Court affirmed that striking out claims is warranted when the action is plainly unsustainable based on statutory interpretation of duties.

Introduction

[1] There were three related appeals before us, heard together, namely:

(a) Civil Appeal No: 1(f)-14-05-2017(W) - where the appellants were the plaintiffs at the High Court (collectively referred to as "the plaintiffs"); and the respondent was Panglima Tentera Udara Diraja Malaysia (referred to as "the 4th defendant");

(b) Civil Appeal No: 01(f)-15-05-2017(W) - where the appellants were Ketua Pengarah Jabatan Penerbangan Awam Malaysia (referred to as "the 3rd defendant"); and the Government of Malaysia (referred to as "the 5th defendant"); and

(c) Civil Appeal No: 02-29-03-2017(W) - where the appellants were the plaintiffs and the respondent was Malaysia Airlines Bhd (referred to as "the 2nd defendant").

[2] In appeals (a) and (c) above, the appellants were appealing against the decisions of the Court of Appeal dismissing their appeals in relation to a striking out application under O 18 r 19 of the Rules of 2012 (the ROC) filed by the 2nd defendant and the 4th defendant, which resulted in both the 2nd and 4th defendants being struck out as defendants in the writ action.

[3] In appeal (b), both the 3rd and 5th defendants were appealing against the decisions of the Court of Appeal dismissing their appeals in relation to their striking out applications under O 18 r 19 of the ROC.

The Parties

[4] The plaintiffs were suing as dependants of the deceased persons who were passengers on board flight MH370 which was bound for Beijing from Kuala Lumpur on 8 March 2014; the said flight however did not arrive at its destination and after going missing for some time, the Government announced that all passengers onboard were presumed dead.

[5] The 2nd defendant in the writ action was sued on the ground that it was deemed to have taken over the liabilities and affairs of the Malaysian Airline System (MAS) (the 1st defendant in the writ action, but not a party to the present appeals) by virtue of the Malaysian Airline System Berhad (Administration) Act 2015 (Act 765).

[6] The 3rd defendant was sued on the ground that he owed a duty of care to ensure continuous tracking of the missing plane while within Malaysian airspace and/or a duty to ensure safe and proper transfer of the plane to the next jurisdiction. The cause of action against the 3rd defendant was based on s 7 of the Civil Law Act 1956 (on dependency claim) and a breach of duty of care under the common law. The plaintiffs also relied on the doctrine of "res ipsa loquitur".

[7] The 5th defendant was sued based on the principle of vicarious liability, being the owner of MAS (1st defendant) and principal of the 3rd and 4th defendants for the acts, defaults, omissions or neglects committed by the 3rd and 4th defendants in the discharge of their duties in the course of their employments.

[8] The pleaded claim against the 4th defendant was that he breached his duty of care to investigate and verify any unusual, unidentified, unmarked and/or unaccounted for aircraft appearing on the radar of the Royal Malaysian Air Force (RMAF) in real time. The plaintiffs also relied on s 7 of the Civil Law Act 1956 (on dependency claim) and the doctrine of "res ipsa loquitur".

[9] After having been served with the writ and statement of claim and having filed their respective defence, the 3rd, 4th, 5th and 2nd defendants filed separate applications pursuant to O 18 r 19(1)(a), (b) and (d) of the ROC and the inherent jurisdiction of the Court to strike out the plaintiffs' writ of summons and statement of claim