Joseph Anthony, 74, has filed 12 legal questions to persuade the apex court to grant him leave under Section 96 of the Courts of Judicature Act 1964 to bring his appeal.
Leave will only be granted if there are novel constitutional or legal questions of public importance raised for the first time.
Among the questions Joseph is asking is whether the government pathologist and police investigators involved in the case owed him a duty of care.
Joseph is also asking whether Section 2(a) of the Public Authorities Protection Act 1948 – which requires him to sue the government within 36 months from the date the cause of action arose – violates his constitutional right to equal protection under the law.
On Aug 26, Justice Collin Lawrence Sequerah, who led a three-member appeals court bench, said Joseph should have filed the action in his personal capacity.
In affirming a High Court ruling handed down two years earlier, Sequerah also said the suit was time-barred, having been filed outside the prescribed statutory period.
The government had argued that the lawsuit should have been filed by or before Nov 17, 2013 – three years after Dr Sebastian Joseph’s death.
Joseph, however, claimed he was entitled to bring the action any time before 2019 – calculated from the release of a second post-mortem report by two pathologists appointed by the family.
Joseph filed his civil suit in 2018.
The Court of Appeal also found that medical officer Dr Arif Rasat was qualified under Section 331 of the Criminal Procedure Code to conduct the post-mortem on the deceased.
In 2019, a coroner’s court in Alor Setar issued an open verdict in Sebastian’s case, saying that the inquest it conducted had failed to determine definitively whether the deceased had committed suicide or died of natural causes or foul play.
The conducting officer from the Attorney-General’s Chambers took the position that Sebastian died from natural causes.
Joseph claimed that the initial post-mortem was not conducted in accordance with professional medical standards.
In his statement of claim, he alleged that the investigation officer had failed to conduct a thorough probe and merely handed over the deceased’s body to Langkawi Hospital.
Joseph further claimed that no actual post-mortem was conducted on the deceased as only a few incisions were made on the body.
Sebastian, 30, was discovered lifeless in his government quarters in Padang Matsirat on Nov 17, 2010 – hours after his brother, Anthony, filed a police report saying that he could not be reached.
The deceased, a medical officer at the Kuah government clinic in Langkawi, was said to be kneeling with his hands clenched when police found the body.
In 2015, the family successfully applied for the body to be exhumed from a Christian cemetery in Shah Alam for a second post-mortem to determine the cause of death, and for an inquest to be held.