Ekve Sdn Bhd v 1. ) Pentadbir Tanah, Daerah Gombak (BA-21NCvC-31-06/2019)

PRISTINE POWER SDN BHD

CHRISTINE CHIN SIEW LIN (NRIC NO.: 610225-71-5110) … DEFENDANTS (CONSOLIDATED WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN CIVIL SUIT NO.: BA-21NCVC-23-05/2020 BETWEEN PRISTINE POWER SDN BHD (NO. COMPANY: 375729-X) … PLAINTIFF 18/10/2024 19:00:33 BA-21NCvC-31-06/2019 Kand. 366 S/N xtedgGBtPEiLTftOx/f47Q

LAND ADMINISTRATOR, DISTRICT OF GOMBAK … DEFENDANTS Grounds of Judgment Introduction [1] This is an application by the appellants / 6th and 7th defendants in Enclosure 308 for discovery of documents under Order 24 Rules 3, 5, 7, 9 and/or 10 of the Rules of the Court 2012 and/or upon the inherent jurisdiction of the Court under Order 92 Rule 4 of the Rules of Court 2012. The Appellants / 6th and 7th Defendants Contentions [2] The appellants have asserted that the documents about the redesign and realignment of the ramp, which the plaintiff asserts as a mitigation effort, are pertinent. They argue that these documents substantiate their claim that the redesign or realignment of the ramp was unnecessary and posed a greater risk than the original design, as articulated in the appellants' reamended pleadings. S/N xtedgGBtPEiLTftOx/f47Q The Respondent / Plaintiff’s Submissions [3] The respondent argued that the documents sought by the appellants are irrelevant and unnecessary for the fair disposal of the case before this Court. [4] The respondent has contended that the discovery application is comprehensive and lacks specificity. [5] The respondent also expressed concern about the appellants' significant delay in applying for the discovery of documents. The Applicable Law and Legal Principles [6] Order 24, Rules 3, 5, 7, 9, and 10 of the 2012 Rules of Court govern the law for the discovery of documents. [7] In the High Court case of Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, Edgar Joseph Jr. J (as His Lordship then was) explained what are the essential elements for an order for discovery as follows: “[1] The essential elements for an order for discovery are threefold, namely first, there must be a “document”, secondly the document must be “relevant”, and thirdly, the document must be or have been in the “possession, custody or power” of the person against whom the order for discovery is sought. It is indisputable that the items sought were S/N xtedgGBtPEiLTftOx/f47Q documents and were in the possession, custody or power of the defendant.” [8] He further elaborated that what is “relevant” is limited to the discovery of documents which are “relevant to” or “relate to” the featured issues in dispute. (refer to page 585, paragraph g of the Case). [9] Under Order 24 Rule 13 of the Rules of the Court 2012, an order for the production of any documents for inspection shall be made if the Court deems it necessary for the fair disposition of the cause or matter or for cost-saving. [10] In the Court of Appeal case of Nguang Chan aka Nguang Chan Liquor Trader V HAI-O Enterprise Bhd [2009] 5 MLJ 40, it was explained the test of necessity for specific discovery as follows: “As stated earlier the real issue is compliance with r 13 (1) which stipulates that discovery may only be ordered if the court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfy the court, see Dolling-Baker’s case and Ventouris v Mountain. Because of that erroneous premise the learned judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The S/N xtedgGBtPEiLTftOx/f47Q respondents also failed to provide any materials to satisfy the court of such necessity. If necessity is not the prime concern of the Court, allowing discovery would be tantamount to allowing the respondents to fish for evidence, which defeats the purpose of the rule by causing the appellants to suffer unfair disadvantage if they fail to comply with an order which is oppressive and incapable of compliance – see Taylor v Anderton and Leslie S Holmes.” [11] As per established legal principles, an order for the discovery of documents must be specific. Failure to adhere to this requirement would be tantamount to engaging in a fishing expedition. [12] In the High Court case of Datuk Amar James Wong Kim Min v Pendaftar Pertubuhan [2004] 6 MLJ 235, it was held as follows: “[12]…To me, discovery is not relevant because the respondent has averred that all the documents pertaining to his decision making process are before the court and there is no evidence adduced by the applicant to show that the materials put before the court are inaccurate or false. [13] … To me, the applicants must be specific for the documents they are requesting for disclosure. Otherwise, their application will turn out to be a mere S/N xtedgGBtPEiLTftOx/f47Q fishing expedition. This court, is not going to issue the applicants the fishing licence.” The Decision of this Court [13] According to the law and case precedents, the primary consideration for the court during the discovery process is the relevance of any requested document. [14] It is incumbent upon the appellants to establish the relevance of the documents to ensure a fair disposal of the case or to minimise costs. [15] Upon careful review of the arguments presented by the appellants and the respondent, this Court determined that the request for documents on the safety and integrity of the ramp's redesign and realignment lacks relevance. [16] The safety and integrity of the Ramp's redesign and realignment are not issues to be adjudicated in this case. [17] The appellants did not provide this Court with a sufficient demonstration of how the requested documents in the discovery process would enable them to establish whether the redesigning and/or realigning of the Ramp was unnecessary before this Court. [18] The documents requested during the discovery process pertain to approvals from the Independent Checking Engineer, Road Safety Auditor, and LLM. These documents are relevant in determining the safety and integrity aspects of the Ramp's redesign and/or S/N xtedgGBtPEiLTftOx/f47Q realignment. The respondent presented LLM’s approval for the realignment of the Ramp in its expert’s affidavit of Adrian Dobbie-Holman. It should be noted that the issues before this Court do not concern the safety and integrity aspects of the Ramp. [19] The guiding principles for this court are based on the cases of Yekambaran Marimuthu v Malayawata Steel Berhad, Datuk Amar James Wong Kim Min v Pendaftar Pertubuhan, and Nguang Chan aka Nguang Chan Liquor Trader v HAI-O Enterprise Bhd. [20] This court has firmly noted that the appellant's requests are excessively broad. [21] The argument put forth by the appellants, stating that the discovery request had been adequately identified, is unequivocally rejected by this court. [22] The appellants had a comprehensive objective; they aimed to identify documentation that could be used against the respondent to challenge the legality and integrity of the Ramp's redesign and/or realignment. [23] The legal context of the situation is encapsulated within the High Court case of Pharr Lapp Sdn Bhd v Posco-Malaysia Sdn Bhd & Ors [2018] 1 LNS 1804. S/N xtedgGBtPEiLTftOx/f47Q [24] The court noted that the application for discovery was made on June 28, 2024. It's worth noting that this was approximately two months before the extended adjournment of the full trial in this case. [25] The appellants have been aware of the redesign or realignment of the ramp since April 23, 2021. [26] They were also aware that the respondent's claims against them are for loss and damages suffered by the respondent arising from its mitigating efforts, including, among others, the redesign and/or realignment of the Ramp as late as April 11, 2024. [27] This court has unequivocally concluded that the delay by the appellants in filing Enclosure 308 is highly prejudicial to the respondent’s case. [28] The application in Enclosure 308 has been dismissed with costs in the cause for the reasons stated above. Dated: 18th October 2024 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam Selangor Date of Decision: 21st August 2024 S/N xtedgGBtPEiLTftOx/f47Q Counsels: For the Plaintiff: Alan Adrian Gomez, Micheal Yap Chih Hong & Haikaldin Mahyidin, [Messrs Tommy Thomas] For the Second to Fourth Defendant: Siti Radziah binti Kamarudin, Assistant State Legal Advisor, [Chambers of Selangor State Legal Advisor] For the Fifth Defendant: Noerazlim binti Saidil, Senior Federal Counsel, [Chambers of Selangor State Legal Advisor] For the Sixth & Seventh Defendant: Denise Phang & Kirthika Padmanapan, [Messrs Mah Weng Kwai & Associates] S/N xtedgGBtPEiLTftOx/f47Q