My action against AVCF to be refiled

http://www.dailyexpress.com.my/news.cfm?NewsID=83715
 

Case against Bishop struck out

Kota Kinabalu: The High Court Tuesday struck out with costs the suit brought by a member and beneficiary of the Anglican Church of Sabah against the Bishop of the church over alleged misuse of church funds.
Judge Datuk David Wong made the decision after hearing arguments from both parties and awarded RM5,000 costs to the Bishop.
The plaintiff, Joshua Kong, had on June 26 this year, filed a writ of summons against the Bishop, Datuk Albert Vun Cheong Fui, in his capacity as the Bishop of the Anglican Church of Sabah, as well as himself as the first and second defendants, respectively.
The suit had failed because the plaintiff was found not to have complied with Section 9 of the Government Proceedings Act as the consent of the Sabah State Attorney-General is required before instituting legal proceedings against the Bishop of Sabah (Registered Trustee).
Tuesday was fixed for hearing on the defendant's application to strike out the suit.
The plaintiff's lawyer, Rakhbir Singh, argued that the Bishop had never disclosed anything in his defence. He wanted the defendant to answer the questions on the alleged misuse of funds at a full trial.
The Bishop made no admission to the plaintiff's Statement of Claim against him but relied on his lawyer Ronny Cham to strike out the suit.
During the hearing, Rakhbir had applied to withdraw the suit against the defendant with no cost, but Cham pleaded with the judge to strike out the suit with costs of RM25,000 for the hassle of going through the substantial voluminous documentation, courtesy of the plaintiff.
During the court proceedings, both counsel argued at length for and against the need to strike out the suit just when the plaintiff was applying to voluntarily withdraw the suit.
Cham was insistent that the judge should strike out the suit and not allow the plaintiff to withdraw the suit. He applied for the case to be struck out, which is consequential from the previous order the High Court Judicial Commissioner, Lee Heng Cheong.
Cham said Lee had already ruled on Sept 24, this year that the plaintiff sued the wrong party and the case was brought, by the plaintiff, in contravention of Section 9 of the Government Proceedings Act and also the plaintiff had no locus standi to take the case to the High Court.
He has also tendered to the court on Tuesday, two authorities, one of them stated that without the consent of the State's Attorney General, the case is annulity and it is misconceived.
The plaintiff was trying to withdraw it. It cannot be withdrawn, it must be struck out as a consequential order from the previous proceedings, said Cham.
Wong then asked Cham, "What's the difference? Is it a moral victory that you are looking for? To which Cham said he would leave it to the judge to decide.
Rakhbir, meanwhile, argued that the plaintiff was a poor litigant acting out of public interest and did not stand to gain anything from the suit that he was withdrawing. He asked for no order as to awarding cost.
"The Bishop would not want cost from his people seeking justice," suggested Rakhbir, to which the judge retorted before awarding RM5,000 cost," He has spoken through his lawyer.
Cham when asked after the court proceeding as to whether he was happy with the cost award of RM5,000 instead of RM25,000, said: "The court has decided".
After the adjournment of the case, Rakhbir said that he is a public interest lawyer not out to make money from such pro bono cases and that many Anglican lawyers were backing him.
He claimed the Bishop faces another suit to be filed this Friday by the same plaintiff and another.
Sabah Deputy State Attorney-General Halima Haji Nawab Khan had signed the Certificate of Consent on Nov 16, 2012 for and on behalf of the Sabah State Attorney-General for the two Anglicans to institute legal proceedings against the Bishop of Sabah (Registered Trustee).
Former Sabah State Attorney-General Datuk Stephen Foo was in court to observe the proceedings.


PRESS RELEASE from High Court hearing

My simple and layman understaniding of the Hearing of my Writ against Bishop of Sabah and Datuk Albert Vun Cheong Fui.

My Writ of 26^th June, 2012 which was not struck out on 24^th September, 2012 when Judicial Commission Tuan Lee Heng Cheong set aside the Court Order/ Anton Piller Order of 18^th July, 2012 which could expire automatically on 21 days thereof.   We did not appeal against that ruling.

The Writ has been alive despite  attempts by the Defendants to strike it out in several affidavits and several Court hearings.

Today 18th December, 2012 as adjourned from a brief hearing before High Court Judge Datuk David Wong in OPEN court on 17^th December, my writ was withdrawn by my learned Counsel for a refile after some preliminary arguments that my merited action can be sustained with the consent from the State AG on the Section 9 of Government Proceeding Act 1956.

The Judge Datuk David Wong stated the State AG did not give a retrospective consent for the existing suit to proceed.

Counsel for the Defendants argued that the Writ as a consequence of the short ruling by the earlier hearing before Tuan Lee to set aside the Court Order, the Writ should face similar fate on technical grounds and preliminary objections..

After some bargaining on costs on both sides, the Judge decided to award RM5,000 costs to the Defendants.

My counsel Mr Rakhbir argued that the costs should be zero, as it is a public interest and the Defendant case had involved public fund and that merits of the my Writ have yet to be tried and the plaintiff has nothing to gain except to demand justice from a person holding the position of Bishop.

The Defendants’ lawyer was Mr Ronny Cham.

Prepared by Joshua Y. C. Kong, Plaintiff- 18 Dec 2012