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2024 MarsdenLR 3335
HIGH COURT MALAYA KUALA LUMPUR
AHMAD SHAHRIR MOHD SALLEH, J
GLOW INTERNATIONAL MALAYSIA SDN BHD – Appellant
Versus
GOVERNMENT OF MALAYSIA & ORS – Respondent
[Originating Summons No: WA-24NCvC-3927-09/2023]
An originating summons challenging a public authority's decision must be pursued through judicial review, not as an abuse of process.
Headnote:(A) Private Healthcare Facilities and Services Act 1998 - Government Proceedings Act 1956 - Application to strike out originating summons - Plaintiff challenged the Impugned Decision to cease business operations, claiming it was void and illegal - Court found the application unsustainable as it was an abuse of process and duplicity with pending judicial review. (Paras 11, 24, 28)
(B) Judicial review - Principles governing striking out applications - The court must ensure that claims are not frivolous or vexatious and that a reasonable cause of action is disclosed. (Paras 12, 14)
Facts of the case:
The plaintiff, providing aesthetic laser treatments, received an order from the 5th defendant to cease operations, citing violations of health regulations. The plaintiff sought to declare this order void and illegal. (Paras 1-10)
Findings of Court:
The court found the plaintiff's originating summons was an abuse of process as it effectively challenged a public authority's decision outside the proper judicial review framework. (Paras 24, 28)
Issues: Whether the originating summons was an abuse of process and whether a civil action could be brought against ministries. (Paras 24, 26)
Ratio Decidendi: The court ruled that the plaintiff's challenge to the Impugned Decision must be pursued through judicial review, not by originating summons, as it constituted an abuse of process. (Paras 23, 28)
Result: Application to strike out the originating summons allowed with costs of RM5,000.
(Enclosure 8 - Application To Strike Out Originating Summons)
Introduction
[1] The 5th defendant rendered a decision against the plaintiff vide a letter dated 13 January 2023. The letter was addressed to one of the plaintiff's directors, namely Mr Lucas Sandral. The decision was in relation to an order for the plaintiff to immediately cease its business operations in relation to the provision of facial treatment services using aesthetic laser procedures ("Impugned Decision"). According to the 5th defendant, the Impugned Decision was aligned with certain aesthetic medical practice guidelines. The Impugned Decision was made pursuant to the regulatory visits carried out by the 6th defendant at the plaintiff's business premises.
[2] The Impugned Decision had affected and effectively prevented the plaintiff from continuing with its business operations. Feeling aggrieved, the plaintiff then filed the present originating summons for certain declaratory orders against the defendants. Chiefly, the plaintiff was seeking to have the Impugned Decision declared void and illegal.
[3] The defendants applied under O 18 r 19(1) of the Rules of 2012 to strike out the originating summons. The defendants' application was premised on paragraph (d) on the ground that the originating summons was an abuse of the process of the Court .
[4] On a perusal of the originating summons and the affidavits filed for and against the application and considering the positions of the respective parties as deliberated in the submissions, this Court made a finding that the plaintiff's application was obviously unsustainable. Thus, the defendants' application in Enclosure [8] was allowed and the plaintiff's originating summons was accordingly struck out with RM5,000.00 cost. The plaintiff was not satisfied with the decision and appealed.
Brief Background Facts
[5] The plaintiff was established to carry on the business of providing beauty treatment services. Specifically, the plaintiff intended to provide facial treatment services by means of aesthetic laser procedures. The laser treatment was of the non-invasive type. According to the plaintiff the technology was approved by the Food and Drug Administration, USA (US FDA).
[6] For the purposes of its business operations, the plaintiff submitted an application to the 7th defendant for facilitation. In the application, the plaintiff described the nature of the services to be provided. In the middle of November 2014, the 7th defendant granted the plaintiff its approval to run the business subject to certain conditions. The approval was for the period of two years from the date of the letter. According to the letter, the plaintiff was granted approval to carry on the activity under the heading of "import of medical diagnostic preparation medical laboratories activities of consultants other than architecture, engineering and management consultants".
[7] With the approval, the plaintiff began its beauty treatment operations in several shopping malls in Kuala Lumpur and Selangor. The operation outlets carry the name and style of "Glo Laser Centre" ("Glo Centre"). However, towards the end of December 2022 and early January 2023 the plaintiff's Glo Centre at the Suria KLCC, Mid Valley Megamall and Sogo were visited and inspected by officers of the 6th defendant.
[8] Following the inspection, on 31 January 2023 the plaintiff received a letter dated 13 January 2023 from the 5th defendant. The letter was copied to the 5th defendant. By the letter, the 5th defendant ordered for the plaintiff's business operations to cease with immediate effect. The letter referred to the inspection which was carried out the Glo Centres at the Suria KLCC, Mid Valley Megamall and Sogo shopping complexes. Based on the inspection it was found that the beauty treatment provided by the plaintiff may only be carried out at a registered medical facility or a medical facility which is licensed by the Ministry of Health and oper
