Gm Aero Support Sdn. Bhd. v Genting Highlands Berhad (W-02(IM)(C)-1518-09/2024)

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1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(IM)(C)-1518-09/2024

Preamble

Pursuant to this direction, the Respondents were required to provide disclosure of documents by 23.10.2023. An extension of time was then granted to the Respondents until 27.10.2023 to provide discovery of documents.

Lampiran

Lampiran 1380 ditarik balik; 2. Plaintif Pertama akan memohon untuk arahan-arahan daripada Mahkamah Tinggi Temerloh di Permohonan Semakan Kehakiman No.: CB-25-4-03/2024 pada 13.12.2024 untuk memfailkan afidavit yang memasukkan B106 dan B108, dengan Defendan Pertama (the Applicant) diberi 3 minggu dari tarikh pemfailan dan penyampaian afidavit tersebut untuk memfailkan permohonan untuk meminda Permohonan Semakan Kehakiman No.: CB-25-4- 03/2024 dan untuk memfailkan afidavit-afidavit selanjutnya mengenai Permohonan Semakan Kehakiman No.: CB-25- 4-03/2024; dan 3. Tiada perintah terhadap kos.” 42. On 13.12.2024, the 1st Respondent informed the Temerloh JR Court that it will be producing B106 and B108 by filing a supplementary affidavit. 43. The 1st Respondent eventually produced B106 and B108 in the Temerloh OS on 30.12.2024 and in Temerloh JR on 7.2.2025. Mode as to how the present appeals and the applications are to be dealt with 44. As stated earlier, there are 2 appeals by the Appellant herein and two applications filed by the Respondent in both these appeals that requires the determination of this court. We propose to deal with the Respondent’s Striking Out Applications first. The Respondents’ Striking Out Application 45. The Respondents’ grounds to file the Striking Out Application are as follows: 45.1. Appeal 1518 is incompetent as the order to grant leave for committal is not appealable as it does not finally dispose off the rights of the parties; 45.2. Appeal 1518 and Appeal 1548 are academic; and 45.3. There is no prejudice as the Appellants can be heard during the inter-partes committal proceedings. Non-Appealable 46. The Respondents relies on Section 3 of Court of Judicature Act 1964 (‘CJA’) on the meaning of ‘decision’ to contend that both the appeals are incompetent and are therefore non-appealable. 47. In respect of Appeal 1518, it is the Respondents contention that the Appellants appeal is only an appeal against the order to grant leave to the Respondents to commence committal proceedings and is an order that “does not finally dispose of the rights of the parties”. 48. The cases of Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] 4 CLJ 113, Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 and Ling Peek Hoe & Anor v Golden Star & Ors [2020] 9 CLJ 601 were cited by the Respondents to say that the order for leave is made on an ex-parte basis to consider if there was a prima facie case of contempt and the Court does not go into the merit of the case. 49. The Respondents further contended that Appeal 1548 is against another order dated 23rd August 2024 that granted leave to the Respondents to use documents produced in Suit 13 for the purpose of resisting the Temerloh OS and Temerloh JR and this order does not prejudice the Appellants as it is not an order made against the Appellants. Thus, the order which is the subject matter of Appeal 1548 equally “does not finally dispose of the rights of” the Appellants. OUR ANALYSIS 50. Section 3 of CJA is only applicable in respect of rulings made during trials in order to stop parties from stalling a trial. 51. As decided by the Federal Court in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 the crucial question is to look at what juncture the order was made. At paragraphs 45 to 47:- “[45] The thrust of Kempadang’s argument is that, applying s 3 of the CJA, the decision of the learned JC in ordering damages to be reassessed is not a ruling which finally disposes the rights of the parties, thus rendering the decision non-appealable. [46] However, much emphasis was placed on this argument thus overlooking the question of at what juncture was the learned JC’s order made? It is critical to note that when scrutinising the word ‘ruling’ in s 3 of the CJA, it is important to examine at what juncture an order is made. This and the effect of such order is to be read conjunctively. [47] If an order was not made in the course of a trial or matter, regardless of the fact that it does not dispose of the rights of the parties, such an order is not a ruling as defined in s 3 of the Act and is therefore appealable. This was decided by the Court of Appeal in the case of Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 2 MLJ 495.” 52. What characterises a decision as being appealable or otherwise was also decided by the majority decision in Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 at paragraph 149: “[149] Accordingly, I have no difficulty in holding that the present position in the law clearly shows that an appeal does not lie against a decision in an amendment application made in the course of trial as is in the instant action, and moreover, such a decision does not finally dispose of the rights of the parties. There is in my judgment no basis in the respondents’ contention that the High Court’s decision is appealable as it is a ruling made in the course of hearing the interlocutory application but rather a decision made at the conclusion of the hearing of the said application on its merits. Yet to my mind the respondents have obviously misconstrued the definition of ‘decision’ in s 3 in the context of s 67 of the Act. What characterises as being a decision as being appealable or otherwise is not only confined to a question of whether a ruling has disposed of the final rights of the parties but also whether it is a decision made in the course of a trial or matter. Therefore, it matters not if the decision is made at the conclusion of the interlocutory application. The plain fact is that such interlocutory application was indisputably made and heard in the course of the trial of the instant suit. It was decided before the High Court delivered its judgment on liability.” 53. An application for leave to grant ex-parte order for contempt is definitely not an application made in the course of a trial and therefore, it is an order which is appealable under Section 67 (1) of CJA. This was further explained by the Court of Appeal in Lim Tuck Sun v Celcom (M) Bhd & Ors and another appeal [2025] MLJU 1204. At paragraphs 80 to 86:- “[80] The primary issue for determination concerning their appealability is whether the order was made “in the course of a trial” and whether it “disposes of the rights” of the parties in the main suits. The general rule would be “if an order was not made in the course of a trial or matter, regardless of the fact that it does not dispose of the rights of the parties, such an order is not a ruling as defined in Section 3 of CJA 1964 and is therefore appealable” as per decided by the Court of Appeal in the case of Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 2 MLJ 495. [81] This rule is legal principle can be seen reflected in the case of Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals [2017] 3 MLJ 350, the Court of Appeal held that a recusal order made by the judge before the commencement of trial is not a ruling within Section 3 of the CJA 1964, and is thus appealable. [82] Even in the case of Kempadang Bersatu (supra), the Federal Court found that the order of the learned Judicial Commissioner remitting the case to a different deputy registrar for damages to be reassessed was not a ruling as described in Section 3 of the CJA 1964 as it was issued at the end of the hearing of Kempadang’s appeal and not in the course of the hearing of the appeal. [83] As for whether the Applications (2 NAs) “disposes of the rights” of the parties in the main suits, it is imperative to note that not all orders issued by a court pursuant to interlocutory applications filed during the course of a trial are necessarily non-appealable. In Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals [2017] MLJU 445, the Court held that the trial judge’s decision dismissing an application to strike out pleadings under Order 18 Rule 19 of the ROC 2012 did not constitute a “ruling” within the meaning of Section 3 of the CJA 1964, notwithstanding that the application was filed during the trial. [84] In light of the ratio established in Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals (supraj, it can be inferred that the Applications (2 NAs) are not applications intended to delay the trial of the main suit. These applications do not, in any manner, dispose of the rights of any parties in the main suits. [85] Furthermore, the subject matter of the Applications (2 NAs) does not fall within the category of non-appealable matters as enumerated under Section 68 of the CJA 1964, and therefore, cannot be rendered non appealable before this Court. [86] In conclusion, the Applications (2 NAs) constitute orders that were neither made in the course of trial nor do they involve a hearing or determination that disposes of the rights of the parties. Furthermore, even without a conjoint reading of Section 3 with Section 67(1) of the CJA 1964, the Applications (2 NAs) remain appealable, as they do not fall within the category of non-appealable matters under Section 68 of the CJA 1964.” 54. With reference to the cases cited by the Respondents to support their contention that an order for leave to commence committal proceedings is not appealable, we are of the view that the facts of the present appeals are completely different as the Respondents’ Application For Leave To Apply For Committal was heard inter-partes. In addition, the main issue at the leave for committal proceedings involved a decision on a question of law. 55. The HC Judge in Suit 13, had after hearing submission from both parties, followed the majority decision in Harman v Secretary of State for the Home Department [1983] AC 280 and decided that the implied undertaking did not cease to apply to B106 and B108 once they were filed or read in Court. 56. The HC Judge also took the view that the parties in the proceedings in CS 13 and the causes of action, the issues and the reliefs sought are not identical to Kuantan OS and Kuantan JR. 57. In cases where it only involves pure question of law and premise on facts which are not disputed, once the question of law is decided on an inter-partes basis, then the determination of the question of law is final and binding on all parties until it is reversed on appeal. This was clearly stated by Sharma J in Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 at page 76:- “In Satyadhyan Ghosel and others v Sint Deorajin Dobi and another AIR 1960 SC 941, the statement of the law on the subject is given thus: “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure; but even where section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.” A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott (1883) 22 Ch D 182, Hook v Administrator-General of Bengal and Others 48 IA 187 and In the matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another [1936] MLJ 141 147-151). Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v Arunachala Ayya (1931) 58 IA 381). 58. Following the judgment of Sharma J, in Dato Chong Kok Lim’s case, the Court of Appeal in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 decided as follows: “A failure to adhere to the principle expressed in the judgment of Sharma J just quoted may lead to chaos in the conduct of civil proceedings. The facts of this very case afford a good illustration of such a consequence. We have here an earlier decision by the judge upon a procedural issue determining it in the appellants' favour. Then along comes the respondent at the adjourned hearing and applies to the judge to reopen the issue and review his earlier decision. The judge obliged and reversed himself. What was there to prevent the appellants from then an application to the judge to re-review his decision reversing himself? On the assumption of the law made by counsel before us, there would have been no bar to the judge undertaking such an exercise. The process could then be repeated ad infinitum with no conclusion. It would be a circular tail chasing exercise with no forward movement, proving to the man on the street that the maxim 'the law is an ass' is not without content. The absurd results that would ensue in accepting the contention of counsel demonstrates the inaccuracy of the proposition advanced.” 59. In Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya Books Sdn Bhd & Ors [2015] 3 MLJ 65, the application for leave to judicial review was heard inter-partes, and the High Court granted leave to apply for judicial review and dismissed the appellants’ jurisdictional challenge. There was no challenge against the order to grant leave. The Court of Appeal held that this was fatal to the appellants appeal against the order in the substantive judicial review application as the High Court had decided on a question of law. We refer to the following excerpts: [27] The res judicata and issue estoppel issue: (a) the issue of jurisdiction was seriously challenged by the appellants in the High Court at the stage of hearing of the leave application. Notwithstanding the strong objections of the appellants, the learned judge ruled that the High Court had the jurisdiction to hear and grant the leave application. It is significant to note that the appellants did not appeal against the decision of the learned judge on the grant of leave thereby impliedly and/or expressly conceding that the High Court did have jurisdiction in the matter and that the decision of the learned judge was a final order in the circumstances; (b) it was argued by the senior federal counsel that in an application for leave, the threshold applicable is a low threshold (see Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704). We agree generally with this proposition of law but we wish to add that we take the view that while the threshold in an application for leave may be lower in terms of facts, the threshold on matters of law would be the same as in the hearing of the judicial review itself. This is because the issue of jurisdiction of the court goes to the root of the matter before the court. It is a fundamental issue and it cannot be that a question of law will be decided on a lower standard in a leave application and the same question of law will be decided on a higher standard in the full hearing of the judicial review application; (c) examining the same objection by the senior federal counsel from a different perspective, the following question may be asked and that is, can the learned judge change her mind and overrule her own decision and hold that the High Court did not have the jurisdiction to hear the judicial review application after having in the first instance granted leave on the basis that the High Court was seized with jurisdiction? The answer to the question in our view must surely be a resounding no; … (f) we are thus of the view that the appellants cannot now raise the issue of lack of jurisdiction. They are estopped from pursuing this point further in the hearing of this appeal; 60. This proposition of law is further supported by the recent Federal Court case in MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] MLJU 2835 where the question of law to be decided is on the issue whether the Appellants have a right to appeal against the dismissal of their respective interlocutory applications to strike out pleadings in light of the recent amendments to section 68(i)(f) CJA. It was decided at paragraphs 164-167: “[164] This is how the dismissal of striking-out applications are generally treated, namely that they are usually non-appealable. As explained above, the reason for this is because there is a deferral of the adjudication of the parties’ rights; there is no adjudication on those rights. [165] However, this is not always the case. There will be situations where the dismissal of a striking out will cause grave prejudice to the parties’ rights, such that there is an ability to appeal. This is most apparent where the court does not have jurisdiction to hear the matter due to the non-fulfilment by the plaintiff of certain threshold conditions. [166] This is evident for instance where the threshold requirements for a derivative action are not met and the court nonetheless does not strike it out, determining that a full hearing of the dispute on the merits is necessary. If an appeal against the dismissal of such a striking out application is not allowed premised on a literal reading of section 68(1)(f) CJA, then this in turn would result in a trial which in no way assists the court in adjudicating upon the threshold requirements or merits of the derivative action. The oral evidence would not assist in determining whether the preliminary point of the threshold requirement for bringing a derivative action has been met. In such an instance, the hearing would prolong rather than expedite the disposal of the matter. [167] But most importantly a reading of section 68(1)(f) CJA in that fashion would run contrary to sections 3 and 67 of the CJA. This is because the rights of the parties would have been finally disposed of on an adjudication of the preliminary point. Therefore, the right of appeal would have accrued at the point when the court determined the preliminary point of law relating to whether the threshold for a derivative action had been met. This means in practice that the right of appeal would have accrued on the dismissal of the striking-out application.” Whether the Appeal is rendered academic 61. It is also the contention of the Respondents that both these appeals are academic for the following reasons: (a) following the order dated 23rd August 2024 granting leave for committal, the Respondents had filed an inter partes committal application on 26th August 2024. There is no prejudice as they have an opportunity to be heard at the inter partes hearing. (b) subsequently, following the other order dated 23rd August 2024, granting leave to use documents, the 1st Respondent had exercised the leave to use documents by filing affidavits exhibiting the documents from Suit 13 in Temerloh OS and Temerloh JR. (c) when the court made the order dated 23rd August 2024 granting leave to the Respondents to use documents, the Appellants themselves made an application, first orally and subsequently by way of a formal application, for leave to use documents. 62. The test of whether an appeal is academic is whether there is any live issue which would impact the litigants to the disputes. This was held by the Federal Court in Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113:- “[9] The test, therefore, in deciding whether an appeal has become academic is to determine whether there is in existence a matter in actual controversy between the parties which will affect them in some way. If the answer to the question is in the affirmative the appeal cannot be said to have become academic. This test has found favour with a plethora of local cases such as Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Karpal Singh [1992] 1 MLJ 147; Datuk Syed Kechik bin Syed Mohamed & Anor v Board of Trustees of the Sabah Foundation & Ors [1997] 1 MLJ 257 and Raphael Pura v Insas Bhd & Anor [2003] 1 MLJ 513.” 63. The decision in Metramac was then further explained by Gopal Sri Ram JCA (later FCJ) in Indian Corridor Sdn. Bhd. & Anor. v Golden Plus Holdings Bhd V Golden Plus Holdings Bhd [2008] 3 MLJ 653: “We do not think that any useful purpose will be served by a discussion of these. Suffice to say that the test to be applied in deciding the point is that laid down by Viscount Simon in his speech in Sun Life Assurance Company of Canada v Jervis [1944] AC 111 at p 113. To paraphrase in less elegant language what was there said, a court of appeal should decline to hear an appeal where there is no issue before it in the sense that a decision on the matter would make no difference to the litigants to the dispute, that is to say, it would not affect the legal rights of either party to the appeal.” 64. We therefore conclude that the argument that the appeal is academic is misconceived. We are of the view that the appeal is necessary to reverse the High Court’s finding of law in respect of the Riddick principle and the decision of the majority in Harman which will otherwise certainly bind the High Court in her decision during the inter-parte committal proceedings. 65. In this regard, both Appeal 1518 and Appeal 1548 were filed to challenge the decisions dated 23.8.20204 made by the High Court: 65.1. In granting leave for committal proceedings against the Appellants to the Respondents, as the Appellants have used documents obtained via discovery and subpoena in the High Court in other proceedings. 65.2. In granting leave to the 1st Respondent to use documents obtained in the High Court in other proceedings. 66. Both decisions by the HC Judge were made on the same ruling of law that even though documents which were produced under compulsion in trial have been admitted, marked, filed and/or read in open court, these documents nonetheless cannot be used in other proceedings without leave of court. 67. As stated earlier, the High Court’s decision on the question of law is binding on the HC Judge unless set aside on appeal. The High Court’s decision of the question of law is therefore a live issue and binding unless reversed by this Court. Given that the High Court decision on the question of law is integral and is the basis of the Leave to Committal Proceedings and Leave to Use Documents, if the High Court Ruling is reversed by this Court: 67.1. There would be no basis for the High Court to grant Leave to Committal Proceedings as there is no prima facie act of contempt. 67.2. There would be no basis for the High Court to grant Leave to Use Documents as leave is not required. 68. Accordingly, the appeals have a direct bearing on the Appellants’ rights and are in no circumstances academic. 69. Still on this issue, we duly note that after the High Court decision on the question of law, counsel for the Respondents, Mr. Teh Eng Lay had made it clear to the HC Judge that even if any subsequent leave is to be granted to the Appellants to use these documents, it can only be prospective, and not retrospective. 70. The relevant part of the notes of proceedings on 23.8.2024 is re-produced below: - TEL … My Lady, at the end of the day, there must be cogent reason. My learned friend's oral application, one, is not supported by any affidavits to set out their cogent reason and of course, I do accept that it's My Lady's discretion looking at the same facts that we have submitted and the very important is what I say in the flowchart, the very beginning, the very first page of the flowchart. They have obtained discovery on the basis that it's not for the purpose to mount a new case. That is the very basis. So now my learned friend is actually going against that. And for my objection, I think more important, the most important objection is this, if my learned friend obtained leave today, he cannot apply retrospectively to the contempt that has been, for which leave has been granted. If My Lady is minded to allow leave, it must be on the basis of a, from of today onwards. It cannot be applied retrospectively because leave for contempt has been taken out. Meaning that the leave granted today, if granted today, cannot be used as a defence for the contempt. That is my submission in respect of my learned friend's oral application particular leave. 71. Undoubtedly, in the event the Appellants do not appeal to against the decision, they would be caught by the doctrine of res judicata and/or issue estoppel. Hence, the appeals are not academic. 72. As stated earlier, the HC Judge had on 23.8.2024, decided that such an undertaking did exist. On that basis, leave to commence committal proceedings was allowed. In this regard, we agree with the Appellant’s submission that once this issue is determined by this Court, it will then resolve the issue in Appeal 1548 i.e. that leave of Court is not required to use B106 and B108. Alleged Issue of Delay 73. On the alleged issue of delay as raised by the Respondents, in the Temerloh OS and Temerloh JR we find that the appeals are relevant to determine the correct position of law. This will in turn determine, whether the 1st Respondent can raise the arguments that the 1st Appellant delayed in seeking leave from the HC Judge in Suit 13 to refer to documents, in the Temerloh OS and Temerloh JR. 74. We opine so, as the 1st Respondent’s counsel in opposing the Temerloh OS and Temerloh JR had continuously raised the issue that allegedly the 1st Appellant had ‘delayed’ these proceedings for more than one (1) year but in actual fact, the delay is caused by the 1st Respondent in raising the Riddick principle which prevented the 1st Appellant from relying on Bundle B106 and B108. The Appeal Is Not Premature 75. On this issue we disagree with the Respondent’s contention that the appeals are premature. There is no basis to suggest that simply because there will be an inter-partes hearing of the substantive committal proceedings, the High Court’s order granting leave to committal proceedings is premature and not appealable. In reality, the Appellants are aggrieved by the High Court leave order and are entitled to appeal against the same as the High Court decision has already been made which will be binding and operative in the inter-partes committal proceedings unless reversed by this Court. Section 67(1) of the CJA 76. The above provision which grants full jurisdiction to this Court to hear civil appeals is set out below:- “67(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought.” 77. Thus, the Respondents’ contention that this appeal is premature and the Appellants should wait for the decision of the inter-partes committal proceedings, is incorrect. The Appellants will be rendered defenceless in the inter-partes committal proceedings as a finding of law has already been made which is binding on the High Court Judge. 78. Premised on the above, we are of the considered view that the Striking Out Application is baseless and ought to be dismissed with costs. The Respondent’s Application To Adduce Further Evidence 79. By the Further Evidence Application, the Respondents seek to adduce the documents relating the 1st Appellant’s application for leave to use documents produced in the High Court (Further Evidence), in other proceedings (‘1st Appellant’s Application for Leave to Use Documents’). This application was filed after the High Court decision on 23.8.2024, and was filed without prejudice to the Appellants’ right to these present appeals. 80. The Appellant in opposing further evidence application contended that there is no basis for the application. Rule 7 (3A) of the Rules of Court of Appeal 1994 (RCA) provides as follows: “(3A) At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that - (a) at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and (b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be.” 81. Rule 7 (3A) follows the test to adduce further evidence set out by Lord Denning in Ladd v. Marshall [1954] 3 All ER 745: “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.” 82. This test was applied in the Federal Court case of Lau Foo Sun v. Government of Malaysia [1970] 2 MLJ 70: “To justify the reception of this evidence, “three conditions must be fulfilled: First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible. These were the tests enunciated by Denning LJ (as he then was) at page 748 in Ladd v Marshall.” 83. The Appellants further contended that the Respondents failed to satisfy the requirements in Rule 7 (3A) of the RCA/Ladd v Marshall for the following reasons: 83.1. The further evidence intended to be adduced does not have a determining influence on the decision made by the HC Judge which is a question of law. 83.2. The facts to determine the correctness of the High Court decision are all before this Honourable Court in the records of appeal. 83.3. There is only one main issue of law to be determined by this Court in this appeal, i.e.: Whether the implied undertaking from using documents disclosed under compulsion (‘Riddick principle’) applies to the facts of the present case? 83.4. The Further Evidence is completely irrelevant for the determination of these appeals as the counsel for the Respondents had taken the position that any subsequent application for leave does not affect the ongoing contempt proceedings as any subsequent leave is only prospective and not retrospective. [See: paragraphs 69 and 70 above] 83.5. The only avenue open to the Appellants in Appeal 1518 is to proceed with this appeal in order for this Court to decide on the question of law. 83.6. that the further evidence sought to be adduced is also immaterial and irrelevant to the present appeal as it does not show that the Appellants have accepted the High Court decision or that the Appellants are taking inconsistent positions. This is evident as the 1st Appellant had in the 1st Appellant’s Application for Leave to Use Documents clearly reserved their rights to do so. 84. On this issue, there a number of authorities which recognised the principle that when a party expressly reserves its rights when filing an application, such a reservation will preclude the argument that the applicant had conceded to the underlying basis of the application. Such was the case in Comos Industry Solution GMBH v Jacob and Toralf Consulting Letrikon Sdn Bhd & Ors [2012] 4 MLJ 573, the Court of Appeal recognised that the applicant’s application for time to file a defence was with reservation of rights to apply for a stay of proceedings pending reference to arbitration. Accordingly, it could not be construed as an acceptance of the court’s jurisdiction: “But that should not be a mystery. In the affidavit filed in support of encl 41, the appellant openly reserved the right to refer the dispute to arbitration. Indeed, in all papers filed, the appellant unceasingly challenged the jurisdiction of the court below and reserved the right to refer the dispute to arbitration. The appellant indicated only that it was against the dispute being tried by the court below. Given the qualifications under which it was made, the prayer for time to file a statement of defence was only a precautionary step to obviate the risk of a judgment in default of pleadings, should prayer (a) be refused.” (See also: Esa Jurutera Perunding Sdn Bhd v Universiti Malaya [2025] 2 MLJ 618 [COA] at paragraphs 30 to 31 of the grounds of judgment.) 85. Similarly, the 1st Appellant in filing its application for leave to use documents before the High Court, had clearly reserved its rights to appeal against the Leave to Committal Proceedings and Leave to Use Documents. There is thus no basis to suggest that the 1st Appellant’s application for leave to use documents has any bearing on the present appeals. 86. In the circumstances, it is untenable for the Respondents to suggest that the intended further evidence has any determining influence. Accordingly, the Further Evidence Application is hereby dismissed with costs. THE APPEALS 87. With reference to the appeals, we agree with the submission by counsel for the Appellant that both appeals concerns only one issue namely: The Riddick Principle. The Law On Implied Undertaking Not To Use Documents By Compulsion In Separate Proceedings 88. What is called the Riddick Principle is derived from the common law position decided and explained in the case of Riddick v Thomas Board Mills Limited [1977] 3 All ER 677. 89. The facts in Riddick (supra) are as follows: 89.1. The plaintiff was employed by the defendants as a shift engineer at their mill. 89.2. The plaintiff was dismissed forthwith from his employment on the grounds that his work was not up to the required standards and was immediately escorted to out by two of the defendants’ senior officers. 89.3. The plaintiff was very distressed about his dismissal, in particular, about the manner he was escorted out of his office. 89.4. The plaintiff brought an action against the defendants for wrongful arrest and false imprisonment. The court ordered the parties to disclose on oath all relevant documents in their possession. 89.5. The defendants disclosed amongst others the memorandum, which the plaintiff did not know of its existence until then. This action was settled. 89.6. Subsequently, the plaintiff brought another action against the defendants claiming damages for defamation flowing from the wrongful manner in which he had been dismissed. This claim was struck out but the court indicated to the plaintiff that he might raise in fresh proceedings a claim for defamation in respect of the contents in the memorandum. 89.7. The plaintiff thereafter brought an action against the defendants claiming damages for defamation in the memorandum. 89.8. The defendants in their defence pleaded qualified privilege. After trial, the jury found that the memorandum was defamatory and damages were awarded. 89.9. The defendants appealed, the Court of Appeal in allowing the appeal decided that Mr. Riddick was not entitled to use the memorandum as the basis of an action for defamation. 90. The English Court of Appeal in Riddick decided that public interest required that documents which were compulsorily disclosed on discovery should only be used for the purpose of the action in which they were disclosed. On discovery, each party impliedly undertook not to use the documents disclosed for any ulterior or improper purpose. The damages for defamation action brought by the plaintiff was based on the memorandum disclosed by the defendants and the plaintiff was using the memorandum for an ulterior and improper purpose and the defendants were entitled to be protected against its misuse. 91. Therefore, the courts approach to discovery and to the collateral use prohibition can be traced to a balancing of two competing public interest. First, the public interest in full disclosure so that the Court can get at the truth of a dispute. Secondly, the public interest in preserving and protecting confidential information. As Lord Denning MR decided in Riddick: - “The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party, or anyone else, to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. Very often a party may disclose documents, such as inter-departmental memoranda, containing criticisms of other people or suggestions of negligence or misconduct. If these were permitted to found actions of libel, you would find that an order for discovery would be counter-productive. The inter-departmental memoranda would be lost or destroyed or said never to have existed. In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purpose of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, or for bringing a libel action, or for any other alien purpose. The principle was stated in a work of the highest authority 93 years ago by Bray J: 'A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit: nor to use them or copies of them for any collateral object. … If necessary an undertaking to that effect will be made a condition of granting an order. Since that time such an undertaking has always been implied, as Jenkins J said in Alterskye v Scott ([1948] 1 All ER 469 at 470, 471). A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose. The modern authorities are well discussed by Tallbot J in Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd ([1975] 1 All ER 41 at 48, [1975] QB 613 at 621), and I would accept all he says, particularly as to the weighing of the public interests involved ([1975] 1 All ER 41 at 52, [1975] QB 613 at 625).” 92. The requirement of an implied undertaking as to non disclosure of documents as decided in Riddick was premise on the principle which was stated by Mr. Bray in his classic text, The Principle And Practice of Discovery (1st ed, 1885). 93. In 1948, in Alterskye v Scott [1948] 1All ER469 it was observed that since that time (1885) such an undertaking was always implied. For that reason, the Courts went so far as to refuse any request for an express undertaking, such refusal being precisely because the implied undertaking already existed. 94. The development of English common law following Riddick in regard to discovered documents was further explained by Megaw L.J. in the case of Halcon International Inc. v The Shell Transport and Trading Co. and Others [1979] R.P.C.97 at page 121: - The general provision of English law with regard to the use of documents which have been made available by a party in discovery in an English action is, I think, not in dispute. I am quite content to accept it as it is set out in passages in Bray on The Principles and Practice of Discovery. It is an old book, published in 1885; but, so far as concerns the principles which I am going to quote, they are, in my judgment, still applicable and they are accurately set out. At page 238 it is said: "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit". The reasons for that have been stated in a number of cases in the courts. One of them is, to my mind, an obvious reason: documents belonging to a party are their own property. It is perfectly right, in accordance with English procedure, that, where litigation is involved in which that party is either the plaintiff or the defendant, he should be obliged to disclose documents which are in his possession, even though they may tell against his own interest, subject always, of course, to particular rules as to certain documents being privileged (which does not arise in this case). But it is in general wrong that one who is thus compelled by law to produce documents for purposes of particular proceedings should be in peril of having these documents used by the other party for some purpose other than the purpose of those particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery. And there is the further, practical, reason which has been stressed recently in the case of Riddick v. Thames Board Mills Ltd. [1977] 1 Q.B. 881, by the Master of the Rolls, Lord Denning: that it is important, for the administration of justice, that there should not be a disincentive to parties to make proper discovery, so that they are minded to hold back, and seek to avoid the disclosure of documents which may tell against themselves in litigation. One substantial disincentive would be if there was the danger that those documents being disclosed, might be used for purposes outside the purposes of the particular action. Mr. Bray in his book, at page 239, says: "The principle, however" - that is, the principle in the passage which I have recently quoted - "is not that the party cannot be compelled to divulge them for any other purpose even if the court should in any case so think fit, but that they cannot be used except under the authority of the court": then Reynolds v. Godlee (1858) 4 K.&J. 88 is cited. It is open to the court, if the court sees fit, to give permission to a party who has obtained documents or copies of documents on discovery in an action, to use those documents for a purpose other than the purposes of the action in respect of which they have been produced. 95. In 1983 the issue arose in Harman v Secretary of State for the Home Department [1983] AC 280 as to whether there is an exception to the rule in the implied undertaking when the discovered documents were read and used in open court. It was contended that once the document had been read in open court they passed into public domain and the implied undertaking is terminated and there was no further need to consider questions of use for “collateral or “ulterior purposes”. 96. In Harman, the English House of Lords found a solicitor guilty of contempt of court for using documents belonging to the other party to the litigation obtained in the course of discovery, for some collateral or ulterior purpose of its own. The solicitor who was a legal officer of the National Council for Civil Liberties ("N.C.C.L."), was also acting for the plaintiff in an action against the Home Office arising out of his treatment in prison. During the course of the action the Home Office disclosed a large number of documents. The Home Office, in its letter stated that the Home Office did not wish the documents to be used for the general purposes of the N.C.C.L. outside the solicitor's function as solicitor for the plaintiff in the action. The solicitor replied to that letter on the same day, saying that she was well aware of the rule that documents obtained on discovery should not be used for any purposes other than for the case in hand. The Home Office was later ordered to disclose six confidential documents that they had objected to producing on the ground of public interest immunity. The solicitor selected from the documents disclosed those required for use at the trial of the plaintiff's action, and in due course they were read out by counsel at the hearing. A few days after the hearing, the solicitor allowed a journalist whom she knew to be a feature writer, and who had been present during part of the hearing, to have access to the documents that had been read out, including the confidential documents, for the purpose of writing a newspaper article. The article was highly critical of Home Office ministers and civil servants. The Home Office applied for an order against the solicitor for relief for contempt of court, alleging that she was in breach of the undertaking, implied by law and affirmed in her letter, not to use documents obtained on discovery for purposes other than those of the action in which they were disclosed. The trial judge held that the solicitor was in contempt of court but accepted that she had acted in good faith and imposed no penalty. The Court of Appeal dismissed the appeal by the solicitor. The House of Lord by majority held that there was an implied undertaking to the court not to use copies or allow them to be used for any purpose other than the proper conduct of the action. The passing of the documents to the journalist, amount to a contempt of court. 97. The principle that civil action must be heard in open court in England as decided in Scott v Scott [1913] AC 417 was a major consideration in Harman as justice is to be administered in open Court where anyone present may listen to and report what was said. But Lord Diplock (majority) was of the view that this anomaly does not arise in Harman’s case as the third party did not obtain the disclosed documents from the Court but these documents were handed over to the third party in the office of the solicitor for a collateral and ulterior purpose. At page 305:- “The postulated anomaly did not arise in the instant case. Miss Harman did not undertake the long and costly task of obtaining from the official shorthand writers a transcript of the mechanical recording of counsel's five-day opening speech in Williams v Home Office (No 2). If she had done so it would have had to have been at her own expense or that of the NCCL; for since, admittedly, it would have served no useful purpose in the conduct of that action on Williams's behalf, the cost would not be recoverable from the legal aid fund. Nor did Mr Leigh himself obtain a transcript. If he had done so and the transcript really did contain every word of the documents in the bundles (as to which Lord Denning MR expressed some scepticism) Mr Leigh would not have needed to resort to Miss Harman's copies of the documents at all. He could have done all the work of preparation for his feature article in his own office. But is it seriously to be suggested that Mr Leigh would have gone to this length when he had already ascertained from Miss Harman that she was willing to let him inspect the bundles of documents in her possession as Williams's solicitor for the avowed purpose, with which Miss Harman was in sympathy, of composing not a report of the proceedings in the case but a feature article attacking the running of the Home Office and a particular aspect of its prison policies?” 98. Based on the facts in Harman’s case, the majority in Harman decided that such documents which were read out in open court, whether admitted in evidence or not, did not bring that implied undertaking to an end. At page 306:- “The reason for the rule in Scott v Scott is not to encourage such judicial torpitude; as Bentham put it, one of the reasons for the rule is just the contrary. I would myself add this as a reason (additional to those based on the desirability of encouraging full and unreserved discovery of documents before trial, that were given in the courts below) why public policy requires that the implied undertaking given by a solicitor to the court, on obtaining production on discovery of documents belonging to his own client's adversary, that he will not take advantage of his possession of copies of those documents to use them or to enable others to use them for some collateral purpose does not terminate as respects each individual document at the very moment that that document, whether admissible or not, is actually read out in court. “ 99. The minority judgment in Harman took a contrary stand and posed the following question: - “Can it be good law that the litigant and his solicitor are alone excluded from the right to make that use of the documents which everyone else may now make, namely to treat them as matters of public knowledge? In our view, this is not the law. We do not think that a system of law which recognises the right of freedom of communication in respect of matters of public knowledge can decently or rationally permit any such exception.” 100. At page 314 it was decided by Harman (minority) that when discovered documents is used in legal proceedings and read in open court and become public knowledge, the implied undertaking terminates: “We, therefore, conclude that, unless a special exception is to be made in respect of the use of documents disclosed in legal proceedings, the general rule will apply; and the general rule is clear, namely that, when information or documents, previously confidential, become public knowledge, the duty to treat them as confidential terminates. We would also draw attention to Lambert v Home [1914] 3 KB 86 at 90–91 per Cozens-Hardy MR, with its reference to a transcript which was 'publici juris'. We have already stated our view that the mere fact of enforceability by way of committal proceedings for contempt cannot, by itself, determine the nature or duration of the duty. Unless, therefore, there are cogent reasons associated with the law of discovery why the obligation should survive the disappearance of the privacy and confidentiality of the documents concerned, we would conclude that the general law, as stated in Saltman's case and by the Law Commission, does apply to the termination of the duty in respect of documents disclosed in litigation.” 101. At page 316, it was decided by the Harman minority that: “To sum up this part of the argument, the common law by its recognition of the principle of open justice ensures that the public administration of justice will be subject to public scrutiny. Such scrutiny serves no purpose unless it is accompanied by the rights of free speech, ie the right publicly to report, to discuss, to comment, to criticise, to impart and to receive ideas and information on the matters subjected to scrutiny. Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case. It cannot be desirable that public discussion of such matters is to be discouraged or obstructed by refusing to allow a litigant and his advisers, who learnt of them through the discovery of documents in their action, to use the documents in public discussion after they have become public knowledge. We believe the true path forward is to ensure that our law develops in a way which is consistent with the obligations accepted by the United Kingdom in the European Convention and with the development of the common law achieved in America.” 102. The minority was of the view that the English common law on the implied undertaking of disclosed documents ought to be developed in a way which is consistent with the obligations accepted by the United Kingdom in the European Convention and with the development of the common law achieved in America. Post Harman 103. The majority decision in Harman (supra) lead to the change of law in England in 1987 with amendments made to the Rules of Supreme Court 1987. 104. Order 24 rule 14A came into force on 1.10.1987 so that it will no longer be a contempt of court to make public material contained in documents compulsory disclosed in civil proceedings, once those documents had been read in open court. Order 24 rule 14A: “Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court, or referred to, in open Court, unless the court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.” 105. Clearly this is an exception made to the Riddick principle when the disclosed documents are admitted as evidence in open court as these disclosed documents are now in public domain. This change does not mean that these disclosed documents are not unprotected and can be used for any ulterior or alien purpose as the court may still order for special reasons these disclosed documents which were read in open court are still protected upon the application of a party or of the person to whom the document belongs. 106. The reason for the introduction of Order 24 rule 14A was explained by Bibby Bulk Carriers Ltd v Cansulex Ltd, The Cambridgeshire [1988] 2 All ER 820:- “This order, which, as already noted, came into force on 1 October 1987, provides as follows: ‘Use of documents. Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.’ The enactment of this rule stemmed from the 'friendly settlement' of an application by Ms Harman against the United Kingdom before the European Commission of Human Rights which was in the following terms: The Government are prepared to undertake to seek to change the law so that it will no longer be a contempt of court to make public material contained in documents compulsorily disclosed in civil proceedings, once those documents have been read out in open court. The substance of the change would be that where a document or part of a document so disclosed to a party in civil proceedings has been read out in open court, the implied undertaking given by the person to whom such disclosure has been made not to use the document for any purpose other than the proper conduct of his own case should not prevent his using that document for the purpose of his making the contents of the document, or that part of it, as the case may be, known to any person. This change would not apply in the case of a document, or part of a document, which was the subject of an order of the court preventing its disclosure otherwise than to the parties to the action.” 107. As a result of Order 24 rule 14A, the House of Lords in Taylor and another v Director of the Serious Fraud Office [1999] 2 AC 177 had decided that the implied undertaking ceases to apply when the documents have been read or referred to in proceeding in open Court. At page 208: “It will be noticed that although both principles are concerned with public policy in securing the proper administration of justice, the interests which they are intended to protect are somewhat different and this is reflected in differences in their scope. The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others. On the other hand, the undertaking may be varied or released by the courts if the interests of justice so require and, unless the court otherwise orders, ceases to apply when the documents have been read to or by the court, or referred to, in proceedings in open court: R.S.C., Ord. 24, r. 14A.” 108. Currently in the Civil Procedure Rules 1998 (‘CPR 1998’), in England exemption to the implied undertaking is embodied in Rule 31.22:- “(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where - (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree. (2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made – (a) by a party; or (b) by any person to whom the document belongs.” 109. Rule 31.22 creates further exceptions to the Riddick Principle on implied undertaking for documents disclosed under compulsion and the exceptions are: (a) documents which has been read or referred to in open court; (b) the court gives permission for the usage of the disclosed documents; (c) the party and the person whom the document belongs agree to the disclosure; and (d) Rule 31.22 (2) and (3) had also made it clear that the court may make an order to restrict or prohibit the usage of the disclosed documents even where the document has been read or referred to in open court upon the application made by a party or a person to whom the document belongs. 110. The English Court of Appeal decision in Marlwood Commercial Inc v Kozeny and others; Omega Group Holdings Ltd and others v Kozeny and Others [2004] EWCA Civ 798 referred to Rule 31.22 and held as follows: “[10] The rule there laid down supersedes the common law implied undertaking not to use documents disclosed in the course of civil litigation save for the purpose of the proceedings in which they were disclosed, save with the permission of the court or the consent of the document owner (see Home Office v Harman [1982] 1 All ER 532, [1983] 1 AC 280). A majority of their Lordships in Harman's case held that the implied undertaking was not brought to an end by the reading of the documents in open court: r 31.22(1)(a) (and, before it, RSC Ord 24, r 14A) reverses that rule.” 111. These sets out the current position of the law in England in respect of their Riddick principle and the exceptions to the Riddick principle in particular when the disclosed documents are admitted as evidence in open court. The Malaysian Position 112. The only case relating to the Riddick principle in Malaysia was decided by Mah Weng Kwai J (later JCA) in Extreme System Sdn Bhd v Ho Hup Construction Company Bhd & Ors (No 4) [2011] 10 CLJ 186. In this case, the plaintiff filed an action against the defendants compliance with the Malaysian Code on Take-Overs and Mergers 1998 and the Securities Commission Act 1993. Pending trial of this case, Suruhanjaya Syarikat Malaysia (SSM) commenced proceedings against the 2nd, 3rd and 5th defendants (SSM OS) where the 2nd and 5th defendants were restrained from exercising their voting rights to the shares in the1st defendant. During the trial, affidavits were filed to support the SSM OS (Impugned Evidence). A consent order was then recorded in respect of the SSM OS and plaintiff intended to call the investigating officers to adduce the Impugned Evidence. The sole issue for consideration is whether there had been an implied undertaking at common law by SSM not to disclose the Impugned Evidence except for the purpose of SSM OS. The learned judge in Extreme System accepted that the Riddick principle applies to civil proceedings in Malaysia but decided that from the judgement of Lord Denning, the Riddick principle is not absolute or cast in stone. In Extreme System, the learned judge further decided that the court should allow disclosure of documents for a bona fide and related purpose. Use of documents or information’s for ulterior, alien or collateral purpose will be caught under the Riddick Principle. At para 15.3 to 15.9 (iii): “15.3. …The court will not allow anyone to use the documents or information received if they are used "for any ulterior or alien purpose". This in effect means that where the disclosure is for a bona fide and related purpose, the disclosure should be allowed by the court. What is an ulterior or alien or collateral purpose will be a question of mixed fact and law to be determined in the circumstances of each case. 15.4. The extent of the implied undertaking may be modified by the court according to the needs of justice in the case. [See Prudential Assurance Co Ltd (supra)]. 15.5. The House of Lords in the case of Crest Homes Plc (supra) held that: But the implied undertaking is one which is given to the Court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the Court. 15.6. The issue of "release or modification" of the implied undertaking will be discussed later in this judgment. 15.7. The court also accepts that the Taylor principle which embodies the Riddick principle applies to criminal proceedings in Malaysia as well. The House of Lords in dismissing the appeal in the Taylor case held: ... that in order to ensure that the privacy and confidentiality of those who made, and those who were mention in, statements contained in unused material which had come into existence as a result of a criminal investigation were not invaded more than was absolutely necessary for the purposes of justice, compliance by the prosecution with its obligation to disclose all such material to the defence generated an implied undertaking not to use the material for any purpose other than the conduct of the defence. In deciding on whether the implied undertaking extends to documents and information obtained as part of a criminal investigation, Lord Hoffman considered the issue as being "... whether the public interest in the administration of justice requires the application of an analogous (Riddick) principle to documents disclosed by the prosecution to the defence in criminal proceedings". Lord Hoffman concluded that the disclosure of documents by the prosecution to the defence created an implied undertaking not to use them for any collateral purpose. 15.8. In the present case the main issue to be determined by the court is whether the disclosure of the impugned evidence obtained by the SSM Witnesses in their course of their investigations as investigation officers under the Act, for purposes of this trial will amount to a disclosure for a ulterior or alien or collateral purpose. 15.9. No ulterior or alien or collateral purpose I am of the considered view that the disclosure sought by the plaintiff of the impugned evidence through the SSM Witnesses is not for an ulterior or alien or collateral purpose. I say this for the following reasons: (i) An alien or collateral purpose would mean a purpose that is wholly unrelated and different from the declared purpose. In the House of Lords case of Crest Homes plc (supra) Lord Oliver had this to say: ... It must not be used for any "collateral or ulterior" purpose, to use the words of Jenkins J. in Alterskye v. Scott [1948] 1 All ER 469, approved and adopted by Lord Diplock in Harman 's case, p. 302. Thus, for instance, to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking: see Riddick v. Thames Board Mills Ltd [1977] QB 881. (ii) I would venture to add that an ulterior purpose may import a purpose that is mala fide. (iii) In the present case, I agree with the submission of counsel for the plaintiff that the disclosure of the impugned evidence is for a similar and related purpose namely to secure the compliance by the defendants with the Code and the SCA.” 113. Mah Weng Kwai J. also held that once the documents disclosed through compulsion, have been filed in court, although not read in open court, are in the public domain and are public documents pursuant to Section 74 of the Evidence Act 1950. Once they are public documents, they are not caught within the ambit of the implied undertaking. At para 17 to 19: [17] In Taylor 's case (supra) (at p. 117) Lord Hoffman held that an implied undertaking will cease to apply when the document is read to the court or by the court. [18] Syed Ahmad Helmy J (as he then was) in the case of IJM Corporation Bhd v. Harta Kumpulan Sdn Bhd (No 2) [2008] 8 CLJ 308 at 328 when deciding on the issue of whether a letter between the defendant and its solicitors was privileged communication and hence not admissible under s. 126 of the Evidence Act 1950, held that the privilege did not extend to the solicitor's letter in question as the defendant had waived privilege on the ground that the letter became a public document when it was attached as an exhibit to the affidavit filed in court and that the affidavit had been served on the plaintiff's solicitors. In para. 44 of the judgment, His Lordship said: “... As the affidavit was filed in court and read together with its exhibits in court, the letter in question became a public document and the plaintiff was right to argue that the veil of privilege was lost. The defendant at this stage cannot seek to restore the cloak of privilege to the letter in question. In See Teow Chuan & Anor, Abdul Kadir Sulaiman JCA was dealing with whether a legal opinion exhibited in an affidavit filed and used in court could continue to be privileged thereafter. The learned judge in arriving at his decision quoted the following line from Derby & Co Ltd and Ors v. Weldon and Ors (No. 10) [1991] 2 All ER 908 which merits reproduction here: Where a party deployed material in court in an interlocutory application, privilege that could otherwise be claimed in relation to that and associated material would be treated as waived altogether, with the result that the party could not then assert privilege for the same material at the subsequent trial. [45] Having referred to it, Abdul Kadir Sulaiman JCA then went on to conclude in See Teow Chuan & Anor. As the legal opinion was exhibited in the affidavit and deployed in court in the striking out application by the defendant and was also read out in open court by counsel for both parties, the privilege was clearly waived altogether. [19] Likewise in this case, the impugned evidence are contained in the SSM witnesses' affidavits which have been filed in court and served on the defendants in the SSM OS case. To reiterate the position, it is my finding and judgment that as the SSM witnesses' affidavits, although not read in open court, are in the public domain and they are public documents pursuant to s. 74 of the Evidence Act 1950. And being public documents, they are in my view not caught within the ambit of the implied undertaking set out in the Riddick and Taylor principles.” 114. Therefore, the Malaysian position as decided in Extreme System is that: (a) the implied undertaking will cease to apply to disclosed documents which are in the public domain and they are public documents as defined in Section 74 of the Evidence Act 1950, although not read in open court. (b) the implied undertaking does not apply when the disclosed document is used for a bona fide and related purpose. Application of the Riddick principle in other Commonwealth countries 115. In Australia, the issue as to whether implied undertaking continues to operate after the disclosed documents have been admitted into evidence does not arise in the Federal Court of Australia where the current position which is similar to the English rules were introduced in 1989. Order 15 Rule 18 reads:- “Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party or of a person to whom the document belongs. 116. However, in the courts of the States and Territories, the common law still applies. This was decided in the case of K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228 where the question arose whether the person subject to the implied undertaking is released from it if the document the subject of the undertaking is admitted as an exhibit in the action. This is a decision by the Supreme Court of South Australia which declined to follow Harman (majority) and decided to follow the decision of Lord Scarman (minority) in Harman:- “[51] As Lord Keith noted in Harman (at 308), the implied undertaking is given to the court. It is possible, therefore, to apply to the court to be released from the undertaking or for the terms of the undertaking to be modified. There are many decisions which deal with the circumstances in which a person will be released from the undertaking. They are noted in the text books. Decisions in this country include: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218; Green v F P Special Assets Ltd [1992] 1 Qd R 1; and Minister for Education v Bailey (2000) 23 WAR 149. The question in this case does not concern a release from the undertaking but whether the undertaking continues to operate after the documents have been admitted into evidence. Expressed in other words, the question is whether the person subject to the undertaking is released from it if the document the subject of the undertaking is admitted as an exhibit in the action in which it was discovered and orders are not made preserving the confidence of the document. The plaintiffs contend that they were released from the implied undertaking in respect of all documents other than confidential documents discovered in the Sportingbet Australia action which were admitted as exhibits at the hearing of that action. The defendants contend to the contrary relying on Harman. [66] While it was correct for the Court of Appeal in Victoria to note that the statement of principle expressed in Ampolex and Esso is strictly speaking obiter dicta, the weight of those two decisions is very persuasive. The reasons of Lord Scarman in Harman are, I think, also persuasive and are more consistent with the principle that justice should be administered in public as expressed in Scott v Scott [1913] AC 417 [1913] AC 417 and in Russell v Russell (1976) 134 CLR 495 per Gibbs J at 520 and with the general principles relating to confidentiality of documents. [67] I do not share the concern of the Court of Appeal that there is any difficulty in understanding what is meant by such expressions as “become public knowledge” or “become part of the public domain”. Those expressions are not terms of art They are but two of a number of ordinary expressions used to describe that which was once confidential but which has become public knowledge. Other like expressions are “commonly known”, “publicly known”, “well known”, “public property” and “common knowledge”: see Dean, The Law of Trade Secrets, (1990) at p 123 and the cases cited at footnote 7. These expressions are a well understood part of the equitable principles relating to confidential information. Generally speaking, the difficulty lies not with the meaning of those expressions but with determining the question of fact as to when confidential information or trade secrets have become public knowledge: Dean (ibid) and Finn, Fiduciary Obligations, (1977) at paras 332 and following. In the case of a discovered document which has been admitted into evidence, it becomes public knowledge or enters the public domain once it has been admitted into evidence as an exhibit unless the court restrains the publication or in some other way preserves the confidentiality of the document. The primary purpose of the undertaking may be to protect the privacy of the party disclosing the documents and thereby encourage full and frank disclosure for the purpose of the litigation: British American Tobacco at [20]. However, like any confidential document, once there has been a public disclosure, the confidentiality ceases. Any concern to preserve either privacy or the confidentiality of the document can be dealt with by an application to the court to maintain the confidentiality of the document notwithstanding that it has been admitted into evidence. Parties can and do make such applications and courts will make orders protecting confidentiality when it is appropriate. [68] Although the remarks in Esso, McPherson and Ampolex might be obiter dicta, they nevertheless represent a very persuasive body of opinion particularly when regard is had to the remarks of McLelland J in the United States Surgical Corporation case and of Kirby J in Ainsworth v Hanrahan. For the reasons already expressed, I prefer this line of reasoning to that of the majority in Harman and in British American Tobacco. For these reasons, I think that the principle expressed in Esso, McPherson and Ampolex represents the law in this State. If it is necessary to protect the confidence of any document which is admitted into evidence, an application can be made to protect that confidence when the document is admitted.” 117. The position of law on disclosed documents in the State of Victoria was also governed by common law and in the case of Esso Australia Resources Ltd v Plowman (1995) 128 ALR 391, the Supreme Court of Victoria preferred the decision of Lord Scarman (minority) in Harman. Lord Mason CJ said:- “The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.” 118. Therefore, the courts in Australia even without any legislation to govern the rule relating to the implied undertaking had declined to follow the decision in Harman (majority) and found that the reasons of Lord Scarman (minority) in Harman as persuasive and more consistent with the principle of open justice as decided in Scott v Scott [1913] AC 417. 119. In Ontario, Canada the position is governed by Rule 30.1.01 of the Rules of Civil Procedure (Canada) which reads as follows:- Deemed Undertaking (2) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained. Exceptions (3) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents. (4) Subrule (3) does not prohibit the use, for any purpose, of, (a) evidence that is filed with the court; (b) evidence that is given or referred to during a hearing; (c) information obtained from evidence referred to in clause (a) or (b). (5) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding. (6) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action). Order that Undertaking does not Apply (7) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just. 120. In Moore v Bertuzzi [2007] O.J. No. 5113, the Ontario Superior Court of Justice had decided that based on Rule 30.1.01 (5), the implied undertaking is terminated once the disclosed documents are filed in court. At page 5: - 12. It is thus clear that the courts have found a public interest in the protection of evidence compelled by the discovery process including comments in the press. This of course will have to be balanced against the right of the public, including the press, to open courts. 13. Rule 30.1.01(5) has provided exceptions to the deemed undertaking, and in particular to evidence, otherwise protected by the deemed undertaking, once it has been filed in court: (5) Subrule (3) does not prohibit the use, for any purpose, of, (a) evidence that is filed with the court ... Although all use of evidence obtained at an examination for discovery is prohibited except for use in the proceeding in which that testimony was compelled, that prohibition disappears once it is filed in court. 121. The Supreme Court of Canada in the case of Suzette F Juman v Jade Kathleen Ledenko Doucette [2008] 1 SCR 157, had also decided that the decision of Harman (majority) should no longer be followed in Canada as it is no longer followed in its country of its origin by a rule change. At paragraph 51:- “51. As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result, the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant's privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d'Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.” 122. The position in Hong Kong is also similar to the current position in England. Under Order 24 rule 14A of the Rules of the High Court (Chapter 4A, GN 25/1998) which came into force in 1998 states: “Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.” 123. The position in Hong Kong is explained in the Hong Kong Court of Appeal case of Allied Group Ltd v Secretary for Justice [2003] HKEC 1221. Cheung JA at paragraph 62:- “62. The current law relating to the use of disclosed documents in civil and criminal proceedings can be summarised as follows: Civil cases (1) A party who received disclosed documents from the other party is under an implied undertaking not to use the documents for collateral purposes ie any purposes other than those of the proceedings in which they are disclosed. Breach of the undertaking amounts to contempt of court. (2) The rationale is to balance the public interest of a party having a fair trial by being supplied with the relevant documents and the public interest in privacy and confidentiality of the party who is already affected by the compulsion to produce the relevant documents: Riddick v Thames Board Mills Ltd [1977] 1 QB 881 and Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. (3) This implied undertaking, however, ceases to apply when the documents had been read to or by the court, or referred to in open court unless the court otherwise orders: O 24 r 14A of the Rules of the High Court. (4) Our O 24 r 14A is based on O 24 r 14A of the English Rules of the Supreme Court (now r 31.22 of the English Civil Procedure Rules) which in effect overrides the decision of the House of Lords in Home Office v Harman [1983] AC 280 which held that the implied undertaking remains notwithstanding that the documents had been read out in the trial.” 124. The position in New Zealand is similar to that in England. Rule 8.30(4) of the High Court Rules (New Zealand) which was introduced on 1.12.2012 states: - “(4) A party who obtains a document by way of inspection or who makes a copy of a document under this rule- (a) may use that document or copy only for the purposes of the proceeding; and (b) except for the purposes of the proceeding, must not make it available to any other person (unless it has been read out in open court).” 125. Even before Rule 8.30 (4) came into force, the implied undertaking terminates when the disclosed documents are admitted and read in open court. The New Zealand Court of Appeal in Wilson v White [2005] 3 NZLR 619 had reservation as to whether the decision in Harman (majority) and Sybron Corp v Barclays Bank plc [1985] Ch 299 should be applied in New Zealand. The Court of Appeal on the grounds of judicial legislation decided to follow the decision of Lord Scarman in Harman (minority). At paragraphs 48 to 50: - “[48] Although this looks like judicial legislation, it primarily involves adopting the position taken by the minority Judges in Harman – a preference which is in accord with views expressed in a number of Australian cases, see for instance Ainsworth v Hanrahan (1991) 25 NSWLR 155 at p 164 and Uniflex Australia Pty Ltd v Hanneybel [2001] WASC 138 at para [145]. Our view is also broadly consistent with the assertion of Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at pp 32 – 33, that the undertaking does not apply to documents which are produced in evidence. Given that the majority approach in Harman has been abandoned in the United Kingdom, it is now less compelling than would otherwise be the case. This is all the more so given that the minority Judges in Harman relied on provisions in the European convention on human rights which are broadly comparable to ss 14, 25(a) and 27 of the New Zealand Bill of Rights Act 1990. [49] We recognise our preferred approach involves giving priority to open justice (and freedom of expression) considerations over the reasons why the limited use undertaking is imposed (see para [20] above). Our preference for open justice considerations is associated with what we see as a need for certainty. Privacy considerations are allowed for because it is open to a party who has discovered documents to seek confidentiality orders in relation to them once they are referred to in open Court (compare with Lilly Icos Ltd v Pfizer Ltd [2002] 1 All ER 842). [50] On this approach, a party who has discovered documents can be confident that the limited use undertaking will apply until they feature in proceedings in open Court. At this point, that party has the option of seeking confidentiality orders if he or she seeks further protection. Otherwise the undertaking lapses.” 126. The decision in Wilson v White [2005] 3 NZLR 619 was further explained in the case of Hally Labels Ltd v Powell [2013] 3 NZHC 900 where it was decided that even in the absence of any legislation, the New Zealand position is parallel to that contained in England under the first two exceptions to CPR 31.22. At paragraphs 25 to 28: - “[25] Wilson v White was decided at a time when the collateral use of the prohibition was first contained in r 309 High Court Rules. At that time r 309 (dealing with the right to make copies of discovered documents) provided as r 309(4): (4) A party who obtains a copy under this rule:- (a) Shall make use of that copy only for the purposes of the proceeding; and (b) Except for the purposes of the proceeding, shall not make it available to any other person. Rule 309(4) did not expressly refer to either the “by permission of the Court” or the “read in court” exceptions. [26] The Court of Appeal continued to analyse the prohibition in terms of “an undertaking as to limitation on use”. The Court of Appeal was dealing with, amongst other arguments, an issue as to whether the limited use undertaking lapses once documents are read in open court. Upon an extensive review of the modern position in England and other jurisdictions, the Court of Appeal concluded: Our preference is to: (a) Adopt as part of our law the post-Harman English position that the limited use undertaking ceases to apply (but subject to judicial direction to the contrary) once a document is read to or by the Court, or is referred to and this occurs in open Court. (b) Treat all other circumstances which might be thought to warrant a discharge of the undertaking as not leading to an automatic discharge but rather as grounds for an application to the Court for an order releasing the affected [a] [sic] party from the undertaking. [27] Thereby, the Court of Appeal recognised two exceptions to the collateral use prohibition. The second (para (b) immediately above) recognises the “Court permission” exception. The second (para (a) above) recognises the “read in open Court” exception. Neither exception was expressed at the time within r 309. This led the Court to observe that “this looks like judicial legislation”. Although the Court of Appeal had also identified the “Court permission” exception, the Rules Committee did not move to expressly incorporate that exception. Yet it seems likely that the specific amendment came about because the principal focus in the judgment in Wilson v White was upon the “read in Court” exception. I therefore do not take the express mention of the “read in Court” exception in the current High Court Rules as leading to the interpretation that the exclusion of other (previously recognised) exceptions is intended. [28] Thus, the judgment of the Court of Appeal in Wilson v White is binding authority for the proposition that notwithstanding the omission from r 8.30(4) of an express exception of Court permission, the New Zealand position is parallel to that contained in 31. England under the first two exceptions to CPR 22.” 127. The New Zealand Court of Appeal preferred approach involves giving priority to open justice considerations over the reasons why the implied undertaking applies as there is a need for certainty. 128. Closer to home, Singapore similar to Malaysia have yet to legislate any rules in relation to the scope of the Riddick Principle. Despite the nonlegislation, the Courts in Singapore had preferred the principles of open justice and followed the current position in England and Commonwealth countries in developing its own common law. This was decided by Chan Seng Onn J in the case of Foo Jong Long Dennis v. Ang Yee Lim and another [2015] 2 SLR 578. The question of law to be determined in Foo Jong Long’ case similar to the present appeals, vis-à-vis whether the Riddick principle continues to apply to disclosed documents which had been used in open Court. It was decided that Lord Scarman’s position in Harman is now the law in England and through rule 31.22 of CPR 1998, the English legislature enshrined the principle of open justice. It was contended that rule 31.22 of CPR 1998 are not automatically part of the law in Singapore and the application of the common law principle is governed by Section 3 of the Application of English Law Act (Cap 7A, 1994 Rev Ed) (‘AELA’) which reads as follows:- “3(1) The common law of England (including the principles and rules of equity), so far as it was part of the law of Singapore immediately before 12th November 1993, shall continue to be part of the law of Singapore. (2) The common law shall continue to be in force in Singapore, as provided by subsection (1), so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances may require.” 129. The decision in Foo Jong Long Dennis (supra) decided that based on Section 3 (1) and (2) AELA, the Singapore Courts are to develop its own law having regard to the circumstances of Singapore and its inhabitants and preferred to follow the decision of Lord Scarman (minority) in Harman. At paragraphs 53 to 60:- “[53] Therefore, in the circumstances of the present case, I may adopt either the majority or minority approach in Harman ([28] supra) depending on which is applicable and more appropriate to the circumstances of Singapore. In doing so, I may consider any English enactments post- 1993 including any other enactments and the common law in other jurisdictions in so far as they are relevant. [54] After careful consideration, I found that the Riddick principle ceased to apply once a document had been used in open court. I adopted Lord Scarman’s approach for three reasons. Firstly, it gives greater priority to the principle of open justice in the balancing exercise. Secondly, it is not beset with the same difficulties and anomalies as the majority approach in Harman. Thirdly, it is the route by which most common law jurisdictions have gone down, either through the common law or by statutory changes. I thus considered Lord Scarman’s approach to be applicable to the circumstances of Singapore as a progressive common law jurisdiction. [55] As mentioned above at [26], the Riddick principle and its boundaries are determined by a balancing exercise which requires the consideration of two factors that are on either side of the scale – the administration of justice and the right to privacy and confidentiality. [56] The administration of justice is what compels discovery since it allows the court to ascertain the truth and do justice between the parties. To this end, those who advocate the majority position in Harman claim that holding that the Riddick principle ceases when a document is used in open court undermines the administration of justice because it impedes proper discovery, as parties would not be forthcoming during the discovery process. I think this argument is misplaced. [57] Firstly, discovery is not a voluntary process. Rather, it is an obligation since it is a court-ordered process under O 24 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). In fact, the significance of the obligation is demonstrated in the consequences of non-compliance. The court, under O 24 r 16, has a whole host of sanctions which include committal proceedings or even the dismissal of the claim or striking out of a defence and entering of judgment. In this regard, it is also pertinent to note that a solicitor under the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) has an ethical duty to cease to act if he becomes aware of the existence of a document which should have been but has not been disclosed on discovery and the client fails forthwith to disclose it (r 58(b)). Therefore, whatever concern that the administration of justice may be impeded because discovery may be discouraged, should the Riddick principle no longer apply once the document is used in open court, would be adequately addressed by the sanctions which may be imposed on the non-complying party or even the errant solicitor. [58] Secondly, even though the Riddick principle ceases once the document has been used in open court, it does not prevent a party from applying to court in order for the undertaking to continue. As mentioned above at [26], the court has the discretion to release or modify the undertaking. In England, the current position is that a party who discloses or owns the document can apply to court for an order restricting or prohibiting the use of a document which has been disclosed even where the document has been read to or by the court, or referred to, at the hearing which has been held in public (see [36] above). Since the Riddick principle has its juridical foundations in the common law and the court can modify the undertaking, I see no reason why such an approach cannot be adopted in Singapore. Therefore, any fear that discovery might be discouraged evaporates once a party realises that it may apply to court for the Riddick principle (and thus the implied undertaking) to continue despite the document being used in open court. [59] The crucial question that remains is whether the principle of open justice is engaged and so, whether it features in the balancing exercise under the rubric of administration of justice. This is to me, the nub of the disagreement in Harman (see above at [30]). In Singapore, the principle of open justice is given statutory recognition in s 8(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) which provides the following: 8.(1) The place in which any court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access. The principle of open justice was also discussed in Tan Chi Min v The Royal Bank of Scotland plc [2013] 4 SLR 529. There the main question was when court documents, such as affidavits filed pursuant to interlocutory applications, should be made available for public access and inspection. Lee Seiu Kin J observed (at [14]): In sum, the principle of open justice requires that decisions by judges (and Registrars) in court proceedings be amenable to scrutiny by members of the public through the inspection of documents filed in court that were considered in the decision-making process. This serves to promote public confidence in the administration of justice. However, it does not mean that all court documents are open to inspection by members of the public the moment they are filed in court, for the principle of open justice is engaged only when a court has made a decision involving the consideration of those documents. [60] In the present case, the document in question had been used in open court in a prior hearing. The principle of open justice is clearly engaged. Therefore, by holding that the Riddick principle ceases once a document is used in open court, proper deference and recognition is given to the principle of open justice.” 130. In Foo Jong Long’s case (supra), the High Court also decided that Riddick principle ceases to apply once a document is used in open Court and the party who disclosed the documents or a party who owns the document may apply to the Court for the implied undertaking to continue. Does The Riddick Principle and Harman (Majority) Principle Applies To The Facts Of The Present Case 131. In the present case it is not disputed that Bundle B106 and B108 were filed before the Court and has been referred to as evidence and marked before the trial judge, in open court (Bundle B106 was filed on 27.10.2023). 132. The Respondents have filed a witness statement to address the documents in B106 and this witness statement was read in open court as it was tendered as evidence by the Respondents, which was then marked by the HC Judge as WS(DP)-PW6. 133. Further supplementary questions were put to PW6 during his evidence in chief on 6.11.2023 and references were made to the documents contained in B106. 134. Bundle B108 was filed on 7.11.2023. PW6 was then cross-examined and re-examined on the documents contained in B106 as well as B108 on 6.11.2023 and 8.11.2023. The Appellants state that during the trial in open court on 6.11.2023 and 8.11.2023, the focus of the evidence to be given by PW6 revolves around B106 and B108. 135. The HC Judge in her brief grounds of judgment dated 23.8.2024 had also decided that Bundle B106 and B108 were documents filed or read in open Court but decided that the implied undertaking continues based on Harman (majority). 136. We are aware that in England and Commonwealth countries, the decision of Harman (majority) is no longer a good law when the documents are admitted as evidence and referred and used in open Court. The decision by the minority in Harman is also consistent with European Convention and the common law in America. 137. Section 3 of our Civil Law Act 1956 on the application of the common law principle in Malaysia which is similar to Section 3 of AELA Singapore states as follows: - “Section 3: Application of U.K. common law, rules of equity and certain statutes (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall: - (a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; (b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951; (c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to subparagraph (3)(ii): Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.” 138. Therefore, on the application of the common law principle our courts have a discretion to apply the common law as the circumstances may permit subject to such qualification as local circumstances render necessary. The application of Section 3 has been explained in the Federal Court case of Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356: “Section 3 of the Civil Law Act 1956 directs the courts to apply the common law of England only in so far as the circumstances permit and save where no provision has been made by statute law. The development of the common law after 7 April 1956 (for the States of Malaya) is entirely in the hands of the courts of this country. We cannot just accept the development of the common law in England. See also one of the majority judgments in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at p 40.” 139. In Raphael Pura v Insas Bhd & Anor [2003] 1 MLJ 513: “Furthermore, this court too should be careful and slow to adopt the decisions of the courts in other countries, even on the basis that it forms parts of the Common Law of England, which on this point, it is not. Particular attention must be paid to the written law of this country. In other words, the provisions of s 3(1) of the Civil Law Act 1956 must always be borne in mind.” 140. The present position of law as decided by Harman (majority) is no longer the law in England and is not followed in other Commonwealth countries for good reasons. Therefore, our Court is not bound to follow Harman (majority) and instead, follow what was decided by Lord Scarman (minority) in Harman. 141. This position was similarly taken in Foo Jong Long’s case. At paragraphs: - “[50] To me, the correct position is that s 3(1) read with s 3(2) declare that all of the common law of England (including the principles and rules of equity, and other substantive and procedural rules that have become part of the common law of England) in so far as it was part of the law of Singapore immediately before 12 November 1993, shall continue to be part of the law of Singapore subject to such modifications that are required to make it applicable to the circumstances of Singapore and its inhabitants. The effect of s 5(1) is to make clear that English enactments are not automatically part of our law, but it does not prohibit the court from considering the effect of those enactments when developing our own common law and when determining what modifications pursuant to s 3(2) are applicable having regard to the circumstances of Singapore and its inhabitants.” 142. Even though there are no rules in our jurisdiction to exempt the application of the Riddick principle in respect of the documents filed and used in open Court our preferred approach would be to give priority to open justice. Based on the facts of our present appeals, and the current development of the law, the question of law posed should be answered in favour of the Appellants that the implied undertaking which applies to Bundle B106 and B108 terminates when these documents were filed and admitted as evidence in open Court. 143. The principle of open justice is of fundamental importance and is vital to the rule of law as decided in the Supreme Court case of Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association Intervening) [2019] 4 All ER 1071 at paragraphs 37 and 38: “[37] So what were those principles? The purpose of open justice 'is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators' (para [79]). The practice of the courts was not frozen (para [80]). In FAI, for example, issues of informing the public about matters of general public interest did not arise (para [81]). In earlier cases, it had been recognised, principally by Lord Scarman and Lord Simon of Glaisdale (dissenting) in Home Office v Harman [1982] 1 All ER 532 at 546–547, [1983] 1 AC 280 at 316, and by Lord Bingham in SmithKline Beecham Biologics SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 512, (1999) 51 BMLR 91 at 116, that the practice of receiving evidence without its being read in open court 'has the side effect of making the proceedings less intelligible to the press and the public'. Lord Bingham had contemplated that public access to documents referred to in open court might be necessary 'to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain'. The time had come to acknowledge that public access to documents referred to in open court was necessary (para [83]). Requiring them to be read out would be to defeat the purpose of making hearings more efficient. Stating that they should be treated as if read out was merely a formal device for allowing access. It was unnecessary. Toulson LJ was unimpressed by the suggestion that there would be practical problems, given that the Criminal Procedure Rules 2011, in r 5.8, provided, not only that there was certain (limited) information about a criminal case which the court officer was bound to supply, but also that, if the court so directs, the officer could supply 'other information' about the case orally and allow the applicant to inspect or copy a document containing information about the case (para [84]). But it was the common law, not the rule, which created the court's power; the rule simply provided a practical procedure for implementing it. [38] Hence '[i]n a case where documents have been placed before a judge and referred to in the course of proceedings … the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong'. In evaluating the grounds for opposing access, the court would have to carry out a fact-specific proportionality exercise. 'Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others' (para [85]).” 144. The principle of open justice is engaged in this instance given that B106 and B108 has been filed and used in open court. We refer to Foo Jong Long (supra) at paragraphs 59 and 60 of the grounds of judgment. The principle of open justice is also given statutory recognition in Malaysia and refer to Section 15 of CJA: - “15. Courts to be open and public: (1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access.” 145. In the event, the Respondents intend for the undertaking to continue due to privacy considerations, it is open for the Respondents to make the necessary application in CS 13 to prevent disclosure, after those documents were filed as trial bundle. But there was no such application made by the Respondents despite the Respondents being informed that the 1st Appellant in both this appeal will be filing separate proceedings to challenge the alienation and issuance of the GMAR Titles. 146. We again refer to the Singapore case of Foo Jong Long (supra): “[37] …It must be noted that an application can still be made to the court-by the party against whom discovery is ordered or the person to whom the document belongs-to prevent further use of such documents. [58] Secondly, even though the Riddick principle ceases once the document has been used in open court, it does not prevent a party from applying to court in order for the undertaking to continue…” 147. To prevent disclosure of the use of B106 and B108, the Respondents could have also sought for a sealing or protective order. A protective or sealing order may be granted by the Court to ensure that confidential information disclosed by compulsion is not used for any other purpose as the court was of the view that the implied undertaking under Riddick principle is not adequate. We refer to the decision of Wong Kian Kheong J (as His Lordship then was) in Kingtime International Ltd & Anor v Petrofac E&C Sdn Bhd [2020] 11 MLJ 141, wherein His Lordship despite finding no provision of written law which has expressly conferred power on the Court to give a protective order, the Court granted the protective order pursuant to Order 92 rule 4 of RC 2012 to protect confidential information disclosed by pre-trial discovery order. In taking into account the current position as to how current proceedings are conducted in open Court by using electronic filing service pursuant to Order 63A of RC 2012, the Learned Judge inter alia granted the following protective orders: - “(g) the first plaintiff’s counsel and solicitors shall undertake to court that they, their employees and agents shall: (i) only make copies of the reports of first plaintiff’s experts for the purpose of the account of profits; and (ii) not give, directly or indirectly, copies of the reports of first plaintiff’s experts to any person except to the recipients; (h) this court exercises its discretion under O 63A r 7(4) of the RC to exempt the first plaintiff and defendant from filing the protected information by way of electronic filing. Order 63A r 7(1) and (4) of the RC provide as follows: O 63A r 7(1) Where a specified document is required to be filed with the Registrar under any other provision of these Rules, it shall be so filed using the electronic filing service in accordance with this Order and any practice directions for the time being issued by the Registrar. … (4) Notwithstanding anything in paragraph (1), the Registrar may allow a document, part of a document or any class of documents to be filed other than by using the electronic filing service. (Emphasis added.) (i) protected information shall only be filed or submitted to court if it is necessary to do so and if protected information is filed or submitted to court, the protected information shall: (i) be segregated from other documents which have been filed or submitted to court; (ii) be sealed with the following note (‘note’) which shall be clearly visible: CONFIDENTIAL AND PROTECTED INFORMATION Pursuant to the [Protective Order], governing the preservation of confidentiality and protection of confidential documents and information, this package shall remain sealed in the Court files and is neither to be opened nor the contents thereof be accessed, displayed, disclosed or revealed except in accordance with the terms of the [Protective Order] and permitted by the Court.; and (iii) not be disclosed to, be accessible to or made available for public inspection by any person; (j) regarding the account of profits: (i) the proceedings of the account of profits shall be heard in camera (‘proceedings in camera’) in accordance with the proviso to s 15(1) of the Courts of Judicature Act 1964 (‘the CJA’). Section 15(1) of the CJA provides as follows: 15(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access: Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do. (Emphasis added.) (ii) any person who is not a recipient shall not be allowed to attend the proceedings in camera; (iii) the court’s ‘Recording and Transcription Electronic System’ shall be disabled in respect of the proceedings in camera; (iv) the proceedings in camera shall be recorded in an audio-visual form (‘audio-visual recording’) and shall be transcribed (‘transcript’) by the nominated transcriber; and (v) the transcript and audio-visual recording shall: (1) be sealed with the note which shall be clearly visible; (2) be treated as protected information which is subject to the protective order; and (3) only be given to the first plaintiff, defendant and their counsel and solicitors.” 148. With the current electronic filing system in our courts the documents in B106 and B108 were filed pursuant to Order 63A RC 2012 and once any document is filled it is accessible to the public unless it is protected by the court. In our present case B106 and B108 and the evidence relating to B106 and B108 were filed without any objections and are already in public domain. Unlike Kingtime’s case where the documents are confidential information which will cause irreparable prejudice to the defendant, in the present case there is no such evidence. In fact, the Respondents themselves are ready and willing to disclose these documents, belatedly, albeit filing contempt proceeding against the Appellants. 149. Thus, given that B106 and B108 are both in the public domain, in the absence of such sealing or protective, B106 and B108 remains in the public domain and are therefore public documents. Based on the authorities in other jurisdictions as set out above, once the documents disclosed under compulsion were admitted as evidence and read in open court, the implied undertaking ceased to exists and it is for the party that disclose said documents, to apply for an order to seek for protection of said documents. 150. To summarise, the implied undertaking as decided in Riddick and Harman ceases to apply once the document is filed and used in open court. Is Leave Required When the Documents Are Used for Related Proceedings? 151. The Riddick principle will only apply in cases where the use of disclosed documents is for a collateral or ulterior purpose and not to related proceedings. In Crest Homes PLC v Marks [1987] AC 829, it was also decided by the House of Lords that each case must turn on its own individual facts in order to determine whether the documents on discovery can be used in separate proceedings. In Crest Homes, two actions were filed due to technical considerations and partly as a result of the appellant’s failure to make full and frank disclosure. In this circumstance, it was decided that the documents disclosed on discovery in the first action can be used in the second action without the necessity of obtaining prior leave of the court. At page 860: - “As Nourse L.J. observed in the course of his judgment in the instant case (ante, p.840G), each case must turn on its own individual facts. In the instant case, the determinative point to my mind is that it is purely adventitious that there happened to be two actions. That has been brought about partly by purely technical considerations and partly, as Crest allege, by the appellants' failure to make full and frank disclosure under the 1984 order, and the fact that the parties to the two actions are not identical is quite immaterial. The cause of action is the same in each and the first and second appellants are defendants in both. The remaining defendants could equally well have been joined as defendants in a single set of proceedings. Thus, it is a pure technicality that the 1985 order happens to have been made in proceedings other than those in which Crest seek to move to enforce the undertakings. It has been submitted that proceedings for contempt of court are always to be regarded, for the purpose of the implied undertaking on discovery, as "collateral" to the action in which they are launched, so that even if the 1985 order had been made in the 1984 action it would still have been necessary to seek the leave of the court to use the material thus discovered for the purposes of the motion for contempt in that action. My Lords, I find myself quite unable to accept that submission. The proper policing and enforcement or observance of orders made and undertakings given to the court in an action are, in my judgment, as much an integral part of the action as any other step taken by a plaintiff in the proper prosecution of his claim. The normal procedure where the contempt complained of is that of a party to the action is to apply for committal by motion in that action as an incidental step in the action. There is, in my judgment, nothing "collateral" or "alien" about enforcement of the court's order in the action in which discovery is obtained and I do not entertain any doubt at all that documents disclosed on discovery in the action can perfectly properly be used for the purpose of taking such a step without in any way infringing the implied undertaking and without the necessity of obtaining the prior leave of the court.” 152. As to when filing of a separate action using disclosed documents will amount to breach of the Riddick undertaking was explained by the Court of Appeal of Singapore in the case of Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584. In order to determine if the Riddick undertaking applies under the 2nd category, the Court is to determine the nature of the related proceedings for which the disclosed documents are being used. At paragraph 99:- “[99] We clarify that where issues on the Riddick principle arise, the approach to be taken is as follows Situations involving the Riddick principle may broadly be classified under three categories: (a) First, one must determine whether, on the basis of the element of compulsion, a document produced in discovery is covered by the Riddick undertaking. If the answer is in the negative, the documents are not protected and may be used without the leave of court. We shall refer to such scenarios as the “first category” of situations. (b) Next, if the Riddick undertaking applies (due to the element of compulsion), the question is whether, notwithstanding the undertaking, the protected documents may nonetheless be used without leave of court, due to the nature of the related enforcement proceedings for which the documents are being used. This is where the appellant’s argument on Suit 47 being an “enforcement” proceeding is relevant. We describe such documents as being under the “second category” of situations. (c) If neither of the above is satisfied, the party relying on the protected documents to commence or sustain related proceedings must seek the court’s leave for the undertaking to be lifted. This will involve a discussion on the factors espoused in Amber Compounding, which we address below in relation to CA 190. Such scenarios may be referred to as the “third category” of situations. Cases such as ED&F ([34] supra) and Amber Compounding, which involved an examination as to whether leave should be granted to use protected documents, fall under this category. We elaborate below on the specifics of the inquiry, as each stage involves distinct considerations. We address, at the same time, how the above framework would apply to EJD proceedings as a particular species.” 153. As to the 2nd category of cases when leave is not required, the test is laid down in Ong Jane’s case at paragraphs 112 to 114: “[112] Based on these cases, it may be observed that in determining whether related proceedings are “enforcement” proceedings (in which documents covered by the Riddick principle may be used without leave), there are two key points of reference. First, the nature of the proceedings in which the documents were disclosed, and second, the nature of the proceedings in which the said documents are being used. [113] The nature of the application which led to the disclosure of documents is highly material. We have explained that EJD proceedings involve an exercise in obtaining information to assist in the enforcement of a judgment debt. Indeed, such proceedings are “intended to aid the judgment creditor…in garnering additional information which might – or might not – result in the implementation of actual execution of the judgment concerned” [emphasis in original]: PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd Partnership [2013] 4 SLR 1116 (“PT Bakrie”) at [16]. Therefore, there is no question that the judgment debtor would know that information disclosed in the course of such EJD proceedings will be used for subsequent related proceedings. This is to be contrasted with, for example, specific discovery in the course of an action. The party producing documents pursuant to such discovery applications would have the expectation that the said documents would only be used for the purposes of that action. In ordinary circumstances, there would be no expectation that the documents would be used in related proceedings. [114] If the above hurdle is crossed, the focus then turns to the nature of the related proceedings in which the documents are being used. It may be observed that the Tay Toh Hin decisions and Leads Engineering bear several common features. In those cases, the parties in both sets of proceedings were identical, the debt pursued was the same, and the subsequent related action (the garnishee application) was clearly an enforcement action to compel payment. Thus, in our view, three factors are relevant when examining the nature of subsequent related proceedings: (a) Identity of parties: If the defendant in the related proceeding is also the defendant in the original proceeding in which the documents were obtained, a case may be made that the related proceeding constitutes enforcement against that defendant. The same could be said if the related proceeding is against an entity legally empowered or obliged to make payment on behalf of the said defendant, eg, a bank. (b) Nature of debt: If the sum being pursued in the related proceedings is the same debt that forms the subject matter of the original proceedings in which documents were disclosed, this would indicate that the former set of proceedings is an enforcement of the latter. If, however, the sum being pursued in related proceedings is different, this might suggest that it is a claim de novo, and leave of the court might be required. (c) Nature of related proceedings: The question under this factor is whether the related proceedings can be considered “enforcement” in the ordinary sense, ie, modes of execution or proceedings that facilitate the payment of judgment debts owing to a plaintiff. This is to be determined in the context of the particular case, albeit we note that “traditional” enforcement actions recognised under the Rules of Court (eg, garnishee proceedings) would most likely satisfy this requirement: see also the discussion of this court in PT Bakrie at [14] on the various modes of execution under O 45 of the Rules of Court. If a related proceeding complies with the factors delineated above, the party using protected documents to commence such proceeding would not require the leave of court, despite the existence of the Riddick undertaking.” 154. In this context, the High Court had erred in law and fact by deciding that the Kuantan OS and Kuantan JR (subsequently Temerloh OS and Temerloh JR due to the transfer orders) are not related proceedings. We refer to the notes of proceedings dated 23.8.2024: - “The use of the documents or the information contained in, and derived from, the documents in the Kuantan Originating Summons Application and Kuantan Judicial Review Application, without the leave of this Court, is for a purpose that is outside the action before this Court. As submitted by the Plaintiffs, the parties to the proceedings in this Court and in the Kuantan High Court (‘KHC’) are not identical and nor are the causes of action, the issues and the reliefs sought. In my considered view, the documents or the information contained in the documents were used for a collateral or ulterior purpose.” 155. The Temerloh OS and Temerloh JR is not filed for a collateral or ulterior purpose or is “alien” to CS No. 13 for the following reasons:- a. the 1st Appellant and the 1st Respondent are the same parties in the Temerloh OS and Temerloh JR; b. Bundle B108 in Suit 13 are the documents produced by the Director of Lands and Mines Pahang who is also a party in Temerloh OS and Temerloh JR. c. in CS 13, the Respondents are seeking for a permanent injunction to prevent the Appellants from using the Genting Main Access Road in the course of developing their land for which planning permission has been obtained from the authorities; d. upon issuance of the GMAR Titles on 14.3.2023, the Respondents had midway through the trial in CS 13 applied and adduced the GMAR Titles as evidence; e. when the GMAR Titles were produced in CS 13, counsel for the Appellants had informed the Court on 13.7.2023 that the 1st Appellant will file a new suit to challenge the alienation and issuance of GMAR Titles. The relevant part of the notes of proceedings in Record of Appeal (Volume 2I) (Enclosure 13) page 92 is herein reproduced:- “TB … You know all these things, My Lady, I mean, there's going to be, as I said, this issue will be relevant in the new suit which we are filing to challenge the issuance of these titles, as far as that matter is concerned and after that My Lady, whatever decision has been made, and if Genting wants to apply to establish the status of the road after the titles are issued, then they can file a separate suit for whatever action they want to take.” f. therefore, the Respondents were fully aware that a new proceeding will be filed to challenge the issuance of the GMAR Titles which were produced in CS 13. This is a fact known to the Respondents as early as 13.7.2023; g. during the cross examination of PW 6 on 14.7.2023, the Appellants’ counsel applied to the Court for the Respondents to produce documents relating to the subdivision of Lot 8757 and the alienation of the GMAR Titles and the HC Judge directed parties to file their respective written submission; h. this was followed up with the letter dated 21.7.2023 from the Appellants’ solicitors to the Respondents’ solicitors to request for the document relating to the subdivision and alienation; i. in the written submission filed by the Respondents’ counsel, the position taken by the Respondents is that there is no surrender of lands relating to the Genting Main Access Road and therefore, there is no alienation of State Land in 2023 and allegedly there was one and only alienation, that was in year 1972; j. the HC Judge had on 4.10.2023 ordered the Respondents to produce the documents relating to the subdivision of Lot 8757 and the alienation of the GMAR Titles as the Court needs to be fully appraised of the facts leading to the issuance of the GMAR Titles; k. the Respondents had complied with the High Court order dated 14th October 2023 by producing the documents in B106 which were related to the subdivision of Lot 8757 and alienation of the GMAR Titles which would mean that these documents are related and would be relevant to the subject matter in Temerloh OS and Temerloh JR; l. the subpoena dated 1st November 2023 was also issued to the Director of Lands and Mines Pahang to produce the documents relating to the subdivision and alienation. The documents produced by the Director of Lands and Mines Pahang pursuant to the subpoena which is now marked as B108 therefore relates to the alienation and issuance of the GMAR Titles which are now the subject matter in the Temerloh OS and Temerloh JR; m. Director of Lands and Mines Pahang whose decision is being challenged in Temerloh OS and Temerloh JR did not object to the documents in B106 and B108 to be used in Temerloh OS and Temerloh JR. Understandably, so as decided by the Federal Court in Datuk Bandar Kuala Lumpur v. Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829:- “[541] The duty of disclosure on the part of a local authority was explained: All this is very well known and the subject of copious jurisprudence and academic commentary. Lord Steyn’s judgment in R v Secretary of State for the Home Dept, ex p Daly [2001] UKHL 26; [2001] 3 All ER 433; [2001] 2 AC 532 (quoted extensively by Lord Carswell in his opinion (at [35], above)) has attained near-classic status. Plainly nowadays, in cases like the present, a more intensive review, a closer factual analysis of the justification for restrictions imposed, is required than used to be undertaken on judicial review challenges. But it is important too to recognise that even in proportionality cases judicial review still remains a very different process from the sort of litigation in which disclosure orders are ordinarily made. The challenge by definition goes to the legality of the decision impugned. Generally, no fact-finding will be necessary-unless perhaps in procedural challenges where it may be necessary to establish what happened in the course of the decision-making process rather than what material was before the decision maker. And it is a well-established principle that once permission to bring a claim for judicial review has been given public authorities are under a duty of candour to lay before the court all the relevant facts and reasoning underlying the decision under challenge. Even, moreover, where proportionality is an issue, as Lord Steyn remarks towards the end of the passage cited from his judgment in Ex p Daly (at [28]): ‘This does not mean that there has been a shift to merits review. On the contrary … the respective roles of judges and administrators are fundamentally distinct and will remain so. (Emphasis added.) [542] We are concerned here with the legality of the impugned development order granted by the Datuk Bandar (ie, the first appellant) sitting as a public authority. Public authorities act in the public’s interest. As such a public authority owes a duty of candour in judicial review proceedings to make full and fair disclosure of all relevant materials. [543] This 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 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’. [544] We cite with approval from R (on the application of Bancoult (No 2) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35: DUTY OF CANDOUR [183] A respondent’s duty of candour in judicial review proceedings is summarised at p 125 of Fordham’s Judicial Review Handbook (6th Ed 2012): A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted … A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so. [184] In R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at para 50 Laws LJ said, ‘There is a … very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue which the court must decide.’ The duty extends to disclosure of ‘materials which are reasonably required for the court to arrive at an accurate decision’ - Graham v Police Service Commission [2011] UKPC 46 at para 18. The purpose of disclosure is to ‘explain the full facts and reasoning underlying the decision challenged, and to disclose relevant documents, unless, in the particular circumstances of the case, other factors, including those which may fall short of public interest immunity, may exclude their disclosure — R (AHK) v Secretary of State for Home Department (No 2) [2012] EWHC 1117 at para 22. (Emphasis added.) [545] As expressed in R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 at p 945, it is for an applicant ‘to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.” o. 1st Respondent is not the maker of the impugned decisions relating to the GMAR Titles which is the subject matter in Temerloh OS and Temerloh JR. Despite that, it is the 1st Respondent who is objecting to the 1st Appellant using the documents in B106 and B108. Whilst on one hand the Respondents’ are preventing the 1st Appellant from using B106 and B108 but on the other hand the Respondents intends to use B106 and B108 in its favour to oppose Temerloh OS and Temerloh JR. p. By filing the application for Leave to Use Documents, the Respondents had also acknowledged that the documents in B106 and B108 are relevant and necessary for the proper determination of Temerloh OS and Temerloh JR; q. Therefore, the disclosure of documents in B106 and B108 in the Temerloh OS and Temerloh JR is not only in respect of related proceedings but necessary in order for the Court to make a proper determination of the alienation and issuance of the GMAR Titles in these related proceedings;” 156. Based on the aforesaid facts, and the respective stand taken by the parties on the subdivision and alienation issue, we cannot agree with the Respondents action in initiating contempt proceedings against the Appellants by filing the Respondents’ Application For Leave To Apply For Committal and for the Respondents to file the Respondents’ Application To Use Documents. The Respondents Application To Use Documents is wholly unnecessary and is a mere tactical manoeuvre to initiate contempt proceedings against the Appellants. The Respondents’ action had also substantially delayed the Temerloh OS and Temerloh JR. 157. Further, the Appellants had duly disclosed to the Court and the Respondents of the fact that they will be mounting a new suit to challenge the alienation of the subject Land to the Respondents. Hence, we are of the view the use of the documents in Bundle B106 and B108 in the Temerloh OS and Temerloh JR cannot be considered for an alien, collateral purpose or ulterior purpose. 158. We are of the view that the High Court erred in deciding that the parties in the Termerloh OS and Temerloh JR were different from that in CS No. 13. It is an undisputed fact that the documents produced in Bundle B108 are the documents of the Director for Land and Mines and the Land Administrator who are the relevant parties in the Temerloh OS and Temerloh JR. 159. It was also contended by the Respondents that in the written submissions filed by the Appellants to oppose the discovery application it was submitted that the purpose of the discovery application is not to mount a new case. By then the Respondents were fully aware that the 1st Appellant will be filing a separate proceeding to challenge the issuance of the GMAR Titles as this fact was informed to the Court on 14.7.2023. 160. The Temerloh OS and Temerloh JR were initially filed at the Kuantan High Court on 9.10.2023, whereas Bundles B106 and B108 were only filed on 27.10.2023 and 7.11.2023, respectively. It is not a case where upon obtaining B106 and B108, the 1st Appellant had found a new cause of action as was the facts in Riddick. 161. The Temerloh OS and Temerloh JR were filed specifically to challenge the issuance of the GMAR Titles and not to mount any other proceedings. Further, Bundle B106 and B108 are relevant in order for the court to determine the actual status of the Genting Main Access Road lands. 162. Therefore, the Respondents cannot now claim that the Temerloh OS and Temerloh JR are new proceedings initiated which is not within their knowledge. Clearly this will fall under the 2nd category of the exception explained in Ong Jane’s case as explained above. 163. In deciding this appeal, we form the view that the Riddick principle only applies if it can be shown that the use or reference to B106 and B108 is for an ulterior, collateral, improper or alien purpose. This is clearly set out in the cases of Riddick (supra), Taylor (supra), Extreme System (supra), Foo Jong Long (supra) and Ong Jane Rebecca (supra). Clearly this is a case where B106 and B108 are not used for an ulterior, collateral, improper or alien purpose but B106 and B108 are used in order for the Temerloh High Court to be fully apprised of all the facts relating to the alienation and issuance of the GMAR Titles in order for the court to arrive at an accurate decision (see Perbadanan Pengurusan Trellises (supra)). CONCLUSION 164. In the above premise, we hereby make the following orders: a. Enclosure 27 (in Appeal 1518) and Enclosure 29 (in Appeal 1548) being the Respondent’s application to strike out the Appellant’s appeal is dismissed with costs; b. Enclosure 22 (in Appeal 1518) and Enclosure 24 (in Appeal 1548) being the Respondent’s application to adduce further evidence is dismissed with costs; c. Appeal 1518 is allowed with costs; d. Appeal 1548 is allowed with costs; and e. The order of the High Court for both Appeals 1518 and 1548 is hereby set aside. 165. Having heard parties brief submissions on the issue of costs, we hereby award a lump sum costs of RM50,000.00 for Appeal1518 and RM35,000.00 for Appeal 1548. Dated: 19 January 2026 -Sgd- (MOHD FIRUZ BIN JAFFRIL) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Counsel for the Appellant: 1. B.Thangaraj 2. Wong Li Wei 3. Faye Lee Chin [Messrs Sanjay Mohan (Kuala Lumpur)] Counsel for the Respondent: 1. Teh Eng Lay 2. Andy Gan Kok Jin 3. Lee Zhun Hao [Messrs Cheah Teh Su (Kuala Lumpur)]