Abdul Malik Ishak J:

Enclosure 27

[1] It is an application by the defendants under O. 18 r. 19 (1)(b) or (1)(d) of the Rules of the High Court 1980 ("RHC") and/or under the inherent jurisdiction of this court to strike out the plaintiff's writ of summons and the Statement of Claim on the following grounds:

(i) that it is scandalous, frivolous or vexatious (under r. 19 (1)(b)); or

(ii) that it is otherwise an abuse of the process of the court (under r. 19 (1)(d)).

[2] The application in encl. 27 is supported by an affidavit affirmed by Probationary ASP (1/10579) Allaudeen bin Abd. Majid ("Allaudeen") on 17 March 2005 as seen in encl. 25. The plaintiff himself affirmed an affidavit in reply in encl. 23 on 12 April 2005 opposing the application.

[3] The grounds in support of the application are briefly set out in encl. 27 and they may be stated as follows:

(a) that the transfer of the plaintiff from Taiping, Perak to Kota Kinabalu, Sabah is a management prerogative of the defendants;

(b) that the confirmation to the rank of Deputy Superintendent of Police (DSP) of which the plaintiff is acting constitutes a management prerogative of the defendants; and

(c) that such management prerogative of the defendants is a non-justifiable issue.

[4] The application in encl. 27 is a summary procedure adopted by the defendants to put an end to the plaintiff's claim which on the face of it is obviously unsustainable. It is a common application and it is heard on a daily basis. The law on this point is quite settled. According to Pet Far Eastern (M) Sdn Bhd v. Tay Young Huat & Ors [1999] 2 CLJ 886 HC, the root word to hold onto is not "unsustainable" but rather on the word "obviously" - which means that on the fact of it, the plaintiff's claim must be plainly or evidently unsustainable in law. So the plaintiff here must show that the pleadings do disclose some cause of action or has raised some question fit to be decided so that the case can be set down by this court expeditiously for argument as required under O. 33 r. 2 of the RHC (Saripah bte Manap & Ors v. Emar Sdn Bhd Anor [1997] 4 CLJ 194 HC).

[5] It must be borne in mind that the court is empowered to make an order striking out any pleading or indorsement or anything found in it at any stage of the proceedings. Any applicant under this rule is entitled to rely on any or all of the grounds specified therein. It is the law that under this rule an applicant is free to rely on any or all of the grounds specified thereunder. It is now ideal to reproduce O. 18 r. 19 of the RHC. I shall do so now.

19 Striking out pleadings and indorsements (O. 18 r. 19)

(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may be prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under para (1)(a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.

It is crystal clear that under r. 19(2), no evidence is admissible if the applicant grounds his application under para (1)(a). Here, the defendants in encl. 27 rely on paras (1)(b) and (1)(d) of r. 19 and affidavit evidence is certainly admissible.

[6] Jemuri Serjan CJ (Borneo) (as he then was) in Alor Janggus Soon Seng Trading Sdn Bhd & Ors v. Sey Hoe Sdn Bhd & Ors [1995] 1 CLJ 461 SC held that the defendants there by filing an unconditional appearance had deprived themselves of the right to invoke O. 18 r. 19 of the RHC and I dut