Mohd. Jemuri Serjan CJ (Borneo):

This is an appeal against the judgment of Anuar J given on 21 March 1991 dismissing the appellant's application to dismiss the respondent's action commenced by Originating Summons No. C189/85. There were two objections raised by the learned Counsel for the appellant in the Court below:

(1) That the plaintiff was suing for payment of money while the contract was being performed, and

(2) That the plaintiff had not referred the dispute between the parties to arbitration.

For the sake of convenience, the term "appellant" is used as a reference to the defendant and the "respondent" to the plaintiff in Originating Summons No. C189/85. Before us, the learned Counsel for the appellant who also appeared for the appellant in the Court below advanced the same two grounds to support his arguments that this appeal should be allowed. He complained that the learned Judge was wrong in dismissing his objections, purporting to act under O. 18 r. 19 of the Rules of the High Court, 1980 because of the delay on the part of the appellant in making the application to strike out the suit. It would appear from the judgment that the learned Judge in fact decided that under O. 18 r. 19 the application should be made as early as possible and should not be made at a very late stage, particularly at a stage when the case was ready for trial. In this respect, we would point out that the learned Judge was led to believe that the application to dismiss the suit was indeed made under O. 18 r. 19 because the learned Counsel himself in his submissions before the learned Judge apparently relied on O. 18 r. 19 and on the ground that the cause of action was vexatious and frivolous. The notes of proceedings in the High Court provide evidence that O. 18 r. 19 was cited by the learned Counsel for the appellant. There was no indication from the notes of proceedings that the appellant's application was not made under O. 18 r. 19 and it made no reference at all to O. 33 r. 2. We are all familiar with O. 18 r. 19 and O. 33 r. 2 which do not deal with the same subject matter. If there is any assistance at all that could be obtained from the notes of proceedings in the lower Court on this aspect of the case it is to be found on p. 77 in Vol. I of the Record of Appeal where the learned Counsel for the respondent in his reply adverted to O. 33 r. 2 as being discretionary, perhaps, with some innate perspicacity he concluded that the appellant's case was one under O. 33 r. 2.

Rule 2 gives the Court discretionary power to order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which a question or issue shall be stated. If the learned Counsel for the appellant relied on O. 33

r. 2, in the first place, there should be an application for an order under r. 2 and if the Court allows the application, then the Court may give direction as to the manner in which the question or issue shall be stated. From the notes of proceedings, there was no evidence of such application under r. 2 and no order expressly given and no directions as to the manner in which the question or issue is to be stated. It would appear as if at the hearing in the High Court on 26 November 1990, the learned Counsel for the appellant opened his case by stating the two preliminary objections, that is, arbitration and that the action is not sustainable and it would also appear that the Court allowed the learned Counsel to make submissions on the two objections without any regard to the provisions of the Rules of the High Court and, surprisingly, without objections by the learned Counsel for the respondent. This is another disturbing feature of this case. Under the circumstances, we do not consider that the learned Judge was wholly to be blamed for making the obvious mistake.

Secondly, the learned Counsel for