Judgment

Mahadev Shankar JCA

(delivering the judgment of the court)

1. On 1 August 1996, the respondent/plaintiff (‘Das’) filed a writ of summons and a statement of claim in the High Court at Seremban praying for an order that he be declared the lawful President of the Peoples’ Progressive Party of Malaysia (‘the party’) and that the recognition accorded by the Registrar of Societies to the appellant/defendant (‘Kayveas’) as President, and his colleagues as office bearers of the party, be quashed and for an injunction that Kayveas be restrained from holding himself out as the President of the party or from carrying out a number of other designated activities (‘party activities’) on behalf of the party.

2. The same day, Das filed a summons in chambers for an interim injunction supported by an affidavit. This summons in chambers was originally headed ‘Ex parte Summons in Chamber’. However, before it was served, the word ‘Ex’ was deleted and substituted with the word ‘Inter’. The writ, statement of claim, ‘saman dalam kamar inter parte’, and the affidavit in support were all served on Kayveas on 5 August 1996. The return date of the summons was 15 August 1996. Kayveas signed for those cause papers himself, and endorsed the service copies, ‘Received without prejudice’.

3. Kayveas avers that on 8 August 1996 he entered a conditional appearance to the writ.

4. On 15 August 1996, Das and Kayveas both appeared before the judge. Das’s solicitor, En Rugber Singh, and his counsel Tun Salleh Abas were also present. Encik PC Low was present as Kayveas’s counsel.

5. Kayveas’s counsel objected to the summons being heard, claiming he was entitled to 14 days to file an affidavit in reply to Das’s affidavit. The judge promptly gave Kayveas up to 29 August 1996 to file his affidavit in reply. Kayveas’ counsel then referred to s 18(c) of the Societies Act 1966 (‘the Act’) and submitted that under O 29 r 1(2C) of the Rules of the High Court 1980 (‘the RHC’) an interim injunction on an ex parte application to stop the holding of a meeting of a society cannot be granted.

6. The judge’s note as to what Kayveas and Tun Salleh said next reads:

   If court mindful of giving interim order, I ask for a short adjournment to file my affidavit in reply so that this case may be heard inter partes.  I undertake not to do anything personally to jeopardize the position of the plaintiff. Plaintiff's counsel: Defendant's undertaking is insufficient and I request for interim order pending the decision of the application. Defendant's counsel (Kayveas): Undertaking subject to me filing affidavit in reply and this application be heard today and as plaintiff requires time to file reply, I opt to file within two weeks.  Plaintiff's counsel: Irreparable damage if interim order is not issued.

7. Because counsel for Das insisted on an interim injunction, arguments followed on whether it should be granted. What was specifically in issue was whether the party’s Annual General Assembly fixed for 3 September 1996 should be permitted to proceed. Kayveas had with him two affidavits he had affirmed in opposition. Kayveas would not file them in court then and there. He nevertheless handed over copies of the same to Das’s solicitors.

8. The balance of convenience was then fully argued and the decision made by the judge the same afternoon reads as follows [translation]:

   Decision: The defendant was endorsed as President and AJK at the EDC on 19 March 1995 which consists of AJK who were elected on 10 October 1993. The plaintiff was elected as President and AJK at the TDC on 13 August 1995 in Seremban. TDC must be held once every three years in 1988, 1991, 1994 and 1997 but no TDC was held in 1991 or 1994. It was said to have been held in 1995. This raises the serious question whether the EDC that endorsed the defendant on 19 March 1995 was valid or not. The defendant had a TDC meeting on 3rd September 1996 and at that time the issue in dispute above has not been resolved. This TDC if allowed will complicate the situation for the two or three parties in dispute. On balance of convenience an interim order ought to be issued. This court issues the interim order as prayed in prayer (iii) till the conclusion of this application.

9. The injunction granted by the court (‘the injunction’) forbade Kayveas from holding himself out as a member or as President of the party or carrying out any party activities until the application made in the summons in chambers had been disposed of. The draft order was approved by Kayveas’ solicitors. Inter alia, it forbade Kayveas from advertising himself as a member or President of the party or using his authority to hold any meeting of the party. Clearly, this was directed at the General Meeting Kayveas proposed to hold on 3 September 1996 because the implications of that meeting were ventilated in the arguments.

10. If the timetable set by the court at the request of both parties had been followed, Kayveas should have filed his affidavit in opposition on or before 29 August, Das his affidavit in reply within 14 days therefrom, and a hearing would have taken place thereafter before the trial judge to determine whether the said injunction should continue until the trial of the action.

11. Instead of allowing this timetable to take its course, Kayveas filed a notice of appeal on 16 August 1996. At 3.14pm on 21 August 1996, Blanche Kayveas & Co (Kayveas’ solicitors) filed a letter dated 20 August 1996 in the Court of Appeal Registry (‘the Registry’). The letter was addressed to the President. It referred to a notice of motion and affidavit filed on 20 August 1996. No such motion and affidavit had been filed on 20 August 1996. In fact, the motion (‘Kayveas’ motion’) and his affidavit in support and a certificate of urgency were all dated and filed on 21 August 1996. Kayveas’ motion prayed for the following orders:

    (i)	an order to stay the interim injunction made by the trial judge on 15 August 1996;
    (ii)	an order that the hearing of this motion inter partes in the Court of Appeal be stayed pending Kayveas being given 14 days to file a further affidavit;
    (iii)	an interim order that the interim injunction of l5 August 1996 be stayed till the final disposal of this appeal;
    (iv)	costs be costs in the cause;

    (v)	damages special, general and exemplary be assessed by the Registrar of the High Court at Seremban and paid to Kayveas; and
    (vi)	such further relief as may be thought just.

12. The very next day (ie 22 August 1966), Kayveas obtained an interim from the President of the Court of Appeal in terms of his third prayer (‘the interim order’). Kayveas’s motion was fixed for hearing inter partes on 16 September 1996.

13. Although by rr 13 and 14 of the Rules of the Court of Appeal 1994 (‘the Rules’) and s 43 (as amended) of the Courts of Judicature Act 1964 any application for stay should have been made in the first instance to the High Court, no such application was made. Nor does Kayveas’s supporting affidavit give any reason for this omission.

14. Furthermore, Kayveas’ motion did not state that any application was being made ex parte. As appears from the material now before this court, no notice was given by Kayveas’ solicitors to Das or his solicitors until 6 September 1996 that this motion had been filed or that the said interim order had been obtained.

15. In breach of his undertaking given in the High Court and the terms of the said injunction, Kayveas held a press conference and was reported by The New Straits Times of 30 August 1996 as having said that he had obtained the said interim order on 22 August and proposed to proceed with the General Assembly on 3 September 1996.

16. It is from this press report that Das learnt of the said interim order. 31 August was a public holiday, and 1 September was a Sunday.

17. After inspecting the court file to discover what had really happened, Das filed his motion (‘Das’s motion’) on 3 September 1996. The first prayer in Das’s motion is that it be heard ex parte on the basis of urgency and in the interest of justice. In this, he did not succeed. The Registry fixed his motion for hearing inter partes only on 16 September 1996. Thus, the very event which the said injunction was designed to prevent became a fait accompli.

18. So on 16 September 1996, we heard both Kayveas’s motion and Das’s motion together.

19. Counsel for Kayveas, Mr Nabhan submitted that the injunction in the High Court was an ex parte order but it was nevertheless appealable! There are serious procedural implications here. By O 19 r 1(2B) of the RHC, an interim injunction obtained on ex parte application automatically lapses at the end of two weeks, and injunctions to stop meetings cannot be granted on ex parte applications. Notwithstanding s 67 of the Courts of Judicature Act 1964, the proper remedy in the High Court for a party aggrieved by an order made ex parte in his absence is not to appeal but to apply to have it set aside by the judge who made it (see O 13 r 8, O 14 r 11, O 19 r 9, O 32 r 6 and O 35 r 2 of the RHC read with r 14 of the Rules).

20. Mr Nabhan referred us to Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 3 All ER 384 to contend that even though Kayveas was present at the hearing on 15 August and took part in the hearing, the application remained an ex parte application – albeit an opposed ex parte application.

21. There is a world of difference between an ex parte motion for an injunction where the respondent is present at the hearing, at the express or tacit invitation of the applicant, in order to assist (as in Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd) and an ex parte hearing of an inter partes motion or application where a party duly served fails to appear at the hearing; see the decision of the Federal Court in United Overseas Bank Ltd v Chung Khiaw Bank Ltd [1968] 2 MLJ 85 where the first ratio in the headnote reads:

    Held, allowing the appeal: (1) a judge may proceed ex parte to hear an application where a party duly served fails to appear at the time appointed for the hearing. An application so heard in the absence of a party is not an ex parte application. It is the hearing which is ex parte and an order made on such hearing is an ex parte order within the terms of O LIII r 4(1).

22. This was followed by Edgar Joseph Jr J (as he then was) in United Malayan Banking Corp Bhd v Sykt Perumahan Lunas Sdn Bhd [1988] 1 MLJ 547.

23. The summons in chambers which resulted in the injunction was duly served on 5 August 1996 because O 32 r 3 of the RHC only required two clear days’ notice. Order 32 r 13(2)(a) of the RHC was fulfilled because Das’s affidavit in support was served within 14 days of the filing on 2 August 1995. It is arguable whether O 32 r 13(2)(b) means that in any event Kayveas had 14 days from 5 August to file his reply. The rule says he must file it within 14 days. This leaves it open to contention that if there is to be an earlier hearing, Kayveas had to file his affidavit earlier or get the summons adjourned. Since Kayveas was duly served and took part in the High Court proceedings, it was not open to him to criticize the injunction as having been granted in breach of O 29 r 1(2C) of the RHC.

24. Briefly, Tun Salleh’s criticisms of the conduct of Kayveas and his solicitors in the Court of Appeal are as follows:

    (i)	the injunction was made after Kayveas gave the High Court an undertaking that he would do nothing to prejudice Das’s position. He breached that undertaking;
    (ii)	Kayveas got an extension of time from the trial judge to file the affidavits he had in hand on 15 August, thereby leading both the High Court and Das’s solicitors to believe that Kayveas intended that a further hearing, also inter partes, would be held to determine if the injunction shall continue. By failing to file the affidavits and applying to the Court of Appeal for an ex parte order, he misled the court and Das;
    (iii)	if he intended to obtain a stay, he should have applied to the trial judge after giving notice to Das. He did not;
    (iv)	only applications for leave to give shorter notice of motion of less than seven days can be made by motion ex parte. On its face, Kayveas’s motion was an inter partes motion. By failing to give prior notice of his application for the interim order in the Court of Appeal, Kayveas breached r 49 which, read with r 27(3), made it incumbent upon Kayveas to give notice to Das; and

    (v)

    Kayveas’ prayers to suspend the hearing of his motion inter partes for 14 days was deliberately done to facilitate the holding of the General Meeting of 3 September in defiance of his own earlier undertaking to the trial judge. It was submitted that the total omission of Kayveas to file any further affidavit or timeously to notify Das that he had got the order and his omission to serve the cause papers until 6 September 1996 was a calculated deception of all parties concerned.

25. These are serious criticisms. They were not rebutted. All Mr Nabhan could say was that the injunction could not be justified because it was made in violation of O 29 r 1(2C) of the RHC and s 18(c) of the Societies Act 1966. We have already touched on O 29 r 1(2C). As for s 18(c) of the Societies Act, the issue was whether Kayveas was authorized to act at all, and as for Kayveas’ complaint that he was not given a reasonable opportunity of being heard in the High Court, the record indicates otherwise. It was on the strength of Kayveas’ undertaking and his request for an extension of 14 days to file the affidavits he already had with him, that the hearing was adjourned and an injunction made to preserve the status quo in the High Court.

26. The manner in which Kayveas’ solicitors bypassed the procedural safeguards in the Court of Appeal is deeply disturbing. An inspection of the court file shows that the covering letter written by Kayveas’ solicitors to the Registrar of 21 August 1996 filing his cause papers (see encl 5) purports to have been copied to Das’ solicitors. The relevant endorsement reads:

    Annexure cc. Respondent and/or counsel  Messrs Rugber Singh & Partners  Advocates & Solicitors Johor Darul Takzim.

27. This could have given the Registry and the President the impression that the required notice had been given. Why was this letter not immediately served with the enclosures or faxed to Das’s solicitors? Why was service of the cause papers and the interim order delayed until 6 September 1996?

28. All Mr Nabhan was able to say to us about these lapses is that the practice adopted by Kayveas’ solicitors could have been better. He frankly conceded they only notified Das’ solicitors of the steps that they had taken after the damage was done.

29. In the result, we were faced with an anomalous situation. Kayveas’s motion was an inter partes motion which had not been duly served and no notice thereof had been given before the interim order was obtained. That interim order purported to be an ex parte order made in the absence of the respondent. As no prior notice had been given, it was not regularly obtained. However, even though Kayveas’s motion was fixed for hearing on 16 September, the interim order extracted by Kayveas’s solicitors on 28 August 1996 was conditioned to be effective until the final disposal of the appeal. In effect, therefore, Kayveas had purportedly obtained ex parte all the relief he prayed for before the inter partes hearing of his motion. Thus, the only useful order we could make on these two motions was that the said interim order be set aside as prayed for by Das. So we made no order on Kayveas’ motion, but ordered that the costs in respect of both motions be taxed and paid by Kayveas to Das.

30. The uninitiated may well be pardoned for thinking that what has happened so far in this case is only yet another example of Newton’s third law of motion that to every action there is an equal and opposite reaction. If all Kayveas says about Das is true, the statement of claim and the interim injunction sought by Das was really a most mischievous attempt to derail not only Kayveas and his committee but also the electoral process scheduled for 3 September 1996. And Kayveas’ allegations are ostensibly supported by a powerful body of collateral testimony. But then if what Das says about Kayveas is true, Kayveas is an imposter who has no right to claim even the status of an ordinary member of the party let alone the Presidency. The High Court judge was not directly concerned with the merits of the case but with the balance of convenience and whether there was a serious question to be tried. Our only concern was whether the interim order should be set aside. The larger issues incidental to Tun Salleh’s complaints aforesaid must therefore be the subject of further determination if the combatants cannot resolve their differences.

Cases

Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 3 All ER 384

United Malayan Banking Corp Bhd v Sykt Perumahan Lunas Sdn Bhd [1988] 1 MLJ 547

United Overseas Bank Ltd v Chung Khiaw Bank Ltd [1968] 2 MLJ 85

Legislations

Courts of Judicature Act: s.43, s.67 

Rules of the Court of Appeal 1994: rule 13, rule 14, rule 27, rule 49 

Rules of the High Court 1980: Ord.13, Ord.14, Ord.19, Ord.29, Ord.32, Ord.35

Societies Act 1966: s.18

Representations

DP Nabhan, N Mohandas & P.C. Low (Blanche Kayveas & Co) for the appellant.

Tun Salleh Abas (Rugber Singh & Partners) for the respondent.

C.H. Lee, Mohamad Ashfar Ali & Blanche O’Leary on watching brief.

Notes:-

This decision is also reported at [1997] 3 MLJ 671.