Abdul Malik Ishak J:

Introduction

This is the plaintiff's application in encl 16 by way of a summons in chambers for an issue or question raised in the pleadings of this civil suit to be tried on a preliminary basis under O 33, r 2 of the Rules of the High 1980 ("RHC") on the grounds that it would save considerable time and costs. In its original text, encl. 16 is worded in this way:

LET ALL PARTIES concerned attend before the Judge in chambers on the hearing of an application on the part of the Plaintiff abovenamed for an order that the following question or issue raised by the pleadings in this action be tried as a preliminary issue before the trial of the other questions or issues in this action pursuant to O 33, r 2 of the Rules of the High 1980 and that until the determination of the preliminary issue all further proceedings in this action be stayed AND THAT such further or other directions be given for the trial of the said preliminary issue as may be necessary AND THAT the costs for this application be costs in the cause.

The above-mentioned question or issue is the following:

UPON the facts pleaded in paras 17, 18, 19, 20 and 21 of the Statement of Claim namely:

17.The First Defendant being a body established by statute and charge(d) under the Law with the smooth and fair and efficient functioning of the Banking system and industry through a sound financial structure for the country is under a statutory duty to ensure the proper and fair administration by any Bank under its jurisdiction with member or members of the public. It has, amongst its many business(es), a duty as described under s 30(1) (mmmm) of the Central Bank of Malaysia Act 1958 ('the said Act').

18.Pursuant to the said Act the First Defendant issued a set of guidelines known as the Biro Maklumat Cek Operational Framework and Reporting Guidelines ('BMC Guidelines') but in breach of its duty under the said Act the said BMC Guidelines provides for a mandatory procedure to blacklist by the First Defendant on a global concept against a member of the public.

19.The said BMC Guidelines are ultra vires the said Act and is made in excess of the powers of the First Defendant under the (said) Act.

20.Further it is the contention of the Plaintiff that notwithstanding anything stated in any legislation any powers which the First Defendant may have and especially in relation to any powers that may be used to the detriment of the Plaintiff or any other member of the public when exercised has to be exercised judiciously and in accordance with the principles of natural justice.

21.It is also the contention of the Plaintiff that such powers as blacklisting a member of the public should in any case be declared illegal as the same when exercised is highly draconian, onerous, inhuman and against all tenets of justice.

and paras 21A and 21B of the Defence of the First Defendant, namely:

21A.The First Defendant admits para 17 of the Amended Statement of Claim.

21B.The First Defendant admits that it issued the said BMC Guidelines as alleged in paragraph 18 of the Amended Statement of Claim but denies the rest of the paras 18, 19, 20, 21 and 22 of the Amended Statement of Claim. The First Defendant will rely on the said Act and the Banking And Financial Institutions Act, 1989 (Act 372) for its position that the BMC Guidelines are lawful and valid.

WHETHER the 'Biro Maklumat Cek Operational Framework and Reporting Guidelines' issued by the First Defendant herein in February 1999 is ultra vires and unlawful under the provisions of s 30(1) (mmmm) of the Central Bank of Malaysia Act 1958 or any other Laws of Malaysia.

The grounds of this application are that the trial of that preliminary issue will result in a substantial saving of time and expenditure with respect to the trial of the action and is more convenient for all parties concerned.

It is indeed an interesting application as it adds colour to the otherwise mundane Court work. O 33 r 2 of the RHC states as follows:

The Court may ord