This applicant is applying for leave to commence committal proceedings against the respondents under order 52 rule 2 of the Rules of the High Court 1980. The ex-parte application was first heard on the 30/9/96, when it was ordered to be heard inter- partes.

This application arises out of an Anton-Piller order (hereinafter referred to as the order) previously granted to the applicant against the respondents. The order was served on the respondents who had the advice of counsel on hand. The respondents had acknowledged receipt of service, and had complied with the order at about noon on the 17/4/96. Then at about 3.30 in the afternoon, they had asked to seek further legal advice. Having so decided, they ceased to comply further with the order.

Then on the 18/4/96, the respondents and their counsel replied that they will not comply with the order. Only then did they apply to this Court to set aside the writ and the order. Counsel asserts that all cause papers had been served on the respondents.

It was submitted that there is a prima facie case and prayed for order in terms to be granted to institute committal proceedings against the respondents.

The respondents submitted that this application is vexatious and frivolous, and that the prima facie test is not applicable in an order 52 application where the liberty of the subject is at stake. It was submitted there had been partial compliance with the order that they had themselves obtained. The respondents were therefore under their lawyers' advise that they need not comply with the order. And the Court had subsequently set aside the order because of the applicant's own non-compliance with the terms of their own undertakings. It was further submitted that the making of this application is an abuse of the process of the Court.

Applicants' counsel in his reply submitted that all cause papers had been served on the 19/4/96, yet the respondents refused to comply and maintained this position until they had made their application and it was heard on the 30/4/96.

The basic position with regard to compliance with Court order has been stated in the Supreme Court in Wee Choo Keong v Mbf Holdings Bhd & Anor and another appeal [1995] 2 MLRA 1, [1995] 3 MLJ 549 . In that case Justice Wan Adnan FCJ held that even if the trial judge had allowed the appellants to proceed first with their application to set aside the Court order, and they had succeeded in setting aside the order, this would not affect the culpability of the appellants for their disobedience of the Court order before it was set aside, if the allegations of disobedience had been proved. Thus until the order has been set aside, a contempt of Court had been committed.

ex-parte, then drawn up and perfected by the applicant, there is no excuse for any non-compliance of its terms and undertakings made by the applicant. Thus in the latter type of Court order, the applicant must show to that the applicant has complied with all of the conditions and terms of the order before it is enforceable against the respondent.

As to compliance, the learned authors of The Supreme Court Pra