Vincent Ng J:

Preamble

Before me is the defendant's appeal (encl. 17) against the decision of the learned senior assistant registrar (SAR) on 6 September 2002, dismissing the defendant's application to set aside the writ of summons and statement of claim dated 8 October 2001.

Background Facts

It is undisputed that the plaintiff's claim against the defendant was founded upon an agreement dated 28 February 1997; whereby the plaintiff was to be paid a registration subsidy of RM500 for each handphone issued to their members. The plaintiff sought to recover RM1 million.

The plaintiff had on 23 April 1999 caused to be issued a writ of summons based on the same cause of action videCivil Suit No: D4-22-1156-99 (the first suit).

The defendant entered their appearance and filed their statement of defence to the first suit. The plaintiff then, for reasons best known to themselves, went into hibernation for exactly a year five months and 16 days before taking out the summons for directions (SFD) under O. 25 of the Rules of the High Court 1980in the first suit.

The diligent defendant took immediate steps to set aside the SFD and to have the whole of the first suit dismissed for want of prosecution.

When their SFD and the defendant's application both came up for hearing, the plaintiff opted to withdraw the SFD and requested for an adjournment to file an application for abridgement of time to file their SFD.

Despite being given this respite, the recalcitrant plaintiff chose to disregard the court's peremptory order. As a result, when the defendant's application came up for hearing, not only was there no application for abridgement of time to file the SFD but there was no affidavit in reply by the plaintiff before the court.

This, however, did not stop the plaintiff from contesting the defendant's application, in the circumstances, considering the contumacious conduct of the plaintiff, the learned SAR allowed the defendant's application on 13 July 2001, effectively bringing the first suit to an abrupt but timely end (exh. 'KKL5' encl. 8).

This decision is of course in line with the judgment of our Court of Appeal in Trustees of Leong San Tong Khoo Kongsi (Pg) Registered v. Lee Boon Tin[1998] 4 CLJ 368; wherein Mokhtar Sidin JCA held:

From our observation, it is clear to us that from the two cases there emerged an additional limb to strike out a plaintiff's claim. The original two limbs had been laid down in Birkett v. James.We are not sure whether it is an offshoot of the second limb or it is a third limb. Be that as it may, this limb is important in view of the recent development in respect of case flow management. This new development is to overcome the backlog of cases now existing in courts in England. This new limb as we understood it to be from the two cases in that where there is inordinate and inexcusable delay which involves complete, total or wholesale disregard of the rules of the court with full awareness of the consequences is capable of amounting to such abuse so that if it is fair to do so, the action will be struck out or dismissed on that ground. From the decisions too, it appears to us that there is no necessity to show prejudice in such cases. As can be seen, the law in respect of case flow management in England will only be in operation in 1999 yet the courts there had already put in many aspects of its operation to use.

There is no denial that in this country we have backlog of cases due to unnecessary delay. In fact, in some courts, the learned judge had taken the initiative to introduce case flow management in order to hasten the hearing of actions brought before his court. The importance of case flow management is for the parties to observe the time limits as provided by the law so that the action could be brought to trial within time. It is true that some parties had caused unnecessary delay due to non-observance of the time schedule provided by the Rules. We have amended certain provisions in the Rules of th