Paul Raj A/L Samy Raj v Majlis Bandaraya Seberang Perai (PA-21E-1-11/2021)

At a Case Management (CM) in February 2023 (a year-and-a-half later), P wanted to withdraw his suit.

On 16.2.2023, P asked to withdraw his suit. I then struck out P’s suit and ordered P to pay D fixed costs of RM15K.

About a month later, on 7.3.2023, P filed Enclosure 27. Enclosure 27 is worded in these terms—it prays for an Order for this Court to tax the S/N jPLwELdpqkYjPpCBNnfsw **Note : Serial number will be used to verify the originality of this document via eFILING portal costs ordered on 16.2.2023 when P withdrew this suit, according to the scale of costs. HOW WAS THE ORDER DATED 16.2.2023 MADE? [5] On 16.2.2023, this suit was fixed for CM for parties to comply with Pre-Trial Directions. Parties had complied with almost all the Pre-Trial Directions that I gave them.

Generally, the work that was done by the parties (particularly by D’s solicitors) up to that date, included—

preparing and settling the Pleadings;

meeting with witnesses;

preparing the respective Pre-Trial Documents such as—the Chronology Of Facts, the Summary Of Case, and the List Of Witnesses;

working on the joint Pre-Trial Documents such as the proposed Agreed Facts and the proposed Agreed Issues To Be Tried (in fact, an Agreed ITBT was already filed);

attending to (it was submitted) the seven CM dates before the Senior Assistant Registrar, and attending to the CM before me on 16.2.2023. [7] As stated above, on that 16.2.2023 CM, P informed me that he wished to withdraw his suit. D asked for costs of RM15K for the work done up until that juncture. P offered to pay RM2K costs. [8] I asked for arguments on costs. Parties submitted. S/N jPLwELdpqkYjPpCBNnfsw [9] P offered to pay D the relatively low sum of RM2K costs, arguing that his suit was a public interest suit. It was as a result of this suit that D took measures to clear up the woods around his house. In other words, D would not have cleared the woods if not for the pressure put on D from this suit. As such, a small sum of costs would have been appropriate. [10] D refuted P’s assertion. D argued that there was no evidence that demonstrated that it was P’s suit that moved D to clear the woods. D asserted that it had always complied with its duties as the City Council. [11] D also asserted that the only factor that was relevant to the quantum of costs to be awarded was the work that D had done up to that stage of the suit. [12] After considering the submissions and the amount of work done up to that stage of this suit, I ordered P to pay D costs of RM15K, which I found as a reasonable and appropriate amount. And I gave my reasons for ordering so. MY DECISION ON ENCLOSURE 27 [13] On 1.2.2024, P’s Enclosure 27 came up for hearing. I heard the parties and dismissed it. My reasons are these. [14] First, if P was not satisfied with the Order for costs, P should have applied for leave to appeal against the 16.2.2023 Order for costs—Ng King Chong v Ooi Kim Geik & Ors [2018] 8 AMR 568 (CA); [2019] 2 MLJ 398; [2019] 2 CLJ 246; [2019] 1 MLRA 221. S/N jPLwELdpqkYjPpCBNnfsw [15] In Ng King Chong (supra), Justice Harmindar Singh, delivering the Judgment of the Court Of Appeal, propounded (at paragraph [35]) that— [35] The principles gained from the case authorities can therefore be expressed as follows. As a general rule, an aggrieved party who is dissatisfied with a final order of a court of unlimited jurisdiction must appeal to a higher court... [16] But P did not do this. Instead, P applied for the costs that were ordered, to be taxed. Such an application was not proper. [17] Second, P filed this application under Order 1A and Order 92 Rule 4 of the Rules Of Court 2012 (ROC 2012). Order 1A provides as follows— Order 1A. Court or judge shall have regard to justice Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. [emphasis added] [18] Further, Order 92 Rule 4 provides as follows—

Inherent powers of the Court (O. 92, r. 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [emphasis added] S/N jPLwELdpqkYjPpCBNnfsw [19] Order 1A is about having regard to the overriding interest of justice and not only to the technical non-compliance with the ROC 2012. But there is no issue of technical non-compliance in this proceeding. [20] Order 92 Rule 4 is about the inherent powers of the Court to make any Order that may be necessary to prevent injustice or prevent an abuse of the process of the Court. Similarly, there is no issue of preventing injustice or abuse of the Court process here in this proceeding. [21] In fact, the conduct that borders on an abuse of the process of the Court was the filing of this Application to tax the 16.2.203 Order for costs, when the 16.2.2023 Order for costs, which was a final Order, was already made, and made after hearing the parties. [22] Order 1A and Order 92 Rule 4 do not assist P here. [23] Third, Section 68(1)(c) of the Courts Of Judicature Act 1964 (CJA) provides that an Order that relates to costs is left to the discretion of the Court, and is not appealable without the leave of the Court Of Appeal. It fortifies the procedural law that costs are ordered at the discretion of the Court. [24] Section 68(1)(c) of the CJA is set out below— Section 68. Non-appealable matters.

No appeal shall be brought to the Court of Appeal in any of the following cases:

where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; S/N jPLwELdpqkYjPpCBNnfsw [25] Fourth, the previous regime for dealing with costs was by the taxing of itemised costs. The present regime is by the fixing of the quantum of costs, at the discretion of the presiding Court—under the present terms of Order 59 of the ROC 2012. [26] P was not able to refer me to the Rule of Court or a principle under case law, that provides that an Order for costs can be varied or reviewed, in the manner that P is asking this Court to do i.e. after making an Order for fixed costs, to subsequently tax the costs according to the scale of the previous and now-obsolete regime which catered for the taxation of costs. CONCLUSION [27] For these reasons, I dismiss P’s Application in Enclosure 27 with costs of RM5K for the Enclosure 27 proceeding, to be paid by P to D within a month. Costs are subject to the allocatur. Dated: 15 February 2024 signed KENNETH ST JAMES Judicial Commissioner Penang High Court S/N jPLwELdpqkYjPpCBNnfsw Counsel/Solicitors For the Plaintiff: Vimalayan Visvalingam [A.G. Roseli & Paul (Prai)] For the Defendant: Kanesh Sundrum, Nurul Jannah [Kanesh Sundrum & Co. (Prai)] Legislation referred to:

Order 1A of the Rules of Court 2012 2. Order 92 Rule 4 of the Rules of Court 2012 3. Section 68(1)(c) of the Courts of Judicature Act 1964 Cases referred to:

Ng King Chong v Ooi Kim Geik & Ors [2018] 8 AMR 568 (CA); [2019] 2 MLJ 398; [2019] 2 CLJ 246; [2019] 1 MLRA 221. S/N jPLwELdpqkYjPpCBNnfsw