- That there was a lack of corum e.g. the Court was not duly constituted as two of the three presiding judges had retired (Chia Yan Teck & Anor v Ng Swee Kiat & Anor [2001] 4 ML J 1; [2001] 4 AMR 3921).
- The applicant had been denied the rights to have his appeal heard on merits by the appellate court (Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385, [2002] 1089).
- Where the decision had been obtained by fraud or suppression of material evidence (MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 2 MLJ 673; [2002] 3 AMR 2917).
- Where the court making the decision was not properly constituted, was illegal or lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the coram that rendered the impugned decision (Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd & Anor Appeal [2005] 3 MLJ 1; [2004] 5 AMR 709).
- Clear infringement of law (Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417; [2005] 1 AMR 501).
- It does not apply where the findings of this Court is questioned, whether in law or on the facts (since these are matters of opinion which this Court may disagree with its earlier panel) (Chan Yock Cher @ Chan Yock Kher v Chan Teong Peng [2005] 1 MLJ 101; [2005] 4 AMR 693; [2005] 4 CLJ 29).
- Where an applicant under r 137 has not been heard by this Court and yet through no fault of his, an order was inadvertently made as if he had been heard (Raja Prithwi Chand v Sukhraj Rai AIR 1941).
- Where bias had been established (Taylor and Another v Lawrence and Another [2002] 2 All ER 353).
- Where it is demonstrated that the integrity of its earlier decision had been critically undermined e.g where the process had been corrupted and a wrong result might have been arrived at (Re Uddin (a child) [2005] 3 All ER 550).
- Where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal (Joceline Tan Poh Choo & Ors v V Munusamy [2007] 6 MLJ 485; [2007] 5 AMR 725).
- A party was denied the right to have his appeal heard on the merits by the appellate court;
- The court decided the case on a point not argued without allowing the parties to address it; or
- Bias has been established, contrary to the principle that a decision maker must be disinterested and impartial.
The concept of natural justice was also discussed by the Federal Court in Dato’ Sri Mohd Najib bin Hj Abdul Razak v PP [2023] 3 MLJ 40. The Court adopted the explanation in the Supreme Court case of Shamsiah bte Ahmad Sham v Public Services Commission, Malaysia & Anor [1990] 3 MLJ 364 where the Court stated as follows: –
Natural justice is a concept which involves common law rules, namely: –
- The right to be head (audi alteram partem): the principle that a decision-maker must afford an opportunity to be heard to a person whose interests will be adversely affected by the decision; and
- The rules against bias (nemo debet esse judex in propria sua causa): the principle that a decision-maker must be disinterested or unbiased in the matter to be decided.
Where such circumstances are established, the Federal Court may exercise its inherent jurisdiction to review and, where appropriate, rehear the matter, sometimes before a differently constituted bench.
That said, the courts have consistently emphasised that this jurisdiction is extraordinary and exercised sparingly. It cannot be invoked merely because a party disagrees with the reasoning or outcome of a judgment.
Ultimately, the doctrine reflects a careful balance between two fundamental principles i.e. the finality of litigation and the need to prevent a miscarriage of justice.
