Nik Azlee Bin Nik Mohd Affandi v 1. Dr Nik Muzaiman Bin Mustapha (DA-22NCVC-22-06/2017)

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PERDAMA SPECIALIST HOSPITAL SDN BHD DEFENDAN JUDGMENT 2 [1] This is an application in Encl 86, which is filed by the plaintiff, to reinstate the writ and statement of claim (“SOC”) which were dismissed by this court on 1.4.2019. [2] The facts that lead to the dismissal of the writ and SOC are as follows. This is a claim in medical negligence. [3] When the case was fixed for case management on 30.1.2019, parties had requested the court to fix the trial dates. Pursuant to the said request, I have fixed a set of two batches for the trial dates. The first being from 5.3.2019 to 7.3.2019. The second batch is from 1.4.2019 to 4.4.2019. [4] I also made a further order that all parties must file in their respective witness statements one week before the 5.3.2019, being the first day of the trial of the first batch. [5] I then fixed the next CM dated on 27.2.2019. [6] At the CM on 27.2.2019, the then counsel for the plaintiff had sought for the first batch of the trial dates to be vacated on the ground that the CD containing the X-Ray films could not be opened and that he had to outsource the CD to get the X-Ray films printed for the benefit of all the parties herein. [7] The need for the defendants to have the CD containing the X-Ray films could not be gainsaid. Learned counsel for the 2nd and 3rd defendants intimated to the court that the CD ought to be handed to their respective experts. The reason is this. The expert reports 3 prepared by the said defendants in Encls 59 and 60 respectively were without the benefit of the CD containing the X-Ray films. [8] Having heard all parties concerned and having appraised the problem raised at the aforesaid CM, I had acceded to the request of the then counsel for the plaintiff to vacate the trial dates for the first batch. I then made the following further orders:

That the plaintiff to serve the said documents to the defendants two weeks before 1.4.2019; and

An unless order was also issued that the case would be dismissed in the event that the said direction was not complied with. [9] On the first day fixed for the trials on 1.4.2019, I had called the parties in my chambers to update me on the process of the exchange of the documents and the witness statements. It became apparent then that the plaintiff had only served the X-Ray films on 28.3.2018 to the 2nd, 3rd and 4th defendants. In chambers, learned counsel for the aforesaid defendants had taken objection to the inordinate delay of the service of the X-Ray films on them. They said they would be prejudiced by the failure of the plaintiff to comply with the unless order since they could not get the response from their respective experts on time. [10] To compound the matter, on that very morning, the then solicitors for the plaintiff only served an additional bundle of documents and 4 the plaintiff’s witness statement on the defendants’ solicitors. It was quite obvious that the plaintiff was ill-prepared for the trial. [11] After having heard the parties and in the exercise of my discretion under O 34 of the Rules of Court 2012 (“ROC”) I had dismissed the writ and the SOC. I have issued my grounds of judgment in respect of the said dismissal. My decision is now the subject matter of appeal before the Court of Appeal. The application for reinstatement [12] In the meantime, the plaintiff had engaged a new firm of solicitors, Messrs PS Ranjan & Co to take conduct of the matters. The plaintiff, through his new solicitors then filed this application to reinstate the writ and SOC. [13] The grounds for the application in Encl 86 can be summarised as follows:

Neither the plaintiff nor his then solicitors were aware of the unless order issued by this Court during the CM on 27.2.2019;

In any event, the documents were served to the respective defendants’ solicitors, 3 days before the trial; 5

The plaintiff was not aware that he had to serve the documents on the plaintiff two weeks before the trial;

The plaintiff should not be visited by the mistake of his previous solicitors;

The said order dated 1.4.2019 has yet to be sealed and served on the plaintiff. Analysis [14] I do not think that there is any doubt that O 34 r 2(4) of the ROC allows for an order made pursuant to an unless order to be set aside. R 2 (4) provides as follows: Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. In short, the Court retains the discretion to set aside the order made pursuant to the unless order. [15] What then is the test applicable to set aside the order? In IOI Loders Croklaan Oils Sdn Bhd v LK Freight Services (M) Sdn Bhd & Ors [2012] 3 MLJ 266 the High Court held that the test applicable was for the defaulting party to demonstrate both that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances. 6 [16] I have gone through the affidavit in support (“AIS”) of the plaintiff [Encl 85]. In my considered opinion, whatever grounds that are raised in the same can equally be canvassed at the appellate stage in respect of my order in dismissing the writ and SOC. [17] In this application, unfortunately, I cannot find anything in the AIS that explained that such failure to obey to the unless order was “due to extraneous circumstances” within the meaning of the ratio in IOI Loders. The plaintiff was given sufficient time to comply with the same. There was no reason stated in the AIS as to the failure of the plaintiff to apply for the extension of time to comply with the unless order. In short, there was no material before the court for me to exercise my discretion in favour of the plaintiff. [18] Further, neither the plaintiff nor his former counsel could feign ignorance on the unless order which was duly recorded by the Court. In any event, there was no affidavit affirmed by the former counsel for the plaintiff to the effect that he was unaware of the unless order. Again, by any account, such failure could not be construed as extraneous circumstances. [19] With respect, I am unable to see the alleged mistake or ignorance of the former solicitors for the plaintiff could amount to a good ground for the proper exercise my discretion under O 34 r 2(4) of the ROC. In the Court of Appeal of Gurdev Kaur Bhag Singh v BSN Commercial Bank (M) Bhd [2002] MLJU 643 CA, Richard Malanjum JCA (as the former CJ then was) remarked as follows: 7 In the first motion the explanation given for the delay in filing the proper notice of appeal against the order for sale is squarely put to the former solicitor of the applicant in that it was alleged that he did not do his work and he did not keep the applicant informed of the status of the case. That is not a good reason for us to exercise our discretion and grant leave. The applicant can always seek remedy elsewhere if she has any grievance against her former solicitor. It is settled law that mistake of one's solicitor is not necessarily a good excuse. [20] There is another aspect of this application that I need to address. It is this. The plaintiff had filed in an appeal against my decision to dismiss the writ and SOC. Having appealed against my decision, is it now open for the plaintiff to file in this application under O 34 r 2(4)? Does it not amount to approbate and reprobate? Does the law give the plaintiff the option of filing an appeal and simultaneously apply to set aside the order that I made? [21] With respect, I do not think so. The plaintiff has to make an election one way or the other. He cannot have his cake and eat too. He cannot be blowing hot and cold. To mount a challenge against the same order by way of an appeal and application to set aside at the same time borders an abuse of the process of the court. In Ghulam Mohammad Sayeed & Ors v Perwira Habib Bank (Malaysia) Bhd & Ors [1989] 2 MLJ 375 Zakaria Yatim J (later FCJ) held as follows: 8 In considering the question of election, it is necessary to ascertain what is the doctrine of election. In Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd [1985] 1 MLJ 1 at p 11 the Privy Council quoted a passage from Spencer Bower and Turner, The Law Relating to Estoppel By Representation (3rd Ed) which summarizes the doctrine as applied to the law of estoppel in the following words: Where A, dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing, between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course, and definitely to reject or relinquish the other, and B in such belief alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting. It is of the essence of election that the party electing shall be 'confronted' with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice. [22] My respectful view is this. In an O 34 situation, if a party is aggrieved by the decision to enter judgment or dismiss the action as the case may be, he may file an appeal against that decision. 9 Alternatively, he can file an application under O 34 r 2(4) to have the judgment or dismissal set aside. But having filed an appeal, he cannot by any stretch of legal imagination, file an application to set the order aside. [23] In Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376 Sir Nicolas Browne-Wilkinson VC (as he then was) made the following observation: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance. Our very own Court of Appeal in Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570 CA held that a party should not be allowed to approbate and reprobate as it is unconscionable and plainly unfair. [24] For the aforesaid reasons, the application in Encl 86 is dismissed with costs of RM3,000 to each defendant subject to allocatur. 10 Dated: 19 November 2019. (DATO’ WAN AHMAD FARID BIN WAN SALLEH) Judge High Court Kota Bharu.