Dhayalan A/L Subramaniam v Pa Recruitment (Kl) Sdn Bhd (WA-12ANCvC-80-06/2025)

PA Recruitment (KL) Sdn Bhd [Company No: 200301000388 (602808-K)]

Diebold Nixdorf Sdn Bhd [previously known as Wincor Nixdorf (M) Sdn Bhd (Company No: 199901017694 (492594-H)] ... Defendants 01/04/2026 11:25:27 WA-12ANCvC-80-06/2025 Kand. 28 GROUNDS OF JUDGMENT Introduction

This is an appeal by the appellant against the decision of the Sessions Court at Kuala Lumpur dated 7 August 2025, whereby the learned Sessions Court Judge allowed the respondent’s application under Order 18 rule 19(1) (a), (b) and (d) of the Rules of Court 2012 to strike out the appellant’s writ and statement of claim in their entirety.

The appeal is confined to the propriety of that striking-out order. It is not an adjudication on the substantive merits of the appellant’s case. The sole question is whether, on established principles, the pleaded case disclosed a reasonable cause of action against the respondent, or whether it was so fundamentally defective that it was obviously unsustainable and thus liable to be terminated summarily.

Having carefully examined the record of appeal, the written and oral submissions of counsel, and the grounds of judgment delivered by the Sessions Court, I am satisfied that the appeal is devoid of merit. For the reasons that follow, the Sessions Court neither misdirected itself in law nor arrived at a conclusion that can properly be described as plainly wrong. The appeal is therefore dismissed. Factual Background

The factual matrix, as pleaded by the appellant, may be shortly stated. The appellant was, at all material time, employed by PA Recruitment (KL) Sdn Bhd (“PA Recruitment”), the first defendant in the Sessions Court proceedings. Pursuant to that employment, he was assigned to work at a warehouse said to belong to or be occupied by the respondent. PA Recruitment, it is pleaded, supplied workers to the respondent to perform duties at the said warehouse.

According to the statement of claim, on 4 December 2019, while performing his duties involving the arrangement of deposit machine cassettes, one such cassette allegedly fell from a height of approximately eight feet, causing injury to his neck and right arm. It is further pleaded that the appellant continued to work thereafter, allegedly upon the instruction of PA Recruitment, and that his condition progressively worsened.

The appellant asserts that the respondent failed to ensure a safe working environment and thereby caused or contributed to his injuries. The respondent, in its defence, denied liability on several grounds. It contended that there was no contract of employment or other legal relationship between itself and the appellant; that no such incident or injury was reported at the material time; and that it had no knowledge whatsoever of the alleged incident until it received the appellant’s letter of demand dated 4 October 2021.

By a letter dated 12 October 2021, the respondent replied to the appellant’s letter of demand, denying the claim in its entirety. The respondent maintained that it had no knowledge of the alleged incident or injury; that the appellant had failed to notify it at the material time; and that there was no contractual relationship giving rise to any liability on its part.

On 13 February 2025, the respondent applied to strike out the writ and statement of claim pursuant to Order 18 rule 19 of the Rules of Court 2012. The application was supported by an affidavit of Kevin Chin Chee Keong. The appellant filed an affidavit in reply affirmed by Navind Kumar a/l Kamalakumaran, who was the appellant’s solicitor. The learned Sessions Court Judge, after hearing arguments, delivered judgment on 7 August 2025 allowing respondent's application and striking out the claim against respondent.

The learned Sessions Court Judge based her decision on three principal grounds. First, she held that the affidavit in reply affirmed by Navind Kumar was inadmissible, as he, being the appellant's solicitor, lacked personal knowledge of the contested factual matters. Secondly, she concluded that the appellant's claim, insofar as it was premised on section 15 of the Occupational Safety and Health Act 1994 (“OSHA”), disclosed no reasonable cause of action against the respondent. Thirdly, she found that the claim was barred by the doctrine of laches, the appellant having delayed unreasonably in commencing proceedings.

It is against that decision that the present appeal is brought. The Legal Principles on Striking Out

The appeal turns on the proper application of Order 18 rule 19 (1) of the Rules of Court 2012, which confers upon the Court a discretionary power, exercisable at any stage of the proceedings, to strike out or amend pleadings on specified grounds. The provision reads as follows: Striking out pleadings and endorsements (O. 18, r. 19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

The principles governing the exercise of this jurisdiction are long settled and admit of little controversy. The leading authority remains the decision of the Supreme Court in Bandar Builder Sdn Bhd &

Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ In that case, it was emphasised that the jurisdiction to strike out pleadings should be exercised sparingly and only in plain and obvious cases. The oft-quoted passage from that decision bears repetition: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co 8). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [Emphasis is mine]

The emphasis on the dual requirement of obviousness and unsustainability was subsequently refined and reaffirmed by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 3 CLJ 1. The Federal Court made clear that it is not sufficient that a claim appears weak or unmeritorious, its lack of sustainability must be apparent on the face of the pleadings: “[28] The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’ ie, the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial.” [Emphasis is mine]

Equally important is the well-established caution that a striking-out application is not to become a surrogate trial conducted on affidavit evidence. The Court’s task at this interlocutory stage is confine to the pleadings and the applicable law. It must resist the temptation to resolve contested issues of fact or law. As the Federal Court further observed in Seruan Gemilang (Supra): “[29] The established rule on this point is that the court should not examine the evidence in this summary proceedings in such a way as to amount to conducting a trial on the conflicting affidavit evidence. As rightly said by Lord Diplock in the House of Lords in American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at p. 407: ... The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial ... This passage was cited with approval by the Privy Council in a Malaysian case of Eng Mee Yong v. Letchumanan [1979] 1 LNS 18; [1979] 2 MLJ 212.” [Emphasis is mine]

The cumulative effect of these authorities is to impose a stringent threshold. A pleading should only be struck out where it is plainly and obviously unsustainable on its face, such that it is bound to fail. It is not enough that the claim appears weak, improbable, or unlikely to succeed. Where the resolution of the matter calls for the evaluation of evidence, the determination of disputed facts, or the serious consideration of legal issues, the proper course is for the matter to proceed to trial.

It is against this doctrinal backdrop that the Sessions Court’s decision must be assessed. Analysis and Findings Admissibility of Affidavit Affirmed by the Appellant’s Solicitor

The first issue concerns the Sessions Court’s rejection of the affidavit in reply affirmed by the appellant’s solicitor. The Sessions Court held that the affidavit was incompetent on the ground that it was deposed by a solicitor who lacked personal knowledge of the material and disputed facts.

The governing principle is well settled. Order 41 rule 5 of the Rules of Court 2012 requires that affidavits be confined to facts within the deponent’s personal knowledge, save where belief is permitted and the grounds thereof are stated. Order 41 rule 5 provides: Contents of affidavit (0. 41, r. 5)

It is equally well established that solicitors should not depose to contentious or disputed factual matters on behalf of their clients. In Malaysia Airline System Bhd v Tan Sri Tajudin Ramli [2012] MLJU 278, the court emphasised that affidavits sworn by solicitors on disputed matters are liable to be disregarded, precisely because they offend the rule against hearsay and undermine the probative value of affidavit evidence.

In her grounds of judgment, the learned Sessions Court Judge correctly directed herself to these principles. She cited Malaysia Airline System and observed, with justification, that where disputed questions of fact are involved, it is for the litigants themselves and not their solicitors to give evidence. She expressly endorsed the observation that “the practice of solicitors themselves filing contentious affidavits in pending applications should be discouraged. The parties are the litigants and it is they who should be giving evidence."

The appellant argues that its solicitors, having conducted the case from its inception, possessed sufficient knowledge of the facts and that his affidavit should not have been rejected. However, this submission misconceives the nature of the requirement. Personal knowledge in the context of affidavit evidence refers to direct perception of facts, not merely familiarity with the cause papers or instructions received from a client. As was stated in Malaysia Airline System: "A solicitor, however experienced, cannot by affidavit speak to facts which are not within his personal knowledge. He has no personal knowledge of the truth of the facts stated in the affidavit save what he was told by his client or what he gathered from the documents."

The learned Sessions Court Judge was therefore correct in law to reject the affidavit. This was not a mere technicality but a fundamental requirement of the law of evidence. Affidavits constitute evidence in their own right and must comply with the rules governing admissibility. To allow solicitors to swear to contested matters on behalf of their clients would undermine the integrity of the judicial process.

However, the rejection of this affidavit does not necessarily lead to the striking out of the entire claim. The proper course would have been to consider the striking out application based on the pleadings and any admissible evidence before the court. The fact that the appellant's affidavit in reply was inadmissible does not, by itself, demonstrate that the claim is obviously unsustainable.

The appellant was in any event unable to point to any authority suggesting that the Sessions Court was wrong to disregard the affidavit in question. In my judgment, the Sessions Court applied the correct principles and committed no error. The rejection of the affidavit was correct. Whether the Statement of Claim Disclosed a Reasonable Cause of Action

The central issue in this appeal is whether, even taking the statement of claim at its highest, it discloses a legally sustainable cause of action against the respondent.

In her grounds of judgment, the learned Sessions Court Judge meticulously analysed the appellant's claim as pleaded in the statement of claim. She noted that the appellant had pleaded that he was an employee of PA Recruitment who had been assigned to work at the respondent's warehouse. The appellant alleged that on 4 December 2019, while arranging cash deposit cassettes, a cassette fell from an eight-foot-high rack, causing injuries to his neck and right hand.

The learned Sessions Court Judge found that the appellant's claim against respondent was, in substance, premised on an alleged breach of statutory duty under section 15 of the OSHA. She examined section 15, which imposes general duties on employers and self-employed persons to ensure the safety, health, and welfare of their employees. Section 15 provides:

(a) the provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health;

Crucially, this reliance is fatal. The learned Sessions Court Judge then considered section 59 of the OSHA, which expressly precludes in unambiguous terms a civil action for breach of the statutory duties imposed by the Act. Section 59 provides: Nothing in Parts IV, V and VI and the relevant industry code of practice shall be construed as –

(a) conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of those Parts;

The legal effect of section 59 has been authoritatively explained in Rajani Ponnan v Perbadanan Pengurusan Terminal Satu [2021] MLJU 175, where the High Court held: “[10] Like the Electricity Supply Act 1990, the Occupational Safety and Health Act 1994 does not provide for a private cause of action by a person who was injured by reason of any contravention of duty owed under it. (It may be observed that under section 17(1), the duty under statute to ensure safety and health is extended to non-employees, and hence it may conceivably be owed to independent contractors present on premises of a person subject to the Act.) [11] More than just that, section 59 of the Occupational Safety and Health Act 1994 specifically provides that the relevant provisions of the Act does not confer any right of action in civil proceedings. Accordingly, the plaintiff could not have sustained a suit against the defendant for breach of the Occupational Safety and Health Act 1994.” [Emphasis is mine]

In light of this statutory bar, a claim founded solely or substantially on alleged breaches of OSHA is, as a matter of law, unsustainable.

Faced with this difficulty, the appellant sought to argue that the claim should nevertheless be allowed to proceed on the basis of occupiers’ liability. This submission cannot assist the appellant. It is trite that parties are bound by their pleadings. An unpleaded cause of action cannot be introduced by argument from the bar.

In Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas [1995] 2 MLJ 276, James Fong J (as he then was) made this point with clarity: “This assertion by the appellants of the deceased being a trespasser could not be taken to have opened the floodgate to allow the respondents to include a cause of action under occupiers’ liability. As the plaintiffs are bound by their own pleadings, their case is only confined to the issues and questions raised therein. Since the issue of occupiers’ liability was never pleaded, the findings of the learned sessions court judge on this point cannot be sustained. It is appropriate here to reiterate the oft-quoted passage of Sharma J in Janagi v Ong Boon Kiat [1971] 2 MLJ 196 [at p 196], which found support in the Supreme Court case of Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152 to illustrate this point. It is as follows: The court is not entitled to decide a suit on a matter which no issue has been raised by the parties. It is not the duty of the court to make a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial suit should be confined to the pleas on which the parties are at variance.” [Emphasis is mine]

In order to hold the respondent liable as occupier, the appellant must plead in the statement of claim a cause of action and all the material facts of occupiers’ liability. The appellant’s statement of claim contains no pleaded material facts establishing the constituent elements of occupiers’ liability. The attempt to recast the case at the appellate stage is impermissible.

In these circumstances, the Sessions Court was entitled to conclude that the statement of claim disclosed no reasonable cause of action against the respondent and was, in the language of Bandar Builder (Supra), obviously unsustainable. Laches

Although strictly unnecessary in light of the conclusion reached on the second issue, the Sessions Court went on to hold, in the alternative, that the appellant’s claim was barred by laches. As the point was fully argued before me, I propose to address it.

It is well settled that laches may operate to defeat a claim even where the action is brought within the applicable statutory limitation period. This principle is expressly preserved by section 32 of the Limitation Act 1953, which provides: 32 Acquiescence Nothing is this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.

The effect of section 32 is that compliance with the limitation period does not, of itself, preclude the court from refusing relief where delay has rendered it inequitable to permit the claim to proceed. The equitable jurisdiction is engaged where the delay is inordinate and unexplained, and where it would be unjust to the defendant to allow the claimant to enforce his rights after such delay.

The authorities demonstrate that relatively short periods of delay may suffice, depending on the circumstances. In Saad Marwi v Chan Hwan Hua [2001] 3 CLJ 98, the Court of Appeal dismissed the claim on the ground of laches notwithstanding that it was not statute-barred. The Court observed that even a delay of 19 months could be fatal, stating: “Returning to the factual narrative, there is only one last event that calls for mention. It is that the writ in these proceedings was issued out on 22 May1981. Now, if one takes the one-year period prescribed by the agreement as the commencement point, it means that the respondents did nothing to enforce their rights, if any, against the appellant for more than four years after the accrual of a cause of action. If one takes the later date of 23 October 1979, when the appellant returned the deposit, then nothing was done about 19 months. If in M Ratnavale v S Lourdenadin (supra) delay of fourteen months was fatal, it must come as no surprise to the respondents that I find their conduct most dilatory. The appellant’s conduct of returning the deposit was the clearest evidence of an intention to repudiate his obligations, if any, under the agreement. The respondents’ continued inaction thereafter necessarily attracts the inference of disinterestedness. In my judgment, it would be positively unjust to permit the respondents to succeed in their action against the appellant. The appellant was accordingly entitled to have the claim dismissed on the ground of the respondents’ laches.” [Emphasis is mine]

More recently, in Yeoh Weoi Leong & Ors v BM City Realty & Construction Sdn Bhd [2023] MLJU 2338, the High Court struck out the plaintiffs’ actions on the ground of laches where there had been delays of between five years four months and five years eleven months. The Court held that such delays were sufficient to justify refusal of relief under section 32 of the Limitation Act 1953, notwithstanding that the actions were brought within time, in the following passage: “[26] There was a delay of at least 5 years and 11 months by the Remaining Plaintiffs (except the 34th and 35th Plaintiffs) in bringing this action. With regard to the 34th and 35th Plaintiffs, there was a delay of at least 5 years 4 months by them in bringing this action. This is sufficient ground, in my view, to refuse the Remaining Plaintiffs’ claim pursuant to section 32 of the Limitation Act 1953. [27] section 32 of the Limitation Act 1953 reads: ‘32 Acquiescence Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.’ [28] section 32 of the Limitation Act 1953 “permits the equitable defence of laches to defeat the common law remedy of damages”. By reason of laches, the equitable relief (i.e. specific performance) as prayed for by the Remaining Plaintiffs at paragraphs 36(b) to (g) of the Amended Statement of Claim ought to be disallowed.” [Emphasis is mine]

Against that legal backdrop, I turn to the facts of the present case. The appellant’s cause of action is said to have arisen on 4 December 2019, being the date of the alleged incident. It is not in dispute that the appellant did not notify the respondent of the incident at or around the material time. Instead the first demand was only issued on 4 October 2021, almost two years later.

Matters did not end there. Following the respondent’s reply dated 12 October 2021, in which liability was unequivocally denied, the appellant took no further step to pursue the claim for a further three years and three months. Proceedings were ultimately commenced almost five years after the alleged incident.

No explanation for this protracted delay was pleaded, nor was any admissible evidence adduced to justify it. In those circumstances, the Sessions Court was entitled to conclude that the delay was both inordinate and unexplained, and to draw the inference that it would be inequitable to permit the action to proceed.

Having regard to the authorities and to the chronology of events, I am unable to say that the Sessions Court erred in principle or reached a conclusion that was plainly wrong. There is therefore no basis upon which this Court should interfere with its finding that the appellant’s claim was barred by laches. Conclusion

An appellate court will only interfere with a discretionary decision of a subordinate court if it is shown to be plainly wrong, arrived at without judicial appreciation of the evidence, or founded on an error of law. This principle was reiterated in Ahad @ Raman bin Sarudin & Ors v Pantai Bayu Indah Sdn Bhd & Anor and another appeal [2019] 2 MLJ 178.

Applying that legal principle, the Sessions Court’s decision cannot be impugned. The learned Judge correctly identified the issues, applied the governing legal principles, and reached a conclusion that was open to it on the pleadings and the law.

For all the reasons set out above, I find that the appeal is wholly without merit. The Sessions Court was correct to strike out the writ and statement of claim under Order 18 rule 19(1) (a), (b) and (d) of the Rules of Court 2012.

The appeal is accordingly dismissed with costs of RM8,000, subject to allocatur. The order of the Sessions Court is affirmed. Dated the 20th day of January 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Appellant : Faiz Taqiuddin bin Rosli Messrs Gabriel Susayan And Partners Counsel for the Respondent : Jimmy Liew and Wong Wen Sheng Messrs Shearn Delamore & co