Arising from an earlier Federal Court decision involving Kian Joo Holdings Sdn Bhd and its liquidators (see my earlier post on the decision), the dissatisfied contributories had filed an application to review this decision  on the grounds that the Federal Court grounds of judgment had substantially reproduced the written submissions filed by solicitors for the liquidators. The allegation was that there was insufficient consideration by the Federal Court of the Majority Contributories’ case.

I have now read off the Bernama website that this application has been dismissed on 22 May 2013. It is reported that in the Grounds of Judgment read out by Chief Justice Tun Arifin Zakaria, it was held that the adoption of counsel’s submissions as the court’s ground of judgment in itself was not a sufficient ground for the Federal Court to set aside its earlier judgment. Nonetheless, the Court did not encourage such practice as it had a tendency to invite negative perception, which would go against the presumption of judicial impartiality and accountability.

Chief Justice Tun Arifin Zakaria said scrutiny of the court’s grounds of judgment revealed that not all the submissions made by the liquidators’ counsel were adopted by the court.

He said out of the 189 paragraphs of the submissions, only 70 paragraphs were adopted by the court.

“And in so doing, the court inserted their own words in parts of the judgment.

“All these could not be done without the learned judges in fact applying their minds to the issues raised in the appeal,” said Arifin in a judgment delivered today.

…

In his 37-page judgment, Arifin said there had been due process as the case had gone through the full appeal process before the Court of Appeal and the Federal Court and that both the grounds of the High Court and Court of Appeal judgments were before the Federal Court.

Arifin said the 25 applicants were also given full liberty to make their oral submissions at the hearing before the Federal Court which was stretched over a period of two days, adding that written submissions were also filed.

“In fairness to the panel (three-member Federal Court panel), we have to assume that they must have considered the judgments of the courts below and the submissions of the parties, both oral and written, before arriving at their decision,’ he said.

The judiciary’s top judge (Arifin) said the adoption of counsel’s submissions as the court’s ground of judgment in itself was not a sufficient ground for the Federal Court to set aside its earlier judgment.

He cited a minority decision of a British Columbia Court of Appeal in the case of Cojocaru vs British Columbia Women Hospital and Health Centre which held that there was nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge’s own independent analysis and conclusion.

Arifin however said the court did not encourage such practice as it had a tendency to invite negative perception, which would go against the presumption of judicial impartiality and accountability.

What is still pending before the Federal Court are the application by the liquidators to cite these contributories and their lawyer, Datuk V K Lingam, for contempt of court for alleging plagiarism in the Federal Court judgment and the application to set aside this contempt application.