The proper mode to challenge a dismissal for non-compliance with court orders is by appeal, not by filing a fresh action, as the court becomes functus officio after a final order.

JUDGMENT

(Enclosures 149 and 151)

Elaine Yap Chin Gaik JC:

[1] The Plaintiff's suit was struck out by Order of the Court on 3 October 2023 ("Order") due to non-compliance by the Plaintiff with pre-trial case management directions to file witness statements before 28 August 2023. The Order was made on day 2 of what would have been the trial of the suit. There was a procedural history before the Order that I do not need to go into.

[2] The Plaintiff applied vide encl 149 to set aside the Order dated 3 October 2023 and vide encl 151 to reinstate the suit. I dismissed both applications on 10 December 2024 based on a preliminary objection raised by the Defendant that the Court was functus officio to decide encls 149 and 151. The Plaintiff has appealed.

[3] The appeal raises a straightforward question of whether the proper mode of challenging the dismissal of an action for non-compliance with a pre-trial direction of the High Court is by way of an appeal to the Court of Appeal or by the mode undertaken by the Plaintiff in this case, and why. To my mind, this question has been answered by the Federal Court and it is premised on the principle that a Court becomes functus officio once it has decided on a matter.

[4] Based on settled law as laid down in Hock Hua Bank Bhd v. Sahari Murid; [1981] 1 MLJ 143 ("Hock Hua"), the Court has no power under any application in the same action to alter, vary or set aside an order regularly obtained after it had been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the Court , or where it is obtained by default or made in the absence of a party.

[5] As later clarified in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd; [1998] 1 MLJ 393; [1998] 2 CLJ 75; [1998] 1 AMR 909 ("Badiaddin"), it is now also settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction for the same reason, but the filing a fresh suit to do so is permissible if the aggrieved party can bring himself within the category of exceptional cases where the order is void for illegality or want of jurisdiction.

[6] In Lim Oh & Ors v. Allen & Gledhill; [2001] 3 MLJ 481; [2001] 3 CLJ 233 ("Lim Oh"), the High Court had set aside the issuance and service out of time of an amended writ and statement of claim following an order allowing leave to amend. Instead of appealing that decision, the appellant filed a fresh action which was then met with a striking out application.

[7] The Federal Court in Lim Oh held that it was an abuse of process to file a fresh action where a suit had been set aside for failure to comply with a peremptory order of the Court . Relevantly, the Federal Court in Lim Oh equated the failure on the part of the appellant to comply with the amendment order with non-compliance of a peremptory order of the Court .

[8] The ratio in Lim Oh is that the proper approach is to appeal the setting aside of the first action, following Janov v. Morris [1981] 3 All ER 78 per Watkins LJ who said inter alia:

"In the event of his action being ordered to be struck out for failure to obey a peremptory order, he may appeal against that order seeking, if necessary an extension of time within which to do so. The outcome of such an appeal will to some extent depend on the excuse for failure preferably set forth in affidavit form provided for the Court 's consideration. If a litigant neglects to avail himself of that procedure and brings a fresh but precisely similar action to that ordered to be struck out, without any explanation then or at any later time for a failure to obey the peremptory order, he should not be surprised that the commencement of the second action is found to be an abuse of the process of the Court and for that reason it, too, is struck out."

[9] Although Badiaddin and Lim Oh concerned the filing of a fresh action rather than an application within the same action, t