Gopal Sri Ram JCA:

There are three appeals before us. They are civil appeal Nos. W-02-845-02 ("the first appeal"), W-04-151-02 ("the second appeal") and W-02-231-03 ("the third appeal"). The appellant in the first and second appeals is Rekapacific Berhad ("Rekapacific) while the Securities Commission and the Kuala Lumpur Stock Exchange are the respondents. In the third appeal, it is the Stock Exchange which is the appellant while Rekapacific is the respondent. The facts relevant to all these appeals are as follows.

Rekapacific is a public listed company. It was de-listed by the Stock Exchange for alleged breaches of listing rules. It appealed unsuccessfully to the Committee of the Stock Exchange. It also lodged a parallel appeal to the Securities Commission. But that appeal was not considered as the Commission left the matter to be dealt with by the Exchange. Rekapacific then took out an application for judicial review. Several voluminous affidavits were delivered by the parties. Then, in the course of those proceedings it applied for discovery of documents and later to interrogate the respondents and to cross-examine Md Nor Ahmad, the deponent of an affidavit delivered in opposition to the application for judicial review and one Selvarani Rasiah, a person mentioned by Md Nor Ahmad in his affidavit. The High Court refused both applications and this forms the subject matter of the first and second appeals. The High Court then granted a stay of the judicial review proceedings pending these appeals and that forms the subject matter of the third appeal. At the conclusion of the arguments on 22 November 2004, we dismissed the first and second appeals but allowed the third appeal.

In giving our reasons for our decision we think it appropriate to begin by looking at the nub of the learned judge's reasoning for refusing the applications for discovery, the administration of interrogatories and for cross-examination. This is what he said:

All the interlocutory applications share a common theme. They seek to gain access to information that is not relevant and was not available to and not considered by KLSE during its decision making process leading up to its decision to de-list the securities of the Applicant. The fact remains that the documents and information that the Applicant seeks largely relate to matters which were not before the KLSE and were therefore not taken into consideration by the KLSE in arriving at the decision to de-list the Applicant. Even if these documents are relevant, it is not necessary for the fair disposal of this matter.

The issue before us is whether the learned judge was wrong in adopting the aforesaid approach. Before addressing that question we think it useful to discuss the scope and practical effect of r. 6 of the new O. 53 that permits discovery and cross-examination. The first point to note is that these are new enabling provisions. As a matter of procedural history, certiorari and the other prerogative remedies were proceedings on the Crown side of the Queen's Bench Division and were not therefore civil proceedings. Government Proceedings Act 1956, s. 2 gives statutory recognition of this by excluding applications for prerogative remedies from the definition of "civil proceedings" in that Act. The consequence was that at common law, discovery, whether of documents or by way of interrogatories were procedurally not available in an application for prerogative remedies. So, we see Denning LJ saying in Barnard v. National Dock Labour Board [1953] 2 QB 18 that "In certiorari there is no discovery, whereas in an action for a declaration there is."

The second point that needs to be made and made quite emphatically is that it is only in very rare cases that either cross-examination or discovery or both should be permitted in judicial review proceedings. This is because questions of fact are rarely in dispute in judicial review proceedings. Of course, if there are any essential or fundamentally i