Court emphasized the necessity of judicial discretion and the importance of ensuring no miscarriage of justice occurs when striking out actions due to non-compliance with procedural orders.

[1] This is the appellant's appeal against the High Court's decision given on 16 August 2004 dismissing the appellant's application vide a summons in chambers dated 16 July 2004.

[2] On 3 August 2009 we allowed the appeal with costs. We now give the grounds of our decision.

[3] In this judgment we will be referring to the appellant as "the plaintiff" and the 1st and 2nd respondents as "the 1st defendant" and "the 2nd defendant" respectively.

[4] The plaintiff commenced the action in the High Court against the 1st defendant and the 2nd defendant on or about 30 April 1999 purportedly for the defendants' failure to amend the terms of a letter of credit issued by Banque Paribas.

[5] On 18 August 2003, the plaintiff took out a notice for pre-trial case management. The case management was held on 23 September 2003, 3 December 2003 and 4 March 2004.

[6] On 4 March 2004, the parties informed the Court that all the documents had been agreed upon. The Court fixed a final case management date on 16 April 2004 for the plaintiff to comply with the case management direction. The Court had also made a peremptory order that if the plaintiff failed to comply with the case management direction by 16 April 2004, the action would be struck out.

[7] On 16 April 2004, counsel for the plaintiff, Mr. Tabian Tahir informed the Court that he was unable to comply with the case management direction and would apply to discharge himself. He did not request for more time to comply with the case management direction.

[8] Given the plaintiff's failure to comply with the case management direction, the Court enforced the peremptory order and struck out the action ("the striking out order"). The plaintiff did not appeal against the striking out order.

[9] On 16 July 2004, the plaintiff filed an application to reinstate the action vide the summons in chambers dated 16 July 2004. The reinstatement application was dismissed with costs on 16 August 2004.

[10] Before us learned counsel for the 1st defendant submitted that the plaintiff's application for reinstatement to the High Court was procedurally flawed. The proper course of action to be taken by the plaintiff in the circumstances of the case was by way of an appeal to the Court of Appeal against the striking out order. In support of that the following cases were cited:

(a) Malaysia Travel Bureau Sdn Bhd v Melia Majlis ;

(b) Multiview Enterprise Sdn Bhd v. Orientus Industry Sdn Bhd , 2005 MarsdenLR 2618 ;

(c) Chua Cheng Wan v Chua Thiam Siew & Ors, 2000 MarsdenLR 1418 .

(d) Lim Oh & Ors v. Allen & Gledhill, 2001 MarsdenLR 1649 .

[11] It must be noted that the plaintiff's case was struck out and not dismissed. There is a distinction between striking out and dismissing a case. In Tee Ha Leong v. Messrs Low & Lim & Anor, 2005 MarsdenLR 373 James Foong J (as he then was) said at p. 83:

Having considered the above authorities, which are all made - by courts of concurrent jurisdiction, I am of the view that there is a distinction between striking out and dismissing a case. If the case is struck out then O 35 r. 2(1) of the RHC can be utilised to apply for reinstatement. But when the case is dismissed, as in this instance case, then the avenue open to the aggrieved party is to appeal. This is based on the rational that the case was already heard on merits.

[12] It is also to be observed from the notes of proceeding on 16 April 2004 the learned judge did not hear any explanation from the plaintiff's counsel for the alleged non-compliance of the peremptory order. Counsel for the plaintiff informed the Court that they were discharging themselves. The plaintiff's representative was not present. In the affidavit-in-support of the plaintiff's summons in chambers dated 16 July 2004 Muhammad Nur Affendi bin Mohamad Radzi, the plaintiff's Managing Director, stated in para 13 of his affidavit that on that day he went to Wisma Denmark and not Bangunan Sultan Abdul Samad. His counsel applied for another date for case management s