Chin Tong Lim (menyaman atas kapasitinya sendiri dan sebagai pegawai awam Persatuan Penduduk Lake Fields, Sg Besi, untuk Meadows and Glades Residences, menurut Seksyen 9 Akta Pertubuhan, 1996 dan dalam kapasiti wakil bagi pemilik berdaftar dan / atau penduduk unit di Meadow & Glades, Lake Fields Residences) v DATUK BANDAR KUALA LUMPUR (WA-25-140-04/2024)

That DBKL-R1 affirms, files and serves an affidavit within two weeks from the Order stating:

Which, if any, of the documents listed in Appendix A (the Material Documents) are, or have at any time been, in its 75 possession, custody or power; and

Those documents no longer in its possession, custody or power when it parted with them and what has become of them.

(ii) That Astana Setia & Euro Saga Sdn Bhd-R2 affirms, files and 80 serves an affidavit within two weeks from the Order stating:

Which, if any, of the documents listed in Appendix A (the Material Documents) are, or have at any time been, in its possession, custody or power; and

Those documents no longer in its possession, custody or 85 power when it parted with them and what has become of them.

(iii) The Applicants and/or their solicitors should be at liberty to inspect the Material Documents in Appendix A and be supplied with copies. APPENDIX A: 90 List of Documents sought in Discovery

The Impugned Development Order (Development Order No.: 0727 /JKPS1/11.102923/31 dated 15.11.2023) and Impugned Bridge Approval (JKAWS DBKL Ref No.: DBKL/JKPB/6/54 JLD.2(7)).

(ii) All correspondence between DBKL-R1 and R2 concerning the grant 95 of the Impugned Development Order and Impugned Bridge Approval.

(iii) All approved, revised and/or as-built civil, structural and/or architectural plans and/or drawings of the proposed bridge across Tasik Lake Fields prepared by the Respondents for the Impugned 100 Bridge Approval.

(iv) All documents, correspondence, site and/or final reports prepared and/or submitted by R2 relevant to Lot 103675 or for its application for the Impugned Development Order and/or Impugned Bridge Approval, including but not limited to: - 105

Copies of any applications submitted and/or considered and all accompanying documents, such as building and construction plans and maps indicating all ingress and egress roads leading to the Proposed Development on Lot 103675.

Document(s) and/or correspondence from R2 to DBKL-R1 110 and/or the Land Office relevant to any options for access to Lot 103675 considered before the Impugned Development Order was issued.

Any written advice and/or Survey Report from land surveyors or other parties on any land reserve around Tasik Lake Fields 115 which R2 could potentially utilise.

Any reports submitted to, considered and/or approved by DBKL-R1, including but not limited to traffic impact, site suitability, environmental impact, geotechnical and geological impact assessments (including but not limited to the Flood 120 Risk Assessment Report, Environmental Impact Assessment (EIA) and Traffic Impact Assessment (TIA) Report) in respect of any proposed development on Lot 103675 and/or construction of the Proposed Bridge.

Document(s) by DBKL-R1, the Department of Irrigation & 125 Drainage (DID), and the Department of General Engineering and Irrigation (JKAWS) certifying the original capacity of Tasik Lake Fields and any impact thereon from the Proposed Development or Proposed Bridge.

Document(s) and/or correspondence by the “Traffic 130 Consultancy (Committee)”, the 1st Respondent, the Land Office and/or other relevant authorities relevant to the Impugned Bridge Access is an access road to the Proposed Development.

Minutes of the alleged meeting between DBKL-R1, R2, and 135 the Land Office, where DBKL-R1 suggested building a bridge across Tasik Lake Fields to access Lot 103675.

Presentation slides prepared by R2 allegedly containing a “matrix” of the pros and cons of all possible access roads to the Proposed Development at Lot 103675 140

All minutes of meetings of the Federal Land Executive Committee relevant to the alienation of Lot 103675; and

(vi) All documents and/or correspondence submitted by DBKL-R1 or R2 to or received from the Federal Land Executive Committee regarding the alienation of Lot 103675, including but not limited to 145 those relevant to building a bridge across Tasik Lake Fields as a means of access to Lot 103675. [2] On 20.02.2025, after perusing the cause papers and submissions of the counsels, I find there is no merit in this application (L.21) and 150 dismissed it with costs in the cause. Dissatisfied, the Applicants’ filed this appeal and my reasons are as follows: BRIEF FACTS [3] The facts of this case can be summarised as follows: 155 3.1 On 22.03.2018:

R2 applied to the Federal Territory of Kuala Lumpur Lands and Mines office (PTG WPKL) for the government land to develop within Tasik Lake Fields.

The alienation of the land was approved:

A temporary title held under No. PT 50001, Mukim Petaling, Daerah Kuala Lumpur Wilayah Persekutuan Kuala Lumpur was registered under R2.

The final title was issued for Lot 103675, Mukim Petaling, Daerah Kuala Lumpur Wilayah Persekutuan Kuala 165 Lumpur (the development land) on 20.03.2019.

The land use category was specified for developing Malaysia Civil Servants Housing (PPA1M) and mixed developments.

On 12.06.2019, R2 carried out the necessary process for 170 approvals and the required Development Order (DO), which took approximately five years.

On 15.11.2023, the DO No: 0727/JKPS1/11.10.2023/31 for the development land was issued.

R2 had also submitted to DBKL-R1 for approval to build a 175 bridge across Tasik Lake Fields. Written approval was issued via letter no. DBKL/JKPB/6/54 JLD 2(5) dated 17.08.2023 (Bridge Approval).

When the DO and Bridge Approval were considered, R2 took into consideration the express condition on land use on the title 180 of the development land and also the following:

R2 had obtained approval from the National Housing Department dated 12.02.2020 for the development component and the selling price of units.

R2 had obtained approval from PTG WPKL dated 04.08.2020 for 185 the application to use airspace above government land to build the bridge. The Permit for using Airspace above Government Land was issued on 07.01.2021.

R2 had obtained approval from the National Housing Department dated 10.09.2020 to use standard SPA under Schedule H of the 190 Housing Development (Control & Licensing) Act for the said Development.

R2 had received confirmation from the Federal Territories Ministry dated 27.04.2021 that there are no objections to the RUMAWIP and PPAM development proposals submitted by R2 on 12.03.2021.

R2 had obtained confirmation from the Ministry of Defence Malaysia dated 12.11.2021 and 3.01.2022 that the ministry has no plans or requirements for constructing Armed Forces Family Housing (RKAT).

R2 attended an 'open book' session on 06.07.2020 for the 200 presentation of Draft Amendment 3 PBRKL 2020 to discuss proposed changes in land use and the intensity of the said Development. The Draft Amendment 3 PBRKL 2020 was subsequently gazetted on 17.07.2020.

DBKL-R1 opened channels for submitting comments via email to 205 the secretariat for the Public Hearing Session on Draft Amendment 3 PBRKL 2020, which was held on 5.10.2020.

The Applicants did not raise objections at the time. Following the public hearing session, the draft amendment was accepted, and PBRKL 2020 Amendment 3 (Part 2) was gazetted on 03.08.2021.

Consequently, after the gazette of PBRKL 2020 Amendment 3 (Part 2), R2 applied to PTG WPKL to amend the express conditions on the title of the Development Land.

On 13.04.2022, a new title deed was registered with the express condition for the use of land for the development of Federal Territory 215 Affordable Housing (RUMAWIP)/Residency, Malaysian Civil Servants Housing (PPAM), and luxury condominiums only.

R2 secured the approval and no objections from DBKL-R1 Department of Civil Engineering and Drainage dated 18.08.2022 regarding the proposed development.

R2 obtained approval from the National Housing Department on 15.11.2022 to amend the price for PPAM units with an area of 1000 sq. ft. to RM 300,000.00 per unit.

The property development planning consultant appointed by R2, SS Planning Group Sdn Bhd, applied for an official review of the 225 national security area from the Office of the Chief Government Security Officer (CGSO), which confirmed no objections to the development and construction of the bridge.

R2 obtained a Conditional Bridge Construction No Objection Letter from the Department of Civil Engineering and Drainage dated 230 17.08.2023, No. DBKL/JKPB/6/54 JLD.2 (7) after obtaining no objection letters and confirmation of reservoir capacity (ARI) from the Drainage and Irrigation Department WP Kuala Lumpur and the Department of Civil Engineering and Drainage dated 24.06.2022 and 18.08.2022.

R2 made payment for development charges, ISF road & drainage contributions, and security deposit on 9.11.2023.

It was only after considering all the above that DBKL-R1 issued the said DO and the Bridge Approval letter. 240 3.2

DBKL-R1 visited the development site and found residents protesting, and banners were hung on the fence surrounding Lake Fields.

On 1.03.2024, R2 was informed of the development and was 245 urged by DBKL-R1 to address the issue with the Joint Management Body of the local community.

On 04.03.2024, an internal coordination meeting was held between the Respondents concerning the residents' protests, excluding any third parties and thereafter:

DBKL-R1 handed over a copy of the main gate key to Lake Fields (walkway) R2.

All parties knew that the area surrounding the lake, including the walkway, was the property of the DBKL-R1.

Using it was discretionary and not a matter of right by any 255 parties.

3.3 One month later, on 02.04.2024, the Applicants filed the present Judicial Review Application in L1 seeking an order of certiorari to quash the DO and the Bridge Approval granted to R2. 260 THE PARTIES ARGUMENTS [4] The Applicant’s arguments (briefly):

4.1

Tasik Lake Fields, previously a mining pool, serves vital environmental, ecological, and recreational purposes and is a 265 floodwater retention pond for the area under the Kuala Lumpur Structure Plan 2040, which was gazetted on 19.10.2023. The plan requires that it be preserved, maintained, and not used for development. 270

The Applicants claimed:

They became aware sometime in July 2023 of the proposed residential development project at the southern part of Tasik Lake Fields, with a connecting bridge to be built across it.

They argued that there was no official announcement or notice of confirmation from DBKL-R1 on the matter.

Despite several attempts to seek confirmation on the impugned DO and the Bridge Approval from the Respondents, they were to no avail. At a meeting on 280 20.03.2024 at the office of the Bandar Tun Razak MP’s Constituency Office, DBKL-R1 officers assured that the building of the Proposed Bridge would allegedly not cause any damage to the environment or ecosystem around Tasik Lake Fields and that no significant traffic issues 285 were highlighted in the Traffic Impact Assessment (TIA) that was allegedly conducted.

On 02.04.2024, they took out the present JR Application against the Respondents as registered proprietors and in a representative capacity on behalf of the residents of 290 Lake Fields Residences.

They seek to quash by an Order of Certiorari the supposed DO No: 0727 / JKPS1/11.102023/31 dated 15.11.2023 and the Bridge Approval letter dated 11.01.2024 (JKAWS DBKL Ref No.: DBKL/JKPB/6/54 295 JLD.2(7))

They claimed to have never been given a copy of the two impugned documents and the supporting documents. However, they acknowledged they had sighted the two impugned documents when they were annexed as Exhibit 300 NZ-1 of DBKL-R1 Affidavit in Reply (L.28: affirmed on

30.5.2024) and Exhibit A-17 and A-18 of R2’s Affidavit in Reply (L30: affirmed on 30.5.2025).

In support, the Applicants cited Suruhanjaya Pilihan Raya & 305 Ors v Kerajaan Negeri Selangor and another appeal [2018] 1 CLJ 258, CA, where it was observed that principles held in Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, HC is applicable in the context of judicial review where the three-fold test would similarly apply:

There must be a document.

The document must be relevant.

The document must be in the respondent's custody/power

In Rekapacific Bhd v Securities Commission & Anor and 315 Other Appeals [2005] 2 MLJ 269, CA, observed that discovery should be ordered where the evidence reveals reasonable grounds for believing that there has been a breach of public duty. As a public authority, DBKL-R1 had a duty to be candid in fully and fairly disclosing material facts. In Datuk 320 Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors [2023] 3 MLJ 829 FC, emphasised that the duty of candour is a duty that public authorities should exercise, not least because they are expected to assist the court with ‘full and accurate explanations of all the facts 325 relevant to the issue which the court must decide’ and that this duty extends to disclosure of ‘materials which are reasonably required for the court to arrive at an accurate decision. The Federal Court went further to state that in such circumstances, there was a duty to give reasons for the decisions by DBKL- 330 R1, where such duty to provide reasons is determined on a case-by-case basis. There is no general duty under common law unless provided for in the statute or an exceptional case warrants it. 335

The Applicants submitted that without supplying any particularity or specifics that the Court must consider antecedent events leading to the alienation of the development land in determining the legality of the impugned Do. 340 4.2 The Applicants further submitted:

That the documents listed in Appendix A, are relevant to appraise and legally determine the present JR application since it is grounded on the basis that DBKL-R1 issuance of the impugned DO had presumably in breach of the Federal 345 Territory (Planning) Act 1982.

The documents are relevant to the JR as the legality of the Impugned Development Order, and the Applicants dispute the Impugned Bridge Approval.

Without identifying and providing any particulars or specifics of the documents requested, the Applicants generally ask for letters, other correspondences and supposed minutes of meetings concerning the impugned DO and the Bridge 355 Approval letter to assist the Applicants in identifying any possible illegality in the issuance of the two impugned documents and possible contravention of the Federal Territories Act 1982, and to answer their suspicions of the same, as follows: 360

Will the environmental surroundings and the safety of the residents be affected by the proposed development?

Is the proposed development built on reclaimed land in Tasik Fields?

Did DBKL-R1 carry out any independent study of Tasik 365 Fields' capacity and flood mitigation functions?

Was any consideration given to Tasik Lake Fields flood mitigation function?

Are there any alternative means of access to the development land apart from the proposed bridge?

4.3 At this stage, in my considered observation, that this application borders on a fishing expedition to support the Applicant’s speculative case. In Wu Siying & Ors v Malaysian Airline System Bhd & Ors [2016] 8 CLJ 740, HC held on the issue of 375 whether the plaintiffs are merely fishing at para [14] as follows:

What would be tantamount to a fishing expedition that is not allowed in an application for discovery is contained in the decision of the Federal Court of Australia, exercising its appellate jurisdiction, in WA Pines Pty Ltd v. Bannerman 380 [1980] FCA 94, that it all depended on the nature of the case and the stage of the proceedings at which the discovery is sought.

In this case, a bare allegation is made in the SoC, and the applicant seeks to interrogate the Chairman and ransack his 385 documents to make a case.

That is mere fishing. As Smithers J, in the Federal Court’s observation in Australia, said in Melbourne Home of Ford Pty Ltd v. Trade Practices Commission [1979] FCA 25: "In the absence of such evidence, the proceeding is essentially 390 speculative in nature. In such circumstances, for the Court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise, and from this, the Court on established principles should refrain". 395 Based on the above arguments, the Applicants pray for an order in terms of L.21. [5]

DBKL-R1’s Arguments (briefly) 1 In opposing L.21, DBKL-R1 submitted:

L.21 is untenable and based on misconceptions and 400 speculation.

The applicants still cannot identify the appropriate impugned DO and Bridge Approval at this proceeding stage:

They purport to challenge a Development Order No. 405 0727/JKPS1/11.102923/31 dated 15.11.2023 that does not exist since DBKL-R1 has never issued such a document. What was issued is the impugned DO (No. 0727/JKPS1/11.10.2023/31) adduced in Court.

They also challenge a purported Bridge Approval vide 410 Letter No. DBKL/JKPB/6/54 JLD 2(7) dated 11.01.2024 that does not exist at that time. DBKL-R1 has never issued that approval. What was issued is a Bridge Approval letter dated 17.08.2023, as adduced in Court.

They cannot prove the existence of those two purported 415 documents that serve as the foundation of their present action in L.1, as they do not exist. It is a trite principle of law that every fact must be proved to entitle the plaintiff to succeed: Cooke v Gill (1873) LR 8 CP 107, 116 A principle cited and followed by the Supreme Court in 420 Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJR 293, SC and by the Federal Court in Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [2024] 4 MLRA 131, FC. 425

The Applicants, in seeking an order of specific discovery under O.24 r.7, 12 and 16 RC 2012:

Failed to meet the criteria-imposed without appropriate identification of the documents sought that are in the possession of DBKL-R1. What has been listed In 430 Appendix A are broad and generalised requests for records that do not accord with specific discovery.

They failed to specify the specific documents that they require. In Ong Commodities Pte Ltd v. Kek Tek Huat Sdn Bhd & Anor (L1) [2015] MLRHU 7616; [2016] 10 435 MLJ 344, HC observed that specific discovery applications must be grounded in clear and direct relevance to the issues under dispute.it should not be used as a means for indiscriminate exploration or fishing expeditions but must be limited to documents that bear a 440 meaningful connection to the applicant's case.

Some of the documents requested:

As listed under “Lampiran A,” bears no relevance to the issues raised by the parties in the present JR application. The duty of candour does not extend to 445 speculative, irrelevant, or non-existent documents. The Applicants’ claims for further discovery fail to recognise that the Respondents have proactively maintained transparency since the outset of this judicial review.

(ii) Specific discovery requires that only documents directly pertinent to the issues in dispute be disclosed, as outlined under Order 24 of the Rules of Court 2012.

(iii) For convenience, DBKL-R1 tabulated the documents 455 and their purported relevance in paragraph 42, PDF, pg.22, L.124, which refutes the Applicant’s L.21 for specific discovery. Manilal & Sons Pte Ltd v. Bhupendra Kumar J Shan [1989] 3 MLRH 2237; [1990] 2 MLJ 282; [1990] 3 CLJ 786 held that the 460 relevance of the documents sought would be established if they contained information that could either strengthen the applicant's case, weaken the opponent's case, or lead to a line of inquiry that could result in either of these outcomes. The Applicants 465 presently failed to demonstrate how the documents materially impact their case. In Re State of Norway's Application [1989] 1 All ER 6618 observed that an application for discovery is considered a fishing expedition if it is made to seek out new allegations 470 rather than obtaining documents genuinely relevant to the issues at hand.

(iv) The Court’s role is to assess legality, not to examine hypothetical merits of the development process. The Applicants’ requests for unrelated or tangential 475 documents, such as internal correspondence or broad categories like “meeting minutes,” distract from the legal issues and create an unwarranted burden on the Respondents. 480

Without any compelling evidence, the Applicants cannot substantiate the claim that those supposed documents are in the possession of the DBKL-R1.

DBKL-R1 asserts:

Some requested documents had already been produced and introduced in court proceedings for their interim stay application. They were exhibited in the affidavits in L.37 and L.38. These disclosures should have satisfied the Applicants’ inquiries, which appear more akin to a fishing 490 expedition than a targeted discovery request. This request is tantamount to a repetition.

Some other requested documents are irrelevant to the JR application as was held in Yekambaran Marimuthu v Malayawata Steel Berhad (supra). The documents 495 requested for discovery must be precise and directly relevant to the issue in dispute.

As it is, this is a fishing expedition by the Applicants for information to prop up or improve their claim. Their affidavit failed to impress upon this Court its relevance. 500 The principles of specific discovery require the Applicants to identify known documents necessary to substantiate their claims rather than speculations about possible evidence. Discovery is intended to resolve material disputes, not to facilitate speculative inquiries or the 505 gathering of extraneous evidence. Based on the above arguments, DBKL-R1 prays that L.21 be dismissed with costs. 510 [6]

Astana Setia & Euro Saga Sdn Bhd Arguments (R2) 1 In opposing the Applicants L.21, it was argued that:

At the 15.04.2024 meeting with the PM’s Political Secretary and several representatives of the Applicants:

The Applicants acknowledged that they have no issues 515 with the proposed development.

They only took issues with the proposed bridge across Tasik Lake Fields.

R2 had always wanted to be transparent with the residents of 520 Tasik Lake Fields and had proposed a meeting (25.04.2024) with them to disclose material information on the impugned project and the bridge, but the Applicants cancelled it for reasons best known to them. That notwithstanding, R2 had disclosed to the Applicants solicitors on 06.06.2024 the 525 following:

The impugned DO.

The impugned Bridge Approval letter.

The latest Traffic Impact Assessment Report submitted to

The Presentation Slides that R2 intended to be used for the proposed meeting cancelled by the Applicants. Since filing L.21, R2 has produced numerous documents for the substantive JR application (L.1) and on several 535 applications by the Applicants filed at the Court of Appeal. R2 has listed the numerous documents they disclosed in Annexure A to L.125, PDF pp.26-39.

6.2 In support of their arguments that L.21 is misconceived, R2 cited in 540 Rekapacific Bhd v Securities Commission & Anor and Other Appeals (supra), where the Court of Appeal held that:

Discovery will not be ordered to make good defects in the Applicant's evidence.

One will seldom obtain complete private law-type discovery in 545 JR Applications involving unreasonableness.

Discovery will be ordered where necessary for the advancement of justice of the case and the fair disposal of the matter.

Discovery will also be ordered to go behind the contents of 550 affidavits if there are some matters before the court which suggest that the contents of the affidavits were inaccurate.

The Court will not order discovery where there is no reason to doubt the bona fides or accuracy of the reasons given on affidavits by the opposing parties. 555

6.3 R2 asserts:

That all relevant documents have been disclosed (paragraphs 2.1, 2.4(d) and 2.4(h).

The other documents requested by the Applicants are not pertinent and/or do not have a material impact on the issues in dispute, as disclosed in the affidavits exchanged by the parties for the substantive JR application.

The list of documents agreeable to R2 to be disclosed is in 565 Annexure A of the Affidavit in reply to L.21.

The rest of the records requested are irrelevant to ensure a fair and just disposal of the present JR Application in L1.

In support, R2 cited Power Cellular Accessories Supply Sdn Bhd v Pesuruhjaya Tanah Persekutuan & Ors [2019] 570 MLJU 751 where the High Court observed that the discovery related to these documents are not necessary for the fair disposal of the judicial review application. It also does not relate to the factual issues in dispute.

R2 also cited the Court of Appeal’s determination on 575 relevancy, which can be seen in Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421, CA, where it cited and followed Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR 580

(R) 39, which observed the ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough, and the same will not be true of a claim that the documents are necessary because they are relevant. 585

6.4 The Court of Appeal:

In Tan Sri Dato Khalid Abu Bakar (DIG) Pengerusi Lembaga Tatatertib Polis DiRaja Malaysia & Ors v Muhammad Farid Muntalib [2015] 1 LNS 15, CA observed 590 that a discovery is only necessary if there is an apparent factual dispute on the affidavits that would have to be resolved to adjudicate the said application properly.

R2 argues that in the circumstances, the documents disclosed in the party's affidavits are sufficient to determine the legality 595 of the impugned DO and the Bridge Approval letter since procedural irregularity is the primary grounds for challenging the two impugned documents.

6.5 L.21 by the Applicants:

Is nothing more than a fishing expedition, and it is trite law that the Court will not entertain such a request, as held by the Court of Appeal in Tey Por Yee v Protasco Bhd & Another Appeals [2021] 1 MLJ 76, CA.

The applicants' requests for the documents do not accord with 605 an order for specific discovery as they are not specific, too broad, and/or vague.

It is misconceived by the Applicants to blame the Respondents for their lack of precision and specificity when all relevant documents have been provided. 610 In the circumstances, R2 prays that the Applicants’ L.21 for specific discovery be dismissed with costs. 615 THE LAW [7] Discovery in a nutshell:

7.1 Is the process of finding out material facts and documents from an 620 adversary:

O.24 r.7 RC 2012: “Order for the discovery of documents (O.24 r.7)

Subject to rule 8, the Court may at any time, on the application of any party to a cause matter, make an order requiring any other party to make 625 an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

An order may be made against a party under this rule, notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3.

An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom 635 discovery is sought under this rule has, or at some time had, in his possession, custody, or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions:

a document on which the party relies or will rely.

a document which could:

adversely affect his case.

(ii) adversely affect another party's case or

(iii) support another party's case, and

a document which may lead the party seeking discovery of it to a series 645 of inquiries resulting in his obtaining information which may-

adversely affect his case.

(ii) adversely affect another party's case, or

(iii) support another party's case.

An order under this rule shall not be made in any cause or matter in 650 respect of any party before an order under rule 3 has first been obtained in respect of that party unless, in the opinion of the Court, the order is necessary or desirable.”

O.24 r.7A RC 2012: 655 Discovery against other persons, including third parties, are allowed apart from parties privy to the proceedings. The object of discovery can be summarised as follows:

To ascertain the case of an adversary.

To narrow down the points in the issue, and 660

To avoid expenses by proving admitted facts. The available discovery can be (i) discovery of documents relating to matters in question in the action and the party's possession or (ii) discovery by interrogatory of facts relevant 665 to the issue in the action and within the knowledge of the party interrogated.

Discovery to be ordered if necessary (O.24, r.8) On the hearing of an application for an order under rule 3, 7, or 7A, the Court, if satisfied that discovery is not necessary or 670 not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case, refuse to make such an order if and so far as it believes that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

7.2 Obtaining the discovery of documents:

Is always a right between subject and subject. The foundation of the law of discovery, as it existed before the introduction of rules to govern such procedures, was that the Court could 680 order a party to disclose documents relating to any matter in question which was in the party's possession, custody, or power. In the absence of a proper basis for an order for discovery, disclosure should not be allowed.

The applicant must establish its entitlement to an order for 685 discovery and inspection as the order could not be made in the absence of any particulars of justification: ABX Logistics (Malaysia) Sdn Bhd v Overseas Bechtel (Malaysia) Sdn Bhd [2003] 7 CLJ 357.

The primary consideration of this order is the physical 690 possession or custody of documents or the power to obtain such records. It involves the disclosure and inspection by one party to another, compelling the production of documents in the power of another for matters of inspection.

The term document is not just restricted to what is written on 695 paper. Section 5 of the Evidence Act 1950 gives the term a broad definition, allowing the inclusion of all material substance on which writing, a mark, or a symbol represents the thoughts of a man. In short, all materials within the ambit of s.3 may be the subject of discovery under O.24 RC 2012.

Discovery may be ordered if it is required that justice of the case be advanced and where it is necessary to dispose of the matter fairly within the meaning of O.24, r.8 ROC 2012.

There are two types of discovery:

Under general discovery (O.24 r.3), a party must make and serve on any other party a list of documents that are or have been in its possession, custody, or power relating to any matter in question in the cause or matter. W

Under specific discovery (O.24 r.7), it concerns a 710 particular document. Unless, in the opinion of the Court, it is deemed necessary or desirable, an order for specific discovery shall not be made unless a general discovery order under O.24 r.3 has first been obtained. 715 7.3 In Yekambaran Marimuthu v. Malayawata Steel Bhd (supra), provided the guidelines and essential elements:

There must be a "document".

The document must be "relevant" and relates to the issue in dispute.

The document must be in the "possession, custody or power" of the party 720 against whom the order for discovery is sought.

7.4 The Court of Appeal in Ong Boon Hua & Anor v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [2008] 5 CLJ 42; [2008] 3 MLJ 625, CA, affirmed the principles enunciated in Yekambaran 725 Marimuthu and determined that under O.24 r.10 of the RHC: “…the Court has the jurisdiction to order discovery of a document referred to in an affidavit, whether or not the document is in the possession, custody or power of the party in whose affidavit the reference to that document is made: Rafidain Bank v. Agom Universal Sugar Trading Co Ltd & Anor [1987] 1 730 WLR 1606; [1987] 3 All ER 859, CA Eng.”

7.5 The discretion is vested in the Court whether or not to make an order for discovery:

An order will not be made if good cause to the contrary is 735 shown.

The absence of possession, custody, or power may not amount to a good cause, but it is not always so.

The decision to order discovery depends on each case's facts. 740 FINDINGS [8] I have examined all-cause papers, the evidence and the parties' respective submissions and find as follows:

Considering my observation of the facts and arguments in paragraphs [3], [4], [5] and [6] above, it is my considered 745 findings that the Applicant failed to establish his burden in canvassing for L.21. It is trite law that discretion is vested in the Court whether to make an order for discovery. It will not be made if a good cause to the contrary is shown. In their respective arguments, I find that the Respondents had given 750 sufficient cause why an order for specific discovery should not be made.

The submitted materials argued by the Applicants do not convince me of their relevance to the issue before the Court 755 for the JR Application (L.1), founded on two primary allegations. The legality of the impugned DO and the Bridge Approval letter, both of which had been produced:

It failed to meet the criteria for a specific discovery.

I agree with the Respondents' arguments that L.21 is a 760 fishing expedition, which the Court will not entertain. Discovery may not be ordered where there is no evidence to show that the reasoning of the decision-making process is defective or unreasonable, and the purpose of the discovery application is to discover such defects or 765 unreasonableness in the Respondent's documents.

The discovery of documents is not as of right. It is the discretion of the Court depending on the merit of each case: Ong Boon Hua & Anor v Menteri Hal Ehwal Dalam Negeri, 770 Malaysia & Ors (supra). [9] I find from the facts of the case, the arguments by the Applicants are speculative and somewhat misplaced. I remained unconvinced with the Applicants' submissions of the Yekambaran’s three legal 775 requirements to establish the requirement for an order for discovery. [10] In this regard, I wish to reiterate the observation of the Federal Court of Australia in Melbourne Home of Ford Pty Ltd v. Trade 780 Practices Commission (supra) when it said that without such evidence, the proceeding is essentially speculative in nature. In such circumstances, for the Court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise, 785 and from this, the Court, on established principles, should refrain. 790 CONCLUSION [11] All things considered, grounded on the foregoing paragraphs:

I find that the application for discovery by the Applicants in L.21 does not meet the legal criteria for specific discovery. The grounds to support the said application do not convince me of any merit in the application as it borders on a fishing expedition 800 to prop up the Applicants’ claim.

In the circumstances, L.21 is dismissed with costs in the cause. 805 Dated 23.04.2025 HAYATUL AKMAL ABDUL AZIZ 810 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 815 Counsels: Ganesan Nethi together with Alicia Gomez Messrs Tommy Thomas 820 for the Applicants Narendran Latchiemanan Messrs SN Nair & Partners for Datuk Bandar Kuala Lumpur (DBKL-R1) 825 Phoebe Loi together with Leong May Fern Messrs Thomas Philip For Astana Setia & Euro Saga Sdn Bhd (R2)