Ketua Pengarah Jabatan Penyiaran Malaysia v Vertex Blue Consulting Sdn Bhd (W-01(NCvC)(W)-898-12/2022)

2.KERAJAAN MALAYSIA PERAYU-PERAYU DAN VERTEX BLUE CONSULTING SDN BHD RESPONDEN ``````````````````````````````````````````````` [Dalam Mahkamah Tinggi Malaya di kuala lumpur Guaman no. wa-21ncvc-16-04/2019

1.Ketua Pengarah Jabatan Penyiaran Malaysia 2.Kerajaan Malaysia Defendan-Defendan] `````````````````````````````````````````` CORAM RAVINTHRAN A/L N. PARAMAGURU, JCA AZHAHARI KAMAL BIN RAMLI, JCA CHOO KAH SING, JCA (Decision: 20.6.2024) 15/04/2025 15:53:35 W-01(NCvC)(W)-898-12/2022 Kand. 62 Page 2 of 11 GROUNDS OF JUDGMENT Introduction [1] This is an appeal filed by Ketua Pengarah Jabatan Penyiaran Malaysia and the Government of Malaysia, who were the defendants at the court below, against the High Court judgment dated 17.11.2022 (“the Judgment”) in which a judgment was entered against the appellants/defendants. [2] The reason the judgment was entered against the appellants was because the appellants’ defence (and counterclaim) had been struck out for the reason that the appellants had failed to comply with an earlier court order granted on 12.10.2021 (“the Order”). In the Order, paragraph 6 was an unless order (“the Unless Order”) which stated as follows: “(6) that unless the Defendants comply with the Orders made herein, the Defendants’ Defence and Counterclaim in this Suit dated 28-2-2019 and filed herein, shall stand struck out without further Order of Court and the action herein shall be adjudged in the Plaintiff’s favour with the requisite Orders and/or Judgment entered as prayed for by the Plaintiff.” Bahasa version: “(6) bahawa melainkan jika Defendan-Defendan mematuhi Perintah yang dibuat di sini, Pembelaan dan Tuntutan Balasan Defendan dalam Guaman ini bertarikh 28-2-2019 dan difailkan di sini, akan dibatalkan tanpa Perintah Mahkamah lanjut dan Page 3 of 11 Tindakan di sini akan ditentukan untuk memihak Plaintif dengan Perintah-Perintah dan/atau Penghakiman dimasukkan seperti yang dipohon oleh Plaintif.” [3] At the court below, the appellants’ counsel admitted to the court that the defendants did not fully comply with the terms of the Order. The learned High Court judge was then constrained by the term of the Unless Order to enter judgment against the defendants. The learned High Court judge stated that “non-compliance results in the automatic striking out of the defence and counterclaim.” Consequently, the learned High Court judge entered judgment against the appellants. Dissatisfied with the decision of the court below, the appellants filed this appeal before the Court of Appeal. [4] For ease of reference, hereafter the parties will be referred to as they were at the court below. Brief facts leading to the granting of the Order dated12.10.2021 [5] The decision of the learned High Court judge was not premised on any finding of factual matrix or the merits of the case vis-à-vis the plaintiff’s claim which was based on a wrongful termination by the 1st defendant of a Concession Agreement between the parties. Hence, this judgment will not examine the merits of the plaintiff’s claim as well as the defendants’ defence and counterclaim. The judgment will confine its consideration to only the reason as to why the learned High Court judge entered judgment against the defendants. On this premises, it is instructive to set out the background facts which led to the granting of the Order. Page 4 of 11 [6] On 15.6.2019, the plaintiff filed two applications under Order 24 of the Rules of Court 2012 (“RoC’). The first application (“Application Encl. 18”) was a general discovery of documents under Order 24 Rule 3 of the RoC. The second application (“Application Encl. 19”) was a specific discovery of certain particular documents under Order 24 Rule 7 of the RoC. [7] On 15.10.2019, the parties entered into a Consent Order (dated 15.10.2019) in relation to Application Encl. 18 to set down the terms of the discovery of documents. [8] In relation to Application Encl. 19, on 4.2.2020, the High Court granted an order-in-terms of the said application, and set out the specified documents to be produced by the defendants for the plaintiff’s inspection. [9] The defendants did not comply with the terms of both the Consent Order and the Order dated 4.2.2020 to the satisfaction of the plaintiff. Consequently, on 8.7.2021, the plaintiff filed an application under Order 24 (read together with rules 7 and 8A) of the RoC for further discovery (“Further Discovery Application-Encl. 50”). [10] On 12.10.2021, the Further Discovery Application-Encl. 50 was allowed by the High Court, and the orders made by the High Court are found in the Order which includes the Unless Order (paragraph 6) which was reproduced earlier. The Order is Enclosure 67 (at the High Court). [11] After the Order was granted, the defendants failed to fully comply with the terms of the Order. The plaintiff wrote to the defendants on Page 5 of 11 several occasions informed of their failure to comply with certain terms of the Order. The non-disclosure of certain documents by the defendants was carried on until the day of the trial. [12] On 17.11.2022, the counsel for the plaintiff informed the trial judge that the defendants had failed to disclose certain documents in the Order. The counsel for the defendants admitted to the trial judge that they did not comply or disclose a few documents as ordered in the Order. The counsel for the defendants tried to explain to the trial judge as to why they did not fully comply with the terms of the Order. The learned High Court judge, after much deliberation of the oral submissions made by parties’ counsels, decided that based on paragraph 6 of the Order, the Unless Order had to be construed as resulting in the defendants’ defence (and counterclaim) having been struck out automatically because of the defendants’ failure to fully comply with the terms of the Order. At the High Court [13] Based on the circumstances as highlighted earlier, the learned High Court judge in his Grounds of Judgment stated as follows: “15. Having heard from the parties, my hands are rather tight due to how prayer (6) of Enclosure 67 was drafted. As I understand it, non-compliance results in the automatic striking out of the defence and counterclaim. If I were to give new directions now, I would be going against the earlier decision of Mohd Nazlan bin Mohd Ghazali J (now JCA). As things stand now, technically the defence and counterclaim may no longer exist. In addition, there was no appeal filed by the defendants Page 6 of 11 against Enclosure 67. I also find that there is no waiver on the part of the plaintiff based on the plaintiff’s submissions above.” At the Court of Appeal [14] The grounds of the Memorandum of Appeal filed before this Court are reproduced as below: Page 7 of 11 [15] The above grounds in the Memorandum of Appeal mainly relate to the applications for discovery made by the plaintiff. This Court is of the considered view that they are not relevant to the appeal against the Judgment as this appeal is not against the High Court’s orders for discovery or the Order. [16] The grounds in the Memorandum of Appeal failed to focus on the fact that the defence (and counterclaim) had been struck out for non-compliance of the Order which was the heart of the reason why the learned High Court judge entered judgment against the defendants. The learned High Court judge entered judgment against the defendants because, first, the defendants’ defence (and counterclaim) had been struck out; secondly, the Unless Order (paragraph 6 of the Order) expressly stated “the action herein shall be adjudged in the Plaintiff’s favour with the requisite Orders and/or Judgment entered as prayed for by the Plaintiff.” The question to be considered by this Court is whether the learned High Court judge had made any error in entering judgment against the defendants following paragraph 6 of the Order in the circumstances of the case. [17] This Court is of the view that the defendants’ submission based on the grounds in the Memorandum of Appeal was irrelevant to the real question before this Court. The learned High Court judge had exercised his discretion not to adjourn the trial, although the parties had asked for the trial to be adjourned so that the parties could have more time to negotiate a settlement. There is no error in the High Court judge’s exercise of his discretion not to adjourn the trial for this Court to intervene. There is also no legal basis for this Court to set aside the learned High Page 8 of 11 Court’s Judgment for the mere fact that the defendants had asked for more specific documents to be identified which were needed for trial by the plaintiff. Likewise, it is also not a reason for this Court to set aside the High Court order for the mere fact that the plaintiff just needed three particular documents for its case in the trial. All the grounds relied on by the defendants’ counsel to move this Court to allow the defendants’ appeal were devoid of merits. In effect, the defendants’ counsel failed to raise any legal challenge against the High Court Judgment dated 17.11.2022. [18] Coming back to the real question before this Court, this Court is of the considered view that when the wording of a court order is clear, unambiguous and capable of being given effect to, then the court order must be upheld, unless the court order has been set aside or varied (see Pertubohan Berita Nasional Malaysia v Stephen Kalong Ningkan [1982] 2 MLJ 13, FC). [19] In the present case, paragraph 6 of the Order was a “self-executing” order. By its own nature, it has an inbuilt self-execution and consequential effect in the event the defence (and counterclaim) was struck out, to wit, judgment could be entered against the defaulting party, here the defendants. If the defendants wanted to challenge the decision of the learned High Court judge, the challenge ought to focus on the “self-executing” nature of the Order. The learned High Court judge was merely affirming the “self-executing” order and adhered to the consequential effect of the Order. [20] All court orders must be followed and obeyed. If a court order could be ignored without any consequence or sanction, “this would destroy the authority of judicial orders which is the heart of all judicial system.” “In our Page 9 of 11 jurisprudence, court orders must be respected and complied with. Those who choose to ignore them do so at their own periol.” (see Hup Soon Omnibus Co. Sdn Bhd & Anor v Lim Chee @ Lam Kum Chee [2018] 1 CLJ 641, 646, CA). [21] The Federal Court in Ann Joo Steel Berhad v Pengarah Tanah dan Galian Negeri Pulau Pinang & Anor and another appeal [2019] 9 CLJ 153, 172, even went to the extent to accept the proposition that a court order that was irregularly obtained could not be treated as nullity, but must be implicitly obeyed, until by proper application it was discharged. [22] There is a string of cases that uphold the importance of respecting and obeying court orders regardless of its consequences, unless they are set aside or varied. Applying this established principle to the present case, the learned High Court judge did not err in his decision to enter judgment against the defendants because the defendants’ defence (and counterclaim) had been struck out automatically for failure to fully comply with the Order. [23] We find the learned High Court judge did not err in law to uphold the Unless Order provision (paragraph 6) of the Order based on the above highlighted case law and the established principle of law. Therefore, this Court found no merits in the appeal. Conclusion [24] Based on the above reasons, this Court, in a unanimous decision, dismissed the defendants’ appeal and ordered costs of RM10,000.00 to be paid by the defendants/appellants to the plaintiff/respondent. Page 10 of 11 -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Date: 9.4.2025 Page 11 of 11 Counsel (s) for the appellants: WAN SHAHIDA BINTI WAN OMAR (JABATAN PEGUAM NEGARA,) Counsel(s) for the respondent ARIFF BIN ROZHAN (CHRISTOPHER ARUN A/L FRANCIS, SYLVIE TAZ SZA NI, NURUL FARHANI BINTI KAMARUDIN with him)