Mohamed Fahrulnizam Bin Mazura @ Hassan v Mohd Mazri Bin Mat Omar (DA-12B-19-07/2025)

This appeal arises from my decision delivered on 14.6.2026, whereby I upheld the Respondent's preliminary objection and struck out the Appellant's appeal for persistent non-compliance with the Court's case management directions.

The sole question was whether the Appellant, having repeatedly failed to comply with the Court's directions relating to the preparation of the Appeal Record, should nevertheless be permitted to continue prosecuting the appeal.

The issue assumes greater significance because the appeal had previously been struck out for the same reason but was subsequently reinstated upon the Appellant's application.

Notwithstanding that indulgence, the Appellant again failed to comply with the Court's direction requiring the outstanding Notes of Evidence to be filed within the stipulated time.

Having considered the entire procedural history, the submissions of parties and the applicable principles governing case management, I was satisfied that the Respondent's preliminary objection was well founded and that the appeal ought to be struck out.

The Appellant filed the present appeal against the decision of the learned Sessions Court on 21.7.2025. The appeal came before this Court for case management on numerous occasions on 10.8.2025,

7.9.2025,

8.10.2025,

5.11.2025,

3.12.2025,

17.12.2025, 7.1.2026 and 21.1.2026 with the objective of ensuring that the Appeal Record was complete and that the appeal was ready to be fixed for hearing. Throughout those case managements, the Appellant was repeatedly directed to finalize the filing or appeal documents including the Notes of Evidence.

Despite the repeated directions of the Court, the Appellant failed to complete the Appeal Records. The Court nevertheless continued to afford the Appellant further opportunities to comply. Ultimately, after the Appellant had failed to comply with successive case management directions, this Court made a peremptory order directing the Appellant to file the outstanding Notes of Evidence within the time stipulated by the Court, failing which the appeal would be struck out.

The Appellant again failed to comply with the said peremptory order. In consequence, the appeal was struck out on 21.1.2026 when the Appellant did not file the Notes of Evidence despite being given 6 months to do so from the date of filing of the Notice of Appeal.

Following the striking out, the Appellant filed an application seeking an order that the appeal be reinstated. The Respondent opposed that application. Notwithstanding the earlier defaults, this Court was prepared to afford the Appellant one further opportunity to prosecute the appeal. Accordingly, the application was allowed and the appeal was reinstated on 5.5.2026.

The reinstatement, however, was not unconditional. Considering that the appeal had previously been struck out because of the Appellant's failure to file the Notes of Evidence, the Court directed the Appellant to file the outstanding Notes of Evidence within one week from 5.5.2026, and further gave directions for the filing of written submissions for the appeal.

That direction was clear, unequivocal and incapable of misunderstanding. It was intended to bring to an end the prolonged delay that had already impeded the progress of the appeal.

Unfortunately, the Appellant once again failed to comply with the Court's direction. Consequently, notwithstanding the reinstatement of the appeal, the Appeal Record remained incomplete and the appeal remained incapable of being heard despite the directions for written submissions being given.

Faced with the Appellant's continued non-compliance, the Respondent issued a letter to this Court requesting that a preliminary objection be heard before any further step was taken in the appeal. The Respondent pointed out that despite the reinstatement of the appeal, the Appellant had yet to comply with the Court's direction requiring the filing of the Supplementary Appeal Record containing the Notes of Evidence and had also failed to comply with the Court's directions for written submissions.

The sole issue for determination is whether, having regard to the Appellant's repeated failure to comply with the Court's case management directions and, in particular, the peremptory order made, the Respondent's preliminary objection ought to be upheld and the appeal struck out.

The applicable principles are settled. The introduction of Order 34 (which is applicable to all proceedings before the court), fundamentally altered the conduct of civil litigation. In Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461, the Federal Court explained that the progress of litigation is no longer left to the parties. Instead, the Court assumes an active role in directing the progress of proceedings by prescribing timelines and ensuring that they are complied with. Their Lordships adopted the observation in Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465 that: "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."

In exercising its powers under Order 34, the Court is entitled to consider all instances of non-compliance and the entire history of the proceedings. Continuing breaches of a peremptory order, which prevent the progress of the litigation, are matters which the Court is entitled to take into account in determining the appropriate sanction.

The Federal Court also endorsed the reasoning of Mohd Hishamudin J (as his lordship then was) in Hong Leong Assurance Bhd v American Home Assurance Co Malaysia [2008] 8 MLJ 547, where His Lordship described persistent non-compliance with case management directions as demonstrating scant respect for the court's case management directions and a blatant disregard for the court's direction, and said as follows: "[3] In my judgment, the action ought to be dismissed as there was clear non-compliance with the court’s previous case management direction, the non-compliance being of such a nature as to give me the impression that the plaintiff has scant respect for the court’s case management directions and was not serious in prosecuting its claim against the defendant. ………………. ………………. …….. I think it is ridiculous and an affront to the proper administration of justice for the court to grant the plaintiff the adjournment sought so that the plaintiff could comply with a direction given three years ago in 2005! There are times when courts have to be firm with litigants in order to prevent the administration of justice from falling into disrepute."

The observations above reflect the policy underlying case management directions. They are made to ensure smooth and speedy resolution of cases and the Parties are therefore expected to comply with them promptly. Persistent non-compliance, particularly in relation to a peremptory order, cannot be treated as a mere procedural irregularity. It strikes at the Court's ability to manage its own proceedings effectively.

Having considered the affidavits, the chronology of events and upon hearing counsel for both parties, I was satisfied that the Respondent's preliminary objection ought to be upheld.

The only issue before me was whether the Appellant, having repeatedly failed to comply with the Court's directions governing the preparation of the appeal, should nevertheless be permitted to continue prosecuting it. That issue must necessarily be answered against the background of the entire procedural history of the appeal rather than by viewing each instance of non-compliance in isolation.

The chronology of events speaks for itself. Since the filing of the appeal in July 2025, this Court convened numerous case managements for one purpose only, namely to ensure that the appeal record was complete and the appeal was ready to be fixed for hearing. The non-filing of Notes of Evidence was the subject of discussion at every case management. The Court did not immediately resort to sanctions. Instead, the Appellant was afforded repeated opportunities over several months to complete the Appeal Record.

The opportunities unfortunately produced no meaningful progress. The outstanding Notes of Evidence remained unfiled and the appeal remained procedurally incomplete. Faced with the continuing default, and after undergoing 6 case managements, the Court eventually considered it necessary to issue a peremptory order.

The significance of such an order should not be understated. A peremptory order is not merely another case management direction. It is, by its very nature, a final judicial direction which informs the defaulting party, in clear and unequivocal terms, that non-compliance will result in the Appeal being struck out.

The purpose of such an order is to bring certainty to the management of litigation and to ensure that proceedings do not remain indefinitely stalled through repeated defaults. Despite the seriousness of that order, the Appellant failed to comply. The appeal was accordingly struck out in accordance with the terms of the peremptory order.

Ordinarily, that would have brought the matter to an end. However, upon the Appellant's application, this Court exercised its discretion in favour of the Appellant and reinstated the appeal. In doing so, the Court deliberately chose not to treat the earlier breach of the peremptory order as fatal. The Court was prepared to overlook the previous default in the interest of allowing the appeal to be heard on its merits.

That indulgence, however, was accompanied by a corresponding obligation. The reinstatement was expressly made subject to the Appellant filing the outstanding Notes of Evidence within one week. The direction was straightforward. It addressed the very omission that had resulted in the earlier striking out of the appeal. There was therefore no uncertainty as to what was required of the Appellant, nor was there any ambiguity as to the importance which the Court attached to compliance.

Unfortunately, the Appellant again failed to comply. In this regard, the Appellant was no longer dealing merely with ordinary case management directions. The Appellant had already once failed to comply with a peremptory order, had already suffered the consequence of having the appeal struck out, and had nevertheless succeeded in persuading the Court to revive the appeal. One would reasonably expect that, having obtained such relief, the Appellant would thereafter act with the utmost diligence to ensure full compliance with every subsequent direction of the Court. Instead, the same default continued unabated.

The Appellant's conduct cannot therefore be categorised as a mere procedural oversight or an isolated lapse. Viewed objectively, it discloses a persistent pattern of non-compliance extending over a considerable period. More importantly, it demonstrates a blatant disregard for the Court's case management directions. Like the circumstances considered by Mohd Hishamudin J in Hong Leong Assurance (supra), the repeated failures in the present case give the unmistakable impression that the Appellant had little or no respect for the Court's case management directions and was not prosecuting the appeal with the diligence expected of a litigant seeking the Court's assistance.

I am guided by the reasoning of the Federal Court in Syed Omar (supra) where their Lordships made it abundantly clear that the Court is no longer confined to examining a single act of default, but is entitled to consider the entire course of conduct of the defaulting party and all the factors causing delay. Continuing breaches of a peremptory order which prevent the litigation from progressing are matters which properly fall within the Court's consideration.

Applying those principles, I find that the present appeal had remained stagnant solely because the Appellant persistently failed to perform its fundamental obligation which had been tolerated repeatedly. The inability to fix the appeal for hearing was not attributable to any act of the Respondent or the Court. It was the direct consequence of the Appellant's continuing failure to comply with successive judicial directions.

The Appellant did not satisfactorily explain why he continued to remain in default even after the appeal had been reinstated and a further period of one week had been expressly granted by the Court. The reinstatement itself afforded the Appellant a fresh opportunity to rectify the omission. Yet the Appellant allowed that opportunity to pass without compliance.

At this juncture, it is worth stating that the onus to prepare the Notes of Evidence lies on the Appellant, and the Appellant had failed to prepare them despite being given 6 months to do so. The length of time taken by the Appellant and absence of a satisfactory explanation is unacceptable.

The Court is always slow to deprive a litigant of the opportunity to have his appeal heard on its merits. However, the Court owes a duty to every litigant to ensure that proceedings are conducted efficiently and in accordance with the Rules of Court. If parties are permitted to disregard peremptory orders with impunity, the objectives underlying active judicial case management would be entirely defeated.

Further, this is not a case where the Court acted precipitously. On the contrary, the procedural history demonstrates considerable patience on the part of the Court. Numerous case managements were conducted. Repeated opportunities were afforded. A peremptory order was made. Even after that order was breached and the appeal struck out, the Court nevertheless reinstated the appeal and granted the Appellant a further opportunity to comply. Regrettably, none of those measures succeeded in securing compliance.

In those circumstances, the Respondent was fully justified in inviting the Court to invoke its inherent jurisdiction. To have granted yet another opportunity would have sent the wrong message that compliance with peremptory orders is optional rather than mandatory. Such an approach would undermine the authority of the Court's own directions.

I was therefore driven to the conclusion that the Appellant's persistent defaults, viewed cumulatively, demonstrated a blatant disregard of the Court's peremptory orders and amounted to contumelious conduct. The Court's discretion had been exercised once in the Appellant's favour when the appeal was reinstated. There was no proper basis upon which that discretion should be exercised a second time in the face of continuing non-compliance.

Having considered the entire procedural history of the appeal, I was satisfied that the Respondent's preliminary objection was well founded. The Appellant had been afforded numerous opportunities to regularise the appeal, culminating in a peremptory order requiring the outstanding Notes of Evidence to be filed within the stipulated period.

Even after the appeal was reinstated, the Appellant again failed to comply with the Court's clear direction. Viewed cumulatively, the Appellant's persistent non-compliance demonstrated a blatant disregard for the Court's case management directions and amounted to contumelious conduct which warranted the Court's intervention.

For these reasons, I upheld the Respondent's preliminary objection and ordered that the appeal be struck out. This Grounds of Judgment is dated 16.7.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Perayu: Tetuan Azilan Suhaila & Associates PT 1096 (Belakang Petronas Pintu Geng) Kg. Pintu Geng, 15100 Kota Bharu, Kelantan. Peguam bagi pihak Responden: Tetuan Zufaidi & Associates Lot 8015 & 8016, Aras 2, Bandar Satelit Islam, Pasir Tumbuh, 16150 Kota Bharu, Kelantan.