THE APPELLATE PROCESS: SOME ISSUES OF STATUTORY INTERPRETATION IN DETERMINING ONE’S RIGHT TO APPEAL

• Citation: (2000) 12 SAcLJ 110
• Date: 01 December 2000
• Published date: 01 December 2000

Introduction

Ascertaining a party’s right to appeal is not necessarily a straightforward exercise in some cases. Lawyers know, as do many members of the public, that there are limits to appealing against the decisions of the lower courts to the superior courts whether it is the High Court or the final Court of Appeal. One obvious limitation in civil matters is the use of a cap or threshold limit on the quantum involved: where if the quantum involved is less than the threshold, there is usually no right of appeal.

This article deals with some issues of statutory interpretation arising out of determining one’s right to appeal, if any, in civil actions. The scenarios to be discussed cover only appeals to the High Court and the Court of Appeal (and even then only certain aspects), and other than incidentally, this writer does not propose to deal with other aspects of the appellate process, e.g. appeals to a Judge-in-Chambers (both in the Subordinate Courts and the High Court)1. The writer’s interest has been brought about by 2 recent cases where the respective appellants failed on a preliminary point, i.e. that they had no right to proceed with an appeal. The cases are the Court of Appeal decision in Spandeck Engineering (S) Pte Ltd v Yong Qiang Construction2 and the High Court decision in Abdul Rahman bin Shariff v Abdul Salim bin Syed3. In the first case, the appeal was struck out whilst in the latter case, leave of appeal was sought but was not granted.

As with all Court decisions when a party (with the advice of his lawyers) considers whether to file an appeal, quite apart from considering the merits of the case at hand, the following issues have also to be addressed:

1. 1. Does the party have an automatic right of appeal to the High Court or the Court of Appeal, as the case may be?

2. 2. If there is no automatic right of appeal, is there still a right of appeal provided leave of appeal is sought and obtained? Or is the matter completely unappealable, there being no provision to seek leave of appeal?

On the issue of whether there is an automatic right of appeal, different aspects arise for consideration, which inter alia include:

1. a. Does the quantum involved in the case at hand exceed the threshold amount set by legislation so that one could appeal as of right? This question arose in the Abdul Rahman case.

2. b. Does it matter whether there has been a trial of the matter before a decision was delivered by the Court? This question was dealt with in the Spandeck Engineering case. Because of the differences in the way the statutory provisions were drafted, this issue concerns only appeals to the Court of Appeal.

The relevant statutory provisions

Section 21(1) of the Supreme Court of Judicature Act (“SCJA”) provides concerning appeals from District and Magistrates’ Courts to the High Court, as follows:

Subject to the provisions of this Act or any other written law, an appeal shall lie to the High Court from a decision of a District Court or Magistrate’s Court in any suit or action for the recovery of immovable property or in any civil cause or matter where the amount in dispute or the value of the subject-matter exceeds $50,000 or such other amount as may be specified by an order made under subsection (3) or with the leave of a District Court, a Magistrate’s Court or the High Court if under that amount, [emphasis added]

This should be contrasted with section 34(2) of the SCJA concerning appeals to the Court of Appeal, which provides:

Except with the leave of the Court of Appeal or a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases:

1. (a) where the amount or value of the subject-matter at the trial is $250,000 or such other amount as may be specified by an order made under subsection (3) or less;

[emphasis added]

In scenarios falling under these 2 provisions, even if there is no automatic right of appeal, a party could apply for leave to proceed with an appeal.

Determining “the amount or value of subject-matter” — the threshold cases

The threshold for appeals to the High Court and the Court of Appeal are $50,000 and $250,000 respectively, as provided by statute. How does a party determine whether the amount or value of the subject matter exceeds the threshold so as to know whether it is appealable with or without leave?

For ease of comparison on this issue, the key provisions (quoted earlier) and the key phrases are shown in the Table below:

	Appeals from District Court/Magistrate’s Court cases to High Court	Appeals from High Court to Court of Appeal
Key provision in SCJA	Section 21(1)	Section 34(2)(a)
Key phrase	“amount in dispute or the value of the subject-matter”	“amount or value of the subject-matter”
Monetary threshold	Exceeding $50,000	Exceeding $250,000

2 sub-issues arise:

1. 1. Does the appellant determine the amount based on the amount originally claimed or disputed in the Court below, or based on the amount to be disputed on appeal, or based on the amount decided by the Court (i.e. amount adjudged or ordered)?

2. 2. Does the appellant include interest and costs in deriving the amount for the purpose of section 21(1)4 or section 34(2)(a), as the case may be?

Both sub-issues have arisen in reported decisions of the High Court and Court of Appeal. The 2nd sub-issue arose recently in the High Court decision of Abdul Rahman bin Shariff v Abdul Salim bin Syed5. The first issue arose in the earlier decision of the Court of Appeal in Augustine v Goh Siam Yong6.

Amount claimed/disputed in lower Court, amount adjudged or amount in dispute on appeal?

Section 21(1) governs appeals from the District Court/Magistrate’s Court to the High Court, and the “amount in dispute or the value of the subject-matter” must exceed $50,000 in order to appeal without leave. What do the words “the amount in dispute” mean? Is it the amount claimed in the lower Court, or the amount determined by the lower Court, or even some other amount which is being disputed on appeal, as these amounts may not necessarily be the same thing?

This issue can be illustrated by the decision in Augustine v Goh Siam Yong. Damages in respect of a traffic accident were awarded to the victim (plaintiff) and assessed initially for $4,780.89 by the deputy registrar of the Subordinate Courts. The assessment went on appeal to the District Judge in chambers and was revised down to $1,177.50. The plaintiff then filed an appeal to the High Court, after which the defendants proceeded to apply to strike out the appeal on the grounds that there was no right of appeal by virtue of the former Order 55 rule 1(5) of the Subordinate Court Rules 1986. The plaintiff then applied and obtained a declaration from the High Court that she had a right of appeal. The defendants contested this further by filing an appeal to the Court of Appeal. Besides the arguments based on the former Order 55 rule 1(5), the defendants made other arguments including the argument that the plaintiff required leave of Court under the then applicable section 21 of the SCJA to proceed with an appeal as the amount in dispute (which they contended was the amount assessed, i.e. $1,177.50) was less than the threshold limit of $2,000. It is only this last argument which is relevant for the purposes of this article7.

The Court of Appeal held as follows8:

Counsel for the appellants contended that the district judge’s assessment of damages at $1,177.50 was the ‘amount in dispute’. He relied on Anthony s/o Savarimiuthu v Soh Chuan Tin9 where it was accepted that the defendant would have to obtain leave of the court in order to appeal against the magistrate’s award of damages of $1,660, as the amount in dispute did not exceed $2,000. In our opinion, that case is clearly distinguishable: there the defendant disputed the award of $1,660, and ‘the amount in dispute’ was accordingly $1,660. In the present case, however, it was the plaintiff

who sought to appeal against a reduction in the award from the sum of $4,780.89 assessed by the deputy registrar to the sum of $1,177.50 allowed by the district judge, a difference of some $3,603.39. This was the ‘amount in dispute’, and it obviously exceeded $2,000.

There was therefore no need for the appellant to obtain leave to appeal. In view of the decision by the Court of Appeal, the meaning of the words “amount in dispute” as a matter of stare decisis is settled. However, with the greatest respect to the Court of Appeal, this writer does not agree with the interpretation given to the words “amount in dispute”. It would be necessarily first of all to consider some other decisions including those of the Malaysian courts. Further, it would be necessary to explore whether the same interpretation attaches to the relevant phrase in section 34(2)(a) for appeals from the High Court to the Court of Appeal.

Other decisions

Section 21(1) has been considered in the unreported decision of Sethuraman Arumugam v Star Furniture Industries Pte Ltd10, where Kan Ting Chiu J referred to the Minister’s speech when the limit was raised from $5,000 to $50,000 as “there was a need to discourage non-serious appeals to the High Court”. His Honour opined that:

It can be argued that in keeping with that reason, the threshold limit should apply to the amount in dispute in the appeal, rather than the amount in dispute in the original claim. A strict construction of s 21(1) can lead to anomalous results.

His Honour then gave the example of how if it is the original claim that is relevant, a person claiming $60,000 but awarded $30,000 could appeal as of right, whereas a person claiming only $30,000 but has his claim dismissed could only appeal with leave. In both cases, the same amount of $30,000 is involved, so leave should be required for both situations, otherwise the object of setting the threshold limit has not been promoted...