1. MADIN AL-SYARIF TRAVEL SDN. BHD. (Co. No.: 165738-P) (now known as Mast Travel Sdn. Bhd.) 2. MOHD KUDHIRI BIN OTHMAN (NRIC. No.: 640619-11-5027) 1. TRIBUNAL TUNTUTAN PENGGUNA MALAYSIA KEMENTERIAN PERDAGANGAN DALAM NEGERI KOPERASI DAN KEP

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA JUDICIAL REVIEW APPLICATION NO: BA-25-9-01/2019 BETWEEN 1. MADIN AL-SYARIF TRAVEL SDN. BHD. (Co. No.: 165738-P) (now known as Mast Travel Sdn. Bhd.) 2. MOHD KUDHIRI BIN OTHMAN (NRIC. No.: 640619-11-5027) … APPLICANTS AND 1. TRIBUNAL TUNTUTAN PENGGUNA MALAYSIA KEMENTERIAN PERDAGANGAN DALAM NEGERI KOPERASI DAN KEPENGGUNAAN AND 14 OTHERS … RESPONDENTS JUDGMENT (Court enclosure no. 24 - substantive Judicial Review application) A. Background 1. The first applicant company (1st Applicant) runs a travel agency. 2. The second applicant (2nd Applicant) was the Managing Director (MD) of the 1st Applicant from 2012 to 2016. 3. The first respondent (1st Respondent) is the “Tribunal for Consumer Claims” established under s 85 of the Consumer Protection Act 1999 (CPA). 1 4. The second to fifteenth respondents (“2nd Respondent” to “15th Respondents”) have paid various sums of money to the 1st Applicant for “Umrah Packages” [Payments (2nd to 15th Respondents)]. 5. Despite the Payments (2nd to 15th Respondents), the 2nd to 15th Respondents did not manage to perform their Umrah. Hence, the 2nd to 15th Respondents filed claims with the 1st Respondent against the 1st Applicant for a refund of the Payments (2nd to 15th Respondents) (Claims). 6. The 1st and 2nd Applicants (collectively referred to as the “Applicants”) denied the Claims and alleged as follows, among others: (1) one Encik Alias bin Sulaiman (Encik Alias) was the 1st Applicant’s former General Manager for six months; (2) after Encik Alias had stopped working for the 1st Applicant - (a) Encik Alias had incorporated his own company, Madain Al- Taqwa Travel & Tours Sdn. Bhd. (MATT); (b) Encik Alias (not the Applicants) had received Payments (2nd to 15th Respondents); and (c) receipts and letterhead of the 1st Applicant had been wrongly printed and issued by Encik Alias to the 2nd to 15th Respondents; (3) the Applicants had lodged a police report against Encik Alias; 2 (4) Encik Alias had undertaken to indemnify the Applicants and to repay the Payments (2nd to 15th Respondents) (Encik Alias’ Undertaking); and (5) based on Encik Alias’ Undertaking - (a) the Applicants had received the Claims from the 2nd to 15th Respondents; and (b) the Applicants did not appear at the hearing of the Claims conducted by the 1st Respondent (Hearings). 7. The 1st Respondent conducted the Hearings in the absence of the 1st Applicant. At the end of the Hearings, the 1st Respondent gave awards in favour of the 2nd to 15th Respondents against the 1st Applicant (Awards). 8. The 1st Applicant filed an originating summons in Taiping High Court (OS) against the following three defendants (3 Defendants): (1) MATT; (2) Encik Alias; and (3) Puan Aleafatini Bt. Alias. 9. On 26.11.2018, the 1st Applicant has obtained an ex parte order in the OS from Asmadi Bin Hussin JC (Ex Parte Order) which states that any liability incurred by the 1st Applicant to any third party shall be fully borne by MATT and Encik Alias as stated in MATT’s resolution dated 10.2.2015 as follows, among others: 3 (1) the 3 Defendants shall be liable to all third parties regarding Umrah packages for which the 1st Applicant is liable; and (2) the 3 Defendants shall be liable for any award which may be made by the 1st Respondent against the 1st Applicant. 10. The Applicants applied to the 1st Respondent to set aside the Awards (Setting Aside Application) on, among others, the ground that the 1st Applicant had obtained the Ex Parte Order. 11. The 1st Respondent had dismissed the Setting Aside Application (1st Respondent’s Decision). B. This application 12. The Applicants obtained leave from Vazeer Alam bin Mydin Meera J (as he then was) to apply for an order of certiorari to quash the 1st Respondent’s Decision. Hence, the Applicants filed a substantive Judicial Review application (Enc. 24) for, among others, a certiorari order to quash the 1st Respondent’s Decision. C. Issues 13. Enc. 24 raises the following questions: (1) whether the 2nd Applicant (the 1st Applicant’s MD) has threshold locus standi to file this application. This issue discusses the following matters - 4 (a) whether the 2nd Applicant is “adversely affected” by the Awards and 1st Respondent’s Decision within the meaning of O 53 r 2(4) of the Rules of Court 2012 (RC); (b) is the 1st Applicant a legal entity which is separate from the 2nd Applicant?; and (c) whether the 2nd Applicant has threshold locus standi to file this application by reason of - (i) s 143 CPA which provides for criminal liability of, among others, a company’s director; and (ii) a resolution passed by the 1st Applicant’s directors which had authorized the 2nd Applicant to sign all documents for the 1st Applicant (1st Applicant’s Directors Resolution); (2) whether the Applicants can deny service of the Claims by the 2nd to 15th Respondents on the 1st Applicant; (3) in view of s 111 CPA and reg. 21(3)(a) of the Consumer Protection (The Tribunal For Consumer Claims) Regulations 1999 (CPR), could the 1st Respondent hear the Claims in the absence of the 1st Applicant? In this regard, did the 1st Respondent breach the second rule of natural justice and deprive the 1st Applicant of its right to be heard in respect of the Claims as provided in s 108(1) CPA read with reg. 23(2) and (3) CPR? In resolving the above third question, I propose certain amendments to CPR in the interest of justice; 5 (4) whether the 1st Respondent had committed any error of law - (a) in not giving effect to the Ex Parte Order; and (b) regarding the application of the “Indoor Management Rule”; and (5) should the court exercise its discretion to grant an order of certiorari in this case? D. Whether 2nd Applicant has threshold locus standi to file this application? 14. O 53 r 2(4) RC provides as follows: “Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application.” (emphasis added). 15. The following two Federal Court judgments have interpreted locus standi requirement to apply for Judicial Review as laid down in O 53 r 2(4) RC: (1) Raus Sharif FCJ (as he then was) held as follows in Members of the Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on Telephone v Tun Dato’ Seri Ahmad Fairuz [2011] 6 MLJ 490, at [20] (Royal Commission of Enquiry’s Case) - “[20] It is clear from the above that a person who is adversely affected by the decision of a public authority can make an 6 application for a judicial review of that decision. But the person must first obtain leave before his substantive motion can be heard. At the leave stage without the need to go into depth of the abundance of authorities, suffice for us to state that the threshold for the granting of such leave is very low. Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion (see Association of Bank Officers, Peninsular Malaysia v Malaysian Commercial Bank Association [1990] 3 MLJ 228, Bandar Utama Development Sdn Bhd & Anor v Lembaga Lebuhraya Malaysia & Anor [1988] 1 MLJ 224, Mohamed Nordin bin Johan v Attorney-General Malaysia [1983] 1 MLJ 68 and JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134).” (emphasis added); and (2) in Malaysian Trade Union Congress & Ors v Menteri Tenaga Air dan Komunikasi & Anor [2014] 3 MLJ 145, at [44], [57] and [58] (MTUC’s Case), Hasan Lah FCJ decided as follows - “[44] ... The distinction between the threshold and the substantive locus standi has been clearly stated by the Court of Appeal in Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors and other appeals [1997] 3 MLJ 23 at pp 40–41 as follows: In public law - and, in so far at least as the appellants in the first and second appeal are concerned, the summons in the present instance lies in public law - there are two kinds of locus standi. The first is the initial or threshold locus standi: the second is the substantive locus standi. 7 Threshold locus standi refers to the right of a litigant to approach the court in relation to the facts which form the substratum of his complaint. It is usually tested upon an application by the defendant to have the action struck out on the ground that the plaintiff, even if all that he alleges is true, cannot seek redress in the courts. Although a litigant may have threshold locus standi in the sense discussed, he may, for substantive reasons, be disentitled to declaratory relief. This, then, is substantive locus standi. The factors that go to a denial of substantive locus standi are so numerous and wide ranging that it is inappropriate to attempt an effectual summary of them. Suffice to say that they range from the nature of the subject matter in respect of which curial intervention is sought to those settled principles on the basis of which a court refuse declaratory or injunctive relief. … [57] In view of the foregoing we are of the view that the view expressed by the Court of Appeal in QSR Brands Bhd v Suruhanjava Sekuriti & Anor that the 'adversely affected' test was a single test for all the remedies provided for under O 53 of the RHC is to be preferred. … [58] However, we are not prepared to accept the appellants' argument that the 'sufficient interest' test under O 53 r 3(7) of the English Supreme Court Rules 1977 is no different from the 'adversely affected' test under O 53 r 2(4) of the RHC as the two tests do not have the same meaning. Therefore, in determining the locus standi to sue, the court has to exercise caution in applying the English cases. In our view for an applicant to pass the 'adversely affected' test, the applicant has 8 to at least show he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage.” (emphasis added). 16. Firstly, the 1st Applicant has threshold locus standi to file this application because the 1st Applicant is “adversely affected” by the Awards and 1st Respondent’s Decision within the meaning of O 53 r 2(4) RC. 17. I have no hesitation to find that the 2nd Applicant has no threshold locus standi to file this application. This decision is based on the following reasons: (1) it is trite law that a company is a legal person who is separate from the company’s directors, shareholders and employees. Accordingly, the 2nd Applicant is not adversely affected in any manner by the Awards and 1st Respondent’s Decision as required by O 53 r 2(4) RC - please see Royal Commission of Enquiry’s Case; and (2) the 1st Applicant has no “real and genuine interest” in the Awards and 1st Respondent’s Decision as explained in MTUC’s Case. 18. The Applicants’ learned counsel has relied on s 143 CPA to contend that the 2nd Applicant has locus standi to file this application because the 2nd Applicant may be personally liable under s 143 CPA. Section 143 CPA provides as follows: 9 “Offences by body corporate 143. Where an offence under this Act has been committed by a body corporate, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or who was purporting to act in any such capacity shall, as well as the body corporate, be deemed to have committed that offence unless he proves that the offence was committed without his knowledge, consent or connivance and that he took reasonable precautions and had exercised due diligence to prevent the commission of the offence.” (emphasis added). Section 143 CPA only provides for criminal liability for, among others, a company’s director when the company has committed an offence under CPA. Section 143 CPA does not confer threshold locus standi on a company’s MD or director to file a Judicial Review application when the company’s MD or director is not adversely affected by the 1st Respondent’s awards as required by O 53 r 2(4) RC. 19. I am of the view that the 1st Applicant’s Directors’ Resolution cannot confer threshold locus standi on the 2nd Applicant to file this application because - (1) the 1st Applicant’s Directors’ Resolution has merely authorized the 2nd Applicant to sign documents on behalf of the 1st Applicant. The 1st Applicant’s Directors’ Resolution only binds the 1st and 2nd Applicants; and (2) the 1st Applicant’s Directors’ Resolution cannot override threshold locus standi requirement laid down in O 53 r 2(4) RC. If otherwise, 10 this will result in an absurdity, namely a company may pass a resolution which authorizes its director, shareholder, employee or any other person to apply for Judicial Review. 20. Based on the reasons explained in the above paragraphs 17 to 19, I dismiss Enc. 24 with costs by the 2nd Applicant on the ground that the 2nd Applicant has no threshold locus standi under O 53 r 2(4) RC to file Enc. 24. 21. I will now proceed to discuss the other issues raised in this case on the assumption that the 2nd Applicant has threshold locus standi to file Enc. 24. E. Whether 1st Applicant can deny service of Claims 22. The Applicants’ learned counsel has contended that there is no service of the Claims on the 1st Applicant. This submission is contrary to the following cause papers filed by the Applicants themselves: (1) paragraph 4 of the Statement (court enclosure no. 2) filed by the Applicants pursuant to O 53 r 3(2) RC (Statement) stated as follows, among others [Paragraph 4 (Statement)] - “4. Bahawa Borang Tuntutan tersebut telah diserahkan kepada Pemohon-pemohon. ….” (emphasis added); (2) in accordance with O 53 r 3(2) RC, the contents of the Statement (including Paragraph 4) had been verified by an affidavit affirmed by Encik Razali bin Abd. Rahman, the 1st Applicant’s present MD, on 11 24.11.2019 (court enclosure no. 3) (Encik Razali’s 1st Affidavit) - please refer to paragraph 5 of Encik Razali’s 1st Affidavit [Paragraph 5 (Encik Razali’s 1st Affidavit)]; (3) paragraph 14 of Encik Razali’s 1st Affidavit confirmed that the Claims had been served on the 1st Applicant [Paragraph 14 (Encik Razali’s 1st Affidavit)]; (4) the Applicants applied in court enclosure no. 14 (Enc. 14) to amend, among others, the Statement and Encik Razali’s 1st Affidavit. Enc. 14 did not seek leave to amend Paragraph 4 (Statement), Paragraph 5 (Encik Razali’s 1st Affidavit) and Paragraph 14 (Encik Razali’s 1st Affidavit); (5) Enc. 14 was allowed by Vazeer Alam bin Mydin Meera J (as he then was). Consequently, the Applicants filed an amended Statement in court enclosure no. 18 (Amended Statement). Paragraph 4 of the Amended Statement reiterated that the Claims had been served on the 1st Applicant [Paragraph 4 (Amended Statement)]; (6) the contents of the Amended Statement, including Paragraph 4 (Amended Statement), had been verified by an affidavit affirmed by Encik Razali on 2.5.2019 (court enclosure no. 19) (Encik Razali’s 2nd Affidavit) - please see paragraph 5 of Encik Razali’s 2nd Affidavit [Paragraph 5 (Encik Razali’s 2nd Affidavit)]; and (7) paragraph 14 of Encik Razali’s 2nd Affidavit confirmed that the Claims had been served on the 1st Applicant [Paragraph 14 (Encik Razali’s 2nd Affidavit)]. 12 23. Firstly, the Applicants are bound by Paragraph 4 (Amended Statement) and cannot now claim that there is no service of the Claims on the 1 st Applicant. It is to be emphasized that the Applicants have obtained leave of court to amend the Statement and yet, the Applicants have not applied to court to amend or retract Paragraph 4 (Statement). 24. There is a second reason why the Applicants cannot now allege that the Claims have not been served on the 1st Applicant. The doctrine of equitable estoppel has a wide application - please refer to Gopal Sri Ram JCA’s (as he then was) judgment in the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294. The following conduct of the Applicants now estops them from asserting that the Claims have not been served on the 1st Applicant: (1) the Applicants had filed Paragraph 4 (Statement) and subsequently obtained leave to file Paragraph 4 (Amended Statement); (2) Paragraph 14 (Encik Razali’s 1st Affidavit) and Paragraph 14 (Encik Razali’s 2nd Affidavit) had affirmed that the Claims had been served on the 1st Applicant; and (3) Encik Razali has not affirmed any affidavit to correct or retract Paragraph 14 (Encik Razali’s 1st Affidavit) and Paragraph 14 (Encik Razali’s 2nd Affidavit). F. Whether 1st Respondent had jurisdiction to decide Claims 25. The jurisdiction of the 1st Respondent is provided in s 98(1) CPA which provides as follows: 13 “Jurisdiction of Tribunal 98(1) Subject to sections 99 and 100, the Tribunal shall have jurisdiction to hear consumer claims within the ambit of this Act including claims in respect of all goods and services for which no redress mechanism is provided for under any other law and where the total amount in respect of which an award of the Tribunal is sought does not exceed fifty thousand ringgit.” (emphasis added). 26. I am of the view that the 1st Respondent has jurisdiction under s 98(1) CPA to hear the Claims in this case. This is clear from the following reasons: (1) the 2nd to 15th Respondents are “consumers” within the meaning of s 3(1) CPA as follows - “ "consumer" means a person who - (a) acquires or uses goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption; and (b) does not acquire or use the goods or services, or hold himself out as acquiring or using the goods or services, primarily for the purpose of - (i) resupplying them in trade; (ii) consuming them in the course of a manufacturing process; or 14 (iii) in the case of goods, repairing or treating, in trade, other goods or fixtures on land;” (emphasis added); (2) the Umrah packages paid for by the 2nd to 15th Respondents fall within the wide definition of “services” in s 3(1) CPA as follows - “ "services" includes any rights, benefits, privileges or facilities that are or are to be provided, granted or conferred under any contract but does not include rights, benefits or privileges in the form of the supply of goods or the performance of work under a contract of service;” (emphasis added); (3) s 99 CPA limits the 1st Respondent’s jurisdiction as stated in s 99 CPA. Section 99 CPA does not exclude the 1st Respondent’s jurisdiction to decide the Claims in this case; (4) the 2nd to 15th Respondents do not have any “redress mechanism” provided by any other law; and (5) the Claims of each of the 2nd to 15th Respondents does not exceed RM50,000.00. G. Could 1st Respondent hear Claims in 1st Applicant’s absence? 27. The Claims are in Form 1 of the Second Schedule to CPR (Form 1). Form 1 states, among others, as follows: 15 “TO THE RESPONDENT If you dispute the claimant’s claim, you shall file in your statement of defence in Form 2 on or before [date specified in Claims] … INSTRUCTIONS TO RESPONDENT 1. When you receive this Form sealed with the seal of the Tribunal, you are being sued by the claimant. 2. If you dispute the claim you shall state your defence, with particulars, in Form 2. 3. You shall file in your statement of defence in the Tribunal's Registry. 4. If you fail to file in your defence within the prescribed time or if you fail to appear before the Tribunal on the hearing date, the Tribunal will make an award in favour of the claimant. …” (emphasis added). 28. Regulation 9(1) and (2) CPR provide as follows: “Defence and counter-claim. 9(1) If the respondent who has been duly served with Form 1 disputes the claim, he shall deliver his defence in Form 2 (the "Statement of defence") within fourteen days after the service of the statement of claim. (2) Form 2 shall contain particulars as to why the respondent disputes the claim.” (emphasis added). 16 29. Upon service of the Claims (in Form 1) on the 1st Applicant (as admitted by the Applicants in this case), the 1st Applicant is required by reg. 9(1) and (2) CPR as well as the contents of the Claims (in Form 1) to file a defence (Defence) within the time prescribed in reg. 9(1) CPR. Despite the fact that the 1st Applicant had been expressly informed in the Claims of the requirement for the 1st Applicant to file a Defence, the 1st Applicant however failed to do so. 30. According to s 106 CPA read with reg. 18(1)(a), (b) and (2) CPR, the 1st Respondent’s secretary or assistant secretary shall send the notice of hearing of the Claims in Form 4 of the Second Schedule to CPR (Form 4) to the 1st Applicant and 2nd to 15th Respondents. Form 4 shall contain the time, date and place of the Hearings (Hearing Details). I reproduce below s 106 CPA, reg. 18(1)(a), (b) and (2) CPR: “s 106 CPA Notice of claim and hearing Upon a claim being lodged under section 97, the Secretary to the Tribunal shall give notice of the details of the day, time and place of hearing in the prescribed form to the claimant and the respondent. reg. 18 CPR Fixing dates, etc., for hearing. (1) Upon a claim being lodged with the Tribunal, the Secretary or an Assistant Secretary shall - (a) fix the date, place and time of hearing in Form 4; and (b) thereafter serve the notice of hearing on both the claimant and respondent. (2) The Secretary or the Assistant Secretary shall serve Form 4 on the claimant and respondent not less than fourteen days before the date of the hearing.” 17 (emphasis added). 31. The 1st Respondent’s President, Puan Wan Rufaidah Binti Dato’ Haji Wan Omar (Puan Wan Rufaidah), had given written grounds for the 1st Respondent’s Decision (1st Respondent’s Written Grounds) - please see exhibit RI-8 in the affidavit affirmed on 6.8.2019 by the 5th Respondent (court enclosure no. 45). I must commend Puan Wan Rufaidah because the 1st Respondent’s Written Grounds are clear and reasoned. 32. Paragraphs 23 to 28 of the 1st Respondent’s Written Grounds had explained in detail how Form 4 regarding the Hearing Details had been duly served on the 1st Applicant. Furthermore, the Applicants had not denied proper service of Form 4 on the 1st Applicant in the Amended Statement. 33. In view of valid service of Form 4 on the 1st Applicant, the 1st Respondent could proceed to hear the Claims notwithstanding the absence of the 1st Applicant. This is clear from s 111 CPA read with reg. 21(3)(a) CPR which read as follows: “s 111 CPA Tribunal may act in absence of party The Tribunal may hear and determine the claim before it notwithstanding the absence of any party to the proceedings if it is proved to the satisfaction of the Tribunal that a notice of the hearing has been duly served on the absent party. 18 reg. 21 CPR Non-appearance of parties. … (3) If the respondent does not appear on the date, at the time and place fixed for the hearing but the claimant appears, the President may, if he is satisfied that the notice of hearing has been duly served - (a) proceed with the hearing in the absence of the respondent; or (b) adjourn the hearing to a later date. (4) Before disposing of the claim in the absence of the respondent, the President shall consider any representation submitted by the claimant.” (emphasis added). 34. The Applicants’ learned counsel has submitted that when the Claims are heard by the 1st Respondent in the absence of the 1st Applicant, the 1st Respondent has breached the second rule of natural justice, namely the 1st Respondent has deprived the 1st Applicant of its right to be heard. Before I address this contention by the Applicants, I should point out that a respondent in a consumer’s claim to the Tribunal for Consumer Claims (Tribunal) has the following rights under s 108(1) CPA, reg. 23(2) and (3) CPR: “Right to appear at hearings 108(1) CPA At the hearing of a claim every party shall be entitled to attend and be heard. 19 Hearing. reg. 23(1) CPR At the hearing before the Tribunal, the claimant shall be entitled to adduce evidence, call any witness or produce any document, record or thing in support of his case. (2) After the claimant has presented his case, the respondent shall present his case and may adduce evidence, call any witness or produce any document, record or thing in support of his case. (3) After the claimant and respondent have closed their respective cases, a brief oral or written submission may be made by the respondent and thereafter by the claimant.” (emphasis added). 35. I am of the following view: (1) a respondent’s rights under s 108(1) CPA, reg. 23(2) and (3) CPR can only be exercised if the respondent is present at the hearing conducted by the Tribunal; (2) if - (a) a consumer’s claim in Form 1 has been duly served on the respondent and (b) the Tribunal’s Secretary or Assistant Secretary has properly served notice of the hearing in Form 4 on the respondent (2 Conditions) the Tribunal has a discretion to - 20 (i) proceed with the hearing of the consumer’s claim in the absence of the respondent as provided under s 111 CPA and reg. 21(3)(a) CPR (1st Option); or (ii) adjourn the hearing of the consumer’s claim to another date (2nd Option) - please refer to reg. 21(3)(b) CPR. Regulation 26 CPR provides that the Tribunal may from time to time adjourn a hearing on such conditions as the Tribunal thinks just; (3) the 1st Option should be the general rule and the 2nd Option should be its exception. This view is supported by the following reasons - (a) ss 110(1)(g) and 112(1) CPA state as follows - “Evidence 110(1) The Tribunal may - … (g) generally direct and do all such things as may be necessary or expedient for the expeditious determination of the claim. Awards of Tribunal 112(1) The Tribunal shall make its award without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences.” (emphasis added). In the Court of Appeal case of Hazlinda Hamzah v Kumon Method of Learning Centre [2006] 2 CLJ 933, at [5], Gopal Sri Ram JCA (as he then was) has relied on ss 110(1)(g) and 21 112(1) CPA to explain that the “central theme” of CPA is the speedy disposal of claims by consumers; and (b) the purpose of CPA is to protect consumers [Purpose (CPA)] - please refer to the Long Title to CPA. If the 1st Option is not the general rule and the Tribunal can “easily” adjourn its hearings, there will not be a speedy disposal of consumer claims. Such an outcome is not in the interest of consumers and is contrary to the Purpose (CPA); (4) if the Tribunal hears a consumer claim in the absence of a respondent and makes an award in favour of the consumer, the respondent may apply to the Tribunal to set aside the award under reg. 25(1) and (2) CPR which provide as follows - “Setting aside award. 25(1) Any award obtained where one party does not appear at the hearing, or any award obtained pursuant to regulation 19, may be set aside by the Tribunal on the application of the aggrieved party. (2) The application shall be in Form 12 and shall be made within thirty days after the receipt of the award.” (emphasis added). Regulation 25(2) CPR is a mandatory provision because of the use of the mandatory term “shall” in that provision. The CPR however do not provide a power for the Tribunal to extend the 30 days period for an application to set aside the Tribunal’s award as prescribed by reg. 25(2) CPR. In fact, there is no power granted by CPR on the 22 Tribunal to extend or abridge any time period as stipulated in CPR or an award. It is hoped that in the interest of justice, CPR can be amended to confer a discretionary power on the Tribunal to extend or abridge any time period specified in CPR and awards. In this respect, O 3 r 5(1) RC may be adopted mutatis mutandis in CPR; (5) it is to be noted that if an award is set aside under reg. 25(1) CPR, there is no power for the Tribunal to rehear the consumer claim. The Tribunal may exercise its discretion pursuant to reg. 25(1) CPR to set aside an award made in favour of a consumer in the absence of the respondent in the following circumstances - (a) if the consumer claim in Form 1 has not been duly served on the respondent as required by reg. 8(2) CPR. Regulation 15(1)(a) to (c) and (2)(a) to (c) CPR provide the manner of service of documents. Substituted service of documents may be ordered by the “President” of the Tribunal pursuant to reg. 16 CPR; (b) if Form 4 (containing details of a hearing) has not been properly served on the respondent in accordance with s 106 CPA read with reg. 18(2) and (3) CPR; or (c) if the 2 Conditions have been satisfied, the Tribunal can only set aside an award against a respondent pursuant to reg. 25(1) CPR if the respondent is able to satisfy the Tribunal that the respondent has a valid defence against the consumer claim. 23 Needless to say, the respondent has the legal and evidential burden to prove the defence on a balance of probabilities. If an award is set aside on the ground that either one of the 2 Conditions has not been fulfilled, in the interest of justice the Tribunal should have a discretion to rehear the consumer claim in the presence of the respondent. In this sense, reg. 25(1) CPR should be amended. If otherwise, there will be an injustice to a consumer who has obtained an award in the respondent’s absence and if the award is subsequently set aside by the Tribunal on a technicality (non-fulfilment of either one of the 2 Conditions); and (6) once the 2 Conditions have been satisfied and if the Tribunal exercises its discretion pursuant to s 111 CPA and reg. 21(3)(a) CPR to proceed with the hearing of the consumer claim and makes an award in favour of the consumer in the absence of a respondent, the respondent cannot rely on - (a) s 108(1) CPA, reg. 23(2) and (3) CPR; and (b) the second rule of natural justice - to set aside the award. This is because s 108(1) CPA, reg. 23(2), (3) CPR and the second rule of natural justice are subject to the Tribunal’s power to proceed with the hearing of a consumer claim in the respondent’s absence as expressly provided in s 111 CPA and reg. 21(3)(a) CPR. This is understandable in view of the Purpose (CPA) and the fact that a respondent elects to be absent at the hearing of the Tribunal at the respondent’s own peril. 24 It is also to be noted that the second rule of natural justice is a creature of case law and is subject to written law [such as s 111 CPA and reg. 21(3)(a) CPR]. I cite the following judgment of Mohd. Zawawi Salleh FCJ in the Federal Court case of Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi Mukhtar [2020] 1 CLJ 1, at [68], as follows - “[68] … Right to be heard is undoubtedly a valuable and cherished right possessed by a citizen and this right is enshrined in common law as discussed above. This right could only be taken away by clear and unambiguous words in a legislation.” (emphasis added). 36. In this case, I find no error of law and fact has been made regarding the 1st Respondent’s Decision. This finding is premised on the following reasons: (1) the Applicants had admitted in paragraph 10 of the Amended Statement that the Setting Aside Application had been filed late, namely beyond the 30 days period prescribed in reg. 25(2) CPR. As explained in the above sub-paragraph 35(4), the Tribunal has no power under CPA and CPR to extend the mandatory 30 days period stipulated in reg. 25(2) CPR. On this ground alone, the 1st Respondent’s Decision can be justified; and (2) the 2 Conditions have been fulfilled in this case. Hence, the Applicants have the legal and evidential burden to persuade the 1st 25 Respondent to set aside the 1st Respondent’s Decision by proving that the 1st Applicant has a good defence against the Claims - please see the above sub-paragraph 35(5)(c). In this case, the Applicants have not discharged the legal and evidential burden to show that the 1st Applicant has a good defence against the Claims. This is because the application of the Indoor Management Rule (please see Part I below) supports the Claims against the 1st Applicant. Moreover, for reasons expressed in Part H below, the 1st Applicant cannot rely on the Ex Parte Order. It is to be noted that in Hazlinda Hamzah, at [8] and [11], the Court of Appeal reversed the High Court’s decision and reinstated the Tribunal’s award made in the absence of the respondent. H. What is effect of Ex Parte Order? 37. According to the Applicants’ learned counsel, the 1st Respondent’s Decision should be quashed by an order of certiorari because the 1st Respondent had failed to give effect to the Ex Parte Order. 38. I have no hesitation to decide that the 1st Respondent has not erred in law by not giving effect to the Ex Parte Order when the 1st Respondent’s Decision is made. This decision is based on the following reasons: (1) under Order 32 rule 6 RC, the court may set aside any ex parte order. The Applicants did not cite the 1st to 15th Respondents (Respondents) as co-defendants in the OS. Accordingly, the Respondents are not bound by the Ex Parte Order. In fact, the Respondents are entitled to apply to court to set aside the Ex Parte 26 Order. It is decided in Chow Chuan Fat v Yeo Chai Seng & Ors [2017] 1 AMR 676, at [20(5)], as follows - “[20] Based on my understanding of case law, there are at least 5 circumstances wherein the High Court may exercise its exceptional jurisdiction to set aside an earlier perfected judgment or order of the High Court (which has not been appealed to the Court of Appeal): … (5) when there is a breach of the second rule of natural justice, namely when a party has been deprived of his or her right to be heard before the judgment or order is pronounced (5th Vitiating Circumstance). The 5th Vitiating Circumstance is explained in the following cases - (a) Mohd. Azmi SCJ’s judgment in the Supreme Court case of Toh Seow Ngan & Ors v Toh Seak Keng & Ors [1990] 2 MLJ 303, at 306; (b) Edgar Joseph Jr FCJ’s judgment in the Federal Court in Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374, at 381-382 and 383; (c) Selvam Holdings, at p. 24 and 26; and (d) Adon bin Mohd. Pendik & Anor v Danaharta Urus Sdn Bhd [2015] 1 AMEJ 1783, at paragraphs 68 and 69.” (emphasis added); and (2) the Ex Parte Order is a declaratory order. A declaration cannot be enforced. I rely on the following judgment of the Federal Court delivered by Gopal Sri Ram FCJ in Takako Sakao v Ng Pek Yuen & Anor (No 3) [2010] 2 MLJ 141, at [6] - 27 “[6] … The weakness of the remedy of declaration lies in the want of its enforceability. A declaration cannot be enforced by execution. In Prakash Chand v SS Grewal (1975) Cri LJ 679, the court held as follows: A declaratory decree cannot be executed as it only declares the rights of the decree-holder qua the judgement-debtor and does not, in terms, direct the judgement-debtor to do or to refrain from doing any particular act or things. Since there is no command issued to the judgement-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command. In other words, there can be no committal or other execution process issued to enforce a declaration. Since a declaration cannot be enforced, no question of staying it may arise.” (emphasis added). I. Application of Indoor Management Rule 39. The Indoor Management Rule or the Rule in Turquand’s case has been explained by Mohd. Azmi SCJ in the Supreme Court case of Hew Sook Ying v Hiw Tin Hee [1992] 1 CLJ (Rep) 120, at 128, as follows: “… Further, the principle laid down in Royal British Bank v. Turquand [1856] 6 E & B 327 is that a person dealing with a company does not need to enquire into the regularity in the internal affairs and proceedings of the company, and may assume that all being done regularly.” 28 (emphasis added). 40. In this case, the 2nd to 15th Respondents can rely on the application of the Indoor Management Rule that the Payments (2nd to 15th Respondents) have been made to the 1st Applicant and not to Encik Alias or MATT. The invocation of the Indoor Management Rule is supported by the fact that the 2nd to 15th Respondents have received receipts (Receipts) for the Payments (2nd to 15th Respondents). The Receipts stated the following, among others: (1) the name and company registration number of the 1st Applicant; (2) the official stamp of the 1st Applicant; and (3) the name of the 1st Applicant’s manager (Puan Nurul Nadiyah Hj Yusof) (Puan Nurul) and her signature. 41. The Indoor Management Rule does not apply when a third party who deals with the company in question, has actual or constructive knowledge or notice at the material time that the person who purports to act for the company, has no actual authority to act as such. I rely on the following two judgments of our Federal Court: (1) the judgment of Edgar Joseph Jr FCJ in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 MLJ 465, at 507-509; and (2) Prasad Abraham FCJ’s decision in Kang Hai Holdings Sdn Bhd & Anor v Lee Lai Ban (trading as the sole proprietor under the 29 name and style of ‘Sang Excavating Services’) [2018] 2 MLJ 574, at [20] and [21]. 42. In this case, the Applicants had not adduced any evidence to show that at the time of the Payments (2nd to 15th Respondents), the 2nd to 15th Respondents had actual or constructive knowledge or notice that Puan Nurul was not authorized by the 1st Applicant to - (1) receive the Payments (2nd to 15th Respondents) on behalf of the 1st Applicant; and (2) issue and sign the Receipts on the 1st Applicant’s behalf. The 1st Applicant did not send any notice to the 2nd to 15th Respondents to inform them that Puan Nurul had no authority to act for the 1st Applicant. Nor did the 1st Applicant give a public statement or issue a public advertisement to inform the world at large that Puan Nurul was not authorized to act for the 1st Applicant. J. Should court exercise discretion to grant certiorari order in this case? 43. Regarding the court’s power of Judicial Review over the 1st Respondent’s awards, it is decided by the Court of Appeal in Hazlinda Hamzah, at [13], as follows: “[13] Being a specialist body, the Tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice. For courts should be ever remindful 30 that certiorari is not a remedy that is available as of right. It is a discretionary remedy. It is not every error of law committed by an inferior Tribunal that entitles the High Court to issue certiorari. It must be demonstrated that the error has occasioned an injustice in a broad and general sense. This principle was laid down by the Federal Court in Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687 and in R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 CLH 147 where the following passage in the judgment of Bose J in Sangram Singh v. Election Tribunal AIR [1955] SC 425 was applied with approval: That, however, is not to say that the jurisdiction (to issue certiorari) will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.” (emphasis added). 31 44. Regarding the 1st Respondent’s Decision, the 1st Respondent has not committed any error of law - please see the above Parts E and G to I. As such, Enc. 24 should be dismissed with costs. 45. I should add that even if it is assumed that the 1st Respondent has erred in law in arriving at the 1st Respondent’s Decision, I am not inclined to exercise my discretion to issue an order of certiorari to quash the 1st Respondent’s Decision. This is because no injustice has been caused to the 1st Applicant which has recourse against Encik Alias and Puan Nurul regarding the 1st Applicant’s liability to the 2nd to 15th Respondents pursuant to the Awards. On the contrary, if this court has quashed the 1st Respondent’s Decision and set aside the Awards, this will constitute an injustice to the 2nd to 15th Respondents and defeats the Purpose (CPA). K. Conclusion 46. Premised on the above evidence and reasons, Enc. 24 is dismissed with only one set of costs to be paid by the Applicants to the 2nd to 5th and 13th to 15th Respondents. 47. This judgment serves a reminder that a respondent (who has been duly served with a consumer claim in the Tribunal and a notice to attend a hearing by the Tribunal) acts at the respondent’s own peril in not - 32 (1) filing a defence to the claim; and (2) attending the hearing of the claim by the Tribunal. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 31 MARCH 2020 Counsel for Applicants: Puan Siti Fairuz Binti Sonkefeli (Messrs Siti Fairuz Sonkefeli & Co.) 1st and 6th to 12th Respondents were not present and were not represented by counsel. Counsel for 2nd to 5th & Encik Ahmad Fakhri Bin Abu Samah & 13th to 15th Respondents: Encik Mohd Afiq Farhan Bin Aziz (Messrs Fakhri & Co.) 33