Azmel Maamor J:

Background Of Case

On 2 August 2002 the plaintiff had obtained, by way of an ex parteapplication (encl. 6) a Norwich Pharmacal Order and an Anton Pillar Order against the defendant (the said orders). The said orders were immediately served on the defendant and executed. As such action was taken by the defendant to apply to have the said orders set aside. It was originally fixed for hearing on 12 August 2002. On a request by the plaintiff to be given time to reply to the defendant's affidavit the hearing of the defendant's application was postponed to 20 August 2002. At this new date of hearing the counsel for the plaintiff complained to the court that the defendant had committed breach of the said orders and intended to take committal proceedings against the defendant and at the same applied for another postponement of this application. The learned judge allowed the postponement. In the meantime the period of 21 days of the said orders had passed by.

Before the defendant's application for setting aside the said orders could be heard two other applications were filed by the plaintiff. Firstly, under encl. 33 the plaintiff sought the court's ruling whether pursuant to O. 29 r. 1(2B) of the Rules of the High Court 1980the said orders had lapsed. Secondly, under encl. 36A the plaintiff applied for a motion for committal against the defendant for alleged breach of the said orders.

In the light of the application for a committal proceedings the matter was referred to the Managing Judge of the Civil Division, YA Dato' James Foong. After giving his consideration, the learned judge directed that all the three applications be heard before me.

At the time when the case was first fixed for hearing before me, on 15 November 2002, I requested counsels for both parties to give their views as to which particular application should be heard first. After having considered their arguments I decided to hear encl. 16 first, ie, the defendant's application to set aside the said orders. My reasons in arriving at this decision were as follows. Firstly, in terms of time, encl. 16 was the first to have been filed. Secondly, and more importantly, it was my view that in the light of the facts that the said orders were granted ex parteand that encl. 36A is an application for committal proceedings against the defendant it would only be fair and appropriate that the legality of the issuance of the said orders be fully tested first. One way of having the said orders fully tested would be to have aninter partehearing in respect of the said orders for whatever application the applicant seeks. Towards this end the defendant's application under encl. 16 should, in my view, serve such purpose. Once it has been determined that the said orders have been properly and legally granted then only it would be proper and just to proceed with the application for committal proceedings against the defendant. Based on such reasonings I decided to begin by hearing the defendant's application seeking to set aside the said orders under encl. 16.

However, in the course of my conducting the hearing of encl. 16, it was decided at a meeting of the judges of the Civil Division, that the hearing of all matters in respect of this case be re-conducted by the original hearing judge, YA Dato' Abdul Malik bin Ishak. As such the file in respect of this case was transferred back to the learned judge for his further action. YA Dato' Abdul Malik, in his consideration, decided to hear encl. 33 first and held encl. 16 in abeyance. The defendant, being dissatisfied with that ruling of the learned judge lodged an appeal to the Court of Appeal. The matter was immediately heard. The ruling given by the Court of Appeal was that encl. 16 should be immediately heard. As a result of that decision of the Court of Appeal I was directed by the Managing Judge of the Civil Division to continue with the hearing of encl. 16 which I had previously part-heard. It was in the light of such