Muhammad Ammar Bin Haron v 1. ) Sharifah Zahidah Binti Syed Nooh (BA-22NCvC-135-04/2023)

SHARIFAH ZAHIDAH BINTI SYED NOOH

BBITE FOOD INDUSTRY

BBITE SDN. BHD. (NO. SYARIKAT: 202101002222 (1402520-T)) …DEFENDAN-DEFENDAN JUDGMENT Introduction [1] Traditionally, courts have been passive participants in the pre-trial phase of the civil litigation process, only becoming actively involved when trial commences. At the pre-trial stage, courts remain largely inactive 23/10/2024 14:43:54 BA-22NCvC-135-04/2023 Kand. 57 unless an interlocutory application is filed to address a specific issue. The management of proceedings has historically rested largely with the parties involved in the dispute. However, the advent of modern case management practices has introduced a more proactive approach, with courts now striving to ensure the efficient administration of justice. This proactive role becomes particularly significant when parties fail to comply with pre-trial case management directions. [2] In the current case, this Court faced such a situation. In resolving the present application by the Defendant to strike out the Plaintiff’s claim for flouting pre-trial case management directions issued by this Court, this Court had to carefully consider several key factors, including the need to enforce procedural discipline, the importance of addressing the substantive merits of the case, and the appropriate exercise of judicial discretion. The Principal Issues [3] In summary, there were two principal issues before the Court. [4] The first was whether this Court was empowered to strike out the Plaintiff’s claim pursuant to Order 34 rule 2(3) of the Rules of Court 2012 despite the absence of an unless order. [5] If the answer to the above were in the affirmative, the ensuing issue was whether this was an appropriate case for this Court to exercise its discretion under Order 34 rule 2(3) of the Rules of Court 2012 to strike out the Plaintiff’s claim or alternatively to allow an adjournment sought by the Plaintiff. The Pertinent Background Facts [6] At the first pre-trial case management on 31 May, 2023, this Court had directed parties to file the following documents by 30 June, 2023: Cases; [7] The Plaintiff did not file any of the documents by the said date (Plaintiff’s first non-conformity of pre-trial case management directions);

The Plaintiff did not comply with the pre-trial case management directions issued on 31 May, 2023 by failing to file any pre-trial case management documents by 30 June, 2023;

The Plaintiff flouted the pre-trial case management directions issued on 28 July, 2023 to file his Witness Statements by 5 July, 2024; and

The Plaintiff “ambushed” the Defendants by filing and serving his Witness Statements and the 15 Additional Documents on the Defendants’ solicitors three days before the commencement of trial. [17] The Plaintiff sought to resist the Defendant’s application on the following grounds, namely:

No unless order was made by the Court with regard to the pre-trial case management directions;

The striking out of the Plaintiff’s claim is a drastic exercise of discretion under Order 34 rule 2(3) of the Rules of Court 2012;

Apart from the non-compliances of the above pre-trial case management directions, there was no other record of the Plaintiff not having complied with this Court’s orders; and

The Defendants, by not filing their Witness Statements by 5 July, 2024, too had flouted the pre-trial case management directions of 28 July, 2023. [18] While this Court commended the parties for submitting their written submissions over a very short notice (by the following day), it remarked that if only parties had demonstrated similar diligence throughout the pre-trial stage, the trial would have taken off on 5 August 2024 as scheduled, and this Court would not have been required to consider the present application by the Defendants to invoke Order 34 rule 2(3) of the Rules of Court 2012. The Applicable Principles Relating to Order 34 rule 2(3) [19] It is trite law, and as conceded by both parties, that Courts are conferred with the discretionary power to strike out a party’s claim for non-conformity with case management directions under Order 34 rule 2(3) of the Rules of Court 2012. [20] This is expressly provided in Order 34 rule 2(3) of the Rules of Court 2012 which stipulates as follows: The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. [21] The rationale behind Order 34 rule 2(3) of the Rules of Court 2012 is alluded in Order 34 rule 2(2) of the Rules of Court 2012 which provides that the existence of Order 34 Rule 2 of the Rules of Court 2012 is to enable Courts “ … to secure the just, expeditious and economical disposal of the action or proceedings …”. [22] Additionally, our courts have reiterated the judicial discretion underlying Order 34 rule 2(3) of the Rules of Court 2012 on many occasions. For instance, the Court of Appeal in Koh Heng Jin @ Koh Heng Leong v Gan Kooi Ann [2016] AMEJ 0039; [2015] CLJU 1244; [2015] MLJU 2242; [2015] MLRAU 403 (“Koh Heng Jin”) explained that: [40] In our view even though the learned judge did not issue an “unless order”, O. 34 r. 2(2) of the ROC (not O. 34 r. 1 as cited by counsel) clearly contemplates that orders and directions issued by the court during pre-trial case management are peremptory in nature as O. 34 r. (3) of the ROC confers on the court the power to, inter alia, strike out a party’s claim either on its own motion or upon the application of any party, in the event that such party defaults in complying with any order and/or directive issued by the court under the said O. 34 r. 2(2). [23] Likewise, the High Court in Tan Sri Datuk Diong Hiew King @ Tiong Hiew King v Lau Swee Nguong @ Lau Sui Guang [2012] CLJU 1086; [2014] 8 MLJ 575; [2012] MLRHU 1785 (“Tan Sri Datuk Diong Hiew King”) held that: [48] Rule 2 of the Order deals with pre-trial case management which is directed by the court. It encompasses a very wide range of matters which the court can consider including the appropriate orders and directions that should be made by the court to secure the just, expeditious and economical disposal of the action or proceedings. … [24] More factually pertinent to the present case, the High Court in Ri-Yaz Hotels and Resorts Sdn Bhd v Dynamics Capital Sdn Bhd [2023] 1 AMR 142; [2022] CLJU 2610; [2022] MLJU 2762; [2022] MLRHU 2319 stressed on the availability of this discretion in the context of a party’s non-compliance with pre-trial case management directions to file witness statements: [23] … it is clear that Order 34 rule 2(3) of ROC 2012 provides a discretionary power to the Court, inter alia, to strike out the defence and counterclaim and to enter judgment if the Defendant has defaulted in complying with any directions given by the Court under Order 34 rule 2(2) of ROC 2012 which includes for the parties to exchange and file witness statements of all witnesses who may give evidence at the trial. [25] That said, even prior to the introduction of the Rules of Court 2012, the Courts had always possessed the discretion to strike out a party’s claim for non-conformity with case management directions. Su Geok Yiam J recognises this in her Ladyship’s judgment in Tan Sri Datuk Diong Hiew King at paragraph [45] where she observed that Order 34 of the Rules of Court 2012 is similar to the repealed Order 34 of the Rules of High Court 1980. [26] The clear recognition of such a discretionary power prior to the coming into force of the Rules of Court 2012 can be found in Md Amin Bin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 4 AME 449; [2004] 3 CLJ 88; [2004] 4 MLJ 446; [2004] 1 MLRA 702 where it was held that: [13] Order 34 r 7 provides for the discretionary power of the judge to make such order against the defaulting party ‘as meets the ends of justice’ should any party fail to comply with any direction given by the judge at any pre-trial case management conference. [27] Similarly, in Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2001] AMEJ 0281; [2003] 5 CLJ 63; [2002] 7 MLJ 538; [2001] 5 MLRH 665, the High Court noted that:

Whether the failure to comply was intentional and contumelious;

(ii) Whether there is a history of failure to comply with other orders;

(iii) Whether the (applicant) contributed to the failure by the (respondent);

(iv) Whether the (respondent) had made positive efforts to comply but was prevented from doing so by extraneous circumstances;

Whether there is prejudice to the non-defaulting party; and

(vi) Whether the dismissal is proportionate to the failure to comply. [42] Since an assessment of the appropriateness of exercising the discretion under Order 34 rule 2(3) of the Rules of Court 2012 requires a holistic factual assessment, this Court is of the view that the ‘key considerations’ highlighted in How Hock Sing are not exhaustive; other germane factors could also be considered by the Courts. [43] The Defendants’ position on this issue is that this case is an appropriate case for the Court to exercise its discretion under Order 34 rule 2(3) of the Rules of Court 2012 to strike out the Plaintiff’s claim due to the Plaintiff’s non-compliance of the pre-trial case management directions. The Defendants relied on authorities which emphasised the need for procedural discipline, that is, decisions where order to strike out were made based on parties’ non-compliance with court orders, namely, Sunway PMI-Pile, Hong Leong Assurance Bhd and Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 AMR 1; [2012] 9 CLJ 557; [2013] 1 MLJ 461; [2013] 1 MLRA 181. [44] Be that as it may, while procedural discipline is important, it should be balanced with the need to ensure that cases are resolved based on their merits. (see for example the Court of Appeal’s reasoning in Hatara

(M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) & Anor [2012] 4 AMR 45; [2010] 3 CLJ 550; [2010] 4 MLJ 17; [2010] 1 MLRA 68). [45] Moreover, based on this Court’s own assessment of the facts and submissions by the Plaintiff, there are several ‘key considerations’ present in this case. [46] First, and perhaps most importantly, is that in the present case, the Defendants are also not free of blame as they too had admitted that their witness statements were not filed by 5 July 2024, as directed by the pre-trial case management direction of 28 July, 2023. If this Court were to invoke Order 34 rule 2(3) of the Rules of Court 2012 in favour of the Defendants, the Defendants would have benefitted without any imposition of “penalty” against them. Having said that, the responsibility rests with the Plaintiff to prosecute his claim. [47] In addition, the consideration that apart from the Plaintiff’s non-compliance against the pre-trial case management directions in question, there was no record of the Plaintiff having not complied with this Court’s orders. This further strengthens the position that this Court should not exercise its discretion under Order 34 rule 2(3) of the Rules of Court 2012 (also contrast the present case with recent High Court decision of Ho Woon Kong & Ors v Potensi Mestika Construction Sdn Bhd & Anor [2024] CLJU 338; [2024] MLJU 401; [2024] MLRHU 227). [48] Finally, this Court is aware of the Court of Appeal’s decision in Dr Sim Kui Hian v Chong Chieng Jen and other appeals [2021] 4 AMR 313; [2021] 6 CLJ 305; [2021] MLJU 562; [2021] 4 MLRA 348 where it was held that in assessing the appropriateness of exercising the discretion under Order 34 rule 2(3) of the Rules of Court 2012: [34] … unless the nature of the non-compliance is sufficiently serious to defeat the purpose of the case management directions, the drastic action of dismissing the action without warning should not be resorted to. [49] Although the progression of the present case has to a large extent been affected by the conducts of both parties, this Court is not convinced that the present case is “sufficiently serious to defeat the purpose” of the pre-trial case management directions given so as to warrant this Court to exercise its discretion under Order 34 rule 2(3) of the Rules of Court 2012 to strike out the Plaintiff’s claim. [50] This Court is of the considered view that the Plaintiff in the present case need not bear the full brunt of the law. However, it is only appropriate that he is penalised as to costs. [51] Based on the above findings, this Court permits the adjournment as sought by the Plaintiff. [52] Having considered the overall circumstances of the case, the Plaintiff is ordered to pay costs thrown away of RM6,000 to the Defendants, subject to allocatur. Dated: 23 October, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Fatimah Zulaikha Ahmad Bashri with Mohd Faizal Abdul Rahman for the Plaintiff (Messrs. Faizal Rahman & Co.) Mohammad Hazim Mohd Yaacob for the Defendants (Messrs. Azmi & Associates)