KC Vohrah J:

An application for leave for an order for certiorari under O. 53 r. 1 of the Rules of the High Court 1980 (RHC) was made before me. Leave was refused. It has to be noted that O. 53 RHC relating to the application for the order of mandamus, prohibition, certiorari, etc is derived from O. 53 English RSC 1965 before it was replaced by the public law remedy of "judicial review" by S.1. 1977 No: 1955.

Our O. 53 r. 1 is substantially similar to the present English O. 53 r. 3(1). Under the present English r. 3 there is provision for an applicant who has been refused leave to renew application for leave unlike our provision but it does appear that the principles under the O. 53 RSC relating to whether leave should or should not be given generally equally apply to our O. 53 (see Tuan Hj. Sarip Hamid v. Patco Malaysia Bhd [1995] 3 CLJ 627; [1995] 2 MLJ 442 and the discussion by Visu Sinnadurai J in Bandar Utama Development Bhd v. Lembaga Lebuhraya Malaysia [1998] 1 MLJ 230, 233-235).

It is apposite to state the purpose of the leave stage and I quote from De Smith, Woolf and Jowell, Judicial Review of Administrative Actions, 5th edn. 1995:

The leave stage in Order 53 proceedings serves a number of purposes. First, it may safeguard public authorities by deterring or eliminating clearly illfounded claims without the need for them to become a party to litigation. The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge. Secondly, for the High Court, the leave procedure provides a mechanism for the efficient management of the growing judicial review caseload. A large proportion of applications can be disposed of at the leave stage with the minimum use of the court's limited resources.

Thirdly, for the applicant the leave stage, for from being an impediment to access to justice, may actually be advantageous since it enables the litigant expeditiously and cheaply to obtain the views of a High Court judge on the merits of his application. (footnotes have not been excluded in the passage).

The granting of leave is discretionary but like all cases involving discretion there are certain principles to abide by. In one of the earliest cases dealing with the discretion, Edgar Joseph Jr J (as he then was) in Dr. Amir Hussein bin Baharuddin v. University Sains Malaysia [1989] 3 MLJ 298 pt 299 had this to say:

I approach this application by reminding myself that under O. 53 r. 3, the court exercises discretion whether to grant leave to apply for judicial review.

The court is here first looking only at the ex parte application and is concerned to see whether prima facie there is a genuine case for review.

His Lordship then referred to the principles enunciated by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self Employed & Small Business Ltd [1982] AC 617 at 644 where the central question to be determined is whether there is an arguable case in favour of granting the relief claimed by the applicant:

If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be arguable case in favour of granting to the applicant the relief claimed, it ought in the exercise of a judicial discretion, to give him leave to apply for that relief.

The discretion which the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.

Edgar Joseph J then proceeded on with his case by posing the threshold test - "Does the applicant have an arguable case for review, a sufficient interest?"

In a later case, Association Of Bank Officers, Peninsular Malaysia V. Malayan Commercial Banks Association [1990] 1 CLJ 33 (it would appear that neither Dr. Amir Hussein bin Baharuddin nor Inland Re