With the imposition of the Movement Control Order (MCO), it has been reported that the Federal Court has said that all leave to appeal applications scheduled to be heard from April 15 to 30 will be decided based only on written submissions, without the presence of lawyers to argue it before a panel of Federal Court Judges.
Leave applications at the Federal Court involves deliberation on novel points of law. It is based on legal and constitutional questions framed by aggrieved parties and the bench will decide whether the question framed merits an appeal be heard. It requires special skills from lawyers with an attentive panel of Judges. It is open knowledge leave application are rarely granted.
So this move of having the most difficult application heard by written submission, is with respect, not a timely and proper one.
Section 75 of the Courts of Judicature Act, which states that the court must sit on such dates and such place as the chief justice decided. A panel cannot assemble and decide without the physical presence of lawyers for disputing parties. Rule 98 of the Federal Court Rules 1995 also emphasises that all applications should be before the open court.
The litigants, ultimately the general public, are entitled to a fair and transparent process for their matters before the Court, especially the Federal Court, which is the highest court in the land.
In most lower courts and the High Courts, interlocutory matters are dealt by way written submissions and this practice may continue.
We are currently facing unprecedented times and as such the judiciary should not introduce any knee-jerking short term measures, which could lend credence to the saying, ‘justice hurried is justice buried’.
We urge the Federal Court to postpone all leave application hearings until the MCO is lifted, unless of course the parties themselves agree the matters to be dealt by way of written submission.
Press Statement / Letter to the Editor, 27 March 2020