Gopal Sri Ram JCA:

[1] This case essentially involves a point of procedure in judicial review proceedings. It is nevertheless an important case. Because it also concerns the amenability to judicial review of the several entities created by the Pengurusan Danaharta Nasional Berhad Act 1998 ("the Danaharta Act").

[2] For present purposes, the facts here fall within a narrow compass. They are set out in a succinct form by the learned judge in his judgment which is reported in [2003] 7 CLJ 205. It suffices to reproduce an extract from the headnote of the case which accurately reproduces the learned judge's appreciation of the facts:

The applicants were three of the four directors of Tang Kwor Ham Realty Sdn Bhd, ('the company'), and held a total of 60% of the shares therein. The first respondent ('Danaharta') was a company incorporated under the Companies Act 1965, while the second, third and fourth respondents ('the special administrators') were special administrators appointed by Danaharta under the Pengurusan Danaharta Nasional Berhad Act 1998 ('the Danaharta Act'). The fifth respondent was an independent adviser appointed by Danaharta under the Danaharta Act, while the company was a nominal sixth respondent. The company owned the land and property on which the Grand Hill Hotel was situated ('the subject land'). The company also had a non-performing loan ('NPL') of about RM26m pursuant to credit facilities granted to it and this NPL was acquired by Danaharta under the Danaharta Act and a vesting certificate. A workout proposal prepared and submitted by the special administrators to Danaharta ('the workout proposal'), together with the report of the fifth respondent, was approved both by Danaharta and by a majority of the secured creditors of the company. The workout proposal recommended the sale of the subject land at RM7.6m. The applicants claimed that the correct value of the subject land was not less than RM15m. Thus the applicants, on behalf of themselves and also by way of representative and derivative action on behalf of the company, sought leave to apply for judicial review of the workout proposal. The applicants claimed that the workout proposal was infused with public elements and was thus amenable to judicial review.

[3] On these facts the learned judge refused the applicants before him (appellants in this court) leave to apply for judicial review. And he did that after entertaining strenuous opposition to the application both from the Attorney General (who was not a party to the application but was entitled as of right to appear upon it) and counsel for Danaharta in the form of written argument. There is another important fact that I must mention at this juncture. The other respondents did not appear at what was meant to be the ex parte hearing of the applicants' motion for leave. So they really had no opportunity of taking any position on the facts and the law before the learned judge. The applicants have appealed against the learned judge's decision.

[4] Now, when this appeal came before us on 11 July 2005 we formed the view that the learned judge ought not to have refused the applicants leave to apply for judicial review. We therefore called upon counsel for the respondents to argue why the appeal ought not to be allowed. Fortunately for us, the Attorney General had, on this occasion the advantage of formidable representation in the person of learned senior federal counsel, Dato' Mary Lim who had also appeared in the court below. I must in particular thank her for her arguments and the citation of relevant authority, a trait rarely seen at the Bar these days. Based on her submissions and those of learned counsel for the first respondent, there are two broad issues that fall for determination. One procedural; the other substantive. I will address each of these in turn.

[5] There are two procedural points. The first has to do with what is to happen at the leave stage in proceedings for judicial review. Application