There are four similar applications filed by the first, second, third and fifth defendants. In these applications, they are seeking the order of the court to strike out the plaintiff's writ of summons and that all further proceedings against them be stayed on the ground that the plaintiff's action is not properly constituted under Order 15 rule 12 of the Rules of the High Court 1980 in that the plaintiff is not entitled to sue on behalf of or as representing all purchasers of palm oil under futures contracts which on March 13 & 14, 1984 were declared by the Kuala Lumpur Commodities Clearing House Sdn. Bhd. (KLCCH) to have been defaulted on. A fifth application was filed by the eighth defendant. In this application, the eighth defendant asks the court to stay all proceedings against it and/or the name of the eighth defendant be struck out on the ground that the plaintiff's claim does not disclose any cause of action against the eighth defendant.

At the commencement of the hearing of the applications, the plaintiff applied to the court by way of summons-in-chambers to cross-examine Sim Kian Bian, and Lee Boon Joo, deponents of the affidavits filed by the first and fifth defendants in support of their respective applications. The affidavit in support of the plaintiff's application averred that the action brought by the plaintiff was in a representative capacity as there were numerous persons, including the plaintiff, having the same interest in the subject matter of the suit. They also had a common grievance against the first, second, third, fourth, fifth and sixth defendants. The affidavit stated that the nexus between the plaintiff and those it represented on the one part and each of the defendants on the other part was to be found in one or more of the 5,150 future contracts pleaded in the statement of claim. The plaintiff further stated that the particulars of the several contracts entered into by the first and fifth defendants with the plaintiff were within the knowledge of the deponents who the plaintiff wished to cross-examine. According to the plaintiff, the purpose of the cross-examination was to establish (a) the substantive grounds necessitating a representative action and (b) the knowledge of the deponents of the several contracts and particulars thereof.

Mr. Sri Ram, counsel for the plaintiff, submitted in support of the application, that the purpose of the cross-examination was to show that the defendants did not have a fair motive to strike out the writ. In support of his submission, he relied on two cases, namely, In re Smith and Fawcett Ltd [1942] Ch 304 and Leisure and Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189.

Mr. Cecil Abraham, counsel for the first defendant, opposed the plaintiff's application to cross-examine the two deponents. He said the plaintiff made the application in order to embark on discovery. He denied that the first defendant had an improper motive.

After hearing the arguments of both counsel for the plaintiff and the defendants, I allowed the plaintiff's application to cross-examine the two deponents of the defendants' affidavit. Order 38 rule 2(3) of the Rules of the High Court gives the court the discretionary power to order the two deponents to attend court to be cross-examined on the affidavits affirmed by them. The test of whether an application to cross-examine a deponent of an affidavit is to be allowed or not is clearly laid down by Salleh Abas F.J., as he then was, in Leisure and Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189. In that case he said:

"To allow or not to allow the respondent's application to cross-examine the appellant's witnesses upon their affidavits… is a matter of court's discretion… It is really a matter of common sense and an elementary legal principle that a party who swears an affidavit must be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause, vexatious o