Pacific & Orient Insurance Co Berhad v Wakil Peribadi (Didakwa Sebagai Wakil Simati, Lee Siew Cheng) (PA-12A-9-06/2024)

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1 DALAM MAHKAMAH TINGGI MALAYA DI GEORGETOWN NOMBOR RAYUAN: PA-12A-9-06/2024 ANTARA PACIFIC & ORIENT INSURANCE CO BERHAD (NO. SYARIKAT : 12557-W) ..Perayu/Defendan Ketiga

Lampiran

Lampiran 7 pertaining to the request to set aside the dated Order 3.11.2023 and Lampiran 10 (concerning the application to suspend or stay the enforcement of the dated Order 3.11.2023) Principles of Appeal from a Subordinate Court [3] All civil appeals from a Subordinate Court shall be by way of re-hearing [See S. 29 Courts of Judicature Act 196 and Order 55 Rule 2 of the Rules of Court 2012] (i) In Chan Lai Yoke V Ess Engineering Sdn Bhd. [2021] 1 LNS 1963, held that “Order 55 Rule 2 of the Rules of Court 2012 provides that all appeals to the High Court shall be by way of re-hearing. The White Book on the Malaysian S/N 54cjNookw0GVk68DgWfPuw Civil Procedure 2021 Volume 1, page 812 at paragraph 55/2/1 states as follows: In a re-hearing, a judge is not tasked to consider whether the lower court judge had exercised his discretion correctly or had properly considered the relevant material. He would consider the case as if it came before him for the first time.” (ii) In China Airlines Ltd v. Maltran Air Corp. Sdn. Bhd. & Another Appeal [1996] 3 CLJ 163, the Federal Court held: "[2] It is a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the factual findings of the Court below be disturbed by the appellate Court unless it appears that those findings are clearly wrong; and it is even more undesirable to do so where the conclusions reached, to a large extent, depended on the credibility of the witnesses and the impression formed by the Court which has seen them and judged their honesty and accuracy. [3] However, there is clear authority that a distinction can be drawn between the finding of a specific fact which depends upon the credibility of witnesses, and a finding of fact which depends upon inferences drawn from other facts." (iii) In Corsa Tech Sdn Bhd v YTB Impression Sdn Bhd & Ors [2021] MLJU 2210, at [27(2)], held that: [27] As explained in Dr Hari Krishnan: … (2) if a trial court’s GOJ is not a ‘speaking’ one, such a fact does not ipso facto mean that the appellate court should S/N 54cjNookw0GVk68DgWfPuw reverse the trial judge’s decision and order a retrial. In such an event, the appellate court has a judicial duty to sieve through the appeal records to determine whether there should be any appellate intervention regarding the trial Court’s decision.” (emphasis added.) (In addition, please refer to the case of Mohammad Hafizi bin Bahari & Anor v Pacific & Orient Insurance Co Bhd & Anor and another appeal [2024] 4 MLJ 223) Principles of locus standi [4] The decision made by the Learned Sessions Court Judge to address and resolve the issue of locus standi in this case is highly precise. This aligns with the rulings established in the decision of previous cases which decided that issue of locus standi is the main issue that needs to be decided first, before the merits are decided. [5] In Lee Freddie & Ors v Majlis Perbandaran Petaling Jaya & Anor [1994] 3 MLJ 640, Mahadev Shanker J (as he then was) held that: ‘“Locus standi’ on the other hand is literally a place of standing. In the legal arena, it has become a place to stand in court, or a right to appear in a court of justice on a given question. That right is given to a person if he is suing to enforce some private right or even some public right provided the interference with that public right causes direct damage to him. To avoid a situation of asking which came first, the chicken or the egg, one has to determine first whether the right or legitimate expectation arises. A denial of locus standi will only follow where such existence is first negatived.” S/N 54cjNookw0GVk68DgWfPuw [6] In Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2005] 3 CLJ 793, Gopal Sri Ram JCA (as he then was), held (at p 802-803): “Before I move to the second issue there is a proposition central to the determination of locus standi. It is this. When determining whether a particular plaintiff has locus standi in a given set of circumstances the court must consider the action in two stages. At the first stage (‘the threshold stage’) assume that the fact pattern asserted by the plaintiff is true. It is just like a case of striking out a pleading for want of a cause of action or defence under RHC O 18 r 19(1)(a) where the court is confined to the pleading and not to extrinsic matters. It does not matter whether the plaintiff may ultimately fail in his action on the merits. Failure or success must be considered at the second stage (‘the merits stage’). If a plaintiff is found to lack standing to sue then his action fails in limine at the threshold stage and there is no inquiry into the merits of the given case.” (emphasis added) Brief facts [7] The cause of actions against the Defendant in this matter pertains to an accident that took place on 6.02.2013 (Jalan Kulim - Bukit Mertajam) [8] Prior to the commencement of the trial, the Insurance Counsel, identified as Pacific and Orient, withdrew from the representation of the Defendant, who subsequently engaged a personal counsel. [9] On 9.03.2016, the Sessions Court ruled that both the Defendant and the Plaintiff/Respondent bore equal responsibility for the accident. An appeal was filed by both the Second Defendant and the Plaintiff /Respondent at the S/N 54cjNookw0GVk68DgWfPuw High Court, which resulted in the Second Defendant's appeal being allowed on 28.04 2017. [10] The Plaintiff/Respondent pursued an appeal, and the proceedings concluded at the Court of Appeal on September 7.09.2019, with the Sessions Court's decision being upheld. [11] The Plaintiff/Respondent initiated a Writ of execution, designating Pacific Orient Insurance as the Defendant's insurer, and allowed Pacific & Orient as a party via order dated 3.11.2023. [12] Initially, Pacific & Orient Insurance filed two applications (Lampiran 7 and Lampiran 8); however, these were subsequently struck out by the Sessions Court, prompting the filing of this appeal to the High Court. Analysis and Findings [13] Both applications have been dismissed on the grounds that the Appellant/Third Defendant lacks locus standi, as he failed to apply for intervention or to become a party in the application to execute the judgment filed under Order 45 of the Rules of Court (ROC) 2012 by the Respondent/Plaintiff. [14] This Court, upon hearing the appeal, allowed the Appellant's/Third Defendant’s appeal and directed that the case to be disposed of by the S/N 54cjNookw0GVk68DgWfPuw Sessions Court for a substantive hearing (on the merits) of Lampiran 7 and Lampiran 10. [15] This Court gave reasons why it did so. During the appeal, the main question arises as to: “whether the Sessions Court's decision to allow the Appellant to be designated/named as the “party” was subsequently erroneous when it was determined that the Appellant failed to apply as the “Third Defendant/ Intervener” in accordance with Order 15 rule 6 (3) of the ROC 2012.” [16] After reviewing and reading the written arguments and hearing from the involved parties, the Court has allowed this appeal for the following reasons: (i) Automatically assumes the role of a party? (a) The primary contention of the Plaintiff/Respondent is that the Order dated 3.11.2023 does not inherently or automatically confer party status to the Appellant/Third Defendant in the Enforcement Application (Enforcement of Judgment and Orders under Order 45 of the ROC 2012). [17] The Court, utilizing its jurisdiction and powers to issue an order for the Enforcement of Judgment and Orders as outlined in Order 45 of the ROC 2012, concluded that the decision of the Learned Sessions Court Judge is consistent with the conclusions reached in the precedent case of Am S/N 54cjNookw0GVk68DgWfPuw General Insurance Bhd v Sa’ Amran a/l Atan & Ors and other appeals [2022] 5 MLJ 825, which stated that: “[102] The first appellant had another argument. It was contended that the respondent as the third-party claimant could not apply to set aside the order pursuant to O 35 r 1(2) of the Rules of Court 2012 because he had a specific remedy provided by s 96(1) of the RTA to file for recovery against the insurer. The argument must fail. There is nothing in s 96(1) to say that the third-party claimant must first obtain another judgment against the insurer before he could proceed to enforce the judgment that he had earlier obtained against the insured. After all, the judgment debt of the insured becomes the judgment debt of the insurer: see Pacific & Orient Insurance Co Berhad v Kamacheh a/p Karuppen [2015] MLJU 72; [2015] 4 CLJ 54. The insurer is bound to settle the judgment sum without the need for another action by the third-party claimant, ie recovery action against the insurer once the conditions in s 96(2) and (3) are fulfilled.” (emphasis added) (b) This Court examined the order dated 3.11.2023 which explicitly designated the Appellant/Third Defendant as a party to the Plaintiff’s/Respondent's application. Once the Court permitted the Appellant to be recognized as a party, it follows that the Appellant/ Third Defendant should also be granted the right to participate as a party or as “Third Defendant.” (c) It is essential to emphasize that the application has been granted by the Sessions Court. Consequently, the assertion made by the Sessions Court, which states that the Appellant/ Third Defendant cannot rely on the order that identifies them as a party (or Third Defendant) and should refrain from pursuing their own application, is incorrect. S/N 54cjNookw0GVk68DgWfPuw (d) This is substantiated by Order 15 rule 6(3) of the ROC 2012, which clearly states: 6. Misjoinder and non-joinder of parties (O. 15 r. 6) (1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. (2) Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application- (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (b) order any of the following persons to be added as a party, namely- (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. (3) An application by any person for an order under paragraph (2) adding him as a party shall, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter. S/N 54cjNookw0GVk68DgWfPuw (4) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized. (e) The language of this provision indicates that an application to designate an individual as a party can be initiated “by any person “. In this instance, the application was duly applied by the Plaintiff/Respondent, and subsequently allowed by the Sessions Court. (f) In the case of Mohammad Hafizi bin Bahari & Anor v Pacific & Orient Insurance Co Bhd & Anor and another appeal [2024] 4 MLJ 223, held that: “O 15 r 6(2)(b)(i) and (ii) of the RC should be ‘widely or liberally interpreted’ because such an interpretation ensures that all parties who have any interest in a claimant’s suit (insured’s liability), are brought before the sessions court trying the claimant’s suit (insured’s liability) so as to secure a just, expeditious and economical disposal of the claimant’s suit (insured’s liability) — please refer to Celcom, at [61(3)]” (emphasis added) (ii) The Appellant/Third Defendant has appropriately sought to intervene (a) This argument is flawed, as the purpose of intervention is to allow an individual who has not been made a party to assert their rights when they believe they are adversely affected. S/N 54cjNookw0GVk68DgWfPuw (b) In this situation, since the Appellant/Third Defendant has already been recognized as a party, the necessity for intervention is questionable. Furthermore, they have been legally acknowledged as parties through the Court's order, making the claim that they lack locus standi quite peculiar. (c) The Court refrains from commenting on the cases cited by the Respondent, as those cases pertain to situations where intervention is necessary due to the absence of named parties. Each of those cases can be differentiated from the current matter, where the Appellant has already been named as a party. The pertinent question here is whether there is a necessity to re-apply for party status or to intervene. There exists a substantial distinction between the issues presented in the referenced cases and the facts at hand. (iii) The Respondent's subsequent action regarding the order dated 3.11.2023 (a) Following the acquisition of the order, the Respondent/Plaintiff proceeded to designate or named the Appellant/Third Defendant as the “Third Defendant”. This action evidently demonstrates that the Plaintiff/Respondent has complied with Sessions Court Order dated 3.11.2023. (b) If this Court accepts the Plaintiff’s/Respondent's assertion or argument that the Appellant/ Third Defendant is not” a legitimate party”, it raises the question of why the Respondent has taken the initiative to identify the S/N 54cjNookw0GVk68DgWfPuw Appellant as the “Third Defendant” in all subsequent legal documents, including the Execution Writ dated 19.03.2024, which explicitly states "... belonging to the Third Defendant Pacific & Orient Insurance." (c) If this assertion holds true, does it imply that all subsequent cause papers issued after 3.11. 2023, have automatically become invalid and nullified, along with all actions referenced since that date? [18] This Court expresses its appreciation for the Learned Counsels’ arguments, which have proven beneficial in assisting the Court in arriving at this decision. [19] In this case, the Court found it necessary to intervene to correct the errors that exist in the judgment of the Sessions Court. [20] This is because the Sessions Court in the order dated 13.06.2024 has taken a stand that is consistent with its own decision dated 3.11.2023, which after allowing the Appellant/Third Party to be named as a party, but later, also said that the Appellant/Third Party does not have locus standi and legal interest to make any motion to oppose the Plaintiff’s/Respondent's actions. [21] In this instance, the Appellant/Third Defendant possesses a legal interest, as they may be held accountable for the outcome of the claim. A significant point to consider is that if they are not meant to be involved or should not be included as a party, what rationale did the court have for S/N 54cjNookw0GVk68DgWfPuw permitting their inclusion or to be named as a party through the order dated 3.1. 2023? [22] The entitlement to safeguard the interests of the Appellant is supported by the ruling in the case Tang Loon Pau & Ors v Mohd Salihin bin Kotni & Anor [2024] 2 MLJ 256, which articulates that. “[38] Thus, the mere fact that the insured (D1 in our present case) did not appeal against the SCJ’s decision is of no moment in so far as the insurer (D2) is concerned as D2 has the statutory and constitutional right to intervene and thereafter to appeal against any finding of liability made against them, particularly and especially since they are the real and substantial defendant and paymaster, unlike D1 who is only a nominal defendant.” (emphasis added) (In addition, please refer to the case of Jiwaneswary a/p Raman v Etiqa General Takaful Bhd [2023] 2 MLJ 437 (CA).) S/N 54cjNookw0GVk68DgWfPuw Conclusion [23] For those reasons, the appeal is allowed and the application (Lampiran 7 and Lampiran 8) are remitted and to be disposed of on the merits of before the same Learned Session Judge. As no costs was awarded by the Sessions Court, there is also no costs awarded at this stage of the appeal. …………sgd…………. AZIZAN MD ARSHAD Judge High Court (3) Pulau Pinang Dated: 7.02.2025 Counsel for the Appellant /Third Defendant: Dato’ Kamalanathan Ratnam, Vinod A/L R. Kamalanathan Tetuan Vinod Kamalanathan & Associates Suite 501, 5th Floor, Loke Yew Building, 4 Jalan Mahkamah Persekutuan 50050 Kuala Lumpur Counsel for the Respondent / Plaintiff: Paramjit Singh A/L Parson Singh, Manoharan Veerasamy Tetuan Paramjit Singh & Co. No.4442, Tingkat 1 Jalan New Ferry 12100 Butterworth Pulau Pinang S/N 54cjNookw0GVk68DgWfPuw Legislations referred to: 1. S. 29 Courts of Judicature Act 196 2. Order 55 Rule 2 of the Rules of Court 2012 3. Order 45 of the Rules of Court (ROC) 2012 4. Order 15 rule 6(3) of the ROC 2012 Cases referred to: 1. Chan Lai Yoke V Ess Engineering Sdn Bhd. [2021] 1 LNS 1963 2. China Airlines Ltd v. Maltran Air Corp. Sdn. Bhd. & Another Appeal [1996] 3 CLJ 163 3. Corsa Tech Sdn Bhd v YTB Impression Sdn Bhd & Ors [2021] MLJU 2210, at [27(2) 4. Mohammad Hafizi bin Bahari & Anor v Pacific & Orient Insurance Co Bhd & Anor and another appeal [2024] 4 MLJ 223 5. Lee Freddie & Ors v Majlis Perbandaran Petaling Jaya & Anor [1994] 3 MLJ 640 6. Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2005] 3 CLJ 793 7. Am General Insurance Bhd v Sa’ Amran a/l Atan & Ors and other appeals [2022] 5 MLJ 825 8. Mohammad Hafizi bin Bahari & Anor v Pacific & Orient Insurance Co Bhd & Anor and another appeal [2024] 4 MLJ 223 9. Tang Loon Pau & Ors v Mohd Salihin bin Kotni & Anor [2024] 2 MLJ 256 10. Jiwaneswary a/p Raman v Etiqa General Takaful Bhd [2023] 2 MLJ 437 S/N 54cjNookw0GVk68DgWfPuw