Abdul Malik Ishak J:

The Appeal And The Preliminary Objection

This was an appeal in encl. 29 by the defendant appellant (Bimacom Property & Development Sdn Bhd) against the decision of the Senior Assistant Registrar ("SAR") allowing a preliminary objection raised by the plaintiff respondent (PP Persero Sdn Bhd) and striking out the defendant appellant's application in encl. 17.

The preliminary objection raised by the plaintiff respondent went like this: that the inclusion of prayer (1) in encl. 17 constituted a step in the proceedings and, consequently, the defendant appellant was barred from applying for a stay of the proceedings pending reference to arbitration under s. 6 of the Arbitration Act 1952 . In encl. 17, the defendant appellant sought for the following prayers:

1. Bahawa tindakan Plaintif dibuang mengikut Aturan 18 Kaedah 19 (1) Kaedah-Kaedah Mahkamah Tinggi 1980;

2. Secara alternatif, bahawa semua prosiding selanjutnya dalam tindakan ini digantung menurut Seksyen 6 Akta Timbangtara 1952, dimana perkaraperkara yang berhubung dengan mana tindakan di bawa hendaklah di rujuk kepada timbangtara;

3. Bahawa Plaintif membayar kepada Defendan kos tindakan ini termasuk kos untuk permohonan ini;

4. Lain-lain relif yang dianggap adil berpatutan dan suaimanfaat oleh Mahkamah Yang Mulia ini.

Mr. Ng Chew Hor, learned counsel for the defendant appellant, eloquently argued that although the application in encl. 17 prayer 2 specifically referred to s. 6 of the Arbitration Act 1952 , the defendant appellant was not barred, legally speaking, from seeking the court to invoke its inherent jurisdiction to have the proceedings stayed and the dispute referred to arbitration. Indeed the phrase "inherent jurisdiction" has been bandied about in this court on many occasions. Sir Jack Jacob in his article entitled: "The Inherent Jurisdiction of the court" as reported in [1970] CLP 23 at p. 51 said of that phrase to be:

.... the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

But it must be emphasised that the inherent power of the court cannot be invoked to nullify or stultify a statutory provision: Cotton Corpn of India Ltd v. United Industrial Bank Ltd & Ors AIR [1983]1272. Notwithstanding this cardinal principle of law, Lee Hun Hoe CJ (Borneo) in Chip Chong Sawmill Co Sdn Bhd & Ors v. Chai Khiun Fui [1978] 1 MLRA 420, [1978] 2 MLJ 24 in apt terms observed that:

Quite apart from and independent of all specific practice rules, the High court has an inherent jurisdiction to dismiss or stay or otherwise nullify all actions or proceedings which are shown to its satisfaction to be vexatious or oppressive, or constitute an abuse of its process.

In re Vernazza [1959] 1 WLR 622, Lord Parker CJ speaking for the Queen's Bench Division (Lord Parker CJ, Donovan and Salmon JJ) observed at p. 624:

In considering whether any proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action. Indeed, that is the principle applied under the rules of court when application is made to strike out a pleading.Though the pleading may be in order, the court, in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter, and if, in the light of that history the action is vexatious, the pleading can be struck out and the action dismissed. This is a clear case and there must be the order prayed.

Obviously the court has an inherent jurisdiction to stay all proceedings before it which are frivolous, vexatious or an abuse of its process (Reichel v. Magrath, 14 App Cas 665) and that power to stay is entirely discretionary (Gleeson v. J Wippell & Co Ltd [1977] 1