2008 MarsdenLR 648

COURT OF APPEAL (PUTRAJAYA)
ABDUL MALIK ISHAK, LOW HOP BING AND SULAIMAN DAUD JJCA
CIVIL APPEAL NO J-01–11 OF 2007
11 August 2008
INTRODUCTION
This was an appeal against the decision of the learned judicial commissioner who allowed the defendants/respondents’ application under O 18 r 19(1)(b) or (d) of the Rules of the High Court 1980 (‘RHC’) to strike out the plaintiff/appellant’s writ and the statement of claim dated 15 January 2004 on the grounds that it was ‘scandalous, frivolous or vexatious’ or ‘an abuse of the process of the court’ to commence the proceedings by way of a writ instead of by way of an application for judicial review under the new O 53 of the RHC.
While he was at the High Court bench, my learned brother Low Hop Bing JCA had, in Affin Bank Bhd v Eye Bee Sdn Bhd [2005] 7 MLJ 1
It is trite law that it is only in conspicuously unsustainable cases that a pleading generally and a claim specifically would be struck out under any limb of O 18 r 19(1) and such power would only be exercised by the court sparingly.
In Pet Far Eastern (M) Sdn Bhd v Tay Young Huat & Ors [1999] 5 MLJ 558Court bench, I too had the opportunity of construing O 18 r 19(1) of the RHC and after reviewing some authorities, I had this to say (see p 584 of the report):
… it would be appropriate to say that a case should only be struck out if it is obviously unsustainable. The root word here is not ‘unsustainable’ but rather ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law.
On jurisdiction, the defendants/respondents submitted that the plaintiff/appellant should have proceeded under the new O 53 of the RHC. The plaintiff/appellant, on the other hand, argued to the contrary. Obviously there was a want of jurisdiction. It was not a question of irregularity that can be cured under O 1A of the RHC. A waiver can never confer jurisdiction to a court.
THE SALIENT FACTS
The plaintiff/appellant was working as a cultural officer attached with the Ministry of Culture, Arts and Tourism since 16 September 1993 on a B5 scale. The plaintiff/appellant had a dispute with his senior officer and he decided not to come to work since 28 March 2001. The plaintiff/appellant directed his counsel Messrs Abdul Razak Ahmad & Associates to issue a letter dated 25 January 2003 to the defendants/respondents enquiring as to the status of the plaintiff/appellant.
The startling news came. It was in the form of a letter dated 7 February 2003 addressed to the plaintiff/appellant’s lawyers stating that the plaintiff/appellant had been dismissed from service with effect from 25 October 2001 vide gazette notification No 11898 dated 25 October 2001.
On 15 January 2004, the plaintiff/appellant filed the writ of summons and the statement of claim.
In response thereto, the defendants/respondents filed a summons in chambers dated 21 July 2004 to strike out the plaintiff/appellant’s writ and statement of claim under O 18 r 19(1)(b) and (d) of the RHC.
THE ISSUE
Only one issue was ventilated before us. It was focussed along this line: whether it was an abuse of the process of the court to commence the proceedings by way of a writ and statement of claim instead of filing an application for judicial review under the new O 53 of the RHC? We would answer this question in the positive. Our reasons are now set out hereinafter.
ANALYSIS
In a nutshell, any application to challenge the decision of the first defendant/respondent, a public authority, can only be commenced by way of a judicial review under the new O 53 of the RHC. Amendments to the former O 53 of the RHC were made by way of a gazette notification vide PU (A) 342/2000 with effect from 21 September 2000 and the new O 53 of the RHC is rather comprehensive. It governs the public law remedy of judicial review and it replaces the former O 53 of the RHC prerogative remedies of certiorari, prohibition and mandamus.
The new O 53 of the RHC carries the caption ‘Application For Judicial Review’ and it allows anyone who proposes to challenge an administrative act or omission to apply to the High Court for one of the prerogative orders like habeas corpus, mandamus, prohibition, quo warranto or certiorari or, in suitable situations, the popular remedy of declaration. Indeed, this court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413
It must not be forgotten that O 53 in its present form was introduced to cure the mischief of its percursor, which was much narrower and more restrictive.
At this juncture, it is appropriate to reproduce verbatim the new O 53 of the RHC. It is worded as follows:
ORDER 53 APPLICATION FOR JUDICIAL REVIEW