On 14 December 2022, the Federal Court in Majlis Perubatan Malaysia & Anor. v. Asia Pacific Higher Learning Sdn. Bhd. [Civil Motion No. 09(f)-416-09/2022 (W)] unanimously dismissed the Applicants’ motion for leave to appeal against a decision of the Court of Appeal, where it was notably held that a tortious duty to adhere to non-statutory guidelines could arise even where such guidelines are without the force of law.
In the said Court of Appeal decision (Majlis Perubatan Malaysia & Anor. v. Asia Pacific Higher Learning Sdn. Bhd.  6 MLJ 529;  9 CLJ 177), the Applicants were found liable for negligence, breaches of statutory duties and misfeasance in public office for their contravention of the “Guidelines for the Accreditation of Malaysian Undergraduate Medical Education Programmes” (“Accreditation Guidelines”) in the accreditation of the Respondent’s medical programmes.
The Applicants then filed a motion for leave to appeal to the Federal Court on the following proposed questions:-
(1) Whether non-statutory guidelines, such as the Accreditation Guidelines, had the force of law in view of the contradictory decisions of the Court of Appeal in Majlis Angkatan Tentera Malaysia v. Mohd. Nurul Ami Bin Mohd. Basri  2 MLJ 433 and Sivapalan a/l Govindasamy v. Universiti Malaya  12 MLJ 354?
(2) Whether breaches of non-statutory guidelines could sustain causes of action in tort?
(3) Whether the 1st Applicant was the correct party to be sued under the Malaysian Qualifications Agency Act 2007 (“MQA Act”)?
(4) Whether the Respondent was obliged to exhaust the statutory remedy prescribed under s. 82 MQA Act before resorting to the Courts?
(5) Whether the test for imposing vicarious liability is confined to the test expounded in Dr. Kok Choong Seng & Anor. v. Soo Cheng Lin & Anor.  10 CLJ 529?
The Respondent strenuously opposed the admission of the Applicants’ proposed questions for appeal on the following grounds:-
(1) the decisions in Majlis Angkatan Tentera Malaysia and Sivapalan were not contradictory as the Court of Appeal had decided on entirely distinct issues. In any event, the issue of the enforceability of guidelines was settled in Nabors Drilling (Labuan) Corp. v. Lembaga Perkhidmatan Kewangan Labuan  12 MLJ 54 where the Federal Court held that guidelines have the force of law where they were issued pursuant to written law;
(2) there were concurrent decisions of the High Court and the Court of Appeal which determined that the Accreditation Guidelines did not have the force of law but would nevertheless give rise to legal consequences in the event of breach. This was consistent with the decision of the Court of Appeal in DC Contractor Sdn. Bhd. v. Universiti Pertahanan Nasional Malaysia (Unreported);
(3) irrespective of whether the Accreditation Guidelines had the force of law, the Applicants’ proposed questions would not result in the reversal of the judgment of the court below as the Applicants had not challenged the Court of Appeal’s findings on the fulfilment of the elements of the three torts;
(4) the 1st Applicant was indisputably the ultimate decision maker for the accreditation of medical programmes, and therefore the correct party to be sued, based on the provisions of the MQA Act read with the Medical Act 1971. This was ultimately a question of statutory interpretation in which the Court of Appeal was so obviously right;
(5) the statutory remedy prescribed by s. 82 MQA Act is only applicable where there is a refusal to grant accreditation or where there is a revocation of a certificate of accreditation. The question posed by the Applicants was therefore based on erroneous facts as the instant case concerned the accreditation exercise, prior to the grant or refusal of accreditation; and
(6) the test for vicarious liability in situations where the relationship between a defendant and a tortfeasor is akin to employment had also been settled by the Federal Court in Dr. Hari Krishnan v. Megat Noor Ishak Bin Megat Ibrahim  3 MLJ 281.
After extensive submissions by the parties, the Federal Court held that the Applicants had not satisfied the high threshold for leave to appeal under s.96(a) Courts of Judicature Act 1964 and accordingly dismissed the Applicants’ motion with costs.
Steven Thiru, Gregory Das, Jeremiah Rais and Leah Samuel of Messrs. Steven Thiru and Sudhar Partnership were instructed by Messrs. Gerard Samuel & Associates to act as counsel for the Respondent in the Federal Court.