Ocean Glory Seafood Sdn. Bhd. v Gch Retail (Malaysia) Sdn Bhd (WA-22NCC-248-04/2024)

This is an application dated 10-06-2024 [Enclosure 10] by the defendant that the plaintiff serves to the defendant 13 documents referred to in the Statement of Claim.

I had dismissed the application on 02-10-2024 with costs.

The plaintiff has appealed to the Court of Appeal on 16-10-2024. These are my Grounds of Judgment.

The plaintiff filed a suit against the defendant for non-payment of goods sold and delivered.

The defendant via a Notice to Produce Documents Referred to in Pleadings or Affidavits dated 28-05-2024 [Enclosure 7] requested the plaintiff to produce 16 documents referred to in the Statement of Claim.

Via a Notice dated 31-05-2024 [Enclosure 8] the plaintiff produced 4 documents i.e. invoices and objected to the production of documents number 2, 3, 5, 6, 9, 11, 12, 14 and 15 on the ground that the documents are in fact the defendant’s own documents and must be in the possession of the defendant. S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The plaintiff objected to the production of documents number 1, 8 and 10 on the ground that the documents are in the possession of the defendant. The law on production of documents referred to in pleadings or affidavits under Order 24 rule 10 Rules of Court 2012 [“ROC 2012”]

Any party to a matter shall be entitled at any time to serve a notice in Form 41 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection and to permit him to take copies of that document. [See Order 24 rule 10[1] ROC 2012].

The party on whom the Form 41 notice is served must, within four days after service of the notice, serve on the party giving the notice, a notice in Form 42 stating a time and place within seven days after the service thereof at which the documents may be inspected. If he objects to produce any document he must state the ground for objection. [See Order 24 rule 10[2] ROC 2012].

The Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA in a comprehensive judgment, when allowing an appeal against a High Court’s decision ordering production of documents, laid down some useful principles. These principles are-S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 i. The right of a party to production of a document under Order 24 rule 10 to 12 ROC 2012 is subject to Order 24 rule 13 ROC 2012. ii. Order 24 rule 13 ROC 2012 states that an order for the production of any documents for inspection shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. [Emphasis added] iii. The test is not whether the production of the documents would fairly dispose of the case, save time of trial and cost of calling witnesses. The emphasis is on necessity not fairness and it is for the applicant to satisfy the court. The burden is on the applicant and he must provide materials to satisfy the court of such necessity.

This is what the Court of Appeal via Tengku Baharudin Shah JCA said-

Under r 13(1) an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r 13(1) per Parker LJ in Dolling-Baker v Marrett & Ors [1991] 2 All ER 890 and Ventouris v Mountain [1991] 1 WLR 607.

And in considering the application the court should bear in mind the words of Sir Thomas Bingham MR in Taylor v Anderton [1995] 1 WLR 447 at p S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 462 that ‘the purpose of the rule is to ensure that one party does not enjoy an advantage or suffer an unfair disadvantage in the litigation as the result of a document not being produced for inspection.’ …

There is one other matter which we cannot ignore and leave unsaid because it is fatal to the decision of the learned judge and vitiated the exercise of his discretion. It is this. He apparently misdirected himself in law when he mis appreciated the issue before him. In his grounds of decision, the learned judge states that the issue for his determination was whether the discovery and production of the documents would fairly dispose of the case, save time of trial and cost of calling witnesses which be answered in the affirmative.

As stated earlier the real issue is compliance with r 13(1) which stipulates that discovery may only be ordered if the court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfy the court, see Dolling-Baker’s case and Ventouris v Mountain. Because of that erroneous premise the learned judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The respondents also failed to provide any materials to satisfy the court of such necessity. [Emphasis added]

I should also add that an order for production is not necessary either for disposing fairly of the cause or matter or for saving costs as required under Order 24 rule 13 ROC 2012- S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 i. When the documents requested are the applicant’s own documents; ii. When the documents requested are in the applicant’s possession; iii. When it appears that it is asked to delay proceedings; iv. When the documents requested are to oppress or put the opposing party to ‘work’ as when the applicant asks for all the documents mentioned in the Statement of Claim.

I have perused the Defendant’s Supporting Affidavit dated 21-06-2024. [See Enclosure 12].

In my view the defendant as the party seeking production of the documents has failed to satisfy the court that such production is necessary as required under Order 24 rule 13 ROC 2012.

As mentioned earlier, the plaintiff had supplied goods to the defendant. The defendant had failed to pay. The defendant now asked for production of-a. Quotations of prices given by the plaintiff to the defendant; S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 b. The defendant’s own purchase orders sent by the defendant to the plaintiff; c. Goods Receiving Notes[“GRN”] issued by the defendant; d. Award of contract issued by the defendant to the plaintiff; e. An email from the plaintiff to the defendant; f. Invoice issued by the plaintiff to the defendant.

I observe that the defendant’s counsel has deemed it fit to ask for all documents mentioned in the Statement of Claim. All these documents are not from or to third parties but are between the plaintiff and the defendant. In fact, the invoice requested had already been provided by the plaintiff as mentioned above and yet it is asked in the application before me.

When I asked the defendant’s counsel Mr. Felix Saw during hearing, is it his client’s case that all the documents are not in the defendant’s possession he candidly admitted that that is not their averment on affidavit.

His position is that once a document is mentioned in the Statement of Claim he is entitled to them under Order 24 rule 10 ROC 2012. In this respect, he is misconceived as pointed out by the Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA. S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

The end result of all this charade by the defendant is to delay the plaintiff’s claim for payment its goods. The delay is 4 months from the date of filing of this application to hearing before me. It has also resulted in unnecessary legal cost to be incurred by both clients. It has also wasted the Court’s precious time, not to mention the coming appeal to the Court of Appeal. If this is not an abuse of process, I don’t know of any other words to describe the defendant’s counsel’s action.

For the reasons above, I dismiss the defendant ‘s application for production of documents in Enclosure 10 with costs subject to allocatur. …………(signed)……… Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCC6) Dated: 07th November 2024. COUNSEL: 1) Amalina Suhaimy for plaintiff. (Vaasan Chan & Chandran (Kuala Lumpur)) S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 2) Felix Saw for defendant. (Lee Saw & Co. (Kuala Lumpur)) CASES REFERRED TO: 1) Dolling-Baker v Marrett & Ors [1991] 2 All ER 890. 2) Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA. 3) Taylor v Anderton [1995] 1 WLR 447. 4) Ventouris v Mountain [1991] 1 WLR 607. LEGISLATION REFERRED TO: 1) Rules of Court 2012, Order 24 rule 10, Order 24 rule 10[1], Order 24 rule 10[2], Order 24 rule 12, Order 24 rule 13, Order 24 rule 13(1). S/N 0eIUhip1Ckm6tIp4lnq5QQ **Note : Serial number will be used to verify the originality of this document via eFILING portal