Imej Parking Sdn Bhd v Imej Parking Sdn Bhd (BA-22NCvC-163-06/2020)

The issue in Enclosure 97 application is whether the Plaintiff should be allowed to re-call two of its witnesses and to introduce additional documents of hundreds of pages in the particular circumstances of the present case when the application is made in the midst of the full trial.

On 19 May 2022 this Court exercised the discretion to dismiss with costs the Plaintiff’s application to re-call two of the Plaintiff’s subpoenaed witnesses who had finished their testimonial evidence in court and who have been released as witnesses by the Court. This Court also refused to allow the Plaintiff to introduce new documents of hundreds of pages which were intended to be used in the further examination of the two subpoenaed witness, if the re-call were to be allowed.

Dissatisfied with the said decision, the Plaintiff has appealed against the said procedural decision made in the midst of the full trial. 2

In light of the apex court's judgments in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Negara [2020] 3 CLJ 153; [2020] 1 MLRA 683 it is doubtful whether the appeal is competent.

The Court has a discretion whether or not to allow a witness to be re-called for further examination or cross-examination: section 138(4) of the Evidence Act 1950.

Section 138(4) of the Evidence Act 1950 provides that “The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”

As section 138(4) of the Evidence Act 1950 does not describe how the discretion of the court in connection with re-call of witness is to be exercised, the guidelines are to be obtained from the past decisions of the court.

This discretion is to be exercised judicially according to the particular circumstances of each case, and strong or cogent reasons must be given for re-calling the witnesses: Court of Appeal in Theow Say Kow v. Graceful Frontier Sdn Bhd [2020] 4 MLRA 60.

The principles, material facts and points on re-call of witnesses and introduction of additional documents in the midst of full trial in the decided cases cited by the parties here can be summarised below:

“In civil proceedings, it is in the discretion of the court of first instance to recall a witness or call further witnesses after his case is closed. Although under ordinary circumstances it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for it is expected that the advocate will interrogate him on all material points touching his case, unforeseen situations may develop and there may be also inadvertent omissions. In such a case the court may at its discretion allow a witness to be recalled, but surprise or prejudice to the other party should be guarded against. The objection by the defendant to the application was however not on these 3 anticipated grounds. Nevertheless on allowing the application the court granted liberty to the defendant to cross-examine the recalled witness and further witnesses and call evidence in rebuttal”: per Arunanandam J in Ong Yoke Eng & Anor v. Lim Ah Yew [1982] 1 MLJ 226. [emphasis added]

In Tan Kah Khiam v. Liew Chin Chuan & Anor [2007] 2 MLJ 145 the plaintiff applied to reopen his case in a defamation suit by calling another witness, to wit, a translator to prove the contents of the impugned article in the language of the court in English or Bahasa Malaysia. While noting that it was not a case to re-call witness, the Court of Appeal observed that (i) the criteria for permitting a party at a trial to reopen its case for the purpose of wither recalling a witness or calling fresh evidence are very different from those that govern the statutory jurisdiction of an appellate court to receive further evidence; (ii) at the trial stage, temporally speaking whether the trial judge will exercise his discretion to permit the reopening of a party’s case depends on the stage at which the application is made. The exercise of the trial judge’s discretion depends on the justice of the case, having regard to the peculiar facts and circumstances before the court. The trial judge must also be given very wide discretion on matters relating to evidence; (iii) s. 138(4) of the Evidence Act was not relevant to the facts of that case, as it was not a case of re-calling a witness. [emphasis added]

In Muhammad Hafizan Nordin & Anor v. Muhammad Amirul Azhar Razali & Anor [2020] 6 CLJ 731 the High Court on appeal allowed the defendant’s application to re-call 3 witnesses to be cross-examined on a letter dated 27 August 2018 and photographs, as the said documents were tendered by the defendant’s new solicitor subsequent to the completion of the said 3 witnesses’ evidence. The issue in that case was regarding the identity of the parties and the vehicles involved in the accident: see paragraphs [3] to [5] of the judgment. The High Court held that there is no rule that a court will only rarely permit the recall of a witness whose evidence has been completed and that section 138(4) of the Evidence Act does not amount to a carte blanche for litigants to re-open their case as and when it suits them. 4

In Silver Bird Group Bhd & Ors v. Dato’ Tan Han Kook & Ors [2016] 9 MLJ 503, a case on fraud and breach of fiduciary duties and negligence in statutory audit against multiple defendants, the High Court allowed 1 witness LKW to be re-called by the plaintiff for further cross-examination and to tender documents pertaining to the audit oversignt board on the inquiry into the conduct of that witness because the plaintiff only knew about the said documents recently and that the defendants had been vigorously taking all legal steps to prevent any disclosure of such documents.

In Black Point Design Sdn Bhd v, Ng Lee Peng & Ors [2015] 1 LNS 946 where the plaintiff’s forensic report was adduced at the very last minute and the plaintiff’s forensic expert gave his evidence at an adjourned trial date, the defendant applied for leave to re-call the 1st Defendant and the plaintiff’s forensic expert to give further evidence in relation to the forensic report. The High Court allowed 2 witnesses to be re-called and confined the further examination to the Forensic Reports in order to verify and ascertain facts stated in the said reports.

In Danalatmi Seenivasan v. Ahmad bin Abdullah & Anor [2018] 1 LNS 1577 the High Court in an appeal arising from a road accident case dismissed the plaintiff’s appeal to recall the police inspector PW1 to describe on the sketch plan as there were 3 versions as to how the accident occurred. The reason is that by allowing the application to recall witness, it amounted to re-opening the case by way of introducing new evidence which had been laid to rest: see para [22] of judgment.

Sarkar on Evidence, 15th edn at p. 2195 explained as follows: “Under ordinary circumstances it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled, for it is expected that the advocate will interrogate him on all material points touching his case. Unforeseen situation may however develop and there may also be inadvertent omissions. In such cases, the court may in its discretion allow a witness to be recalled. But surprise or prejudice to the other party should be guarded against, as when the other party has dismissed his witnesses after the close of the case of both parties. Nor should a party 5 be allowed to fill up lacuna in evidence under the pretext of a recall. … The judge will seldom, however, except under special circumstances, permit a plaintiff, after his case is closed, to recall a witness to prove a material fact. [Murray v. Sheriffs of Dublin, 1841 Arm M & O 130].” [emphasis added]

In Prince Court Medical Centre Sdn Bhd v. Germguard Technologies (M) Sdn Bhd [2016] 6 MLRA 251 the Court of Appeal in a judgment delivered by Abdul Rahman Sebli JCA (now FCJ) which disallowed an application to re-call witness and to introduce additional documents and adding new causes of action held in paras [10] to [12] as follows: “[10] We take the view that if the application in enclosure 71 were to be allowed, it will allow the appellant to rectify, repair or cover up any loophole in their case after hating the benefit of evaluating the evidence of the respondent’s witnesses and the respondent’s submissions. This will not be fair to the respondent and is not how litigation should be conducted in our adversarial system of justice. [11] Most importantly, the discretion to allow a party to reopen its case is a discretion that should be exercised sparingly: see Sykes v. Sykes which the Court of Appeal cited with approval in Tan Kah Hiam referred to in para 9 above. [12] The policy consideration behind this is obvious, and that is to avoid opening the floodgates for similar applications in the future. In cases such as the one before us, the discretion should only be exercised in the exceptional circumstances and to prevent a miscarriage of justice”. [emphasis added]

In Chin Moi Yen & Ors v. Chai Weng Sing & Ors [2017] 1 MLRH at pg 438 the High Court in dismissing an application to introduce additional documents in the midst of trial held at para [18] that “Overall, the court is not satisfied that this attempt to produce fresh evidence is bona fide and in the 6 interest of justice for a fair and just disposal of the issues of fact in dispute. The conduct of the plaintiff in introducing numerous documents in instalments after the trial is underway smacks of abuse of the court process and bad faith.” And in para [19] that “It is trite law that an application of this nature must be supported by strong and credible grounds and not freely or readily allowed as a matter of course save where sufficient circumstances exist justifying the reception of the further evidence”. [emphasis added]

With the introduction of the court-controlled system of administration of justice, the civil proceedings including full trial are to be managed and conducted in accordance with the new policy of O.34 of ROC

In light of the new policy under O.34, justice is not to be seen in the isolated perspective of the particular litigants in an individual case itself but it has to be viewed in the context of the overall perspective of the administration of justice as a whole by taking into account the rights and interests of other litigants in other civil cases for “just, expeditious and economical disposal of cases”. The various decisions of the courts which have explained this new policy of court-controlled system under O.34 include:

O. 34 r. 1(1) of ROC 2012 provides as follows: “Orders and directions for just, expeditious and economical disposal of proceedings (O. 34, r. 1)

(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that—

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.”

Per Lord Woolf M.R. in Biguzzi v. Rank Leisure plc [1999] 1 WLR 1926 when discussing the policy behind the court-managed system of administration of justice which aims to facilitate just, expeditious and economical disposal of civil cases in court: 7 “Under the court’s duty to manage cases, delays such as have occurred in this case, should, it is hoped, no longer happen. The court’s management powers should ensure that this does not occur. But if the court exercises those powers with circumspection, it is also essential that parties do not disregard timetables laid down. If they do so, then the court must make sure that the default does not go unmarked. If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant. …. In considering whether a result is just, the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect of the court’s ability to hear other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated.” [emphasis added].

Tan Geok Lan v. La Kuan @ Lian Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465 the Federal Court stated: “One example is the case management procedure (O. 34 of the Rules of the High Court 1980 ('the RHC')). The significance of this procedure is that it marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it, and not the parties, to dictate the progress of cases at the pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused.

Sunway PMI-Pile Construction Sdn Bhd v. Pembenaan Chan & Chua Sdn Bhd [2003] 5 CLJ 63 : “ Order 34 RHC allows the court to take a proactive role in setting down time frames and giving directions as to the preparation of each party's case for the purpose of trial, while 8 at the same time enabling the court to impose sanctions for non-compliance with the directions”.

Per Gunalan Muniandy J (now JCA) in Chin Moi Yen & Ors v. Chai Weng Sing & Ors: “[11] It is also pertinent to note the shift from the traditional position on case management by the court as succinctly pointed out by the Court of Appeal in Item Industrial Engineering Sdn Bhd & Ors v. Bank Utama (Malaysia) Berhad [2015] 2 MLRA 28, where Zaleha Zahari JCA (as Her Lordship then was remarked that: “The introduction of O 34 to the Rules of the High Court 1980 (the Rules), the Rules then in force, marks a change from the traditional position under which the progress of a case was largely left in the hands of the parties. Pursuant to O 34, the court, not the parties, now dictate the progress of cases at the pre-trial stage to ensure that the practices and procedures applicable during the respective stages prescribed by the Rules are complied with.” [12] And further that : “Whilst I agree that strict and slavish adherence to forms and rules can sometimes hinder the administration of justice, one however must also bear in mind that these forms and rules should not be disregarded for no reason whatsoever since they embody the experience of the courts over the years in the course of speedy and efficient administration of justice.” [emphasis added]

The case authorities which were decided on the basis of the old court rules prior to the introduction of the new O. 34 should be read as subject to and modified by the new main objective of just, expeditious and economical disposal of cases in the ROC 2012. Prior to the introduction of the new O.34, the old court rules did not have any express provision to recognise “just expeditious and economical disposal” of cases as one of its main policies or features.

Under the powers of O.34 of ROC 2012, there were court cases where a litigant was prevented from adducing additional documents upon their serious or repeated failure at the pre-trial stage to comply with the deadlines for filing and exchange of documents. In some cases of serious or repeated non-compliance with the case management deadline, even new witnesses whose names were not 9 disclosed or listed in the Lists of Witnesses filed at the pre-trail stage were barred from being called to testify at the full trial.

The discretion regarding introduction of additional documents and re-call of witnesses is to be exercised judicially according to the particular circumstances of each case, and strong or cogent reasons must be given for re-calling the witnesses: Court of Appeal in Theow Say Kow v. Graceful Frontier Sdn Bhd [2020] 4 MLRA

60.

Although some specific factors appear prominent in the various decided cases, it does not mean that the same factors are intended to be exhaustive factors to be considered or must be present in subsequent cases with peculiar facts of their own. These specific factors which appeared prominent in the various decided cases can be used as guides; however, they are to be considered in light of the particular facts and circumstances in each case before the discretion is exercised in the totality of the facts and circumstances in each case.

From the various decided cases and in light of the policy behind O.34 of ROC 2012, in considering whether or not to exercise the discretion, the Court can take into account various relevant factors and circumstances including:

the stage of proceedings when the application to re-call or introduce additional documents is made;

whether the need to re-call witness or introduce additional documents was caused by unforeseen situation;

whether the documents and evidence to be adduced further could have been obtained by the applicant earlier;

the nature and extent of the further evidence to be adduced by re-calling the witness;

the number or quantity of the additional documents produced to be introduced;

whether it would tantamount to trial by ambush;

whether it would tantamount to trial by instalments;

whether it would constitute giving a second bite at the cherry;

the impact or likely impact of the re-call of witness on the full trial dates set by the Court;

the impact on just, expeditious and economical disposal of cases; 10

whether it is the first time such application is made by the applicant or whether previous relaxation or leeway to similar effect has been given to the applicant;

the justice of the particular case;

the relevance and importance of the further documents and evidence to the real issues at hand, and

other facts and circumstances as may be relevant to be considered.

The circumstances relevant to and/or the events leading to the application for re-calling of the Plaintiff’s witnesses are summarised in the immediately following paragraphs below.

On 10 December 2020 this Court dismissed the Plaintiff’s application for discovery against the Defendant in Enclosure 10 on grounds that the Plaintiff’s application in Enclosure 10 failed to fulfil the requirements for discovery under O.24. There is no appeal against this decision.

Case management directions were issued for filing and exchange inter alia of bundles of documents and the timeframes for doing so were extended at the request of either party. After the common bundles of documents were filed and exchanged by the extended times, the Court marked the common bundles of documents on 22.3.2021.

On 7 April 2021 the Court fixed the full trial dates for 6, 8 and 23 September 2021.

On 15.7.2021, more than 3 months after the Court has fixed the full trial dates, the Plaintiff filed a second application for discovery against third persons via Enclosure 54. This was dismissed by the Court on ground of delay in making such application for discovery.

Subsequently, the parties filed and exchanged Witness Statements pursuant to the case management directions by 22 July 2021 (Enclosure 57: Witness Statement by Anuar bin Ali; Enclosures 49 and 50: Defendant’s Witness Statements).

On 25.8.2021 the Plaintiff filed the Plaintiff’s additional bundles of documents (Enclosures 65 and 66) without the prior leave of court 11 or prior consent of the Defendant. These bundles of documents were filed and served outside the timelines set in the case management directions.

On 3.9.2021 the Plaintiff filed the Plaintiff’s another additional bundle of documents (Enclosure 77) without the prior leave of court or prior consent of the Defendant.

These additional bundle of documents in Enclosures 65, 66 and 77 were filed by the Plaintiff after the deadline fixed for exchange of witness statements.

On 5 September 2021 the Plaintiff filed a Supplementary Witness Statement by Anuar bin Ali (Enclosure 81) and without prior leave of the Court or prior consent of the Defendant.

The full trial started on 6 September 2021 when PW1 Encik Anuar bin Ali testified. At the trial on 6 September 2021, after discussion and some persuasion, the Defendant’s counsel graciously agreed to let Enclosures 65, 66 and 81 be used in the evidence in this case subject to proof, and did not object on ground of late filing and service.

On 7.9.2021 the Plaintiff for the 3rd time filed the Plaintiff’s further additional bundle of documents (Enclosure 83) without the prior leave of court or prior consent of the Defendant.

Again, despite some initial reluctance, the Defendant’s counsel on 23 September 2021 graciously agreed to let Enclosure 83 be used in the evidence in this case subject to proof, and did not object on ground of late filing and service.

On 8 September 2021 PW2 Cik Aqilah gave evidence pursuant to subpoena served on her.

To accommodate the Plaintiff’s sequencing of witnesses and late production of documents, PW3 Encik Zaffri was called to give evidence on 8 September 2021 before the finish of PW2 Cik Aqilah’s evidence.

On 22.9.2021 the Plaintiff for the 4th time filed the Plaintiff’s further additional bundles of documents (Enclosures 85 and 87) without the 12 prior leave of court or prior consent of the Defendant. Despite some initial reluctance, the Defendant’s counsel on 23 September 2021 graciously agreed to let Enclosures 85 and 87 be used in the evidence in this case subject to proof, and did not object on ground of late filing and service. This was already in the midst of the full trial and after the Defendant’s filing of the Defendant’s Witness Statements.

On 23.9.2021, PW2 Aqilah continued her evidence and finished her evidence and she was thereupon released as a witness.

On 23.9.2021 PW4 Encik Mohd Fadli testified and finished his evidence.

PW5 Mr Chen WG pursuant to a subpoena testified on 11 January 2022, finished his evidence and was released as witness.

On 9 March 2022 the Plaintiff for the 5th time filed the Plaintiff’s further additional bundle of documents (Enclosure 96) without the prior leave of court or prior consent of the Defendant. Enclosure 96 consists of 73 items of documents totalling 287 pages.

Probably hand further having exhausted his patience or tolerance, the Defendant’s counsel objected to the late filing of the Plaintiff’s further additional bundle in Enclosure 96.

On 10 March 2022 the Plaintiff filed its application in Enclosure 97 for leave of the court to re-call PW2 Cik Aqilah and PW5 Mr Chen WG for further examination including references to and reliance upon further additional documents in Enclosure 96. The scope of the proposed re-call and further examination on re-call is wide and extensive, and numerous documents in Enclosure 96 are proposed to be referred to and/or relied upon in the proposed re-call and further examination of witnesses upon re-call.

The Defendant opposes the Plaintiff’s Enclosure 97 application to re-call witnesses. In the Defendant’s arguments in opposition, the Defendant also reserve its right to call additional witnesses and to file and serve additional documents and witnesses in rebuttal of the Plaintiff’s proposed further evidence upon re-call, if such re-call is allowed by the Court. 13

In the circumstances, there has been a history of late filing of additional documents by the Plaintiff at 4 previous occasions at advanced stage of the case and also in the midst of the full trial.

The Court and the Defendant have extended much latitude and/or relaxation several times in the previous occasions of the Plaintiff’s late filing of additional bundles of documents. In the several occasions in the past, the Plaintiff has been extended much latitude and relaxation from the O.34 procedure and deadlines.

The original timeline for filing and service of documents was fixed in the pre-trial case management directions and has lapsed since many months ago.

In our present case, the stage of proceedings when the application to re-call is made is rather late as we are in the midst of full trial when the re-call application was made and 5 days of the full trial has been spent when the application came up for hearing.

From the affidavit evidence and from the evidence adduced at the full trial up to this stage, this Court finds that the need to re-call was not caused by unforeseen situation. From the pleadings in the present case, this Court is of the considered view that if the Plaintiff were minded to present the evidence for its case in the manner and approach as it has done at the full trial here and had instructed its solicitor clearly to that effect, it would reasonably foreseen or anticipated that the proposed additional documents should have been obtained from the employer of PW2 and PW5 at the outset of the action. If the Plaintiff had applied its mind diligently to its intended manner and approach of presenting its case, it would be reasonably possible for it to apply for a pre-trial discovery order under O.24 r.7A, if necessary or expedient, instead of trying to introduce these additional documents in the midst of the full trial and after PW2 and PW5 have finished their evidence and have been released as witnesses.

The nature and extent of the proposed additional documents and the proposed re-call for further examination do not fall under the description of “inadvertent omission” stated in Ong Yoke Eng case. Inadvertent omission refers to a situation of oversight due to a slip 14 or mistake whereby a short but important or material part of the evidence was inadvertently left out during the examination or cross-examination at the full trial, but it cannot cover a situation whereby an applicant seeks to introduce a sizeable chunk or significant quantity of extensive further evidence so as to repair the weakness in the evidence of the applicant’s own witness who has completed his/her testimony in court. In our present case, what the Plaintiff sought to do vide Enclosures 96 and 97 is to introduce a sizeable chunk or significant quantity of extensive further evidence so as to repair the weakness in the evidence of the applicant’s own witnesses PW2 and PW5 who have completed their testimonies in court. This Court echoes the dictum of Abdul Rahman Sebli JCA (now FCJ) in Prince Court case that “This will not be fair to the respondent and is not how litigation should be conducted in our adversarial system of justice. “

This Court also finds that the documents and evidence to be adduced further could have been obtained by the applicant earlier including at the stage of the pre-action discovery pursuant to O.24 r.7A or during the course of pre-trial case management. There was no active step taken by the Defendant to prevent or curtail the Plaintiff from obtaining copies of these proposed additional documents at the pre-action stage or at the case management stage.

In view of the many items of documents in the proposed additional documents in Enclosure 96 and many pages of such proposed additional documents in respect of which the Plaintiff seeks to further examine the witness PW2 and PW4, the further evidence to be adduced by re-calling the witness is extensive.

In the particular circumstances of our present case, the Plaintiff has a history of conducting trial by instalments in the previous occasions of filing late documents and supplementary witness statement. This Court agrees with the Defendant’s submission that re-calling witnesses and adducing many additional documents at this advanced stage of the full trial via the Enclosure 97 application would tantamount to trial by instalments in the particular circumstances here.

In the peculiar circumstances of the present case, it is reasonable for the Defendant to perceive that if the Court were to grant leave for re-call of witnesses and for introducing many additional 15 documents at this advanced stage of the full trial would constitute giving a second bite at the cherry if the Plaintiff were to be allowed to re-call witnesses and to produce further documents in Enclosure 96 in an attempt to repair gaps in evidence or to undo certain admissions or concessions on the part of the witnesses during the cross-examination.

The impact or likely impact of the re-call of witness on the full trial dates set by the Court is that the balance full trial dates fixed in May and June 2022 for this case would likely be wasted or vacated in order to give time for the Defendant to respond to the re-call and further documents so as to fulfil the principles of natural justice. Section 138(4) of the Evidence Act and the principles of natural justice require that if the Plaintiff were allowed to re-call witnesses and to introduce many additional documents at this advanced stage of the full trial, the Defendant must be given similar rights and liberty to file additional documents, call additional witnesses and file additional witness statements in rebuttal thereof. The fixed trial dates, if vacated, would be totally wasted as the Court would be unable to find other litigants who can accept these dates on short notice to fill up the full trial dates. Giving new trial dates for this case in place of the vacated and wasted dates would also result in denial of full trial dates for the other litigants in other cases whose full trials would correspondingly be delayed further. In the circumstances, there would be adverse impact on just, expeditious and economical disposal of cases.

The previous relaxation or latitude extended several times to the Plaintiff’s previous occasions of late filing of documents should not be stretched further for Enclosure 96 or Enclosure 97. The justice of the case requires that the Court strikes a balance between the parties and that, as aptly reminded by Abdul Rahman Sebli JCA (now FCJ) in Prince Court case, the full trial in our courts is basically adversarial in nature.

If the Plaintiff’s late filing of further documents and/or re-call of witnesses were allowed in spite of the past four (4) occasions of latitude and relaxation granted to him, and the other litigants were treated equally alike, the court of law will not see the light at the end of the tunnel in the full trials of many court actions. As stated by Abdul Rahman Sebli JCA (now FCJ) in Prince Court case, “[12]The policy consideration behind this is obvious, and that is to avoid 16 opening the floodgates for similar applications in the future. In cases such as the one before us, the discretion should only be exercised in the exceptional circumstances and to prevent a miscarriage of justice”. [emphasis added]

The decided cases where the courts have granted leave for re-call of witnesses can be distinguished on the facts, because:

in those decided cases there was no past history of previous relaxation and latitude granted to the applicant despite its non-compliance with the deadlines stated case management directions: see all the decided cases in paragraph 9 above); or

the document(s) or evidence in respect of which the further examination of re-call witness was sought was not numerous or lengthy: see (a) Tan Kah Khiam v. Liew Chin Chuan & Anor [2007] 2 MLJ 145 on calling a translator to prove the contents of the impugned article in the language of the court in English or Bahasa Malaysia; (b) Muhammad Hafizan Nordin & Anor v. Muhammad Amirul Azhar Razali & Anor [2020] 6 CLJ 731 on re-call of witnesses to be cross-examined on a letter dated 27 August 2018 and photographs, as the said documents were tendered by the defendant’s new solicitor subsequent to the completion of the said witnesses’ evidence and the issue in that case was regarding the identity of the parties and the vehicles involved in the accident; or

the documents sought to be used in further examination upon re-call was prevented or hindered by the opponent from earlier disclosure or production: see Silver Bird Group Bhd & Ors v. Dato’ Tan Han Kook & Ors [2016] 9 MLJ 503; or

the re-call for short further examination was caused by unforeseen circumstances or inadvertent omission: see Ong Yoke Eng & Anor v. Lim Ah Yew [1982] 1 MLJ 226; and

In Danalatmi Seenivasan v. Ahmad bin Abdullah & Anor [2018] 1 LNS 1577 the High Court in an appeal arising from a road accident case dismissed the plaintiff’s appeal to recall the police inspector PW1 to describe on the sketch plan where there were 3 versions as to how the accident occurred, and this refusal to allow re-call of a witness was in spite of the fact 17 that the further evidence would be short and relate to only the sketch plan.

From the affidavits and the evidence adduced thus far, this Court is not convinced that the additional documents and the proposed further examination in respect of them would be of materiality or much relevance to the issues at hand. A more detailed analysis and discussion of this aspect of the case regarding materiality and relevancy would be carried out in the final decision after the full trial.

In the entire circumstances of our present case, this Court has held that the discretion under section 138(4) of the Evidence Act should not be exercised in favour of the Plaintiff.

In the premises this Court has dismissed the Plaintiff’s application in Enclosure 97 with costs. Dated : 1st June 2022 Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff : Liana Farhana binti Mohamad Sohib Messrs Mohaji, Hazury & Ismail (Shah Alam)

For the Defendant : Alif Ridhwan bin Mohd Yusof Messrs Hisham, Sobri & Kadir (Petaling Jaya)