Court ruled on the applicability of striking out procedures in negligence claims, emphasizing the need for trials to ascertain facts.

[1] This appeal is directed against the decision dated 30 May 2016, given by the High Court Kuala Lumpur, allowing the 3rd, 4th and 5th defendants application to strike out the plaintiffs claim against them.

[2] At the conclusion of the hearing of the appeal, we dismissed the plaintiffs appeal in respect of 4th defendant but allowed the appeal in respect of the 3rd and 5th defendants. We now give the detailed reasons for our decision.

[3] For convenience, in this judgment, we will refer to the appellants as the plaintiffs and the respondents as the defendants as they were in the Court below.

Brief Facts

[4] The brief facts which are necessary to dispose of this instant appeal may be stated as follows:

(a) The plaintiffs are suing as dependents of the deceased persons who were passengers on board flight MH370 which was bound for Beijing from Kuala Lumpur on 8 March 2014. The said flight, however, did not arrive at its destination and all passengers on board were presumed dead.

(b) The 3rd defendant is a government agency established under the purview of the Ministry of Transport of Malaysia with the authority to regulate and oversee all the technical operational aspects of the civil aviation industry in Malaysia, including but not limited to, civil air traffic control, service and management.

(c) The 4th defendant was and in control of and is responsible for the operation of the Royal Malaysian Air Force ("RMAF"), including safeguarding the air space within the territories of Malaysia.

(d) The 5th defendant is the Government of Malaysia who is the employer and principal of the 3rd and 4th defendants and vicariously liable for the acts, defaults, omissions or neglects committed by the 3rd and 4th defendants in discharge of their duties in the cause of their employments.

(e) The 3rd, 4th and 5th defendants after having served and filed their defence, have filed an application under O 18 r 19 of the Rules of 2012 to strike out the pleadings by the plaintiffs and also to have the action dismissed. The paragraphs relied on in O 18 r 19 are (a), (b) and (d). The affidavit in support of the application affirmed by Encik Shaiful Nizam bin Shahrin dated 27 January 2016 and the Affidavit in Reply by Leftenan Dato Sri Ackbal bin Abdul Samad affirmed on 25 February 2016 are relied on in respect of grounds (b) and (c) only.

(f) As alluded to earlier, on 30 May 2016, the learned judge allowed the application by the 3rd, 4th and 5th defendants to strike out the plaintiffs suit against them. Hence, this appeal.

Issue

[5] The sole issue for our determination in this instant appeal is whether the learned judge correctly exercised his discretion in allowing the 3rd, 4th and 5th defendants application to strike out the plaintiffs claim against them.

The Principles

[6]Order 18 r 19 of the Rules of 2012 makes provisions for orders striking out pleadings and endorsements. It provides:

"19 Striking out pleadings and endorsements (O 18 r 19) (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under para (1)(a)."

[7] The Court will adopt the following as pr