Lee Ngan Hoo v 1. ) Insp Sarawanan A/L Panrengam (WA-21NCvC-54-07/2023)

On 18-07-2023 she filed a suit at the High Court against the Investigating Officer for negligence, breach of duty and omission of duty; his superiors and the Malaysian Government for vicarious liability. [2] I fixed the trial for 8 days commencing on 06-05-2024 to 09-05-2024 and from 25-11-2024 to 28-11-2024. [3] However, on 03-05-2024 solicitors for the plaintiff filed a Notice of Application in Enclosure 27 for leave to discontinue the plaintiff’s suit with liberty to file afresh under Order 21 rule 3 of the Rules of Court

(“ROC”). [“Application For Leave to Discontinue”]. [4] The supporting affidavit dated 03-05-2024 was affirmed not by the plaintiff but by a solicitor from the firm of solicitors acting for the plaintiff. The reason given was that allegedly the plaintiff has failed to give documents to them to do the trial. I find this reason flimsy for reasons I will articulate below. [5] As the Application For Leave to Discontinue was only filed on 03-05- 2024, just 3 days before the 8-day trial commenced on 06-05-2024, I heard the Application For Leave to Discontinue urgently on 06-05-

[6] It was obvious counsel for the plaintiff did not prepare for trial for reasons best known to him - i. I had way back on 23-11-2023 given directions to file all necessary documents and witness statements for trial by 03-01-2024 and fixed trial for 8 days on 06-05-2024 to 09-05-2024 and from 25-11- 2024 to 28-11-2024. ii. As of 06-05-2024 which is the first day of trial solicitors for the plaintiff have yet to file any bundle of documents or witness statements of the plaintiff for trial. iii. The Statement of Claim contained a detailed account of the facts and claim and it is inconceivable that the witness statement of the plaintiff was not even prepared and filed. iv. The affidavit in support of the Application For Leave to Discontinue dated 03-05-2024 [Enclosure 28] was not affirmed by the plaintiff but by the solicitor. It was a bare affidavit without any documents exhibited. It merely said the plaintiff had failed to give them documents to prepare for trial. v. The defendants have filed their bundle of documents and six witness statements for trial on 29-03-2024. [7] On 06-05-2024 after hearing submissions I had allowed the plaintiff discontinuance of her suit but without liberty to file afresh with costs of RM 5,000 to the defendants. [8] The Court sympathises with the plaintiff’s predicament but ordered no liberty to file afresh as learned counsel for the defendants objected to liberty to file afresh as a new suit is now barred by limitation. [9] The plaintiff has appealed to the Court of Appeal on 4.06.2024 against the part of my order which had ordered no liberty to file afresh. These are my Grounds of Judgment. The Law On Discontinuance Of Action Requiring Leave of Court Under Order 21 rule 3 ROC [10] The law on the discontinuance of a suit by a plaintiff is found in Order 21 of the ROC. Order 21 rule 2(1) of the ROC allows the discontinuance of an action by a plaintiff without the leave of court if the notice of discontinuance is filed not later than 14 days after the service of the defence on the plaintiff. [See Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA and Prof Dato’ Dr Rahmat Mohamad v Shahizad Sulaiman [2024] 4 CLJ 302 HC]. [11] Order 21 rule 2 of the ROC reads as follows: Discontinuance of action without leave (O. 21 r. 2)

The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than fourteen days after the service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice in Form 32 to that effect on the defendant concerned. [Emphasis added] [12] The law on discontinuance of an action requiring leave of court under Order 21 rule 3(1) ROC 2012 is settled law. [13] The two decisions of the Court of Appeal in Majlis Peguam Malaysia & Ors v Raja Segaran S Krishnan [2002] 3 CLJ 370 per Gopal Sri Ram JCA and in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 are the leading cases on the law on discontinuance of an action requiring leave of court. [14] In Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA Zabariah Mohd Yusof JCA said - [21] In an action begun by writ, a Plaintiff may, without leave of the court, discontinue the action not later than 14 days after service of the defence (see O 21 r 2 (1) of the Rules of Court 2012). Once the 14 days for service of the defence has passed, discontinuance may be done only with leave. The court in granting such leave may impose such terms as it thinks just, inter alia, in respect of costs and in respect of bringing a further subsequent actions (see O 21 r 3 (1) of the Rules of Court 2012). [22] The Plaintiff herein applied to discontinue the Suit under O 21 r 3 (1) of the Rules of Court 2012. In the exercise of its discretion when granting leave, the court has a wide discretion, based on judicial principles. Practical considerations do come into play when exercising the discretion. … [23] Before granting the order for discontinuance of an action, the court must be satisfied that: i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124); ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v Star Newspaper Company [1898] 1 QB 636); iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O’Neal v Mann [2000] FCA 1680); iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; v) it will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled. [24] In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depends very much on the facts and circumstances of each case. [Emphasis added] [15] Even if the application by the plaintiff is for a discontinuance of the Suit with liberty to file afresh, the Court is empowered to grant the discontinuance but with no liberty to file afresh under the new Rules of Court 2012. Indian cases which held that when the Court has declined to grant leave to file a fresh suit, the Trial Court ought to have dismissed the application in toto as the Court would be acting without jurisdiction in dividing the application into two parts is not the law here. [See Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA at [35 - 37] per Zabariah Mohd Yusof JCA]. [16] This is what Zabariah Mohd Yusof JCA said- [35] In granting the application by the Plaintiff herein, whether the court could in the circumstances allow the application in part i.e. allowed the discontinuance but with no liberty to file afresh. The appellant cited Indian authorities … The case went on appeal and it was argued on behalf of the petitioner that the trial court erred in partly allowing the application to withdraw without liberty to file afresh on the same cause of action. It was argued on behalf of the petitioner that the trial court could have dismissed the application entirely and the petitioner would have proceeded with the suit. The petitioner relied on reported decisions of Marudachala Nadar v Chinna Muthu Nadar AIR 1932 Madras 155, as well as T.W. Ranganathan v T.K. Subramaniam, and submitted that the impugned order of the trial court was in violation of O 23 r 1(3) CPC as the court cannot split the order to cause serious prejudice to the plaintiff. ... It was subsequently held that: “ 12. An application to withdraw a suit with liberty to file afresh must either be allowed or refused in toto. It is not open to the Court to grant a prayer for withdrawal and refuse the leave. If liberty is refused, the suit should not be dismissed, but must be retained in the file for trial/continuation of trial. If an application is made for withdrawal of the suit with liberty to file a fresh suit, it is not open to the Court to grant only permission for withdrawal, without liberty to file afresh suit. If the Court simply allows withdrawal but refuses liberty, the Court would be acting without jurisdiction in dividing the Petition into two parts. It is to be noted that the application under the Order 23 rule 1 (3) of C.P.C. is indivisible whole. The Trial Court was not right in separating the prayer for withdrawal and the leave to file a fresh suit. When the Court has declined to grant leave to file a fresh suit, the Trial Court ought to have dismissed the application in toto.” [36] We are not in agreement with the decision of the abovementioned Indian cases in this respect, as we are not deplete of local authorities that have established that the courts generally has wide discretion in granting an application to discontinue an action subject to terms that befit the facts and circumstances of the case. Hence, even if the application by the Plaintiff is for a discontinuance of the Suit with liberty to file afresh, the Court may very well be empowered to grant the discontinuance but with no liberty to file afresh. What is pertinent is the prejudice suffered by imposing such conditions to the Plaintiff who is now left without any remedy. This issue will be addressed in the later part of this judgment. [37] In considering this appeal, we are mindful of the fact that under the new Rules of Court 2012, the Court plays a proactive role in moving the pace for litigation. The Courts no longer leave it to the litigants to decide the same. [Emphasis added] [17] The court will normally allow the plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. This is because it is not desirable that a plaintiff should be compelled to litigate against his will. (See Hanhyo Sdn Bhd v Marplan Sdn Bhd & Ors [1991] 3 CLJ 1783; [1991] 2 CLJ (Rep) 684; [1992] 1 MLJ 51 per Lim Beng Choon J). [18] As to when a court will compel a plaintiff to litigate against his will, this has been explained in Hanhyo Sdn Bhd v Marplan Sdn Bhd & Ors [1991] 3 CLJ 1783; [1991] 2 CLJ (Rep) 684; [1992] 1 MLJ 51 by Lim Beng Choon J and reproduced in Supramaniam Govindasamy v Ravi Govindasamy & Anor [2023] CLJU 1640; [2023] 1 LNS 1640; [2023] MLJU 1844 HC by Azizan Md Arshad JC at paragraph 17 as follows: [17] In Hanhyo Sdn Bhd v. Marplan Sdn Bhd & Ors [1992] 1 MLJ 51, the court, after analysing and considering the principles expressed by three cases related to the withdrawal or termination of the action, namely the cases of (i) Costanho v. Brown & Root (UK) Ltd & Anor [1981] AC 557, (ii) Covell Mathews & Partners v. French Wools Ltd [1977] 2 All ER 591, and (iii) Oversea Union Finance Ltd v. Lim Joo Chong [1971] 2 MLJ 124, held as follows: The principles that can be extracted from the aforementioned cases are that the court would not compel a Plaintiff to continue his action against a Defendant if he does not want to do so provided no injustice is cause to the Defendant. Injustice would be caused to the Defendant if:

the discontinuance was made with ulterior motive to obtain a collateral advantage as in the case of Costanho v. Brown & Root Ltd;

the discontinuance was not made bona fide by the Plaintiff but it was made in order to obtain an advantage to which he has no right to retain since he has ceased to be dominis litis as the defendant has perfectly good defence – see Oversea Union Finance Ltd v. Lim Foo Chong;

by the discontinuance of the action the defendant would be deprived of an advantage which he has already gained in the litigation – see Covell Matthews & Partners v. French Wools Ltd. (See also Crestronics (M) Sdn Bhd lwn. Panasonic Manufacturing Malaysia Bhd [2021] MLJU 2845) [19] The principal reason for the requirement for leave is that once proceedings have reached a certain stage, the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest, since he is no longer dominus litis and it is for the judge to say whether the action shall be discontinued or not and upon what terms. (See Malaysian Civil Procedure Volume 1 2021 edition Sweet & Maxwell at 21/3/4 and Fox v Star Newspaper Co [1898] 1 QB 636 at 639, CA (Eng), per Chitty LJ; [1900] AC 19, HL). [20] When the case has gone to an advanced stage, there must be cogent reasons for the court to grant discontinuance with liberty to file afresh (Layan Bujang & Ors v Naim Land Sdn Bhd & Ors [2016] 1 LNS 918). [See Malaysian Civil Procedure Volume 1 2021 edition Sweet & Maxwell at 21/3/5]. [21] What constitutes advanced stage may differ among judges. In Ji Zhan Capital Sdn Bhd v Chua & Chew Sdn Bhd [2020] 6 AMR 709; [2020] MLJU 856; [2020] 10 CLJ 670, the court refused to grant liberty to file afresh after taking into consideration, inter alia, that the witness statement and all the necessary trial documents were filed. It was held that the plaintiff has seen all the defendant’s cards, to grant liberty to file afresh would allow the plaintiff to make good of any earlier deficiency in his case by making fresh pleading. In JPK (M) Sdn Bhd (dalam likuidasi mendakwa melalui Cheng & Co Corporation Recovery Sdn Bhd) v Sunny Tech (M) Sdn Bhd & Ors [2018] MLJU 94, the court allowed liberty to file afresh as the court took a different view and held that although all trial documents were filed and trial dates were fixed, it was not considered to be at an advanced stage since the trial had not even commenced, and there was nothing to show that the plaintiff had gained advantage over the defendant. [See Malaysian Civil Procedure Volume 1 2021 edition Sweet & Maxwell at 21/3/5]. [22] The court may refuse to grant liberty to file afresh if the plaintiff provides no reason for the discontinuance. This is usually coupled with other factors, such as, the proceedings is already at an advanced stage. See Dilantha Ranjula Bandara Malagamuwa v ADM Ventures (M) Sdn Bhd & Ors [2018] AMEJ 1162; [2018] MLJU 1034; Mega Crystal Network Sdn Bhd v Yayasan Selangor & Ors [2020] MLJU 133. [See also Malaysian Civil Procedure Volume 1 2021 edition Sweet & Maxwell at 21/3/5]. [23] In Raub Oil Mill Sdn Bhd v Dato’ Sri Andrew Kam Tai Yeow [2019] 11 MLJ 471 HC Ong Chee Kwan JC said - [27] In Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671, the Court of Appeal declined to follow the Indian cases holding that it is not open to the court to grant leave to discontinue without liberty to file a fresh suit if an application that is made is one for a discontinuance with liberty to file a fresh suit. The Indian cases held that when the court has declined to grant leave to discontinue, the court ought to dismiss the application to discontinue in toto. [28] Our Court of Appeal held that in an application under our O 21 r 3(1) of Rules, the court has wide discretion in granting an application to discontinue an action subject to terms that befit the facts and circumstances of the case. The relevant passage of the judgment states: [36] We are not in agreement with the decision of the abovementioned Indian cases in this respect, as we are not depleted of local authorities that have established that the courts generally has wide discretion in granting an application to discontinue an action subject to terms that befit the facts and circumstances of the case. Hence, even if the application by the plaintiff is for a discontinuance of the suit with liberty to file afresh, the court may very well be empowered to grant the discontinuance but with no liberty to file afresh. What is pertinent is the prejudice suffered by imposing such conditions to the plaintiff who is now left without remedy. [Emphasis added] A suggestion for the way forward [24] “Dominus litis” is a Latin maxim that means “master of the suit”. It refers to the principle that a party who initiates a legal action has control over the proceedings. [See Ji Zhan Capital Sdn Bhd v Chua & Chew Sdn Bhd HC at [15 - 16]]. [25] Taking the cue from the jurisprudence propounded by the Court of Appeal in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA, we should revisit the common law principle that “Leave may be refused to a plaintiff to discontinue the action, if the plaintiff is not wholly dominis litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him.” (See Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124 HC per Raja Azlan Shah J]. [26] This is because the starting principle must be that it is not desirable that a plaintiff should be compelled to litigate against his will. (See Hanhyo Sdn Bhd v Marplan Sdn Bhd & Ors [1991] 3 CLJ 1783; [1991] 2 CLJ (Rep) 684; [1992] 1 MLJ 51 per Lim Beng Choon J). [27] If the plaintiff wishes to discontinue his action and the Court finds that the plaintiff is not wholly dominis litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him, the Court should not force the plaintiff to litigate against his wishes but should allow him to discontinue but without liberty to file afresh. [28] We can now do that i.e. impose a term ‘without liberty to file afresh’, contrary to the position taken by the Indian cases, because as pointed out by the Court of Appeal in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA at [37], Malaysian Courts can now impose terms on discontinuance as ‘under the new Rules of Court 2012, the Court plays a proactive role in moving the pace for litigation. The Courts no longer leave it to the litigants to decide the same.’ [29] It makes sense to depart from the common law position mentioned earlier that compels the plaintiff to proceed with his suit if the plaintiff is no longer dominus litis, now that under our new ROC 2012 we can allow a discontinuance but without liberty to file afresh. This way we can avoid unnecessary wastage of precious judicial time and litigants can also save on legal fees. Application to facts [30] In the case before me I don’t see the reason given by learned counsel for the plaintiff to ask for discontinuance of the suit with liberty to file afresh cogent at all. Counsel has not done anything at all to prepare for trial, from 23-11-2023 [the date I gave directions to file all necessary documents and witness statements for trial] to 06-05-2024 [the date of trial], although he acts for the plaintiff that is making the claim. [31] He asked for discontinuance of the suit with liberty to file afresh. Given liberty to file afresh would serve no purpose as any fresh suit is time-barred as 36 months have passed since the death of the plaintiff’s son on 03-03-2021 upon which is founded the alleged cause of action. [See section 2 of the Public Authorities Protection Act 1948 and Alias Ismail v Hairuddin Mohamad & Anor [1997] 4 CLJ 669 CA]. [32] In Alias Ismail v Hairuddin Mohamad & Anor [1997] 4 CLJ 669 CA Abdul Malek Ahmad JCA said - But the merits of the matter were of no consequence to us since the only issue that stood out was the question of limitation. … the learned Federal Counsel had reiterated that the appellant was governed by the limitation provision and was out of time. He had referred to s. 2 of the Public Authorities Protection Act 1948 which states that where any suit, action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority, that suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of. Further, s. 38 of the Government Proceedings Act 1956 provides that the Government, in any civil proceedings against it, may as a defence rely on any written law relating to the limitation of time in any proceedings against public authorities. In the instant appeal, it is not disputed that the appellant had taken more than three years to file the action. The incident took place in 1987 but the suit was filed only in 1996, some nine years later. Even if we were to take the date he received the letter of approval to file the action, which should not be the case, the relevant date was 12 November 1991 and he would still be out of time. The court has no discretion to set aside a defence of limitation. [Emphasis added] Decision [33] For the reasons above, I allow the discontinuance of the suit but without liberty to file afresh with costs of RM 5,000 to the defendants. Postscript [34] I note that after my decision of 06-05-2024 a new firm of solicitors, Messrs. Sim and Rahman has taken over on 04-06-2024 from Messrs. Lee and Partners to act for the plaintiff and has also filed this appeal. [35] If the plaintiff still wishes to proceed with her claim then the correct application is not to ask for discontinuance of the suit with liberty to file afresh, as prayed for in Enclosure 27 before me, as such an order is worthless for the limitation reason I had given above. The application should be to proceed with the trial. [36] Such an order was made by the Court of Appeal in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 where Zabariah Mohd Yusof JCA ordered “The case is remitted back to the High Court for further case management in preparation for full trial.” - [55] There was nothing that was before the court to suggest that the discontinuance applied for by the Plaintiff had caused an injustice to the Defendant. In fact, the Plaintiff stands to be gravely prejudiced by the order of the learned JC. [56] … On the facts and circumstances of the case and given that the case was filed 18 months from the decision of the striking out was made, justice is best served if the case is allowed to remain for trial. … [57] … Hence, discretion should have been to dismiss the application and direct the Suit to proceed to trial. [58] Therefore, the order of the learned JC is set aside. The case is remitted back to the High Court for further case management in preparation for full trial. [59] Appeal is allowed with no order as to costs. [Emphasis added] ………(signed)…………. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 21th June 2024 COUNSEL: 1) Nik Ahmed Asraf Bin Nik Othman for plaintiff. (Lee & Partners. (Petaling Jaya)) 2) Siti Syakimah binti Ibrahim and Abdul Hakim bin Abdul Keram @ Karem for defendants. (Jabatan Peguam Negara, Putrajaya (Putrajaya)) CASES REFERRED TO: 1) Alias Ismail v Hairuddin Mohamad & Anor [1997] 4 CLJ 669 CA. 2) Costanho v. Brown & Root (UK) Ltd & AAnor [1981] AC 557. 3) Covell Mathews & Partners v. French Wools Ltd [1977] 2 All ER 591. 4) Dilantha Ranjula Bandara Malagamuwa v ADM Ventures (M) Sdn Bhd & Ors [2018] AMEJ 1162; [2018] MLJU 1034. 5) Fox v Star Newspaper Company [1898] 1 QB 636. 6) Hanhyo Sdn Bhd v Marplan Sdn Bhd & Ors [1991] 3 CLJ 1783; [1991] 2 CLJ (Rep) 684; [1992] 1 MLJ 51. 7) Ji Zhan Capital Sdn Bhd v Chua & Chew Sdn Bhd [2020] 6 AMR 709; [2020] MLJU 856; [2020] 10 CLJ 670. 8) JPK (M) Sdn Bhd (dalam likuidasi mendakwa melalui Cheng & Co Corporation Recovery Sdn Bhd) v Sunny Tech (M) Sdn Bhd & Ors [2018] MLJU 94. 9) Layan Bujang & Ors v Naim Land Sdn Bhd & Ors [2016] 1 LNS 918. 10) Majlis Peguam Malaysia & Ors v Raja Segaran S Krishnan [2002] 3 CLJ 370. 11) Marudachala Nadar v Chinna Muthu Nadar AIR 1932 Madras 155. 12) Mega Crystal Network Sdn Bhd v Yayasan Selangor & Ors [2020] MLJU 133. 13) Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 CA. 14) O’Neal v Mann [2000] FCA 1680. 15) Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124. 16) Prof Dato’ Dr Rahmat Mohamad v Shahizad Sulaiman [2024] 4 CLJ 302 HC. 17) Raub Oil Mill Sdn Bhd v Dato’ Sri Andrew Kam Tai Yeow [2019] 11 MLJ 471 HC. 18) Supramaniam Govindasamy v Ravi Govindasamy & Anor [2023] CLJU 1640; [2023] 1 LNS 1640; [2023] MLJU 1844 HC. 19) T.W. Ranganathan v T.K. Subramaniam AIR 1971 Madras 477. LEGISLATION REFERRED TO: 1) Section 2 of the Public Authorities Protection Act 1948. 2) Section 38 of the Government Proceedings Act 1956. 3) Order 21 rule 2 of the Rules of Court 2012. 4) Order 21 rule 2(1) of the Rules of Court 2012. 5) Order 21 rule 3 of the Rules of Court 2012. 6) Order 21 rule 3(1) of the Rules of Court 2012. 7) Order 23 rule 1 (3) of Indian CPC. LITERATURE REFERRED TO: 1) Malaysian Civil Procedure Volume 1 2021 edition Sweet & Maxwell.