Back
2024 MarsdenLR 3398
HIGH COURT MALAYA GEORGETOWN
DR NEOH KEAN HUAT – Appellant
Versus
ONG GIM HUAT – Respondent
[Civil Suit No: PA-22NCvC-10-01/2020]
A claim should not be struck out unless it is plainly unsustainable; the merits must be determined at trial.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Application to strike out Statement of Claim – The Defendant's application to strike out the Plaintiff's claim was dismissed as the pleadings disclosed a reasonable cause of action, and the claim was not scandalous, frivolous, or vexatious. The Court emphasized that the merits of the case should be determined at trial rather than through summary proceedings. (Paras 15-19)
Facts of the case: The Plaintiff claimed breach of contract and sought damages after the Hospital suspended his medical practice, alleging violations of natural justice and bad faith. The Hospital's actions were challenged based on the Medical Practice Agreement. (Paras 6-11)
Findings of Court: The Court found that the Plaintiff's Statement of Claim was not obviously unsustainable and should proceed to trial for a full examination of the facts and merits. (Paras 15-18)
Issues: The main issues included whether the Hospital breached the Medical Practice Agreements and if there was a violation of natural justice. (Paras 11-12)
Ratio Decidendi: The Court ruled that striking out a claim should only occur in plain and obvious cases, emphasizing the importance of allowing the Plaintiff to present his case at trial. (Paras 15-19)
Result: The Defendant's application to strike out the Plaintiff's claim was dismissed.
JUDGMENT
(Striking Out)
Prelusion
[1] The Defendant hospital (the Hospital) applies to strike out the Plaintiff's (P) Writ and Statement Of Claim (SOC) under the following limbs of O 18 r 19(1) of the Rules Of 2012 (ROC):
(1) limb (a) — the SOC discloses no reasonable cause of action;
(2) limb (b) — the SOC is scandalous, frivolous or vexatious;
(3) limb (c) — the SOC may prejudice, embarrass, or delay the fair trial of the action; and
(4) limb (d) — the SOC is an abuse of the process of the Court.
P's Cause
[2] P's claim is for breach of contract. The remedy that he seeks is damages — general, aggravated, and exemplary damages. He also seeks the relief of a Declaration that the Hospital's suspension of his medical practice was "null and void" (batal dan tidak sah).
The Law On Striking Out Actions Under Order 18 Rule 19
[3] It is well established that so long as P's pleadings disclose a reasonable cause of action, the matter should proceed to trial: (1) Bandar Builders Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, [1993] 3 MLJ 36; (2) Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795.
[4] A review of the law on striking out is found in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v. Malaysian Airlines Bhd & Other Appeals, [2019] 1 MLJ 59; [2018] AMR 529.
[5] In Tan Wei Hong (supra), the Federal Court, through the written judgment of Justice Ramly Ali FCJ, sets out as follows:
[15] Order 18 r 19 of the ROC provides:
19. Striking out pleadings and endorsements (Order 18 r 19)
(1) The Court may at any stage of the proceedings order to be stuck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1)(a).
(3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.
[16] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, [1993] 3 MLJ 36; (SC); Hubbuck & Sons, Limited v. Wilkinson, Heywood & Clark, Limited [1899] 1 QB 86; Attorney-General of the Duchy of Lancaster v. London and North Western Railway Company[1892] 3 Ch 274).
[17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: [2019] 1 MLJ 59 (SC) at 68
(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;
(b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;
(c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;
(d) if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC; and
(e) the Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.
[18] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors, [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following pas
