Filtering Appeals: How could the Court of Appeal improve section 68 CJA Leave Applications?
Step into the Court of Appeal on a busy day. Fifteen or more leave applications, each one dragging on—an hour gone with every hearing. Judges listen, counsel argue, yet somehow the essentials get lost in the shuffle. Is there a better way?
The Problem: Too Much Talk, Too Little Focus
If your claim is under RM250,000, section 68 of the Courts of Judicature Act 1964 (“CJA”) requires permission (‘leave’) to appeal. This ‘leave application’ is meant to filter out weak or hopeless cases from the Court’s docket.
Yet, the process is often as clear as mud.
A Simple Technique: Four Questions, Ten Minutes
Imagine if the Court of Appeal, before arguments even start, gave the following instructions:
“Counsel, you have 10 minutes. Please address the court on four questions:”
“Q-1: What are your key questions on appeal?”
“Q-2: Are your issues questions of fact, law, or ‘mixed’ questions of fact and law?”
“Q-3: Can you show which of your questions pass the Danga Bay ‘prima facie’ test, i.e. that your appeal “is not frivolous”?”
“Q-4: Explain exactly how you meet the Danga Bay threshold.”
Applicant’s counsel answers.
Then, the other side responds.
Why will this specific technique work for s. 68 CJA leave applications?
The four-question method above is a practical, time-saving approach.
It forces everyone to clarify and justify. It brings order to chaos.
The result?
Fast. Focused. No wasted words.
Fewer meandering hearings and decisions anchored to clear legal tests.
The Test: What must counsel prove to get sec. 68 leave to appeal?
Click here for a discussion of this.
The ‘Negative’ Test, Simply Put in Plain English
The Court of Appeal in Danga Bay clarified: leave is there to filter out appeals that are “obviously unsustainable.”1O’Reilley v Mackman [1983] 2 AC 237, Court of Appeal in Country Garden Danga Bay Sdn Bhd v. Tribunal Tuntut Pembeli Rumah & Anor [2020] 4 CLJ 865, Harta Pusaka Mohamad Shazrin bin Hassan v Naga Chitra a/p Rajagopal & Ors [2023] 5 MLJ 52
The ‘two nots’
The Court will only grant leave if your appeal is “not frivolous” and “not unmeritorious.”
If your questions are trivial or pointless, you fail.
“Frivolous” means your case is hopeless.
“Unmeritorious” suggests your appeal simply cannot succeed.
In Practice
If your case has real substance and isn’t just wasting everyone’s time, you should pass the “prima facie” (‘on the face of it’) hurdle—and prove the ‘two nots’: your appeal is “not frivolous” and “not unmeritorious.”
So…
The Court of Appeal can improve section 68 CJA leave applications. The secret? Ask the right questions, and apply the simple Danga Bay test: Is this appeal obviously hopeless, or does it deserve to be heard? Less talk, more clarity.
Let’s make Court time count, and let justice breathe.
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Gratitude:
The author thanks KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi.
Acknowledgements: the image is from Drew Beamer, Unsplash
