Syed Ahmad Helmy JC:

The question for determination in this application is whether the mode of commencement by way of originating motion by the applicant for the production of the application form relating to the third party charge is the proper mode.

The question arose from the preliminary objection raised by the respondent who contended that the commencement of the action by way of originating motion is wrong owing to the non-fulfillment and non-compliance of the requisites as prescribed by O. 5 r. 5 of the Rules of the High Courtwhich Rules regulates the various modes of commencement of civil proceedings in the High Court.

The respondent's objection is based on three main grounds:

1. Proceedings by way of originating motion is only permissible if authorised by rules of the High Court or any written law.

2. There must be explicit intitulement of the relevant statute or rules either in the heading or body of the originating process and the grounds of the application must be stated in the originating motion.

3. There must be a cause of action.

The applicant in resisting the objection contended that the court has a discretion to treat the non-compliance of O. 5 r. 5 as an i