Gopal Sri Ram JCA:

Background

[1] On 5 December 2005 this court was moved on a certificate of urgency for a stay pending appeal. The learned judge's judgment was available and the point at hand was one of law and practice arising from uncontroverted facts. The matter was one of undoubted urgency and importance to all concerned. We accordingly directed that the motion to be treated as the appeal proper and granted the parties dispensation from complying with the Rules of the Court of Appeal 1994. The appeal was then, on application of counsel, heard on 7 December 2005. At the conclusion of arguments we dismissed the appeal. The reasons for our decision are now produced.

[2] The facts are these. The appellant was the target company in a take-over bid made by Kulim (Malaysia) Berhad, the second respondent in this case. The appellant's board was obviously unhappy with this. So it engaged the Securities Commission, the first respondent before us, in some correspondence. On 14 October 2005, the Commission wrote refusing an extension of time for the appellant's board to take the usual steps with regard to the take-over bid in accordance with the Take-Over Code. The appellant then applied for leave to issue judicial review against the Commission. The respondents appeared at the ex parte hearing and argued that leave should be refused. The learned judge after a protracted hearing refused leave. She correctly concluded that the Commission's letter was a decision within RHC O. 53 r. 2(4). However, she went on to hold that the appellant was not a person "adversely affected" within the aforesaid sub-rule and accordingly lacked standing to make the application. She also held that the appellant had failed to exhaust the alternative remedy. On these two grounds she refused leave to apply for judicial review. We will in a moment state our views on the conclusion of the learned judge on each of these two points. But we find it convenient to do so in a slightly different order from that adopted by the judge.

The Alternative Remedy Argument

[3] The very first point that we would make is that arguments such as the availability of an alternative remedy go to the merits of the substantive application for judicial review and ought never to be dealt with at the leave stage. The sole question at the leave stage is whether the application is frivolous. As Raja Azlan Shah LP observed in Mohamed Nordin bin Johan v. Attorney General, Malaysia [1983] CLJ 271 (Rep); [1983] 1 CLJ 130; [1983] 1 MLJ 68:

We allowed the appeal and granted the appellant leave to apply for an order of certiorari because we are of the view that the learned judge was wrong in refusing leave as the point taken was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari.

[4] And as Abdoolcader SCJ said in JP Berthelsen v. Director-General of Immigration, Malaysia & Ors [1986] 2 CLJ 409; [1986] CLJ (Rep) 160:

At the outset of the hearing of the appeal before us we were of the view ex facie that leave should in fact have been granted in the court below as the point taken by the appellant was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari.

[5] In Tang Kwor Ham v. Pengurusan Danaharta Nasional Bhd [2006] 1 CLJ 927, this court in its majority judgment sought to collect and discuss the several authorities on the subject and concluded as follows:

To paraphrase in less elegant language what has been said in these cases, the High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for leave is frivolous. If, for example, the applicant is a busybody, or the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings then the High Court would be justified in refusing leave in limine. So too will the court be entitled to refuse leave if it is a case whe