Dr. Neoh Kean Huat (berniaga atas nama dan gaya NKH Cardiaconsult (PC0018992-A)) v Ong Gim Huat (Pegawai Awam Kepada Hospital Lam Wah Ee) (PA-22NCvC-10-01/2020)

limb (a)—the SOC discloses no reasonable cause of action;

limb (b)—the SOC is scandalous, frivolous or vexatious;

limb (c)—the SOC may prejudice, embarrass, or delay the fair trial of the action; and

limb (d)—the SOC is an abuse of the process of the Court. P’s CAUSE 17/02/2024 11:21:02 PA-22NCvC-10-01/2020 Kand. 48 [2] P’s claim is for breach of contract. The remedy that he seeks is damages—general, aggravated, and exemplary damages. He also seeks the relief of a Declaration that the Hospital’s suspension of his medical practice was “null and void” (batal dan tidak sah). THE LAW ON STRIKING OUT ACTIONS UNDER ORDER 18 RULE 19 [3] It is well established that so long as P’s pleadings disclose a reasonable cause of action, the matter should proceed to trial: (1) Bandar Builders Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC); [1993] 2 AMR 1969; [1993] 4 CLJ 7; [1993] 1 MLRA 611; (2) Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1(FC); [2016] 2 AMR 795; [2016] 3 CLJ 1; [2016] 2 MLRA 263. [4] A review of the law on striking out is found in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysian Airlines Bhd & Other Appeals [2019] 1 MLJ 59 (FC); [2018] 6 AMR 529; [2018] 9 CLJ 425; [2018] 6 MLRA 433. [5] In Tan Wei Hong (supra), the Federal Court, through the written judgment of Justice Ramly Ali FCJ, sets out as follows— [15] Order 18 r 19 of the ROC provides: 19 Striking out pleadings and endorsements (Order 18 rule 19)

The court may at any stage of the proceedings order to be stuck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under paragraph

(1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. [16] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; [1993] 4 CLJ 7 (SC); Hubbuck & Sons, Limited v Wilkinson, Heywood & Clark, Limited [1899] 1 QB 86; Attorney-General of the Duchy of Lancaster v London and North Western Railway Company [1892] 3 Ch 274). [17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: [2019] 1 MLJ 59 (SC) at 68

(a)it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

(b)this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

(c)it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

(d)if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC ; and

(e)the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [18] The Court of Appeal, in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473; [2012] 1 CLJ 75, had adopted the well-settled principle of striking out in the following passage: A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial (see: Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 (FC)). [19] The basic test for striking out as laid down by the Supreme Court in Bandar Builder is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’, ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial. [20] The established rule on this point is that the court should not examine the evidence in summary proceedings in such a way as to amount to conducting a trial on the conflicting affidavit evidence. As rightly said by Lord Diplock in the House of Lords case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 at p 407: … The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may [2019] 1 MLJ 59 at 69ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial … This passage was cited with approval by the Privy Council in the Malaysian case of Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212; [1979] 1 LNS 18 [64] We are also of the view that in dealing with an application for striking out, the court must exercise great care and caution, bearing in mind that the court must not drive away any litigant however weak his case may be from the seat of justice (see: Lee Nyan Choi v Voon Noon [1979] 2 MLJ 28). On the face of the pleadings against the third defendant, the plaintiffs’ claim is not obviously unsustainable. P’s PLEADED FACTS [6] P pleads the following facts in his SOC. P and the Hospital entered into a Medical Practice Agreement (using the term used in the SOC) dated 17.6.2017, for P to provide medical services in the field of cardiology, as an independent contractor. [7] On 5.7.2019, a patient was admitted to the Hospital. The patient passed away on 7.7.2019. There were allegations that P was late in attending to the patient. [8] On 26.7.2019, the Hospital held an Inquiry into P’s conduct. By the Hospital’s letter dated 29.7.2019 to P (Suspension Letter), the Hospital suspended P’s medical practice in the Hospital for one month (from 15.8.2019 to 14.9.2019). P appealed against that decision to suspend him. By a letter dated 30.8.2019, the Hospital rejected P’s appeal and maintained its decision to suspend him for one month, this time from

1.9.2019 to 30.9.2019. P pleads that the Hospital breached the rules of natural justice and committed acts that were in bad faith. [9] For instance, the previous Medical Practice Agreement was due to expire on 31.7.2019. The Hospital “caused” (menyebabkan) P to sign a new Medical Practice Agreement on 29.7.2019. But the new Medical Practice Agreement was dated 1.8.2019, instead of the date on which it was signed (29.7.2019). [10] P asserts that the Hospital caused him to sign the new Medical Practice Agreement on 29.7.2019, so as to renew the duration of his contract with the Hospital, so that the Hospital could suspend him on the 29.7.2019. [11] Without going into the issues of relevance and cogency, the legal and factual issues that arise that make it not “plain and obvious” that P has no reasonable cause of action, or that P’s claim is “obviously unsustainable” include these issues—

Did the Hospital breach either or both the Medical Service Agreements dated 17.6.2017 and 1.8.2019?

Was there a breach of the rules of natural justice on the Hospital’s part, such as to warrant granting the relief and remedy that P seeks?

Was there any mala fide conduct on the part of the Hospital, that warrants granting the relief and remedy that P seeks? APPLYING THE LAW TO THE FACTS IN THE CONTEXT OF AN ORDER 18 RULE 19 APPLICATION [12] In considering an Order 18 Rules 19 summary striking out application, I am not to look behind or around the pleadings to see if the pleadings disclose a reasonable cause of action. So long as the SOC discloses some ground of action, the mere fact that P is not likely to succeed at trial is no ground for it to be struck out—Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor [1998] 2 MLJ 498 (CA); [1998] 2 AMR 1653; [1998] 3 CLJ 253; [1998] 1 MLRA 262 (CA) per Gopal Sri Ram JCA (later FCJ), at para [7]. [13] Further, the Order 18 Rule 19 summary jurisdiction is “never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge”—Honan (supra) at para [8]. [14] Also, in an Order 18 Rule 19 proceeding, I should not descend into a trial by affidavits. I should look at the pleadings to see if they disclose a reasonable cause of action (under limb (a)), whether the claim is scandalous, frivolous, or vexatious (under limb (b)), whether the pleadings may prejudice, embarrass or delay the fair trial of the suit (under limb (c)), and whether it is an abuse of the process of the Court (under limb (d)). DECISION [15] I hold that P’s Claim should not be struck out summarily under either Order 18 Rule 19(1)(a), (b), (c) or (d) because:-

D has not shown that P’s pleadings do not disclose a reasonable cause of action; are scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trial of the suit; or that they are an abuse of the process of the Court.

I am bound by the principles propounded in the authority of Bandar Builders (supra). Without going into the minute details of the exhibited documentary evidence and the averments in the affidavits, I find that it is not “plain and obvious” that P’s claim—either does not disclose a reasonable cause of action, or is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the suit, or that it is an abuse of the process of the Court.

Reading the pleadings—the SOC, D’s Defence and the P’s Reply—I find that the Claim is also not a claim that is “obviously unsustainable” or “wholly unarguable”

For this striking out application, it is my judgment that both sides’ pleadings and affidavit averments should be tested through the process of a trial. The veracity of these documents and the averments will only be revealed through the rigours of a trial. The pleaded material facts for both sides should be proven in the legal setting of a trial, not summarily under Order 18 Rule 19.

The parties may avail themselves of the procedure provided for under Order 14A or Order 33 of the ROC, if they deem it appropriate, but parties must bear in mind that every step that a party takes attracts the element of costs. But I will not summarily strike out this claim under Order 18 Rule 19. BALANCE OF JUSTICE [16] If P’s SOC is not struck out, the Hospital can still go to trial to prove its defence. [17] But if P’s SOC is struck out, then P will be deprived of his day in Court. In this suit, P should be given his day in Court to prove his claim at trial rather than have it struck out summarily. [18] P should be given the opportunity—in fact, P has the right—to go to trial to prove his claim against the Hospital. The Hospital too has the opportunity, and the right, to go to trial to prove its Defence. At the trial is where these two parties’ merits ought to be finally determined. CONCLUSION [19] For these reasons, I dismiss E18—D’s Sout Applcn, with costs of RM7K to be paid by the Hospital to P forthwith, and in any event by 8.3.2024. Costs are subject to the allocatur. Dated: 17 February 2024 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors For the Plaintiff: Lee Khai, Lee Huai [Messrs. Ong And Manecksha (Penang)] For the Defendant-Hospital: Dato’ Thavalingam, Fazeela Ali [Messrs. Chan Ban Eng & Co (Penang)] Legislation referred to:

O18 R19(1) of the Rules of Court 2012 Cases referred to:

Bandar Builders Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC); [1993] 2 AMR 1969; [1993] 4 CLJ 7; [1993] 1 MLRA 611.

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1(FC); [2016] 2 AMR 795; [2016] 3 CLJ 1; [2016] 2 MLRA 263.

Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysian Airlines Bhd & Other Appeals [2019] 1 MLJ 59 (FC); [2018] 6 AMR 529; [2018] 9 CLJ 425; [2018] 6

Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor [1998] 2 MLJ 498 (CA); [1998] 2 AMR 1653; [1998] 3 CLJ 253; [1998] 1