JUDGMENT

Vincent Ng J:

Due to the exceptional nature of this case, it is consistent with judicial prudence and the current mood of transparency that I should write a judgment setting out detailed grounds of my decision and delivering the same in open court. This civil suit case is as novel as it is peculiar. Let me put it in stark terms. A judge of the Malaysian High Court (1st defendant) has been sued for RM24,362,312 with interests and costs and the Malaysian Government (2nd defendant) has also been roped in, so to say, to bear liability as the employer of the judge. The suit which ought to have been filed in the Civil Division of the Kuala Lumpur High Court, was in fact filed in my Commercial Division, presumably because 1st defendant was, at that material time, the head of the Civil Division. Having filed it in my Division, counsel for the plaintiffs wrote a letter dated 30 May 2005 to the Chief Judge Malaya (CJM) requesting that the case be heard by a judge stationed outside Kuala Lumpur. Presumably, since the case was filed in my Division and it found venue in my court through the 'Monday Bundle' system of allotment of cases, the CJM decided, vide letter to counsel dated 12 July 2005, that the case shall be managed and heard by me. This is an eminently correct decision - I need not elaborate save to say that this is a case of grave import in the Nation's history and I have never been found wanting when it comes to taking up an intellectual challenge.

There were originally three applications:-

(i) Enclosure 6 - the defendants' application to strike out the plaintiffs' writ and statement of claim (SOC) under O. 18 r. 19(1) of the Rules of the High Court (RHC);

(ii) Enclosure 8 - the plaintiffs' application to restrain and prevent the Attorney General (AG) or any of his officers from representing the 1st defendant; and

(iii) Enclosure 10 - the plaintiffs' application to set aside the conditional appearance filed by the defendants.

These applications were fixed for hearing before my senior assistant registrar (SAR) on 7 July 2005. Due to the complexity of the issues involved in these applications, my SAR, quite rightly, referred these applications to me for adjudication (as judge in chambers) under O. 32 r. 10 RHC.

I promptly required counsel for both parties to appear before me on 18 August 2005 to receive directions on the filing of further affidavits, if required. On that day, so as not to cause any undue delay, I directed that all the applications, including applications that may thereafter be filed, be heard together on the same day with the decision on each enclosure to be delivered in the appropriate sequence, and the subsequent dependent upon the decision on the previous enclosure. This is to obviate the stay or freezing of the determination on other enclosures through appeals on the decision in respect of any one enclosure.

At this juncture, the plaintiffs saw fit to withdraw their application in encl. 10. A schedule for handing in written submissions by parties was agreed upon and I fixed 29 September 2005 for clarification and further oral submissions if desired. This would eliminate the needless interruptions or the necessity for further oral submissions by either counsel immediately before delivery of the judgment.

My secretary received a letter dated 9 September 2005 from the Malaysian Bar to inform this court that:-

Dengan hormatnya kami ingin memaklumkan bahawa Encik Gopal Sreenevasan akan mewakili Majlis Peguam dan hadir sebagai pemerhati (watching brief) pada pembicaraan kes di atas yang telah dijadualkan pada hari Khamis, 29 September 2005 jam 9.00 pagi di Mahkamah Tinggi.

Unfortunately, for some reason, the representative from the Malaysian Bar failed to appear on 29 September 2005, to apply to hold a watching brief. Nevertheless, I decided to invite the Malaysian Bar to participate in the proceedings as amicus curiae, since the present case was the first of its kind in Malaysia, to address this court sol