rise to an artificial meaning to the word decision. The date of the decision too becomes fictitious which makes the computation of the statutory time limit under O 53 of the RHC indeterminable.”[5] (Emphasis mine)
5. Public authority’s failure to respond to a letter is not amenable to judicial review
This was made clear by the Court of Appeal in Abdul Rahman:
“To say that the decision was only made on 5 January 2005 after the first respondent had failed to revert to their letter of 22 December 2004, is fallacious. We also find it ludicrous for the appellants to hold the view that a decision was only arrived at when the first respondent failed to respond to the one-week time period ultimatum in their letter. The latter was not duty-bound to respond to what we feel, corresponded to a threat.
Thus, our view is that no decision was made by the first respondent pursuant to that letter. No decision need in fact be made as it was already made earlier.
…
We also agree with the learned judge’s finding that the decision as alleged by the appellants is artificial and is thus not susceptible to judicial review.”[6] (Emphasis mine)
It is important to note that Abdul Rahman was decided prior to the amendment to Order 53 Rule 2(4) of the ROC 2012 via PU(A) 232/2012 which expanded the scope of judicial review from a “decision” to a “decision, action or omission” by a public authority.
The High Court in the following decisions departed from Abdul Rahman on this and held that the non-reply to a letter amounts to an “omission”/deemed “decision” and is amenable to judicial review:
(a) Sentul Raya Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 2646;[7]
(b) Udapakat Bina Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 1880;[8]
(c) WCE Holdings Bhd v Menteri Kewangan Malaysia (Ketua Pengarah Hasil Dalam Negeri, intervener) [2024] MLJU 257;[9]
(d) Lush Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2889;[10]
(e) Tanda Bestari Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2887;[11] and
(f) Impian Seloka Sdn Bhd v. Menteri Kewangan Malaysia [2022] MLJU 3479.[12]
[1] P Maradeveran a/l Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 2 MLJ 70 (CA), at para 36
[2] Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 (FC), at para 10 read together with para 31
[3] Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54 (FC), at p. 55
[4] Ravindran v Malaysian Examination Council [1984] 1 MLJ 168 (FC), at p. 169
[5] Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 (CA), at p. 718
[6] Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 (CA), at p. 718
[7] A decision of Ahmad Kamal Md Shahid J (now JCA)
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] A decision of Wan Ahmad Farid Wan Salleh J (now JCA)
