Federal Court holds adverse order issued against person not notified of proceedings against him was a nullity

26 November 2020

Dava Raj Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor [2020] 9 CLJ 192

In Dr Lourdes Dava Raj Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor, the appellant, the Chief Medical Service Officer at Assunta Hospital, was charged by the Malaysian Medical Council (“MMC”) for infamous conduct in a professional respect. After the inquiry, MMC held that there was no case to answer for the appellant. The first respondent brought this matter to the High Court and the Court of Appeal, without involving the appellant as a party. The Court of Appeal held that the appellant was guilty of the charge. At the mitigation hearing, the appellant attended in protest and raised the objection that he was not bound by the decision as he was not a party to the court proceedings. However, he only filed an application to intervene after two years with a view to set aside the Court of Appeal order. The application was dismissed by the Court of Appeal and led to the present appeal to the Federal Court.

The Federal Court held that the Court of Appeal order was a nullity because the appellant was not given the right to be heard. The principles of natural justice were not satisfied by the mere reason of the practitioner having the opportunity to defend himself in the domestic inquiry proceedings. The right to be heard extends to all stages of proceeding which affected him, including the judicial review proceedings in the High Court and Court of Appeal.

Additionally, the principle in Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 CLJ 121, that intervention under Order 15 rule 6 of the Rules of Court 2012 would not be allowed where proceedings have come to an end, does not apply to court orders which are a nullity, as that would be unjust to parties affected by such orders, as was the case with the appellant.