Gunn Chit Tuan SCJ:

After filing its record of appeal on 23 November 1990, William Jacks & Co. (M) Sdn. Bhd. (the appellant) filed a notice of motion dated 8 January 1991, to move the Court pursuant to s. 69(1) of the Courts of Judicature Act 1964, read with r. 51 of the Rules of the Supreme Court 1980, for an order that:

(i) The appellant, as applicant, be granted leave to insert a copy of the sealed order dated 9 October 1990, into the record of appeal filed on 23 November 1990; and

(ii) the appellant, as applicant, be granted leave to admit by affidavit the appellant's board resolution dated 18 May 1990, as further evidence.

The appellant had on 29 May 1990, instituted an action through M/s. Paul Chong & Kraal against Chemquip (M) Sdn. Bhd. and one Amy Yew Sze Kiat @ Eew Sze Chieh (f) (the respondents) for inter alia breach of a service contract and of fiduciary duty owed to the appellant. The relief claimed was substantially to restrain the respondents from exploiting confidential information with regard to certain equipment supply contracts for their own benefit and gain. On 30 May 1990, the appellant obtained an interlocutory injunction to restrain the respondents from dealing in those disputed equipments. At the hearing of an application on 4 October 1990, to set aside the interlocutory injunction, the respondents' solicitors orally raised a preliminary objection and questioned the authority of M/s. Paul Chong & Kraal to act for the appellant. After hearing submissions by Counsel, Wan Adnan J upheld the respondents' objection and ordered that the appellant's action be struck off with costs.

Before us, Mr. Cecil Abraham, senior Counsel for the appellant, referred to the judgment of the learned trial Judge in which His Lordship expressed the view that a challenge to authority of the solicitors can be made at any time and that:

the Court may in its inherent jurisdiction entertain the challenge made orally at any stage of the proceedings and may refuse to proceed further with the proceedings if the Court can come to a conclusion on sufficient or admitted evidence that there is no action properly before it.

It was the contention of Counsel that if the learned Judge had considered carefully the three cases referred to by him in his judgment, namely Khoo Leong Kee v. L.Y. Swee Co. [1968] 2 MLJ 104; Chin Kok Kwong Construction Sdn. Bhd. V. Sunrise Towers Sdn. Bhd. [1984] 1 CLJ 522; and Simmons v. Liberal Opinion Ltd. [1911] 1 KB 966, he would have seen that there was basic evidence before the Court in those cases that the suits were instituted without authority and should be dismissed with costs. It was the submission of appellant's Counsel that those cases were distinguishable on their facts because, unlike those cases, in the present case there was no evidence at all of any document regarding authority to act before the Court.

Mr. Abraham pointed out that the learned Judge did refer to the following passage in the judgment of Warrington J in Richmond v. Branson & Son [1914] 1 Ch 968:

But the real question is the authority of the solicitor. Is that a question which can be raised as a relevant issue in the action and at the trial? No authority has been cited in support of the affirmative of such a proposition, and, in my opinion, it is impossible, according to the ordinary practice and procedure of the Court, to justify that proposition. The business of this Court could not be carried on if one were not entitled to assume the authority of the solicitor unless and until that authority has been disputed and shown not to exist in the proper form of proceeding, namely a substantive application on the part of the parties concerned to stay the proceedings on the ground of want of authority,

and contended that that case clearly supported the appellant's position that a substantive application on the part of the parties concerned to stay proceedings on the ground of want of authority is required.

The learned Judge had also re