Attitude Models & Production Sdn. Bhd. v Jade Eservices Malaysia Sdn. Bhd. (WA-22NCvC-710-10/2020)

Previously, the Plaintiff’s application for discovery in Enclosure 12 was allowed in which the Defendant was ordered to produce particulars 19/10/2022 14:54:13 WA-22NCvC-710-10/2020 Kand. 88 S/N c7Rh7hrtvkST489duG2JA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 and/or records pertaining to the images of the Plaintiff’s models that were used on its website. Dissatisfied with the Defendant’s response, the Plaintiff filed another application (Enclosure 39) to vary the earlier discovery order an adding the Peremptory Order. The Peremptory Order says: “(b) Stemming from Order a) above, if the Defendant fails to disclose and provide the said particulars and/or records within thirty (30) days from the date of this Amended Order, hence the Defendant’s Statement of Defence dated 30.11.2020 shall be struck out forthwith and Judgment shall be entered against the Defendant”

In response to the above-amended discovery order, the Defendant filed an affidavit in compliance dated 02.12.2021 (‘the Defendant’s Affidavit in Compliance’).

Displeased with the Defendant purported non-compliance, the Plaintiff filed this Application seeking for this Court to invoke the Peremptory Order stated in the amended discovery order, ultimately striking out the Defendant’s statement of defence. Submission by the Plaintiff [6] Briefly, the Plaintiff submitted that the Defendant has the means to obtain the requested information since the documents annexed in the Defendant’s Affidavit in Compliance showed the Backend Management Console (‘the BMC’). The Plaintiff contended that the BMC used by the Defendant holds the information or data about the Defendant’s product, including the assigned models. Hence, the Defendant’s conduct in suppressing the information was intentional and contumacious. S/N c7Rh7hrtvkST489duG2JA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The Plaintiff also premised that the Peremptory Order stated under the amended discovery order is mandatory. Consequently, since the Defendant failed to adhere to the amended discovery order, the Peremptory Order should be entered against them. Submission by the Defendant [8] In opposing this Application, the Defendant submitted that it does not store any of the information that the Plaintiff needs. The Defendant contended that the BMC mostly records anything related to the products posted on the consumer page but not the image used. Furthermore, there was no information about the time and date the images were put up on the consumer page. This is because the date for the production of the product does not necessarily match with the date of the model images. Moreover, the Defendant also submitted that the explanation on the limitation of the BMC had already been explained by the Defendant in its letter to the Plaintiff dated 12.08.2021 and in its previous affidavit in reply dated 08.09.2021.

Secondly, the Defendant submitted that it had made the necessary efforts to comply with the discovery order. The Defendant further contended that there was no contumacious behaviour on its part as the Defendant had complied with the discovery order and the amended order by filing its respective affidavits and letter. Findings and Decision of this Court [10] Having appraised the facts adduced by all the parties through affidavits and the exhibits, and after considering the submissions by the S/N c7Rh7hrtvkST489duG2JA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 learned counsels for all parties, I dismiss this Application. Herein are my reasons.

It is well settled that the purpose of Order 24 r 16 of ROC 2012 is to secure compliance relating to the production of the documents which the plaintiff or the defendant possesses and has sought to rely on in initiating a suit. Order 24 r 16, which says, “Failure to comply with requirement for discovery (O. 24, r.16)

16.

If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. …

A party who is required by any rule in this Order, or by any order made thereunder, to make a discovery of documents or to produce any document for the purpose of inspection or any other purpose, but who fails to comply with any provision of that rule or with that order, as the case may be, may not rely on those documents save with the leave of the Court.” [12] The courts have the discretion to strike out or dismiss such action or defence if, in the courts’ mind, the courts find that the parties intentionally do not comply with any discovery order. However, such discretion must be made with caution since a striking-out order may only S/N c7Rh7hrtvkST489duG2JA be made if there is an ‘unless’ order of non-compliance or also known as the peremptory order. [13] I refer to the case of Folin & Brothers Sdn Bhd v. Wong Foh Ling & Ors (NO 2) [2001] 5 CLJ 476 in which His Lordship Abdul Malik Ishak J (as he then was) articulated the nature of an ‘unless’ order in his judgment at pp. 480-481: “…Was the order of the court dated 9 June 1999 in the nature of an “unless” order? In my considered view, it was not. To me an “unless” order would spell out the consequences of the failure to comply with its terms, and any disobedience to such an order is likely to be held to be contumelious behaviour which would result in the dismissal of the action or the striking out of the defence in the event it gives rise to a dismissal of the action, it may prevent the plaintiff from issuing a second writ even though the period of limitation has not expired. Ward LJ in Hytec Information Systems Ltd v. Coventry City Council [1997] 1 WLR 1666, 1674 spoke of the “unless” order in these find words:

An unless order is an order of last resort. It is not made unless there is a history to comply with other orders. It is the party’s last chance to put his case in order. (2) Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. (3) This sanction is a necessary forensic weapon which the broader interests of the administration of justice required to be deployed unless the most compelling reason is advanced to exempt his failure. (4) It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy. (5) A sufficient exoneration will almost S/N c7Rh7hrtvkST489duG2JA inevitably require that he satisfied the order that something beyond his control has caused his failure to comply with the order. (6) The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. (7) The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.” I repeat the order of the court dated 9 June 1999 was not in the nature of an “unless” order. Even if it was in the nature of an “unless” order, the court has the inherent power nay the discretion to ascertain whether the failure to comply with the “unless” order was indeed “intentional and contumelious”. If authority is needed for this sound approach, I can do no better than to rely on the speech of Sir Nicholas Browne-Wilkinson VC in the case of In re Jokai Tea Holdings Ltd (Note) [1992] 1 WLR 1196, CA where at p. 1203A-B, the Vice-Chancellor succinctly said: In my judgment in cases in which the court has to decide what are the consequences of a failure to comply with an ‘unless’ order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on S/N c7Rh7hrtvkST489duG2JA which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.” [Emphasis added] [14] As decided in Folin & Brothers (supra) case above even with such an “unless” order, the court would still see and ascertain if any failure to comply with such “unless” order was indeed intentional and contumelious. No doubt the court has the inherent power to strike off the plaintiff’s case or the defendant’s defence if such parties had failed to comply with the order for discovery. However, the court may only do so if it finds that the non-compliance was intentionally and/or contumelious. The key issue here is thus whether the Defendant had intentionally or contumeliously failed to comply with the amended discovery order as alleged by the Plaintiff. [15] This Court also refer to the recent case of Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah Syed Abu Bakar [2022] 2 CLJ 641 where Liza Chan Sow Keng JC premised the considerations that need to be taken before the court allowed the ‘unless’ order to strike out the party’s case. Those circumstances are as follows: i) Whether the failure to comply was intentional and contumelious; ii) Whether there was a history of failure to comply with other orders; S/N c7Rh7hrtvkST489duG2JA iii) Whether the other parties contributed to the failure by D1’s representative; and iv) Whether D1’s representative had made positive efforts to comply but was prevented from doing so by extraneous circumstances. [16] The Defendant submitted that it had already complied with the amended discovery order. The Defendant averred in the Defendant’s Affidavit in Compliance that the information requested by the Plaintiff was simply not attainable because of the limitation of the BMC. Furthermore, the said limitation of the BMC had already been explained in the various affidavits filed by the Defendant to this Court. Hence, there is no contumacious behaviour on the part of Defendant for failing to procure the information. [17] In contrast, the Plaintiff argued that the Defendant has the means to obtain the information referring to the BMC’s search exhibited as ‘ERHJ- 1’ in the Defendant’s Affidavit in Compliance. The Plaintiff further submitted that despite having the BMC, the Defendant intentionally and contumaciously claimed that it could not obtain the said information. [18] In essence, the key questions for my consideration in such situation are as follow: i) Whether the failure to comply was intentional and contumelious; ii) Whether there was a history of failure to comply with other orders; and S/N c7Rh7hrtvkST489duG2JA iii) Whether D1’s representative had made positive efforts to comply but was prevented from doing so by extraneous circumstances. [19] Here, I agree with the Defendant’s submission that it did not intentionally and contumeliously suppress such information as alleged by the Plaintiff. Essentially, the Plaintiff wanted to obtain information about the date and time of the alleged usage of the Plaintiff models’ images. This is because the Plaintiff’s claim against the Defendant was that the latter had allegedly used the Plaintiff’s models’ images beyond the terms stated in each of the invoices issued to the Defendant between 05.03.2018 and 30.07.2020. [20] In this matter, it is my view that the reasoning submitted by the Defendant in its affidavit shows that it has done its best to comply with the discovery and the amended discovery order. [21] In the Defendant’s affidavit in reply (Enclosure 65), one Ebrahim Rostin Hajseyed Javadi explained (and these explanations were very much similar to what had been conveyed in the Defendant’s Affidavit in Compliance), that primarily the BMC does not store the information on when the Plaintiffs’ models’ images were first and last published in the Defendant’s website. The Defendant in this Enclosure 65 further averred and affirmed as follows:

The product creation date is the date when the product page was created in the BMC and not the date when the image was uploaded in the backend product page or published on the website. There is no way for the Defendant to know when the image was first uploaded in the product page. S/N c7Rh7hrtvkST489duG2JA

(ii) The product activation date refers to the date when the product page went live or was published on the website. It does not state when a particular image or image of a model was published on the website. In fact, in certain instances, a product page goes live on the website with just an image of a product without a model (for example, an image of a T-shirt).

(iii) The latest updated date refers to any modification, revision or change made to any detail or information on the product page, such as an update to the name or description of the product, colours, category, and whether the product is a sale or non-sale item. In short, there is no way to determine if this latest update on the particular product page relates to when an image was used or published on the website. Several departments have access to the BMC at any given time in order to update different parts of the product page depending on their functions, including the Production, Revenue, Commercial, Engineering, Operations, Finance, and Marketing Teams. Thus, updates to the product page may come from any of these different departments. [22] The Defendant position in this regard was also previously communicated to the Plaintiff’s solicitor via a letter dated 12.08.2021. Thus, I do not find that the Defendant had intentionally and contumaciously withheld the information from the Plaintiff. The fact that the Defendant failed to disclose the information and/ or the documents in this case does not mean that the Defendant’s conduct was intentional and contumaciously. The situation is as such that the Defendant really could not do so. S/N c7Rh7hrtvkST489duG2JA [23] As highlighted by the learned counsel for the Defendant in the case of Carribbean Broadcasting Corporation v Asha Mirchandani and Others (No 2) (2000) 59 WIR 57 where the Court of Appeal of Barbados held that CBC’s failure in not producing the videotape does not constitute as contumacious conduct as they were not in the position to have the videotape in the first place. [24] Also, in the English Court of Appeal case, Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 where Sir Nicholas Browne-Wilkin VC at p. expressed his views as follows: “In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to such extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore (see page 309) does not disentitle the litigant to rights which he would otherwise have enjoyed.” [Emphasis added] [25] In similar veins, the Defendant’s position is that it cannot produce the documents and/or information because the BMC has no capability to store such information. And this fact was already sworn by in its previous affidavits. There is nothing this Court can do to make the Defendant comply with the amended discovery order if it was not in the position to have that information. In any event, the Plaintiff can always invoke the S/N c7Rh7hrtvkST489duG2JA notion of “adverse inference” under s 114(g) of the Evidence Act 1950 against the Defendant during the trial for its failure to retrieve the said information. [26] Additionally, I also fail to see that there was any history of non-compliance by the Defendant leading to this Application. The Plaintiff also failed to highlight to this Court that there was such non-compliance previously. This Court refer to the case of Md Amin bin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 4 MLJ 446 where the Court of Appeal dismissed the trial judge’s decision to strike out the appellant’s counterclaim. His Lordship Nik Hashim JCA (as he then was) in delivering the judgment says this at pp. 451 – 452: “[14] Whilst it is true that a party’s action or counterclaim could be struck out for non-compliance with a peremptory or an unless order of the court, the order would not be made unless there is a history of failure to comply with other orders. A peremptory or an unless order is an order of last resort (see Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at p 1674H). Surely, it would not meet the ends of justice if the order made results in a miscarriage of justice. Therefore, all the circumstances of the case, inclusive of whether the failure to comply with the peremptory or unless order was indeed intentional and contumelious, should be looked at by the judge before penalizing the defaulting party (see In re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 (CA)). [15] In the instant case, the learned judge overlooked the fact that the respondent too was not free from fault in that it also failed to comply with para (e) of the learned judge’s directions. This failure is S/N c7Rh7hrtvkST489duG2JA certainly a factor which must be taken into account in considering whether the striking out order is an appropriate one under O 34 r 7 of the RHC. .. [18] Besides, there was no wholesale disregard of the rules of the court by the appellants. The appellants were still in the process of trying to reach an agreement with the respondent over the documents to be filed. From the records and the explanations given by the appellants, we found that the appellants’ failure to comply with the directions was not intentional or contumelious justifying the drastic action taken by the learned judge. Moreover, there was no record to show that learned counsel for the appellants was ever afforded an opportunity to reply to the respondent’s application for the striking out of the appellants’ counterclaim. In this case, the learned judge proceeded straight to strike out the appellants’ counterclaim soon after hearing the submission of learned counsel for the respondent. In our judgment, his decision was thus fatally flawed and wrong in principle which had resulted in an injustice to the appellants who have been deprived of their right to have their counterclaim heard on its merit. The learned judge’s decision does not meet ends of justice.” [Emphasis added] [27] Whilst the decision in Md Amin (supra) is on Order 34 r 7, I find that the ratio in the above case can be applied to our present case. A peremptory order is stated under the amended discovery order, which entails that upon the Defendant’s failure to furnish such document and/or information, the Defendant’s statement of defence would be struck out. S/N c7Rh7hrtvkST489duG2JA [28] Be that as it may, it is my finding that

the Defendant’s failure to provide the information requested by the Plaintiff is not intentionally nor contumaciously,

there is no history of non-compliance made by the Defendant up until the hearing of this Application and

the Defendant has forwarded a sound explanation with regard to the limitation of the BMC and thus has shown that it has done its best to procure the information. [29] In addition, the Plaintiff also submitted that the previous presiding judge who has granted the Peremptory Order had already rejected the Defendant’s argument; hence the similar position raised by the Defendant in this Application should also be rejected. The Plaintiff basically claimed that the principle of res judicata should be applied against the Defendant. Here, the Plaintiff cited the case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189. With due respect, I disagree. [30] The principle of res judicata is trite, whereby it constitutes an absolute bar to dispute issues or facts that a competent court had adjudicated. However, as with any equitable doctrines, the doctrine of res judicata retains its discretionary nature. The court may decline to apply it where it would lead to an unjust result (see Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346). Moreover, the position raised earlier and now is with regard to the facts and explanation with regard to the limitations of the BMS system. [31] His Lordship Gopal Sri Ram JCA (as he then was) in delivering the judgment of the Court of Appeal in Chee Pok Choy (supra) opined as follows at pp. 357 - 358: S/N c7Rh7hrtvkST489duG2JA “Now, there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, court may decline to apply it where to do so would lead to an unjust result. And there is respectable authority in support of the view I have just expressed. In Carl-Zeiss Stiftung v Rayner and Keeler Ltd & Ors (No 2) [1966] 2 All ER 532 at p 573, Lord Upjohn said: As my noble and learned friend, Lord Reid, has already pointed out there may be many reasons why a litigant in the earlier litigation has not pressed or may even for good reasons have abandoned a particular issue. It may be most unjust to hold him precluded from raising the issue in subsequent litigation (and see Lord Maugham LC’s observations in the New Brunswick case ([1938] 4 All ER 747 at p. 755; [1939] AC 1 at p 21)). All estoppels are not odius but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind. (Emphasis added.) … On the authorities discussed thus far, the principle comes to this. Whether res judicata in the wider sense should be permitted to bar a claim is a matter that is to be determined on the facts of each case, always having regard to where the justice of the individual and particular case lies.” S/N c7Rh7hrtvkST489duG2JA [32] The Defendant also referred to the case of Technigroup Far East Pte Ltd and another v Jaswinderpal Singh s/o Bachint Singh and others [2017] SGHC 68; [2018] 3 SLR 1391 where it was held at p. 1410 as follows: “53…Therefore, a discovery order is in its nature are not final and conclusive in respect of the existence of the documents sought to be disclosed and the defendant’s possession, custody and power over them, As stated in Singapore Civil Procedure at para 24/5/1: The making of the order requiring a party to state by affidavit whether any particular document or class of document is or has been in his possession does not prevent the respondent from deposing, in the affidavit that he subsequently makes after the order is made, that he in fact has had no such documents…

In a similar vein, Matthews and Malek, Disclosure (Sweet & Maxwell, 4th Ed, 2012) state at para 6.57 that “once an order has been made for specific disclosure, that does not preclude the respondent stating in is specific disclosure that he has no such documents. In other words, a discovery order in is capable of compliance in a manner which ultimately persuades the court to draw a different conclusion about the existence and custody of those documents from its preliminary impressions. This may indeed happen if cogent evidence and explanations to this effect are tendered by the party to ordered to provide discovery to the court.” [Emphasis added] S/N c7Rh7hrtvkST489duG2JA [33] This is exactly the case and situation in our present case. The Defendant was ordered to produce the particulars and/ or records pertaining to the images of the Plaintiff’s models that were used in its website. The Defendant has provided all requested information that it could but for those details which are beyond its capabilities. [34] Therefore, considering the authorities above, it is my view that it will be unjust to dismiss the reason averred by the Defendant. As discussed previously, the explanation given by the Defendant in its affidavits is sound. I do not find that its inability to provide the detailed information requested by the Plaintiff is intentional and contumacious. Conclusion [35] To conclude, this Court find that the explanation and answer forwarded by the Defendant in its affidavits show that it had done its best to retrieve the information requested by the Plaintiff. Hence, it would be unjust for me to strike out the Defendant’s statement of defence because of the limitation in procuring the said information. [36] Therefore, I order that this Application be dismissed. Dated: 3rd October, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur S/N c7Rh7hrtvkST489duG2JA For the Plaintiff Alan Loke Messrs. Chern & Co Advocates & Solicitors For the Defendant Nathalie Ker & Sarah Chin Messrs. Lim Che Wee Partnership Advocates & Solicitors Table of Authorities Cases Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 Carribbean Broadcasting Corporation v Asha Mirchandani and Others (No 2) (2000) 59 WIR 57 Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346 Folin & Brothers Sdn Bhd v. Wong Foh Ling & Ors (NO 2) [2001] 5 CLJ 476 Md Amin bin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 4 MLJ 446 Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah Syed Abu Bakar [2022] 2 CLJ 641 Technigroup Far East Pte Ltd and another v Jaswinderpal Singh s/o Bachint Singh and others [2017] SGHC 68; [2018] 3 SLR 1391 Rules Order 24 rules 16(1), Rules of Court 2012 S/N c7Rh7hrtvkST489duG2JA