A lawyer was admitted as advocate and solicitor in High Court of Sabah and practiced in Sabah using work permit. He wanted to belong to Sabah, so he applied for an obtained an entry pass, valid for 2 years. If he fulfils the requirement to reside in Sabah for 2 years, he will fulfil the requirement to belong to Sabah. Just few weeks before expiry of the pass, his pass was revoked and he was issued a special pass instead, valid for 7 days only, after which he has to leave Sabah. He applied for stay of the effect of the decision by authority to revoke his entry pass.
A licensee was granted a temporary occupation license (TOL) to operate and mine ‘rare earth oxides and carbonates’ in the Gebeng Industrial area. The applicants sought to quash the TOL and to stay and injunct the issuance of TOL and the exercise of rights under TOL.
An applicant sought for an order of certiorari to quash the decision of the relevant authority to construct an alignment to a road which is said to be near to the properties of the applicants, and an order to stay the construction of the alignment pending disposal of the review application.
Three scenarios, one thing in common – the applicants in these scenarios applied for an order of stay but with different outcomes.
In the first scenario, the applicant survived the axe of deportation from Sabah at the Court of Appeal who reversed the decision of the High Court refusing an order of stay but only to find it reversed again at the Federal Court. The second and third scenarios were not so promising though, where courts formed the opinion that stay in the case amounts to an injunction against the Government under Section 29(2) of the Government Proceedings Act 1956.
Stay and injunction are two different reliefs, though line differentiating the two has been demonstrably difficult to discern. If even judges got them mixed up, what more parties and their lawyers.
General principles of stay in judicial review proceedings
A decision made by an officer or minister as well as other decision-making bodies can in principle be stayed by an order of court pending conclusion of a challenge to the decision-making power by way of judicial review. This is illustrated in R v Secretary of State for Education and Science, ex parte Avon Country Council and the local decision of YAM Tunku Dato’ Sri Nadzruddin ibni Tuanku Ja’afar v Datuk Bandar Kuala Lumpur & Anor.
The power of a High Court to grant an order of stay is provided for in Order 53 Rule 3(5) of the Rules of Court 2012 which reads, albeit not expressly stipulated:
“The grant of leave under this rule shall not, unless the Judge so direct, operate as a stay of the proceedings in question”.
When applying for an order of stay under rule 3(5) above, the stay would have the effect of temporarily suspending the effect of the public law decision pending the outcome of the certiorari or prohibition challenging the public law decision. It therefore preserves the status quo by suspending the proceedings under challenge and preventing implementation of the impugned decision.
A better attempt to define an order of stay is as stated in the following passage in the decision of SC Aggrawa J in Shree Chamundi Mopeds Ltd v Church of South Indian Trust Association, Madras:
“While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order.
Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed.
The stay of operation however does not lead to the same result. It only means the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence.”
Principles applicable for a grant of stay in judicial review proceedings are similar to the granting of an application for interlocutory injunction as illustrated in the decision of Godfrey Philips (Malaysia) Sdn Bhd v Timbalan Ketua Pengarah Kesihatan (Kesihatan Awam) Kementerian Kesihatan, Malaysia.
Therefore, for a court to grant a stay, the onus is on an applicant to establish the following: [a] that he/she is likely to suffer irreparable harm in the absence of a stay order; [b] that balance of equity (or known as balance of convenience) tips on his/her favour; [c] that a stay order is in public interest.
This is the difference in public law cases where a broader consideration of the ‘public interest’ which the public body exists to protect will be required rather than merely the narrow interests of the parties.
General principles of an injunction in judicial review proceedings
What by birth is a private law remedy, the injunction has now evolved its application on the public law domain as well. The principles applicable in considering an application for an injunction under public law are similar with those in private law. Nevertheless, courts have been very reluctant in granting injunction against public authority which is said to have the effect of granting injunction against Government, prohibited by the Government Proceedings Act 1956 and the Specific Relief Act 1950.
In the second and third scenarios above, once again it was decided that granting of an order for stay would amount to an injunction. Section 29(2) of the Government Proceedings Act 1956 which have been oft-quoted to shield public authorities is reproduced as follows:
“The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give a relief against the Government which could not have been obtained in proceedings against the Government.”
Notwithstanding the ratio in the Supreme Court of Lim Kit Siang v United Engineers (M) Bhd regarding injunction against government, the word “civil proceedings” in Section 29(2) is defined in the same Actwhich refers to any proceedings of a civil nature before a court but does not include proceedings under Chapter VIII of the Specific Relief Act 1950 or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division. Proceedings that can be brought on the Crown side of the Queen’s Bench Division include prerogative relief such as certiorari and prohibition. Therefore, such proceedings should not be considered as civil proceedings for purposes of Government Proceedings Act.
Balance of convenience
In considering whether there are serious issues to be tried, focus is on an applicant to demonstrate serious and irreparable harm if stay is not granted. This serious and irreparable harm must outweigh the harm to the respondent if stay is to be granted. In essence, the balance of convenience must tip in favor of the applicant. As to adequacy of damages, unless the public authority is able to show the damages it has to bear if stay is granted, adequacy of damages is less likely to be issue in public law cases as breach of public law cases does not necessarily give rise to a claim in damages.
In the third scenario above involving the construction of an alignment of a road by public authority, the applicants fail to tip the balance in their favor. The company that was appointed to construct the alignment road demonstrated that they would suffer irreparable harm to its reputation and finance if there is a delay to the project as it is subject to payment of LAD interest on daily basis and that there are other parties working on the area. An order of stay would affect these third parties’ work as well as create more disruption to road users or possible flooding. In contrast, the applicants have not demonstrated how irreparable are the damage to their properties due to the construction. Even if the applicants manage to show damage to their properties, that only reflects the private interest. Where public interest is involved, the balance of convenience must be tilted in favor of the public in general as against the private interest of the applicants.
Similar in the decision of Godfrey, the balance of convenience too tips heavily against granting of interim injunction. Where the need to protect public health in smoking outweighs the severe losses and damage likely to be suffered by the applicant as well as loss of reputation. Mohd Zawawi Salleh J made an interesting remark at paragraph  of the Godfrey’s decision:
“The likelihood of harm to the public’s health stemming from smoking is not disputed by the applicant. The harm to the public’s health is irreparable. The harm, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, ie irreparable. If such harm is sufficiently likely, therefore, the balance of harm will usually favor the refusal of stay and/or prohibition order to protect the public”.
Notwithstanding the similarity of principles in applying for stay and injunction, the effect between the two are not similar. In fact, Justice Gopal Sri Ram has made a good attempt to draw a line when he said:
“By contradistinction, an injunction is directed at a party to a proceeding restraining him from doing or requiring him to perform a particular act. Put in another way, an injunction acts in personam, a stay does not.”
In learning the difference, drafting of the prayer therefore becomes crucial. An applicant should be careful to craft his prayer in such a way as to stay the effect of decision to be impugned rather than to stop or prevent public bodies from the performing an act. It is not a play on semantics. One acts in personam, the other does not.
  1 ALL ER 289
  1 CLJ 210
 R(H) v Ashworth Hospital Authority  1 WLR 127
 AIR  SC 1439, 1444
  9 CLJ 670
 Section 29(2)
 Section 55
  CLJ (Rep) 170
 Section 2, Government Proceedings Act 1956
 Sugumar Balaskrishnan v Pengarah Immigresen Negeri Sabah & Anor & Anor Appeal  3 CLJ 85