1. ) Mohd Mahadi Bin Zainudin v 1. ) Dr. Kamarulhaziq Bin Baharuddin (AB-21NCvC-2-04/2021)

MOHD MAHADI BIN ZAINUDDIN [NO. K/P: 880614-03-5899] (sebagai sahabat wakil/bapa yang sah kepada Si Mati Nor Qaira Rania binti Mohd Mahadi)

NOR ILLIYIN BINTI MOHD BASRI [NO. K/P: 941219-03-5182] (sebagai sahabat wakil/ibu yang sah kepada Si Mati Nor Qaira Rania binti Mohd Mahadi) …PLAINTIF-PLAINTIF

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (in respect of an application made under the provision of Order 24, Rule 3, Rules of Court 2012) [1] This was an application made by the Plaintiffs for a Court order of disclosure of documents under Order 24, Rule 3, Rules of Court 2012 (ROC). The Plaintiffs’ prayers in the Notice of Application (Enclosure 12) dated 19 August 2021 were as follows: 1) Plaintif diberikan kebenaran/kebebasan untuk memohon; 18/07/2022 00:04:51 AB-21NCvC-2-04/2021 Kand. 43 2) Defendan-Defendan hendaklah mengemukakan dokumen-dokumen seperti berikut dalam tempoh empat belas (14) hari dari tarikh Perintah dibenarkan untuk dibekalkan salinan kepada Plaintif-Plaintif seperti berikut: a) Salinan Minit dan/atau nota prosiding Mesyuarat Jawatankuasa Penyiasatan yang telah bersidang di Hospital Gerik pada 27.5.2019 dan/atau tarikh lanjutan antara Plaintif-Plaintif, pihak Hospital Gerik dan Jawatankuasa Penyiasatan sepenuhnya; b) Salinan Minit dan/atau nota Mesyuarat bagi Tawaran Ex Gratia diputuskan dan ditawarkan kepada Plaintif-Plaintif sepenuhnya; c) Salinan Rekod penuh rawatan perubatan pesakit Plaintif Kedua sebelum, semasa dan selepas bersalin menerima rawatan termasuk senarai ubatan diberikan di Hospital Gerik; d) Rekod rawatan perubatan pesakit bayi/simati dari awal rawatan kelahiran termasuk senarai ubatan diberikan sehingga tarikh kematian di Hospital Gerik dan juga Hospital Raja Permaisuri Bainun, Ipoh; e) Salinan dan keputusan ujian darah, Ultrasound, CTG dan/atau pemeriksaan X-ray termasuk filem X-ray simati sebelum, semasa dan/atau selepas kelahiran rawatan di Hospital Gerik dan Hospital Raja Permaisuri Bainun, Ipoh; f) Surat bertulis persetujuan/ tidak setuju bedah siasat/ “post mortem” Plaintif-Plaintif bagi simati/bayi tersebut; g) ldentiti penuh nama doktor-doktor, jururawat-jururawat dan pekerja-pekerja penjagaan kesihatan Iain yang terlibat dalam memberi rawatan pesakit Plaintif Kedua dan bayi/simati tersebut dizahirkan melalui Afidavit oleh Defendan-defendan. 3) Apa-apa dokumen yang relevan dan berkaitan dengan pemeriksaan dan perubatan serta rawatan keatas Plaintif Kedua dan bayinya sepenuhnya sebagaimana diatas untuk dizahirkan melalui Afidavit menentusahkan dokumen dalam masa 14 hari daripada Tarikh Perintah ini; 4) Kebebasan untuk memohon sebarang Perintah lanjutan sekiranya perlu; 5) Kos didalam kausa; dan 6) Perintah-perintah dan/atau lain-lain relif Mahkamah yang Mulia ini fikirkan adil dan suai manfaat. BRIEF BACKGROUND [2] The cause of action in the main suit is in regard to the birth and death of the Plaintiffs’ infant named Nor Qaira Rania binti Mohd Mahadi (BC No. DS38914 and IC No.: 180414-08-0620), whom hereinafter will be referred to interchangeably as “the infant” or “the deceased”. The infant was born on 14.4.2018 at Hospital Gerik (HG). There were complications prior to the birth where the infant had allegedly ingested meconium. The infant was then brought to Hospital Raja Permaisuri Bainun (HRPB) in Ipoh where she died on 15.4.2018. Aggrieved by the death of the infant, the Plaintiffs filed a civil suit on 11.4.2021 against the Director, doctors, nurses of and HG in regard to the alleged breaches of duty in the medical check-ups and treatments before, during and after the birth. The suit also named the Director, doctors, nurses of and HRPB in respect of the alleged breaches of duty in the medical check-ups and treatments before, during and after the infant was brought to HRPB. [3] The basis for the application in Enclosure 12 were that as patients of both hospitals, the 2nd Plaintiff and the deceased must be given full access to their medical files and records because: i. this is provided for in the Malaysian Medical Council’s Guideline No. 2/2006 (“MMC guidelines”); ii. legally, morally and ethically, any internal information belonged to the 2nd Plaintiff and the deceased; and iii. the Plaintiifs have the right to obtain all documents they require to be produced through this application for discovery in order for them to prepare for the trial. [4] The 1st Plaintiff affirmed the affidavits on behalf of the Plaintiffs. The Director of HG, Khuzaimi bin Abd Karim, affirmed the affidavits on behalf of the Defendants relating to HG. For HRPB, the Director, Abdul Malek Bin Osman, affirmed the respective affidavits. The Cause Papers for the hearing of Enclosure 12 were: i. Notice of Application (Enclosure 12) ii. Plaintiffs’ Affidavit in Support (Enclosure 13) iii. Defendants’ Affidavit in Opposition (Enclosure 15) iv. Defendants’ Affidavit in Opposition (Enclosure 16) v. Plaintiffs’ Affidavit in Reply (Enclosure 18) vi. Defendants’ Affidavit in Reply (Enclosure 20) vii. Defendants’ Affidavit in Reply (Enclosure 21). THE HEARING OF ENCLOSURE 12 [5] Enclosure 12 was first heard before the previous Judicial Commissioner (as he then was) and parties were asked to submit further in writing on 3 issues, i.e. the documents that were not agreed upon, other ancillary documents that the Plaintiffs may require and the method of submitting the documents for discovery. Enclosures 32 and 34 were filed by the parties, respectively, on 31.1.2022 and 16.2.2022. The hearing of the application continued on 14.3.2022 before me. The decision of this Court was delivered on 11.5.2022 wherein the Court allowed the application in part. The Court believes that the appeal is in respect of the 2 most contentious issues, namely documents that were not agreed upon and the method of submitting the documents for discovery. At the first hearing on 17.1.2022, the Defendants agreed to produce the documents listed in paragraphs 2(c) and (d) of Enclosure 12 as well as the blood test results done at HG as stated in paragraph 2(e) because these documents existed and were in their possession. The documents in paragraph 2(c) were the 2nd Plaintiff’s full treatment and medication records before, during and after the birth at HG. The documents in paragraph 2(d) were the deceased’s full treatment and medication records at HG and treatment records until her death at HRPB. [6] Before me, counsel for the parties submitted on the 2 most contentious issues abovementioned. In respect of the disputed documents in paragraphs 2 and 3 of Enclosure 12, they were purportedly: 2(a) copies of complete minutes and/or notes of proceedings of meetings of the Mesyuarat Jawatankuasa Penyiasatan (Investigation Committee Meeting) held at Hospital Gerik on 27.5.2019 and/or further dates between the Plaintiffs, Hospital Gerik and the Investigation Committee; 2(b) copies of complete minutes and/or notes of meeting in respect of the Ex-Gratia Offer made to the Plaintiffs; 2(e) copies and blood test results, ultrasound and ECG of the deceased before, during and/or after birth treatment at Hospital Gerik and Hospital Raja Permaisuri Bainun, Ipoh; 2(f) written letter of consent/non consent of the Plaintiffs for the post mortem of the deceased; 2(g) full identification and details of doctors, nurses and healthcare personnel who were involved in giving treatment to the 2nd Plaintiff and the deceased to be made through an affidavit by the Defendants; and 3 any documents that are relevant and connected to the complete treatment and medication for the 2nd Plaintiff and the deceased to be produced in an affidavit by the Defendants within 14 days from the date of the Court Order. [7] Both parties relied on their written submissions, reply submissions and further submissions as per Enclosures 23, 25, 28, 30, 32, and 34, respectively. The crux of the Plaintiffs submissions was that the minutes of meetings and/or notes of proceedings must have existed because the Plaintiffs were involved in that meeting on 27.5.2019 and that the ex-gratia offer was made, the 2nd Plaintiff and the deceased were given treatment at both hospitals and therefore the documents in paragraphs 2(e), 2(f) and 3 must be in existence and lastly that they were entitled to the documents as per the MMC guidelines because they were patients of the hospitals. They also alleged that the Federal Counsel/Defendants were hiding information from them by stating that the documents did not exist, inferring that such information were prejudicial to the Defendants’ case. It was submitted that the investigations conducted fell within the meaning of the MMC guidelines. [8] Meanwhile, the Defendants’ submission touched upon the contents of their Affidavits filed by both hospitals’ directors wherein they reiterated that the documents pertaining to the treatment and records of the 2nd Plaintiff and the deceased would be supplied as per paragraph 2(c) and 2(d) as well as the blood test results done at HG, CTG and x-ray of the deceased mentioned in paragraph 2(e), with payment of RM300 for each hospital. According to the Defendants, the rest of the documents requested for production as listed in paragraphs 2(a), 2(b), parts of 2(e) and 2(f) did not exist. As for 2(g), there will be no document supplied as the names of the personnel are not “document” and have been identified in the suit and also in the treatment records to be supplied as abovementioned. The Defendants never disputed that the meeting on 25.7.2019 took place but they did not admit any liability and averred that:

the documents requested by the Plaintiffs were too wide and not specific; and

the Plaintiffs’ action in this application amounted to a “fishing expedition” in their effort to obtain something that may prop up their case. [9] The Defendants also raised the issue that the Plaintiffs made the application under O.24 r.3 and later in their submissions invoked O.24 r.9 without pleading it in Enclosure 12. Moreover, the application was made after pleadings were closed and the next step was filing of the bundles of documents in preparation for the trial. Apparently, the Plaintiffs never tried to obtain the documents from the hospitals prior to the suit being filed. In regard to how the documents should be produced, the Defendants submitted that there was nothing contradictory to O. 24 for production of documents to be made via official letter. The reason for their suggestion to supply the documents via official letter was due to the pandemic status the country was in then, logistically it would pose a challenge to the Defendants due to the location of the hospitals. In any event, the Defendants submitted that the Court may order the production of documents via affidavits verifying the documents and the Defendants will comply with any such order. THE ISSUES IN THIS APPLICATION [10] The issues that the Court has to decide in this application can be narrowed down to the following:

the existence of the documents sought; and

(ii) mode of transmitting the documents for discovery.

The existence of the documents sought [11] The purpose of the discovery process under O.24 of the ROC is to obtain information from the opposing party in regard to matters which are in the possession of that party to ensure all relevant information or document would be available and produced at the trial. The information or document, if obtained, would facilitate the trial and possibly shorten the whole process. In the present case, some of the documents sought by the Plaintiffs, according to the Defendants did not exist. So how is the Court to resolve this application? [12] In Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 239, Edgar Joseph Jr. SCJ had set out the three important elements for an order for discovery as follows:

that there must be a “document”;

that the document must be “relevant”; and

that the document must be or have been in the possession, custody or power of the party against whom the order for discovery is sought. [13] From the above, the requirements of (i) and (iii) are clear. But in respect of (ii), what is a “relevant” document? In the context of discovery, the test for “relevance” was laid down in Compaignee Financiere du Pacifique v Peruvian Guano [1882] 11 QBD 55. In that case, the court held: “It seems to me that every document relates to the matters in question in the action, which would not only be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of the adversary. I have put in the words “either directly or indirectly”, because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of the adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences…”. [14] The burden to prove the relevance of a document is upon the party requiring it: Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40. Therefore, from the above principle once the Court is satisfied that the party seeking production of a document proves that a document relates to the matters in question in the action, which would not only be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of the adversary, then upon being satisfied that the production of the document is necessary for the fair disposal of the case the Court will allow the application for discovery. [15] Having said that, what are the grounds for refusal of the application? In the Malaysian Civil Procedure and Practice, CLJ Publication, Third Reprint 2021, the author listed the grounds where a court may refuse an application for discovery as follows: a. where the document is not relevant to the issue in dispute; b. the application requesting for documents is a “fishing expedition” i.e. it is too wide, far reaching, all encompassing and not specific and made to prop up the aplicant’s case and as such it would be unduly oppressive to the party (see the case of Nguang Chan aka Nguang Chan Liquor Trader & Ors (supra); c. the documents requested are governed by laws of privileges (for example, solicitor-client privilege, protected under the law e.g. communications made to a public officer in official confidence under section 124 of the Evidence Act 1950 (see the case of Securities Commission v Datuk Ishak Bin Ismail [2012] 9 CLJ 557. EVALUATION OF THE COURT [16] The 1st Plaintiff in his Affidavit in Support (Enclosure 13) stated: “4. Justeru peguamcara saya hendaklah mendapatkan semua bukti-buktl dan dokumen berkaitan dengan kes saya ini di peringkat Pengurusan Kes ini untuk persediaan perbicaraan. Saya juga telah dinasihati oleh peguamcara bahawa beberapa dokumen utama yang perlu diperolehi bagi membantu mendapat maklumat yang lebih terperinci dalam tindakan ini lebih-lebih lagi yang telah disebut di dalam Pembelaan Defendan-Defendan.

Dokumen yang perlu diperolehi daripada pihak Defendan-Defendan adalah Nota Providing dan/atau Minit Mesyuarat Jawatankuasa Penyiasatan yang diadakan pada 27.5.2019 lalu yang dihadiri bersama-sama dengan barisan kakitangan termasuk pegawai perubatan di Hospital Gerik pada jam 9.00 pagi yang bertempat dl Bilik Mesyuarat Hospital Gerik. Siasatan dibuat ekoran daripada surat aduan saya ajukan kepada Jabatan Kesihatan Perak pada 6.9.2018 IaIu, dan kemudian dibalas oleh Jabatan tersebut melalui surat bertarikh 20.9.2018 termasuk surat pihak Kementerian Kesihatan Malaysia (KKM) bertarikh 1.10.201.8 memaklumkan satu siasatan akan dibuat nanti mengenai kecuaian kakitangan hospital yang menyebabkan kematian simati tersebut. Didalam minit dan nota prosiding terdapat perbincangan antara kedua-dua pihak antara saya, isteri dan pihak hospital. Maka minit atau nota mesyuarat perlu diperolehi untuk saya dan isteri serta peguamcara saya memperolehi hasil perbincangan siasatan secara bertulis sepenuhnya termasuk alasan keputusan kelulusan bayaran penyelesaian kes sebanyak RM14,000.00 sahaja ditawarkan kepada kami. Dilampirkan disini secara kolektif sesalinan surat aduan 6.9.2018, surat Jabatan Kesihatan Perak bertarikh 20.9.2018, surat KKM bertarikh 1.10.2019 dan 18.10.2020 diekshibitkan sebagai ‘’Ekshibit M-1’’.

Dokumen seterusnya saya ingin dapatkan daripada pihak Defendan-Defendan adalah Rekod Rawatan pesakit atas nama Plaintif Kedua daripada mula rawatan bersalin sehingga keluar/’’discharge’’ wad hospital. Saya juga dinasihati peguamcara rekod-rekod rawatan bayi juga harus dibekalkan sepenuhnya sejak bayi tersebut dilahirkan sehingga meninggal dunia. Ini adalah penting untuk peguam saya mendapatkan gambaran jelas fakta mengenai rawatan dan pemeriksaan sepenuhnya mengenai perkara ini termasuk jenis rawatan diberikan, ubatan diberikan, hasil pemeriksaan melalui CTG, ultra sound serta x-ray dan lain-lain rawatan diberikan berkaitan.

Justeru itu, saya memohon kepada pihak mahkamah untuk membenarkan permohonan saya untuk mendapatkan dokumen-dokumen tersebut bagi membuktikan berlakunya kecuaian/ “breach of duty’’ oleh kakitangan hospital semasa rawatan diberikan kepada ibu dan Si Mati tersebut.

Saya ingin menyatakan dan menegaskan disini bahawa memandangkan saya telah memfailkan tuntutan saman sivil ke atas pihak Defendan-Defengan, maka saya memerlukan segala dokumen yang berkaitan dengan kes simati termasuk salinan Minit Mesyuarat, rekod rawatan penuh pesakit dan laporan rawatan harian serta keputusan Ultrasound dan/atau filem hasil pemeriksaan X-ray mahupun ECG bayi tersebut untuk dijadikan rekod serta bahan bukti di Mahkamah nanti.

Saya juga telah dinasihati oleh peguamcara saya bahawa dokumen-dokumen yang dirujuk diatas amat penting bagi saya membuktikan terdapat kesilapan dan kecuaian yang terjadi sebelum, semasa dan selepas isteri saya melahirkan bayi kami sehingga menyebabkan kematian yang penuh tragis. Kami sekeluarga terkesan dengan kejadian sedih ini dan kini masih trauma serta tekanan perasaan sepenuhnya kerana kehilangan bayi perempuan kami ini akibat kecuaian Defendan-defendan sepenuhnya.

Saya sesungguhnya percaya bahawa saya mempunyai hak dan merit yang kukuh untuk membuat permohonan ini kerana menjadi satu kesulitan untuk pihak saya serta peguamcara saya untuk mendapatkan dokumen itu dan mengkaji dan meneliti keseluruhan kes bagi rawatan yang diterima oleh simati sepanjang dirawat oleh pihak Defendan-Defendan tanpa dokumen-dokumen rekod-rekod rawatan perubatan pesakit tersebut.

Saya juga percaya bahawa segala persoalan dan isu-isu yang dibangkitkan didalam Afidavit ini wajar mendapat perhatian dan perhatian daripada Mahkamah yang Mulia ini yang mana sekiranya permohonan ini tidak dibenarkan, maka ia akan memprejudiskan saya serta menyebabkan ketidakadilan berlaku ke atas pihak Plaintif.”. [17] In response, at the outset, the affidavits of the Defendants averred that the documents requested by the Plaintiffs were too wide and not specific and that the Plaintiffs’ action in this application amounted to a “fishing expedition” in their effort to obtain something that may prop up their case. [18] The contents of both affidavits of the Director of HG in Enclosures 15 and 20 were similar to the contents of the affidavits of the Director of HRPB in Enclosures 16 and 21, each relating the events that transpired at the 2 hospitals on 14-15.4.2018 for HG and on 15.4.2018 at HRPB, respectively. I have perused all 4 affidavits and I am of the view that they are consistent with each other and spelt out clearly that: i. the Defendants agreed to supply all the documents in their possession relating to the treatment and medication for 2nd Plaintiff and the deceased before, during and after birth at HG as well as treatment given to the deceased after she was brought to HRPB on 15.4.2018 until her death; ii. supply of copies of the documents are subject to a payment of RM300 for each hospital; iii. with these documents made available, both directors of the hospitals stated that they will not supply the list of medication given because the records already contained the names of those medication; iv. similarly, the hospitals will not list down the names of doctors and nurses as requested in paragraph 2(g) of Enclosure 12 because the records to be supplied also contained the names of the relevant personnel who treated the 2nd Plaintiff and the deceased. [19] In regard to paragraph 2(e), the 9th Defendant also stated that there was no ultrasound done on both of them on 14.4.2018 dan 15.4.2018, the CTG results were in the medical records, the x-ray of the deceased on 14.4.2018 dan 15.4.2018 were in the possession of HRPB and ECG was not done on the deceased at HG. It was also affirmed that there was no minute of the Investigation Committee meeting on 27.5.2019 in the possession and/or custody of HG. [20] The 12th Defendant affirmed that HRPB did not possess any medical record of the 2nd Plaintiff as she never sought any medical treatment for herself on 15.4.2018. In regard to paragraph 2(e), there was no ultrasound, CTG or ECG done on the deceased on 15.4.2018. HRPB admitted to be in possession of the deceased’s x-ray done at HG on 14 and 15.4.2018. It will also supply the x-ray taken on 15.4.2018 at HRPB. Additionally, HRPB also denied that there was any minute of the Investigation Committee meeting on 27.5.2019 within its possession and/or custody. [21] In paragraph 12 of Enclosures 15 and 16, both deponents affirmed that there were no minutes or notes of proceedings taken during the Investigation Committee meeting on 27.5.2019 that was held at HG on that date or any further meetings pursuant thereto. The 1st Plaintiff in Enclosure 13 alleged that a letter from the Ministry of Health dated 1.10.2018 (Exhibit M-1 of Enclosure 13) stated that “satu siasatan akan dibuat nanti mengenai kecuaian kakitangan hospital yang menyebabkan kematian simati tersebut.”. Both the 9th Defendant and 12th Defendant objected to this averment because the said letter did not state as such. Moreover, the Defendants alleged that the Plaintiffs’ action amounted to a fishing expediton as there was no specific date of such meeting(s) given. Additionally, the Defendants strongly objected to the inclusion in Enclosure 13 i.e. a letter dated 18.2.2020 offering an ex-gratia payment that was made to the Plaintiffs on a “without prejudice basis”. [22] In regard to paragraph 2(f), the Defendants alleged that it was also a fishing expedition by the Plaintiffs to obtain a written letter of consent/non-consent to conduct a post-mortem on the deceased as this was within their knowledge. On paragraph 3, the Defendants alleged this too was a fishing expedition because “apa-apa dokumen yang relevan dan berkaitan” was too general and not specific as the Plaintiffs did not know what documents they required. The Defendants prayed that the issue of whether there is any medical negligence is for the Court to decide at the trial proper. They gave assurance that the rights of the Plaintiffs will not be affected as both hospitals have agreed to make available copies of the latter’s medical reports within their possession. [23] Upon perusal of the said letter and an invitation letter dated 10.5.2019, from Jabatan Kesihatan Negeri Perak to the Plaintiffs, to investigate their complaint (also Exhibit M-1 of Enclosure 13), the Court viewed that both letters did not make any admission of negligence. The first was to inform the Plaintiffs that their complaint had been noted and that HG would be in touch with them to conduct further investigation. The second letter was the invitation letter to the meeting on 27.5.2019 and how it was proposed to be conducted. An earlier letter from Jabatan Kesihatan Negeri Perak dated 20.9.2018 acknowledged the Plaintiffs’ complaint letter dated 6.9.2018, stating that it would investigate the complaint. Of course, this application is not to determine the liability of the Defendants as it is only for discovery of some documents sought by the Plaintiff. However, it is noted that there is basis for the Defendants’ objection as stated above. Pleadings, including affidavits, must be carefully drafted so as not to mislead the Court (refer to Enclosure 13 paragraph 5 and Enclosure 18 paragraph 6). The Court cannot find any mention of “negligence” in any of the 3 letters and the offer letter dated 18.2.2020. The Court is not pre-judging the issue for the trial but only to point out the basis for the Defendants’ objection. [24] Now, in Enclosure 18, the 1st Plaintiff stated that the request for documents was not a fishing expedition because “Ini adalah kerana sememangnya dokumen tersebut wujud dalam simpanan pihak Defendan-Defendan khususnya di Hospital Gerik mahupun di Hospital Raja Permaisuri Bainun, Ipoh.”. The basis for this statement was because the Plaintiffs attended the said meeting. He stated that if the Defendants refused to give them access to those documents, it could be said then that they were hiding something or an attempt to cover their mistakes/negligence from the Court. The Plaintiffs stated that they believed the documents existed, for example, the meetings held must surely have some written records or notes of proceedings and the letters he referred to had reference numbers. Therefore, it was impossible and illogical that none were at all in existence. He alleged that the Federal Counsel had tried to mislead the Court by submitting there were no such minutes or records. He also alleged that the Defendants tried to hide the fact that there was a meeting on 27.5.2019 and during the said meeting the hospital (he did not specify which hospital) made a confession in regard to the treatment given to the infant which caused her death. [25] In respect of the post-mortem report, the 1st Plaintiff alleged that it was necessary whether or not a post-mortem was conducted and the consent letter must be produced by the hospital. He prayed the Court would allow this application because the Plaintiffs had been inconvenienced in their preparation for the trial since they did not have access to those documents they sought. He added that the application was made on the basis of the Defence filed by the Defendants and the Plaintiffs would be prejudiced if they could not have the documents sought. [26] The 9th and 12th Defendants responded in Enclosures 20 and 21, respectively, that all applications for discovery of documents must be within the ambit of the law and that the Plaintiffs are not automatically given access to the documents they sought. The Defendants strongly objected to the allegation that they were hiding something from the Court or covering their mistake/negligence as this allegation was made without any basis and had prejudiced the Defendants. The Defendants were “puzzled” that the Plaintiffs insisted those documents existed whereas the Defendants had listed down all the documents pertaining to the 2nd Plaintiff and the deceased in their possession. The Defendants reiterated that they would not “create” any document to satisfy the Plaintiffs’ request. The Defendants further denied the allegation that the Attorney General’s Chambers also was part of the investigation committee or that such records existed. In respect of the allegation of a confession made during the said meeting, the Defendants replied that this was misconceived by the Plaintiffs. [27] Without going into the merits of the case, which will be dealt with at the trial proper later, it is necessary for the Court to examine the reason for the application by the Plaintiffs and also the pleadings i.e Statement of Claim (Enclosure 2), Defence (Enclosure 8) and Reply to Defence (Enclosure 11) filed earlier. Basically, the Plaintiffs needed the documents in order to prepare for the trial and to file the bundles of documents in Court. Upon perusal of Enclosures 12 and 13, the Plaintiffs have made the application within the ambit of O. 24 r.3 of the ROC. The relevant provisions are as follows: Order for discovery (O. 24, r. 3)

(1) Subject to the provisions of this rule and of rules 4 and 8, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. …

The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows:

the documents on which the party relies or will rely; and

the documents which could—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case. [28] O.1 r.4 defines “document” to mean “anything in which information of any description is recorded and includes a claim, summons, application, judgment, order, affidavit, witness statement or any other document used in a Court proceeding”. The meaning of “document” in the Evidence Act 1950 [Act 56] is more detailed. But they both mean the same, i.e. anything in which information is recorded. [29] From the above definition, all the items requested by the Plaintiffs are within the definition of a “document”. We then have to examine whether the Plaintiffs have satisfied the test in Yekambaran’s Case and the “relevance” test, as this is the requirement of the law before a Court can order production of a “document”. Remember, there must be a “document”, that the document must be “relevant” and that the document must be or have been in the possession, custody or power of the party against whom the order for discovery is sought. All 3 requirements must be satisfied and not just 1 or 2. [30] Having gone through the affidavits of both parties many, many times, it all boils down to the issue of whose affidavit(s) is/are to be believed. This is only in respect of the Court’s determination of this application and not on the merits of the issues for the trial itself. The Defendants affirmed that those disputed “documents” did not exist whereas the Plaintiffs were adamant that they existed because it is illogical that they do not. This is a bare assertion without more proof on a balance of probabilities on the part of the Plaintiffs because the 1st Plaintiff stated that he believed they existed whereas the Defendants stated the were no such documents in existence. The Plainitffs in Enclosure 18, paragraph 7 replied that “Saya percaya dengan perbincangan antara kedua-dua pihak dan pihak hospital semasa mesyuarat dan perbincangan dibuat semua ahli jawatankuasa menulis setiap isu yang dibincangkan setiap satu. Tambahan lagi kesemua surat-surat yang dieksibitkan didalam Eksibit M- 1 dalam Afidavit Sokongan saya diikrarkan pada 19.8 2021 mempunyai nombor rujukan surat-menyurat. Ini termasuk surat keputusan kelulusan bayaran penyelesaian kes muktamad sebanyak RM14,000.00 telah ditawarkan kepada kami. Adalah mustahil sebarang minit atau nota diminitkan mengenai tindakan siasatan dan kelulusan jumlah tawaran dikemukakan oleh hospital, Pejabatan Peguam Negara dan Ketua Pengarah Kesihatan Malaysia.”. There appears to be something hanging in that last statement, maybe the word “tidak” was left out. [31] Regardless, when deciding on this matter, the Court’s duty is to assess the affidavit evidence before it whether on a balance of probabilities, the Plaintiffs have made out a case that the purported “documents” are in existence and relevant and in the possession of the Defendants. Otherwise, how is the Court to order production of such documents? Having looked at all the affidavits in this application, the Court is not satifsfied that the purported “documents” in paragraphs 2(a), 2(b), parts of 2(e) namely, ultrasound and ECG and 2(f) post-mortem report, were in existence at all, as were explained by the Defendants in Enclosures 15, 16, 20 and 21. Why they did not make such minutes or notes of proceedings at the material time is anyone’s guess. Is there any requirement to make and keep such minutes? That is a question for a different forum and not this Court to answer at this stage. Moreover, in regard to the post-mortem issue in the Defence filed (Enclosure 8), the Defendants pleaded that despite efforts to resuscitate the infant for 20 minutes after she became bradycardic again, she passed away at 11.40 pm (paragraph 17.4), the cause of death was severe meconium aspiration syndrome complicated with bilateral pneumothorax and severe PPHN (paragraph 19) and there was no necessity to conduct a post-mortem as the cause of death was already known (paragraph 21.17). The Defendant’s version on this issue is more probable than the Plaintiffs that a post-mortem is not conducted. The Defendants stated that they were not about to create a post-mortem report just because the Plaintiffs insisted on it. [32] Again, the Plaintiffs argued that there must be in existence the minutes or note of meetings on 27.5.2019 and/or further meetings as well as minutes of discussion leading to the ex-gratia offer being made to the Plaintiffs. In respect of the Plaintiffs argument that the medical investigation forms part of the medical report, the Court does not wish to dwell into the merits of the trial and will only state that as it is, the Court agrees with the Defendants’ submissions that the Plaintiffs’ understanding on the MMC guidelines is misconceived. This will be dealt with at the trial later and not in this application. [33] Regarding the issue of obtaining the list of names of other personnel whom may have treated the 2nd Plaintiff and the deceased (paragraph 2(g)), the Plaintiffs averred that they believe there must be other such personnel whom may have been involved. The purpose of the request was to ensure “that there was no one left behind” (tercicir). The Court finds that the Defendants’ explanation that any relevant personnel involved in the treatment of the 2nd Plaintiff and the deceased would be covered in the documents that they would be making available to the Plaintiffs. In any event, the name(s) of person is not a document. [34] The Plaintiffs in paragraph 26 of the submissions (Enclosure 25) stated that they did not accept the ex-gratia offer because the amount of RM14,000.00 was insufficient when compared to the life of a beloved child. Additionally, “Justeru pihak KKM juga menasihati kedua-dua Plaintif agar merujuk kepada mahkamah untuk mendapatkan pampasan gantirugi yang tinggi jika tidak bersetuju dengan tawaran yang dikemukakan mereka sebelum ini”, this statement is a bare assertion and no evidence to support it in the Affidavit. The letter from the Ministry of Health was only to inform him that Hospital Gerik would be in touch with him on the complaint lodged. It was alleged in Enclosure 18, paragraph 11(d) that if it was true no such minutes of meeting existed then they would be prejudiced because allegedly there were admissions by the hospital in regard to the treatment given which led to the infant’s death, hence the ex-gratia payment offered. He did not state which hospital made the alleged admission. [35] Naturally, the Defendants denied there was ever such an admission or confession made. On this issue, the Court opines that the Plaintiffs may subpoena witnesses as well as cross-examine the Defendants’ witnesses at the trial. This application is not to determine the liability or non-liability of the Defendants at this stage. The Plaintiffs asserted that the request for documents was not a general request but “kesemua dokumen yang dipohon sebenarnya telah dicatat/ direkod/ disimpan oleh pihak Defendan-Defendan pada masa yang material untuk dijadikan sebagai rujukan kepada mana-mana pihak kelak.” Where is the basis for this statement in the submissions made? [36] Another point on this issue of ex-gratia letter which was hotly contested by the Defendants, the Plaintiffs submitted the case of Malayan Banking Bhd v Foo See Moi [1981] 2 MLJ 17 where counsel quoted “It is settled law that letters written without prejudice are inadmissible in evidence of the negotiations attempted.”. Counsel then explained further that “surat tanpa prasangka yang bersifat ke arah penyelesaian adalah dibenarkan untuk dijadikan keterangan di Mahkamah” where Chang Min Tat FJ stated “But it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement”. Here, counsel contradicted himself because that case is not relevant nor applicable to the present case since there is no settlement between the parties. Otherwise, we would not be looking at this application; it is a simple as that. [37] And then suddenly the Plaintiffs in their submissions (paragraph 15) stated if those documents did not exist, the Defendants must produce any supporting documents on the remains of the deceased including a post-mortem report. The documents in paragraph 3 “…dimasukkan adalah bertujuan untuk memohon apa-apa sahaja dokumen yang pihak Defendan-Defendan merasakan wajar untuk dibekalkan bersama dengan permohonan dokumen-dokumen yang telah dinyatakan dalam prayer (2) (a sehingga g) dalam Notis Permohonan Plaintif.” (paragraph 16). Then, in paragraph 17, “Pihak Defendan-Defendan dengan secara suka rela (tanpa paksaan) boleh menyerahkan dan membekalkan kepada pihak Plaintif-Plaintif apa-apa sahaja dokumen yang berkaitan dengan tindakan ini sekiranya ada.” They added “Walaubagaimanapun, sekiranya pihak Mahkamah berpendapat bahawa prayer 3 dalam Notis Permohonan Plaintif tersebut bersifat luas dan spesifik, pihak Plaintif-Plaintif tidak mempunyai bantahan sekiranya permohonan untuk prayer 3 itu dipadamkan namun pihak Plaintif-Plaintif memohon supaya tidak menjejaskan permohonan prayer-prayer yang lain dalam Notis Permohonan Plaintif tersebut.” (paragraph 19). [38] In paragraph 35 of Enclosure 25, the Plaintiffs submitted that “Ingin Plaintif-Plaintif tegaskan sekali lagi bahawa segala Dokumen-Dokumen yang mempunyai kaitan dengan Si Mati termasuklah seperti yang dinyatakan di atas adalah PENTING untuk Peguamcara pihak Plaintif-Plaintif mengetahui secara terperinci dan lengkap tentang apa yang berlaku ke atas bayi/Si Mati dari awal hingga Tarikh kematian dan juga bagi memastikan proses tuntutan sivil yang diambil oleh Plaintif-Plaintif terhadap Defendan-Defendan dapat dibuktikan dengan jelas.” And in paragraph 14 of Enclosure 32, “Sekiranya pihak Defendan-Defendan menyatakan bahawa dokumen salinan minit dan/atau nota prosiding tidak wujud dalam milikan pihak Defendan-Defendan, maka pihak Plaintif-Plaintif memohon budi bicara pihak Mahkamah yang Mulia ini untuk mengarahkan pihak Defendan-Defendan untuk membekalkan apa-apa dokumen sokongan yang lain seperti laporan mesyuarat bagi menjelaskan apakah perkara yang dibincangkan serta keputusan mesyuarat siasatan tersebut.”. With all these said, the Defendants submitted that this is indeed a fishing expedition for anything that may prop up the Plaintiffs’ case. From the submissions ot the Plaintiffs, there may be hints of a “fishing expedition” but the Court’s concern at this stage is whether the disputed “documents” are in existence. [39] In the case of Ezaky Mulya bin Sapawi v Dato’ Sri Nadzri Siron (Pengerusi Lembaga Tatatertib, Kumpulan Sokongan (No. 1) & Ors [2020] MLJU 1920 the High Court referred to the High Court of Singapore’s case in Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75, at paragraph 6 which stated: [6] In my view, I would hold that a “fishing expedition” in the context of discovery refers to the aimless trawling of an unlimited sea. Where, on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), I would not regard that as a “fishing expedition”. But I would myself prefer to approach such applications strictly on the basis of the broader relevancy test. That has the advantage of training one’s focus directly on the matter at hand, and avoiding the distractions inherent in analogies - even one that has become a term of art, the “fishing expedition”, for example. …” [40] The Court also refers to another High Court case of Bestinet Technology Sdn Bhd v Warisan Data Holdings Sdn Bhd & Ors [2020] MLJU 2349 where the the court stated: “[27] The task for this Court, therefore, is rather clear in determining the Plaintiffs’ discovery application. Apart from the 3 essential elements as laid down by His Lordship Edgar Joseph as mentioned earlier, O.24 r.13 makes it mandatory for this Court to satisfy itself that an order for production of the documents for inspection shall not be made unless this Court is of the opinion that the order is necessary either-

for disposing fairly of the cause or matter; or

for saving costs. [28] This Court was satisfied that the Plaintiffs had successfully showed to this Court that the documents they seek from the Defendants, being the screenshots of the Defendants’ website https://www.mfwd.com.my and the timelogs and changelogs and the metadata related to the said Defendants’ website are in existence, these documents are relevant, and that these documents are in the possession, custody or power of the Defendants. I was also of the opinion that the order is necessary to dispose fairly the Plaintiffs’ cause of action against the Defendants.”. [41] This Court is guided by the rules that O.24 r.13 makes it mandatory to satisfy itself that an order for production of the documents for inspection shall not be made unless this Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter for saving costs. A perusal of the affidavits showed that an order for production of the documents, where they existed, would dispose fairly the claim of the Plaintiffs. Again, the issue of the existence of the documents sought is at the forefront, before the question of relevance is answered. [42] The Plaintiffs referred the Court to the case decided by Lim Chong Fong J in the case of Karl John Steinberg v. Gooi & Associates & Ors (2017) 1 LNS 732 where the Court decided on the issue of “relevant” and “necessary”: “20. The First and Second Defendants admitted in their affidavit affirmed by Gooi Lee Huat on 30 March 2017 that they are in possession of the working papers generated during their audit of Baiduri 99 and Semangat Kini. Just as in the case of Ahmad Zahri Mirza v. Pricewaterhouse Coopers Capital Sdn Bhd (supra), I am of the view that the working papers of the First and Second Defendants are not only relevant but necessary for the Plaintiff to know with reasonable precision the amounts owing to directors as stated in the audited accounts particularly the proportion attributed to him.”. Nevertheless, this case can be distinguished because the defendants admitted they were in possession of the working papers required. This Court has no difficulties where a document is relevant and necessary to the party seeking it but such document must be in existence in the first place. Having said that, the Court will also state that it has gone through the case laws cited by both parties and is unable to agree with the cases referred to by the Plaintiffs as they can be distinguished by the particular facts of each case. The Defendants have replied to the cases cited by the Plaintiffs and this can be found in the reply submissions in Enclosure 28 paragraphs 10-14. [43] There is another case which this Court refers to and this is the case of Sitrac Corp Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 8 MLJ

Here, the High Court held: [25] With the deletion of the old O 24 r 2 in the ROC 2012, there is no longer automatic discovery. Since then, the trite test therefore is whether the documents in question are necessary either for disposing fairly of the matter or for saving costs. In Ho King Min & Anor v Lee Meng Leng & Ors [2020] MLJU 1925, I stated that the plaintiffs (who were seeking discovery in that case) do not have a free-standing right to discovery and ought to have first clearly demonstrated the necessity for the documents sought.”. [Emphasis added] [44] It is trite law that the Court is entitled to dismiss an application requesting for documents where it is a fishing expedition i.e. it is too wide, far reaching, all encompassing and not specific and made to prop up the aplicant’s case and as such it would be unduly oppressive to the party (see Nguang Chan aka Nguang Chan Liquor Trader & Others (supra). In that case, the appeals were allowed with costs. The Court of Appeal held: “(1) Under O 24 r 13(1) of the RHC, an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r 13(1). The court would dismiss a plaintiff's application for discovery if the plaintiff is merely fishing for evidence to prop up his case and to allow him discovery would be unduly oppressive to the party giving discovery (see paras 11 & 13).

There is no basis to equate an unsigned subject to approval draft witness statement with a pleading or affidavit filed in court. For the purpose of discovery, reference in such draft statement to any document cannot possibly give any right to the other party to production for inspection of the document so referred to therein. Even in the case of a pleading or affidavit the reference to any document therein must be by way of direct allusion to a document or class of documents sought for discovery and not if the reference arises merely by inference (see para15).

…

The test is necessity not fairness. The learned judge was erroneously more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The respondents also failed to provide any materials to satisfy the court of such necessity (see para 25).”. [Emphasis added] [45] Nguang Chan’s Case is applicable to the present case as the overriding principle is in O. 24 r.13. The Court has ordered that the Defendants to produce the documents that are in their possession as stated in paragraph 2(c), 2(d) and parts of 2(e), namely the blood test results, ECG and x-ray of the deceased out of necessity for the fair disposal of the trial. Production for discovery is to be made via an official letter from the Defendants. The Court dismissed parts of the application because the “documents” do not exist and therefore not in the possession of the Defendants and hence it does not satisfy the tests in Yekambaran’s Case. This is not a case where the application is dismissed because it failed the relevancy test, but it is due to non-satisfaction of the requirements in (i) and (iii) of that case. The Court is very much interested to get to the truth of the matter, i.e. whether there is any breach of duty on the part of the Defendants. However, all parties regardless of who they are must abide by the rules. During the trial later as it porgresses, should it appear that the Defendants are withholding documents in their possession that may be favourable to the Plaintiffs’ case, the Court may invoke its power under O. 24 r.12. Presently, since the Court has made its decision on this application, O. 24 r.8 is not applicable. [46] The Court will next deal with the second issue of contention. But before that, on another note, in the Plaintiffs’ submissions, it was stated: “18. Pihak Plaintif-Plaintif juga berhujah bahawa sebagai orang awam yang tidak biasa dengan terma-terma perubatan, mungkin terdapat beberapa dokumen-dokumen lain yang tidak diketahui nama spesifik bagi dokumen-dokumen tersebut, namun mempunyai kaitan dengan tindakan ini dan boleh membantu pihak Plaintif untuk mendapatkan maklumat berkenaan rawatan yang telah diberikan kepada Plaintif Kedua dan juga bayi/Si Mati pada masa material.” [47] In this regard, during the decision, the Court had informed the Plaintiffs that it is not the responsibility of the opposing party to oblige to their request and it would be best to obtain their own expert to challenge the medical experts’ opinion(s) of the Defendants.

(ii) Mode of transmission of the documents for discovery [48] The Plaintiffs prayed that the documents be made via an affidavit verifying the documents and submitted that it could not be done in any other way as it would go contrary to O. 24 r.3. In Enclosure 12, they mentioned only rule 3, but later in the submissions relied on O.24 r.9 and this was objected to by the Defendants because it was not pleaded and the Plaintiffs should not be allowed to move the goalpost at their whims and fancies. The Defendants have asked for the Court’s direction for the documents to be made available to the Plaintiffs via an official letter due to logistics factor as stated earlier. [49] O. 24 r. 3 provides “to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power”. The Court may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party”. Therefore, it is clear from the wordings of this rule, contrary to the Plaintiffs’s submission, it is not mandatory to produce the documents in an affidavit verifying the documents sought. Once the list of documents to be produced by the Defendants is ordered by the Court, they shall allow the Plaintiffs “to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and, accordingly he shall, when he serves the list on the other party, also serve on him a notice in Form 40 stating a time within seven days after the service thereof at which the documents may be inspected at a place specified in the notice.” (O. 24 r. 9). The Court views that as there will also be x-ray film(s) of the deceased, a more practical way would be by way of the official letter as the Plaintiffs are required to make a payment of RM300 for each hospital from where the documents are to be produced. CONCLUSION [50] Therefore, the Court allowed the application for discovery under Order 24 r.3 in parts in respect of Enclosure 12 with costs to be made as costs in the cause. Dated 18 July 2022 signed NOOR RUWENA BINTI MD. NURDIN Judicial Commissioner High Court of Malaya, Taiping Counsels: For the Plaintiffs : Che Faizal Bin Che Mat (Messrs. Syukran Noordin) For the Defendants : FC Khairuddin Anhar Bin Mahmud (Attorney General’s Chambers)