Abdul Malik Ishak JCA:

Introduction

[1] This was an appeal against the decision of the learned Judicial Commissioner who allowed the defendants/respondents' application under O. 18 r. 19(1)(b) or (d) of the Rules of the High Court 1980 ("RHC") to strike out the plaintiff/appellant's writ and the statement of claim dated 15 January 2004 on the grounds that it was "scandalous, frivolous or vexatious" or "an abuse of the process of the court" to commence the proceedings by way of a writ instead of by way of an application for judicial review under the new O. 53 of the RHC.

[2] While he was at the High Court bench, my learned brother Low Hop Bing, JCA had, in Affin Bank Bhd v. Eye Bee Sdn Bhd ; [2005] 7 MLJ 1, the privilege of construing O. 18 r. 19(1) of the RHC and this was what his Lordship said (see p. 8 of the report):

It is trite law that it is only in conspicuously unsustainable cases that a pleading generally and a claim specifically would be struck out under any limb of Order 18 rule 19(1) and such power would only be exercised by the court sparingly.

[3] In Pet Far Eastern (M) Sdn Bhd v. Tay Young Huat & Ors [1999] 2 CLJ 886, sitting on the High Court bench, I too ha