JUDGMENT

Balia Yusof Wahi J:

Facts

[1] By way of summons in chambers in encl. 71, the plaintiff filed an application seeking to disqualify Dato' RK Nathan as the leading counsel for the defendants in the two consolidated suites herein. The two civil suits are civil suits no. 22-314-94 and 22-426-2000. The application in encl. 71 is as follows:

1) That Dato' RK Nathan be disqualified or prohibited from appearing as leading counsel for the defendant in all further proceedings in the above suits under the inherent jurisdiction of the court.

2) Costs of the application.

3) Further or other relief.

[2] The objection of the plaintiff against Dato' RK Nathan in acting as the leading counsel for these civil suits is premised primarily on the ground that Dato' RK Nathan who was a judge in the High court of Penang had handled the matters and has presided over them on a number of occasions. Between 8 August 2001 and 25 August 2004 it has been alleged that Dato' RK Nathan has presided over the matter for no less than 13 times. On 24 April 2002 and 29 May 2003 consent orders were made before Dato' RK Nathan between the parties in the suits. The said consent orders were in respect of two other summons in chambers with regard to the striking out of certain paragraphs in the defendant's defence and counter claim and the other, with regard to the agreement of the parties on the applicability of O. 35 r. (1) of the Rules of the High 1980 . After the retirement of Dato' RK Nathan, the case was finally disposed off before another judge, Dato' Mohamad Zabidin who allowed the plaintiff's claims in both suits and dismissing the defendant's counter claim with costs. The defendants have filed an appeal against the said decision to the court of appeal and at the same time filed an application for stay of execution on 9 July 2008 (encl. 49). Dato' RK Nathan who has since retired, is now back in practice and came into the picture by appearing as the leading counsel for the defendant. The plaintiff objected to such appearance and hence this application for his disqualification.

Plaintiff's Contention

[3] Counsel for the plaintiff contends that the appearance of Dato' RK Nathan as leading counsel for the defendant in the stay of execution application in encl. 49 and which is still pending in this court is improper because of his substantial involvement in the case while serving as a judge of the High court in Penang. Counsel further contends that there is a great risk that the impartiality of the court as an institution might be questioned because of an appearance of impropriety. The plaintiff also relies on rr. 3 , 4 & 5 of the Legal Profession (Practice & Etiquette) Rules 1978 .

Defendants' Reply

[4] On the part of the defendant, it is contended that while it is true that the suits were brought up before Dato' RK Nathan as a judge of the High court at Penang, the issues dealt with by him were on matters of getting up the case for trial. This includes case management and other directions on the filing of documents between the parties. The directions given by Dato' RK Nathan were mainly for the smooth running of the case. No decisions were made by him which may give rise to impartiality and the grounds raised by the plaintiff in the application are frivolous and vexatious. The defendant further contends that the plaintiff's reliance on rr. 3 , 4 and 5 of the Legal Profession (Practice & Etiquette) Rules 1978 is misplaced. No prejudice is caused to the parties and on the contrary the presence of Dato' RK Nathan will be beneficial to the legal fraternity considering his past experience and expertise. So says the defendant.

court's Decision