LEMBAGA LEBUHRAYA MALAYSIA v 1. ) Pentadbir Tanah Daerah Klang (BA-15-35-02/2016)

1.

SIME DARBY PROPERTY (KLANG) SDN BHD … RESPONDENTS JUDGEMENT (Enclosure 144) Introduction [1] The present application before me by way of Enclosure 144 (“Enc. 144”) dated 14.07.2023 deals with the Applicant’s (“LLM”) application seeking leave from this Court to admit LLM/s Additional Rebuttal Report in Enclosure 139 (“Enc. 139”) and/or LLM’s Additional Affidavit in Enclosure 142 (“Enc. 142”) as evidence. [2] Enc. 139 and 142 were filed on 03.07.2023 and 04.07.2023 respectively and were duly served on the Respondents on 04.07.2023 and 05.07.2023. [3] The 1st Respondent does not object to this application however the 2nd Respondent herein opposes the said Applicant’s application. Brief Background of the proceedings herein [4] The Land Reference hearing date was scheduled on 24th until 27th July 2023. [5] LLM’s Additional Rebuttal Report in Enc. 139 and/or LLM’s Additional Affidavit in Enc. 142 which were filed on 03.07.2023 and 04.07.2023 respectively and duly served on the Respondents on 04.07.2023 and 05.07.2023 fall within the prescribed timelines. Grounds for filing of Enc. [6] The Applicant’s grounds in support are as follows: i. There was no delay of filing both Enc. 139 and 142. The filing of both the documents were made in accordance with Third Schedule of the Land Acquisition Act 1960. The Land Acquisition Act 1960 does not place any restrictions on the filing of these documents at which stage; ii. If there was a delay by LLM, the delay was not intentional. Upon scrutinizing the chronological events, although LLM’s land reference case was remitted for rehearing by the Court of Appeal on 22.10.2018, there were several unresolved issues with respect to the admission of the landowners as the 2nd Respondent and the acceptance of their documentation. Further, there was also stay proceedings pending the outcome of the Appeal on this issue until 05.03.2020. hence the delay in filing Enc. 139 and 142 was not a result of any intentional act or omission on the part of LLM; iii. There is also no substantial miscarriage of justice upon the admission of LLM’s further documents. The rehearing of the land reference itself have yet to commence. The Respondent actually retain the opportunity to respond to the documents and have right to cross-examine the deponents of the said documents, if they desire to do so. According to the Applicant, these documents play a pivotal role in substantiating LLM’s case. Thus, the documents filed are crucial and relevant to LLM’s case later. Court’s Finding’s & Analysis [7] Firstly, whilst the Third Schedule of the Land Acquisition Act 1960 does allow a party to file an affidavit as long as it is served within one (1) week from the hearing date, the party concerned must also comply and adhere to the directions given by the Court. Hence, the Plaintiffs contention that they can file any affidavit as as long as it is done so one (1) week before the hearing clearly disregards the provisions of Order 34 of the Rules of Court 2012 which empowers this Court to give directions towards the timeline for the filing of all cause papers including affidavits. Order 34 of the Rules of Court 2012 is reproduced as below – “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.

Where the Court makes orders or gives directions under paragraph (1), the Court may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued…” [8] Based on the directions of the Court given on 26.05.2023, parties were instructed to list down all the documentations to be used for hearing and that no other affidavits can be filed further without the leave of this Court. To be clear, the last affidavit filed by the Appellant was on 27.02.2019. Since then, neither the Appellant or the Respondent has filed any new application to be heard by this Court. This Court is therefore of the firm view that there is an unreasonable delay on the part of the Appellant in filing Enc. 144 as there has been a gap of almost four (4) years since the filing of the last affidavit in this proceeding. [9] Secondly, this Court also takes the view that there is no cogent reason for the delay in filing the impugned affidavit. The Appellant failed to show the compelling reason behind the filing of the new documentations through this affidavit. [10] Thirdly, this Court, is in agreement with the submission by the Respondents that the documents which the Applicant seeks to introduce are irrelevant for purposes of the land reference proceedings. This is due to the factual reason that the nexus between Sime Darby Property Berhad and Sime Darby Plantation Berhad is a related company has been established and not denied by the Applicant nor the Respondents. The Applicant also affirmed that the filing of the said additional affidavit was to prove this fact. [11] This Court also agrees with the 2nd Respondent’s submission that the “Rancangan Tempatan Majlis Perbandaran Klang 2002-2015” exhibited by the Applicant in Enc. 142 has no probative value nor relevancy towards the subject matter of land reference proceeding in hand. Conclusion [12] In the upshot, I am constrained to dismiss Enc. 144 with costs of RM 1,000.00 subject to allocator fee to the Defendants. Dated 3rd November 2023, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Applicant: Tetuan Kumar Jaspal Kuah & Aishah, K-8-7, Solaris Mont Kiara No 2, Jalan Solaris, 50480 Kuala Lumpur [Ruj: L1.KL.541.2016.WCE.VITAL] Solicitors for the Second Respondent: Tetuan Zain & Co Tingkat 6 & 7, Akademi Etiqa, No. 23, Jalan Melaka 50100 Kuala Lumpur [Ruj: 21500681/KSA/CCM]