KAMARUDIN MERICAN NOORDIN [2011] 4 CLJ 286

v.

KAKA SINGH DHALIWAL

Suit No: S-22-471-2006 Citation: [2011] 4 CLJ 286 Judgment: High Court Malaya, Kuala Lumpur Judgment by: Lee Swee Seng JC Summary of case The issue in this case arose from Rule 230 of the Malayan Racing Association (MRA) Rules of Racing recently amended to read: No trainer shall train, have charge of or have in his stable or at his spelling station less than an average of twenty (20) horses a month over a period of one year. The plaintiff, a Race Horse trainer licensed by the MRA and President of the Association of West Malaysian Race Horse Trainers (AWMRT) claimed that the amended r. 230 was ultra vires, and unenforceable under the law and ordered that the defendant and/or the MRA be restrained from enforcing or trying to enforce r. 230 against the plaintiff or any members of the AWMRT. Firstly, the defendant claimed that the plaintiffs actions were not properly constituted as a representative action under O. 15 r. 12 RHC. way of O. 14A of the Rules of the High Court 1980 (RHC). The court held that so long as all members were potentially affected although presently only some are, it would still be sufficient justification to activate this provision of representative action. Secondly, the plaintiff asserted his right for cause of action against the defendant in his personal capacity. Through usage of the test of a cause of action in Government of Malaysia v. Lim Kit Siang [1988] 2 MLJ 12, the court decided that the plaintiff was adversely affected and prejudiced by r. 230 which gave him cause of action. Thirdly, both parties agreed that the relationship was one founded on contract. This was borne out by the cases that have been decided before such as Ng Kim Chor v. HR Hochstadt & Ors [1998] 1 LNS 337;[1998] 7 MLJ 19 at p. 22 which clearly stated that The relationship between the plaintiff and the MRA is founded on contract, and the Rules of Racing and the regulations are the terms of the contract. Fourthly, the plaintiffs counsel contended that the unilateral amendment made was a breach of contract. However, it was said that rather than it being the case of having no choice, Race Horse Trainers had the option of not being one. It was instead a case of someone having monopolistic control over the profession. The defendant further reiterated that all Race Horse Trainers signed an annual application form which bound them to all rules of the MRA which over the course of time may be amended. This authority (as derived from the agreement) was said to ensure effective regulation of the

profession of horse racing in Malaysia and Singapore. The court thus held that there was no breach of contract as a result of the unilateral amendment. Lastly, the Plaintiff contended that by virtue of unfair discrimination, the court should apply innovation and imagination to do justice to the aggrieved party. The defendant pointed towards the House of Lords case of Pharmaceutical Society of Great Britain v. Dickson [1968] 2 All ER 686 which held that the courts should intervene when a proposed rule of professional conduct goes beyond all reasonable matters pertaining to maintenance of professional honour or standards. The court supported this notion of further transparency and accountability as it was in line with the gazetted though yet to be enforced Competition Act 2010. Despite the situation of inequality of bargaining powers, the prayer for declaration and injunction was dismissed. However, the court did add a clause to the amendment that provides trainers with a period of 3 months to fulfil r.230 before having their licenses revoked. This was done with clarification on how the courts were not trying to rewrite the contract in the MRA Rules.