A plaintiff may discontinue a suit without leave under certain rules unless the discontinuance constitutes an abuse of court process.

Introduction

[1] The application before me raises an interesting point of procedure. The point being whether the plaintiff one Prof. Dato' Dr Rahmat Bin Mohamad, who is the former Chairman of Suruhanjaya Hak Asasi Manusia (Human Rights Commission of Malaysia) ["SUHAKAM"], is entitled - as of right - to discontinue a Writ of Summon that he has filed against a senior staff of Suhakam with liberty to file afresh on the ground that he has filed his Notice of Discontinuance within the timeline prescribed under O 21 r 2(1) of the Rules of 2012. ["ROC"]

[2] The plaintiff contends that I, namely, the Court has no power and jurisdiction to impose terms on his withdrawal once he comes within O 21 r 2(1) of the ROC. He says that I can only impose terms if his withdrawal is pursuant to O 21 r 3 of the ROC.

[3] In short, the plaintiff contends I cannot order a discontinuance without liberty to file afresh and that the only order I can make is to allow the plaintiff's application to withdraw the Writ with liberty to file afresh.

[4] Counsel has informed me there are no reported cases directly on point. I thank counsel as well as Mr Andrew Khoo holding a watching brief for SUHAKAM for their submissions which have greatly assisted me in arriving at my decision. I heard counsel on 19 January 2024. I reserved decision to 26 January 2024. I now deliver my decision with full grounds.

Background Facts

[5] The plaintiff is a former Chairman of SUHAKAM. The plaintiff held this position from June 2022 to 31 August 2023.

[6] The defendant commenced employment at SUHAKAM in 2006 as an Assistant Secretary and since 2014 has been a Ketua Penolong Setiausaha (Principal Assistant Secretary) ["KPSU"].

[7] In November 2022, the defendant was promoted to the position of Timbalan Setiausaha (Deputy Secretary) ["TSU"] with a 6-month probationary period. This is a senior management position. In April 2023, the defendant requested that his position be reverted to KPSU.

[8] The suit here concerns complaints made by the defendant in respect of the actions of the plaintiff during his time as Chairman of SUHAKAM.

[9] The complaints relate to alleged acts of interference with appointment procedures, conflict of interest, abuse of power, aggression and bullying towards senior management and officers of SUHAKAM and racism.

[10] These complaints were submitted to various bodies / departments including the Bahagian Aduan dan Pemantauan (Complaints and Monitoring Working Group) of SUHAKAM.

[11] On 26 April 2023, the plaintiff filed the present suit against the defendant for defamation arising from the complaints, in particular the complaint to the Complaints and Monitoring Working Group of SUHAKAM.

[12] On the same day, the plaintiff's solicitors wrote to the Complaints and Monitoring Working Group of SUHAKAM requesting SUHAKAM to immediately stop its inquiry into the complaint to SUHAKAM as required under s 12 of the Human Rights Commission of Malaysia Act 1999 .

[See letter from the plaintiff's solicitors to Suhakam dated 26 April 2023 at pp 34 - 35 of the defendant's Affidavit in Reply / encl 11].

[13] As a result of the filing of the suit by the plaintiff, SUHAKAM citing s 12(3) of the Human Rights Commission of Malaysia Act 1999 informed the defendant that SUHAKAM can no longer continue their investigations into the defendant's complaint against the plaintiff.

[See letter from SUHAKAM to the defendant dated 23 May 2023 at pages 26 - 27 of the defendant's Affidavit in Reply].

Discontinuance Of Suit

[14] At the 1st case management fixed for this matter on 29 May 2023, the Registrar directed that the Defence was to be filed on 21 June 2023.

[15] On 20 June 2023, one day before the Defence was due, the defendant's solicitors were notified by telephone and by letter that the plaintiff intends to w