BIMAL PILLAI v 1. ) BRB MALAYSIA SDN. BHD. 2. ) BRB INTERNATIONAL B. V. 3. ) PETROLIAM NASIONAL BERHAD 4. ) NIK AMRI BIN NIK MOHAMED 5. ) PAUL ANTHONY TAYLOR 6. ) AMRI BIN RAZALI

Case Significance

Illustrates how procedural defects and threshold objections can dispose of a claim before its merits are examined: an affidavit failing Order 41 rule 3 may be fatal rather than a curable irregularity, and a plaintiff's foreign residence and want of local assets are relevant to security for costs, even where the claim is framed under the Whistleblower Protection Act 2010.

This High Court decision at Shah Alam concerns the striking out in limine of an originating summons brought by a whistleblower, on preliminary objections directed at a defective affidavit and the position of a foreign plaintiff. The plaintiff, who described himself as a whistleblower, had commenced proceedings against a company, a related foreign company, a national oil corporation and several individuals, invoking the Whistleblower Protection Act 2010 and alleging detrimental action, abetment and misrepresentation. Before the substance could be reached, preliminary objections were taken. One concerned a defective affidavit: an affidavit filed without a jurat — the formal attestation clause recording where, when and before whom it was sworn — and whether such an affidavit must be disregarded under Order 41 rule 3 of the Rules of Court 2012 or could be treated as a mere irregularity. Others engaged the court's discretion to order security for costs against a plaintiff not ordinarily resident in Malaysia and lacking assets within the jurisdiction, going to the likelihood of the plaintiff satisfying any costs order. The court allowed the preliminary objections and struck out the plaintiff's originating summons and an associated notice of application in limine, reserving certain later applications to be addressed only if they remained relevant. Costs were awarded to the first and third defendants. Delivered by Judicial Commissioner Anita Harun, the judgment is a useful illustration of how procedural defects and threshold objections can dispose of a claim before its merits are examined: an affidavit that fails the requirements of Order 41 rule 3 may be fatal rather than a curable irregularity, and the foreign residence and want of local assets of a plaintiff are relevant to security for costs, so that even a claim framed under the Whistleblower Protection Act 2010 must clear these procedural hurdles. The decision shows the court insisting on compliance with the formal requirements of affidavit evidence and on the ordinary safeguards available to defendants sued by a plaintiff outside the jurisdiction, before the substantive allegations of detrimental action against a whistleblower fall to be examined.