Proper respondents in judicial review are decision-makers; including non-decision makers renders the application frivolous.

Introduction

[1] This judgment concerns the question of who are proper and necessary respondents in a judicial review proceeding. On 9 November 2022, I struck out the instant judicial review application brought against the 1st respondent, the Director General of Health, Malaysia ("the Director General") on the ground that the proceedings were obviously unsustainable for being frivolous and vexatious as well as an abuse of the process of the Court. I did so on the ground that the Director General was improperly and unnecessarily made a respondent in the said proceedings. The ceasing of the Director General as a party has left the 2nd respondent, the Malaysian Medical Council ("the Council") being the only respondent for the substantive hearing.

[2]The reasons for my decision are as follows.

The Judicial Review Application

[3] In the main the applicant had sought an order of certiorari to remove into this Court and to quash the decision made by the Council in its 409th Meeting which rejected the applicant's appeal to be registered as a Plastic, Aesthetics and Reconstructive Surgery specialist ("the impugned decision"). Together with the said order of certiorari the applicant also sought the following consequential orders against the Council and/or the Director General:

(a) an order of mandamus to register the applicant as a Plastic, Aesthetics and Reconstructive Surgery specialist; and

(b) damages for loss of income since July 2018 as a result of not being so registered.

[4] The Director General, amongst other roles, is also the president of the Council and the registrar who keeps a register of "specialists" by virtue of ss 3A(1)(a) and 14C of the Medical Act 1971 . However, the Director General as registrar does not have or is conferred power to approve applications of persons who seek to be registered as specialists. The registrar's only role is to register a person in the register of specialists when directed by the Council as provided by s 14C(2) of the . The legislature has vide s4A(2) of the empowered the Council to make decisions on applications by persons who seek to be registered as specialists under the since the practise of medicine is governed and regulated by the said Act. If an application for registration is approved the Council will direct the registrar to enter the name of such person in the register of specialists.

Issue For Determination

[5] The issue for determination in the instant application to strike out is whether the application is frivolous and vexatious or otherwise an abuse of the process of the Court on the ground that the Director General was improperly and unnecessarily made a party to the judicial review proceedings. The parties were on common ground on the principles of striking out. The principles are so well established to be repeated here.

Analysis And Decision

[6] It is clear from the judicial review application that the decision identified to be quashed by the order of certiorari is the decision of the Council rejecting the applicant's appeal to be registered as a specialist under the Medical Act 1971 . This is clear from the O 53 Statement and the prayers, in particular, prayer No 2 and No 4 which are couched as follows in the original text:

2. Bahawa Pemohon diberi kebenaran untuk memohon Perintah Certiorari untuk dialihkan ke Mahkamah yang Mulia ini untuk tujuan untuk ianya dibatalkan keputusan oleh Majlis Perubatan Malaysia Kali Ke-409 yang diadakan pada 17 Ogos 2021 yang menolak rayuan pemohon untuk diterima dan didaftarkan sebagai Pakar Bedah dalam bidang Plastik Surged, Estetik dan Rekonstruktif.

4. Satu deklarasi bahawa keputusan oleh Majlis Perubatan Malaysia Kali Ke-409 yang diadakan pada 1