The High Court lacks inherent jurisdiction to reinstate actions struck out for want of prosecution without an appeal.

Abdul Wahab Patail J:

By this summons in chambers dated 8 June 1999, the plaintiff applied to reinstate a writ of summons and statement of claim struck out on 27 March 1999.

The grounds advanced for the application are stated to be:

1. The plaintiff who is resident overseas has been found, contacted and his instructions and documents obtained to proceed with this action.

2. That the plaintiff and the first four defendants are brothers, and in 1998 a consent order was recorded between the plaintiff, a brother Chua Ching Siew and the first defendant in D2-22-142-96 and S2-22-434-92, and feared the consent order would be affected by this proceeding had it been pursued earlier.

3. The period of limitation has expired and the plaintiff would be prejudiced if the writ is not reinstated.

4. That the plaintiff's claim has merit.

The application is supported by the affidavit of Ronald Menon, an advocate and solicitor acting for the plaintiff and who asserts he has been authorised by the plaintiff to swear the affidavit. He is also the solicitor who appeared to submit upon the application.

The plaintiff had been instructed on 15 May 1998 by the Deputy Registrar to file summons for directions. On 27 March 1999 after issue of a show-cause notice, the judge struck out the writ of summons and statement of claim for non-prosecution. The relevant principles are clear. Birkett v. James [1977] 3 WLR 38; [1977] 2 All ER 801; [1978] AC 297 HL laid down the now famous principle that the court has the power to dismiss an action for want of prosecution, not only where the plaintiff's default has been intentional and contumelious but also where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible or would cause serious prejudice to the defendant. The principle was adopted in United Malayan Banking Corporation Berhad v. Palm & Vegetable Oil 1994 MarsdenLR 1534 ; [1994] 3 MLJ 73 SC. See also Negara Properties Sdn Bhd v. Akitek Bersekutu Malaysia (sued as a firm) and Ors [1996] 2 CLJ 923 ; [1995] 2 MLJ 185 .

The affidavit supporting the application essentially repeated the grounds of the application and adds that the basis of the claim originated about ten years earlier. The 2nd defendant on behalf of all the defendants objected. It was also asserted that the averment in respect of S2-22-434-92 is misleading since the plaintiff in that case was Chua Ching Siew and the subject matter in that case has nothing to do with the subject matter in the current case.

Ronald Menon filed a further affidavit sworn on 25 August 1999 alleging that the 2nd defendant did not have authority of the other defendants, except the 8th defendant, to make swear the affidavit. He asserted he did not withdraw from conduct of the case or file a notice of discontinuance because he was obliged to use every effort to get in touch with the plaintiff who was overseas, in order to obtain instructions and documents. He also asserted that Chua Ching Siew and the plaintiff had at all times acted in concert and that there is a nexus between that case and this proceeding. It was explained that the plaintiff waited for the performance of the settlement with Chua Ching Siew by the 2nd defendant before proceeding further with this action.

Needless to say the 2nd defendant maintained his assertion of authority to make the affidavit, and questioned Ronald Menon's 'personal knowledge' that Chua Ching Siew and the plaintiff were acting in concert, which was denied.

After hearing the parties I had rejected the application. My reasons are as follows.

The proper course of action to be taken by any party aggrieved by an order is by way of an appeal. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court