JUDGMENT

Rohani Ismail JC:

Introduction

[1] Enclosure 94 is an application by John Carleton Kelley/the Proposed Contemnor pursuant to and/or the inherent jurisdiction of the Court for the following orders:

(1) that the Ex Parte Order dated 2 April 2019 granting leave to the plaintiff to commence committal proceedings against John Carleton Kelley/the Proposed Contemnor pursuant to be set aside;

(2) that the costs of this application be paid by the plaintiff; and

(3) such further and/or other reliefs as this Honourable Court deems fit.

[2] The grounds for the Application can be summarised as follows:

(a) There are no circumstances in this case that give rise to any cause for committal proceedings to be taken out against the Proposed Contemnor;

(b) The Statement dated 21 March 2019 does not disclose sufficient grounds for the granting of the Order; and

(c) There are serious material non-disclosures on the part of the plaintiff in applying for the Order.

Decision Of The Court

[3] Having perused all the cause papers filed in this application and after considering the submissions of the parties, the Court allows the Proposed Contemnor's application in encl 94 to set aside the Ex Parte Order dated 2 April 2019 ("Ex Parte Order") with costs of RM3,500.00 to be paid by the plaintiff to the Proposed Contemnor.

The Findings Of The Court

The Principle Of Law

[4] On setting aside any order or judgment of the Court, O 42 r 13 of the ROC 2012 provides:

"13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him."

Contempt Of Court

[5] The definition of contempt of Court in general is defined in Oswald's Contempt of Court (3rd edn) at p 6:

"To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during litigation."

Order 52 Of The ROC 2012

[6] The procedure to be complied with in an application for committal proceeding is laid down in O 52 r 3 of the ROC 2012 where it provides:

"3. (1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

(2) An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on."

[7] The Federal Court in the case of ; [2012] 3 MLJ 458; [2012] 2 CLJ 849; [2012] 2 AMR 429 explained the power of the Court to punish for contempt where it stated:

"[21] The jurisprudence for arming the Court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdom v. SC Goho [1948] MLJ 17 as follows:

But the root principle on which this inherent power to punish for contempt is founded, the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a Court or even of the Court itself, but to prevent an undue interference with the administration of justice in the public interest.

[22] Hence, the power to punish a contempt is not derived merely from statute nor truly from common law but instead flows from the very concept of a Court of law (see Borrie & Lowe's The Law of Contempt (3rd Ed), at p 465; and Master Jacob (1970) 23 Current Legal Problems 23).

[23] Article 126 of the Federal Con