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  • Writer's pictureGavin Jayapal

Committal applications and contempt of Court

Updated: Mar 8, 2022

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Monopoly: its surprising nexus to civil litigation

Monopoly: the true crucible of any friendship. One can very easily test the mettle of a relationship after a bout of this board game.

The same holds true for litigation; the true test of a relationship (or the souring of the same) between disputants in civil litigation would be when one takes out a committal application against the other.

Many litigants express shock (and oftentimes, dismay) that they may be found guilty and be committed to jail in civil proceedings. I personally have taken over conduct of a matter where Mr X (an eminent, titled businessperson) was directed (by his former lawyer) to meet him in Court one fine Friday morning.

Without warning, the (former) lawyer sprung committal papers on Mr X and told him, with nary an introduction, that the Plaintiff had filed an application for contempt. That particular morning had been fixed for the substantive hearing of the application to commit and if matters went awry, Mr X ought to be prepared for sentencing.

The matter was, thankfully, postponed. I took over conduct of the matter and managed to strike-out the Writ (thereby striking the suit at its base and killing the matter off at its root). The Plaintiff took the matter all the way to the Federal Court but had their motion for leave dismissed.     

The statutory framework of committal

In the context of civil litigation, committal applications may be moved pursuant to:

a.      Section 13 of the Courts of Judicature Act 1964 (Article 126, Federal Constitution); and/or

b.     O. 52 of the Rules of Court 2012.

Definition of contempt

The Federal Court in Tan Sri Dato’ Dr Rozali Ismail v Lim Pang Cheong [2012] 3 MLJ 1 adopted the definition of contempt as stated in Oswald’s Contempt of Court:

[20] In dealing with the applications to set aside the leave for committal proceedings, it is necessary for us to consider the law of contempt. A good starting point would be the definition of contempt of court itself. Oswald's Contempt of Court (3rd Ed), at p 6 gives a general definition of contempt of court as follows:
To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation.
[21] The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J In re He Kingdon v SC Goho [1948] MLJ 17 as follows:
But the root principle on which this inherent power to punish for contempt is founded, and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue interference with the administration of justice in the public interest.
[22] Hence, the power to punish a contempt is not derived merely from statute nor truly from common law but instead flows from the very concept of a court of law (see Borrie & Lowe's The Law of Contempt (3rd Ed), at p 465; and Master Jacob (1970) 23 Current Legal Problems 23).

Procedural law

Stage 1: The Ex-Parte Application

Committal is a two-pronged process. The first stage is governed by O. 52, r. 3 of the Rules of Court 2012, which states as follows:

3. Application to Court (O 52 r 3)
(1) No application to a Court for an order of committal against any person may be made unless leave to
make such an application has been granted in accordance with this rule.
(2) An application for such leave must be made ex parte to the Court by a notice of application supported
by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

A committal application must be moved ex-parte at the first stage. The following cause papers must be satisfactorily filed:

a.      The Ex-Parte Notice of Application;

b.     The Statement; and

c.      The Affidavit in Support.

The Statement is a document that is of the utmost importance. O. 52, r. 6 (3) provides as follows:

(3) Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 3.

Upon satisfying the Judge that there is a prima facie case for contempt, the matter will then move on to Stage 2, which will be the inter-partes hearing.

The granting of leave does not equate to a finding of contempt (Foo Khoon Long v Foo Khong Wong [2009] 9 MLJ 441)

A Proposed Contemnor will not normally be heard at the ex-parte stage. However, this will be at the discretion of the Judge (Chuan Huat Hin v Yap Chee Seng [1996] 1 MLJ 141).

Stage 2: The Inter Partes Hearing

Upon obtaining leave, the Applicant will then be obligated to file a further Notice of Application for an order of committal (O. 52, r.4 ROC 2012). If this Notice of Application is not filed within 14 days, the Order granting leave shall lapse (O. 52, r. 4(2) ROC 2012).

The Notice of Application, Statement and Affidavit in Support must then be personally served on the Proposed Contemnors (O. 52, r. 4(3) ROC 2012).

At the inter-partes hearing, the burden will lie on the Applicant to convince the Judge, beyond the standard of a reasonable doubt, that the Proposed Contemnors have committed a contempt of Court (Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage [2019] 7 MLJ 724; Wee Choo Keong v MBF Holdings [1995] 3 MLJ 549 (FC)).

There are several other mandatory requirements that must be fulfilled before any charge of contempt can be brought. These mandatory requirements are not all spelt-out in the Rules of Court 2012 and a good portion of it has developed via the common law. A prudent practitioner would do well to apprise himself of the same before initiating and/or advising a client with regard to any application for contempt. 

The application for committal may, in and of itself, amount to contempt

To abuse the Court process with frivolous applications for committal may also be an act of contempt. In Anthony Ratos v City Specialist Centre [1996] 3 MLJ 349, the High Court held that the actions of the Applicant, in taking out a committal application against a Judicial Commissioner, would, in and of itself, be an act of contempt. In decidedly strong terms, KL Rekhraj JC stated as follows:

This court had looked at this contempt by Mr Murthi and his client to cite a judicial commissioner as an act of deliberate and contumelious conduct sufficient to warrant a serious penalty of imprisonment to vindicate its own dignity, to enforce obedience to its mandates and to protect its officers and to shield those who are entrusted to its care from such scurrilous attacks; for without such deterrent punishment or the protection of the law, the court of justice would sooner or later loose its hold of the public respect; and with it the maintenance of law and order would be rendered impossible.
A well publicized custodial sentence would keep ablaze the glory to deter people like Mr Murthi and Mr Anthony Ratos – as a deterrent factor from rendering them contemptible in the eyes of the public. Mr Murthi truly living to his army discipline – a strategy in war – by taking prior opinions from learned QC, drew his 'sword' and charged himself into the arena of court to challenge the authority of the judge by taking the contempt proceedings against him to order to commit him to prison. His drawn sword was met by a 'shield' – the provisions of s 14 of the Courts of Judicature Act – and the sword of punishment; and he now 'surrenders' to this court with an apology, asking for mercy that he and his then client were wrong and had misdirected themselves both in law and in fact and they now accept the error in which they fell into.

Frivolous applications be warned; the application for committal may, in and of itself, amount to contempt of the Court. Practitioners would be well-advised to consider any application for committal carefully, despite their client’s blandishments.


Applications for committal are a nuanced, multi-faceted concern. They should not be taken lightly and should, most definitely, not be utilised as a cudgel in litigation.

The situations in which a committal application may arise are legion; one must always be able to deal with it quickly and efficiently to ensure that imprisonment does not become a reality in the realm of civil litigation.     



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