Thursday, September 23, 2010

[2010] 6 CLJ 593

Amirthanayaki Kumarasamy v. Lembaga Kelayakan Profesion Undang-undang, Malaysia

CIVIL PROCEDURE: Mode of commencement - Judicial review,application for - Whether must be in Form 111A, O. 53 Rules of the High Court 1980 - Whether O. 53 r. 2(1) mandatory - Whether application
commenced by originating summons should be struck out - Likelihood of prejudice - Justice of the case - Application of O. 1A - Procedure and affidavit evidence, similarities between originating summons and
application under O. 53

CIVIL PROCEDURE: Judicial review - Application for - Mode of commencement - Whether must be in Form 111A, O. 53 Rules of the High Court 1980 - Whether O. 53 r. 2(1) mandatory - Whether application
commenced by originating summons should be struck out - Likelihood of prejudice - Justice of the case - Application of O. 1A - Procedure andaffidavit evidence, similarities between originating summons and
application under O. 53

The plaintiff obtained her LL.B. (Hons) from the University of Wolverhampton in 1995 and her Graduate Diploma in Legal Practice from the University of Western Australia in 1999. On 8 September 1999, she wrote to the respondent seeking clarification as to whether she would be a “qualified person” under the Legal Profession Act 1976 (‘LPA’). The defendant replied in the negative.

Thereafter, the plaintiff wrote numerous letters of appeal to the defendant but these were not entertained. Finally, on 7 April 2006, the defendant informed the plaintiff that her application/appeal had been rejected on 28 March 2006. The plaintiff then filed an originating summons seeking, inter alia, to set aside the defendant’s
decision and for a declaration that she is a “qualified person” under s. 3 LPA. The High Court struck out the plaintiff’s amended originating summons on the sole ground that she had failed to comply with the mandatory provisions of O. 53 Rules of the High

Court 1980 (‘RHC’). It was held that the plaintiff had committed a fatal procedural error in commencing proceedings by way of originating summons when applications for judicial review (certiorari/declaration) have to be made specifically in Form 111A pursuant toO. 53 r. 2(1) RHC. The plaintiff appealed.

Held (allowing the appeal by majority) Per Ramly Ali JCA delivering the majority judgment:

(1) The requirement in O. 53 r. 2(1) RHC is not mandatory. The justice of the case should always prevail. A litigant ought not to be deprived of his day in court merely on a technical procedural-ground. Although the plaintiff had commenced his action by way of originating summons and not through Form 111A under O. 53 r. 2(1) RHC, all the relevant facts and evidence had nevertheless been forwarded to the court. No prejudice was caused to any party in the matter. It was thus unfair for the court below to have struck out the plaintiff’s
application without hearing its merits. Regard should have been had to O. 1A RHC which exhorts that – in administering the rules of court, a judge shall consider the justice of the particular case and not only the technical non-compliance of any rules. Beauford Baru Sdn Bhd v. Gopala Krishnan VK Gopalan HC (foll); Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd FC (foll). (paras 12, 13, 14 & 15)

(2) The previous decision of this court in Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors CA, per Abdul Malik Ishak JCA – which held that it was an abuse of the process of the court for the plaintiff there to commence proceedings by way of a writ and statement of claim instead of filing an application for judicial review under O. 53 RHC – was distinguishable on the facts. This was because proceedings by way of a writ of summons and statement of claim involve the oral testimony of witnesses whereas an application for judicial review only involves affidavit evidence. In the instant case, the plaintiff commenced his action by filing an originating summons supported by affidavit evidence – which was, substantially, the same procedure/evidence as would be required in an application for judicial review under O. 53 RHC. There was no likelihood of prejudice. (paras 16, 17, 18 & 19)

[Matter remitted to High Court for hearing on merits.]

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