Kpj Selangor Specialist Hospital v 1. ) Zubaidah Binti Zulkifli (MC-A72NCvC-24-11/2024)

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DR. MOHAMAD AZNAN BIN SHUHAILI DR. KHAIRUL AZMAN BIN IBRAHIM ... DEFENDANTS GROUNDS OF JUDGMENT (ENCL. 60) 25/09/2025 03:42:22 MC-A72NCvC-24-11/2024 Kand. 72

The counsel for the Third Defendant in the Counterclaim, namely Dr. Mohamad Aznan (Messrs Arizal Jailani & Co. in Kuala Lumpur), filed a notice of appeal dated 22 September 2025 against my order delivered on 10 September 2025. However, it is unclear as to which part of the order he intends to appeal to the High Court, as he merely stated in his notice of appeal that the appeal is against the part of the order which struck out the Notice of Application Encl.

60.

Encl. 60 was the Third Defendant’s application in the Counterclaim, seeking that all further proceedings, including the full trial of this case, be stayed pending the final disposal of the Notice of Application to set aside the Judgment in Default dated 21 August 2025 at Encl. 53 and/or any further appeal arising therefrom.

Without going into the merits of the case, this matter concerns technicality and procedural fairness. For ease of reference, the Plaintiff’s claim is for the outstanding balance of RM26,583.80 from the Defendant, being charges for medical treatment received from the Plaintiff (of the original claim) before the Defendant was discharged from the hospital.

Meanwhile, the Defendant (of the original claim) filed a counterclaim against additional parties, namely the First (D1), Third (D3), and Fourth Defendants (D4), on the basis that the Defendant of the original claim / Plaintiff of the counterclaim herself had given a conditional oral consent to the Plaintiff, D1, D3, and D4 as above-mentioned that the main surgical procedure would only proceed if a guarantee letter from the Defendant’s insurer, Manulife Insurance Berhad, assuring full payment of the main surgical costs, which relates to the issue of misrepresentation.

It is important to understand the chronology of this case before considering the D3’s application (of the counterclaim) for a stay of trial proceeding at Encl. 60, as reproduced in the following table: - No.

17 Dec 2024 First e-review to update service of the writ and filing of affidavit of service.

20 Dec 2024 Application for substituted service of writ and statement of claim against the Defendant (original claim) at Encl. 6 was allowed.

13 Jan 2025 Plaintiff’s counsel informed the court that substituted service was in progress.

31 Jan 2025 Counsel for Defendant (of the original claim) entered e-review for the first time and pending filing of defence.

14 Feb 2025 Plaintiff’s counsel informed intention to amend the writ and in process of filing defence to counterclaim / reply to original claim.

27 Feb 2025 Counsel for D4 (of the counterclaim) entered e-review for the first time. Plaintiff’s application to amend name of the Plaintiff in writ allowed without objection and costs of RM500 awarded to Defendant as prayed (amended defence and counterclaim was later filed at Encl. 27 on 28 March 2025 removing Kuna as party of the counterclaim).

3 March 2025 This court directed pre-trial case management (PTCM) order as follows:

30 April 2025 for pleadings to be closed;

30 June 2025 for filing of bundles of pleadings, bundles of documents (Parts A-C), agreed issues, facts and witness lists before 29 June 2025. Unless order was issued to ensure for compliance of the PTCM documentations which were given by this court;

30 July 2025: Unless order still applies and to monitor the final compliance of the PTCM documentations; and

Trial fixed early on this date based on common free dates of the involved counsels to block their diaries. The trial dates are on 28 August 2025, 10 – 11 Sept 2025, 28 – 29 Oct 2025 and 4 – 5 Nov 2025.

5 March 2025 Judgment in Default (JID) was recorded against D3 of the counterclaim.

30 April 2025 Pleadings closed.

30 June 2025 Parties requested time to complete PTCM documentations. On the same date, e-review for Encl. 35 (application by counsel to discharge from repesenting D1 of the counterclaim) was fixed and the service of Encl. 35 against D1 was still pending.

7 July 2025 Counsel who filed Encl. 35 had filed Notice of Discontinuance, whilst the Plaintiff’s counsel in the original claim subsequently represented the D1 in the counterclaim.

30 July 2025 First appearance of counsel for D3, En. Mohd Haizal, as informed in the e-review, being appointed on 22 July 2025. This court warned D3’s counsel since no application for setting aside JID had been filed, yet they sought to vacate all trial dates without due diligence. Mediation was fixed on 28 August 2025 at Melaka Tengah Mediation Centre.

28 August 2025 All counsels attended to mediation, including counsel for D3 (who had no locus but permitted by this court to participate), Puan Zahrina. Mediation was conducted before Magistrate, instead of the Melaka Tengah Mediation Centre, with the agreement of all parties. Plaintiff in original claim absent with no mandate to its counsel; also, D4 (of the counterclaim) absent with no mandate to his counsel. This court noted the said D3’s effort through his counsel and Defendant (of the original claim) / Plaintiff’s active participation (of the counterclaim). Same case management date was fixed for Encl. 53 (application to set aside JID by D3 of the counterclaim with only notice of application be filed at that time, pending filing of affidavit in support).

10 Sept 2025 Trial date, physical case management for Encl. and subject matter hearing for Encl. 60.

The issue arising in the present case is clear for this court’s determination, namely whether a court grants a stay of proceeding is an exercise of judicial discretion, dependent on the particular facts of the case.

Role of D3 (of the Counterclaim)

Counsel for the Defendant of the original claim / Plaintiff of the counterclaim filed the counterclaim on 31 Jan 2025 through the e-filing system against D3 (of the counterclaim). Case management commenced on 31 Jan 2025, as referred to in the above chronology.

At the e-review on 3 March 2025, as mentioned above, counsel for the Plaintiff of the counterclaim informed the court that service on D3 had been completed on 17 Feb 2025 via courier, and on 18 Feb 2025 via AR registered post. This was verified by the affidavit of service filed at Encl. 19 in the e-filing system. The trial date of 10 Sept 2025 was also fixed on the said 3 March 2025, very early in the case management proceedings.

As seen from the available records, what D3 did thereafter was remain silent, while the other defendants complied with procedure, filed their memorandum of appearance, and appointed their respective counsels for the counterclaim. At the e-review on 30 July 2025, D3’s counsel appeared for the first time and immediately requested that the trial dates be vacated, despite not having filed any application to set aside the JID. This Court cautioned D3’s counsel, recording that no such application had been filed, and that there was therefore no basis to adjourn the trial. It was further noted that D3 had only appointed counsel at the very last minute, in July 2025, despite having been served since Feb 2025, and had taken no steps in the meantime.

Adjournments of Trial 10. It is important to emphasise that although the trial dates were fixed as early on 3.3.2025, hurdles and challenges arose which vacate certain trial dates. By letter (Encl. 47) dated 11 Sept 2025, counsel for the Plaintiff of the original claim / D1 of the counterclaim sought a postponement. Similarly, another letter (Encl. 48) was filed by counsel for the Plaintiff of the counterclaim / Defendant of the original claim requesting postponement of the 28 Oct 2025 trial dates due to urgent High Court cases being scheduled.

Out of respect for the counsel’s busy schedules, this court converted the 28.8.2025, one of the trial dates, into a mediation date for the convenience of all, instead of fixing another new date. This court wishes to highlight that, while upholding the due administration of justice, early notice of trial dates was given, and every convenience to counsel was prioritised, which can be seen from the record of notes of proceedings and e-review minutes.

On 30 July 2025, when D3’s counsel (D3 of the counterclaim) appeared for the very first time in the e-review, without locus at that material time, this court had already raised the issue that no JID setting aside application had been filed, yet D3’s counsel recklessly sought to vacate the trial dates. It was only on 21 August 2025 that the application to set aside JID (Encl. 53) was eventually filed, despite this court’s earlier warning. Even then, the affidavit in support (Encl. 57) was only filed on 3 Sept 2025. A diligent counsel, being the officer of the court as well, ought reasonably to have taken such steps promptly upon taking over the file.

At the physical case management and mediation before this Court on 28 August 2025, the trial date of 10 Sept 2025 was confirmed. At the same time, case management for Encl. 53 was conducted on the very same 28 August 2025. D3’s counsel also informed this court that an application for stay of proceedings would be filed.

Indeed, the application (Encl. 60) was filed on 4 Sept 2025, one week after the mediation of 28 August 2025, without a certificate of urgency. Nevertheless, this Court fixed the matter promptly for 10 Sept 2025, in line with counsel’s convenience. On 10 Sept 2025, D3’s counsel submitted that the absence of a certificate of urgency was not material since the court had already fixed the matter quickly. This Court reiterates that it never made this an issue, rather, it emphasised that procedural fairness and convenience were consistently afforded to every application, even at the last minute without filing of certificate of urgency. However, this does not mean that the court is bound to grant indulgence simply because a party has filed a stay application. Judicial discretion must always be exercised reasonably, fairly and appropriately.

This court also noted the letter filed by counsel for the Plaintiff of the original claim / D1 of the counterclaim at Encl. 63 dated 9 Sept 2025 at 10:22:25 a.m., only one day before trial. In it, the counsel stated they had no objection to the stay application and requested that the 10 Sept 2025 trial be vacated. Other counsel in the counterclaim (for Plaintiff of the counterclaim / Defendant of the original claim and D4) similarly had no objection. However, this court dismissed those requests, highlighting that an unless order had been issued earlier during e-review case management to ensure the compliance of PTCM documentations in preparation for the trial and trial had been fixed since March 2025.

Trial on 10 Sept 2025 16. On 10 Sept 2025, the trial commenced as fixed. The Court interpreter and Magistrate had repeatedly asked counsel to begin trial from 9.00 a.m., but were informed that D3’s counsel had not arrived. At 10.05 a.m., the case was called and the trial began. It must be recorded that Mr. Amos, counsel for the Plaintiff of the original claim / D1 of the counterclaim (who filed Encl. 63), requested that the court to wait further for D3’s counsel and reiterated that they had no objection to vacating the trial.

While this court appreciated Mr. Amos’ courtesy and kind gestures for his learned comrades, it was made clear and formally recorded that the court had already waited from 9.00 a.m. until 10.05 a.m. for D3’s counsel, who had a simultaneous physical case management in Encl. 53 before this very court. Examination of the Plaintiff’s first witness had begun when D3’s counsel arrived. The matter was stood down to allow counsel, Pn. Zahrina, to address the court.

This court seriously considered her explanation that she had been occupied with family admission to the ward the previous day, and that she had assumed Encl. 60 would be dealt with via e-review. Respectfully, the court informed her that Encl. 60 was struck out as academic at that juncture. The court then directed completion of affidavits and written submissions in respect of Encl. 53 alone (application to set aside JID), and released her early without requiring her to wait further, once she was seen in the courtroom.

No Stay Necessary 19. This is a good example to discuss the need for proper case management and the use of e-review system. At this instance, the counsel for D3 (of the counterclaim) argued that the matter of Encl. 60 should be in e-review for her entry. Yet, this court proceeded to start the trial after waiting for her for almost one hour physically.

This court wishes to emphasize that everyone has matters at hand and priorities to consider. Therefore, we need effective management or perhaps appoint external counsel in case of emergencies. Looking back at the above, it is evident that counsel s are often asked to vacate trial dates, notwithstanding prior dates being reserved for other urgent cases or upon applications filed by D3. In my considered view, fairness does not lie in always giving advantage to one party while ignoring the proper and fair process of order-making that this court has carried out. This court had, on 28 August 2025, reminded D3’s counsel of the trial date scheduled for 10 Sept 2025, which was maintained, and the coming physical case management for Encl. 53 which was fixed on the same day as 10 Sept 2025. This was a known fact to D3’s counsel. Additionally, regarding emergency issues, there was no representative or external counsel appearing on behalf of D3’s counsel that could have been arranged as early as possible before 10 a.m. on 10 Sept 2025.

Furthermore, it is peculiar to note Encl. 60, which seeks a stay of trial proceedings until the disposal of the setting aside of the JID and any further appeal, as stated in the prayer. Such an application is unreasonable, requesting that the trial be halted until the appeal is resolved.

In the circumstances, the order made by this court at Encl. 60 did not dispose of D3’s rights, instead, this court had directed the filing of affidavits and written submissions for Encl. 53 (setting aside JID application). It is a fact that Encl. 53 involves a dispute between D3 and the Plaintiff in the counterclaim, and proceedings have already continued. This is a simple case of no stay necessary. If the trial proceeds, it will be between these two parties instead of delaying the entire group of parties waiting for D3 to be ready, especially since they are represented by separate counsel, but not D3’s counsel. It is reasonable to assert that each party in the counterclaim is an independent and mature entity, capable of pursuing their own claims separately, just as children may have different claims from their mother (logic here) and can bring separate suits or be heard individually. There is no need to drag all parties into waiting for D3.

The straightforward reasoning is that the current status, having heard one witness from the Plaintiff and closing the Plaintiff’s case in the original claim, is to proceed to the next scheduled trial date of 29 Oct 2025. If the trial had proceeded before the stay was heard and disposed of, the stay application in Encl. 60, which was incomplete in terms of affidavits filing by the opponents, would be also rendered nugatory.

After careful assessment of the particular fact as a whole, there is no necessity to preserve D3’s status quo via Encl. 60, since the JID dated 05 March 2025 is valid and regular, and should be set aside first. Therefore, Encl. 53 had been scheduled for completing the filing of affidavits and written submissions with a decision date of 05 Nov 2025, which indicates that D3’s status quo is maintained (International Construction & Civil Engineering Sdn Bhd v Jittra Sdn Bhd & Ors [2018] MLJU 1207, CoA).

Even if the affidavits in reply have not been fully completed, and assuming the factual assertions of the stay application, I am firmly of the considered view that, to make a ruling considering judicial discretion being exercise upon the balance of convenience and justice. The balance of convenience and justice is heavily in favour of denying the stay because granting it would cause severe prejudice to all other parties. It would delay the case unnecessarily, especially when the application for the stay involves only D3 and the Plaintiff in the counterclaim, and does not affect the overall trial proceedings. 26 In the considered view of this court, the “risk” of prejudice caused by delay, once established shall presume significant injustice reasonably. As such, this court has to strike out Encl. 60 grounded upon good conscience to uphold procedural fairness and transparency, had recognized that such a stay application, without showing special circumstances, constitutes an abuse of court process in this context.

It is essential that orders made by the court are obeyed unless they are set aside. In the present case, the trial date of 10 Sept 2025 should proceed, since stay application at Encl. 60 filed at the eleventh hour. The onus is on D3 to demonstrate the existence of special circumstances justifying a stay, which he has failed to do here. The interest of justice requires that the case proceed as scheduled.

Simply put, if the Stay Order is granted, there will be a high risk of injustice to all other parties, who have sought timely justice since the filing of the suit on 19 Nov 2024. Justice must not only be done but must also be seen to be done, particularly in light of the chronology and reasons set out in the preceding paragraphs (Mammoth Empire Construction Sdn Bhd v Kenwise Sdn Bhd [2021]

The risk of injustice to others would be exacerbated by permitting unlimited, unnecessary and unreasonable delay as prayed for by D3, not only in relation to the disposal of Encl. 53, but also in the event of an appeal against Encl. 53, if granted as prayed in his Encl. 60. D3 is presently not in any predicament, as his right to set aside the JID remains preserved and may proceed depending on the outcome of Encl. 53, which is clearly a dispute between D3 and the Plaintiff in the counterclaim, in which it is also not a matter (Encl. 53) for this court to decide at this stage.

Having compared the existence, nature, and extent of the prejudice that may be suffered by the parties if proceedings are stayed or otherwise, I am satisfied that the balance of convenience and justice militates against the need in granting a stay of trial proceeding.

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