Compliance with Unless Orders is mandatory, and failure to comply justifies striking out claims; the proper remedy is to appeal the striking out rather than seeking reinstatement without addressing the prior order.

Suzana Muhamad Said JC:

(Enclosure 111)

Introduction

[1] This is the Plaintiffs' application pursuant to O 34 r 2(4) and O 92 r 4 of the Rules of Court 2012 ( ROC 2012) to reinstate their action that was struck out for non-compliance of an Unless Order (encl 111).

[2] This Court dismissed encl 111. The reasons are as deliberated.

Brief Facts

[3] The Plaintiffs commenced this action against the Defendants for tort of negligence arising from the demise of Madam Shanti A/P Ponnudurai (Deceased)in their personal capacity & claimed for psychiatric injuries due to the demise of the Deceased.

[4] The Deceased was the wife of the First Plaintiff and the mother of the Second, Third and Fourth Plaintiffs.

[5] The Deceased was under the treatment and care of the Defendants from 12 August 2016 to 28 August 2016.

[6] The case was called for several case managements, where this Court had instructed for parties to comply with pre-trial case management (PTCM) directions.

[7] On 27 March 2024,an unless order for compliance of the PTCM documents was given by this Court, that all PTCM documents to be filed on or before 19 April 2024. In the event the said PTCM documents were not filed, the claim and/or defense will be struck out (Unless Order).

[8] Clearly, the Plaintiffs had failed to comply with this Court's directions on several occasions, including the Unless Order.

[9] Subsequently on 25 April 2024, following the Plaintiffs' non-compliance of the Unless Order, this Court struck out the Plaintiffs' claim against the Defendants.

[10] Following this, on 9 May 2024, the Plaintiffs filed this Notice of Application to reinstate the claim that was struck out.

Analysis And Findings

[11] Order 34 r 2(3) and (4) of the ROC 2012 stipulate as follows:

"(3) The Court, having given directions under r 2(2) or r 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

(4) Any judgment or order made under r 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just."

[12] In this regard, the Court of Appeal in Faisal @ Ibrahim Siraj & Anor v. Pentadbiran Tanah Daerah Hulu Langat & Ors 2023 MarsdenLR 2030 ; [2024] 1 MLJ 894 held that O 34 r 2(4) is applicable by way of a setting aside application and not appeal. Faisal @ Ibrahim Siraj (supra) held:

"[16] On 17 December 2019, the High Court had struck out the Plaintiffs' claims on the reason that the Plaintiffs had failed to comply with the Court's instructions to file the cause papers required for trial, ie the Bundle of Agreed Documents, the Agreed Facts and Issues to be tried. Dissatisfied, the Plaintiffs moved an appeal to the Court of Appeal in Civil Appeal No: B-01(IM)(NCvC)- 35-01/2020. The appeal was struck out on 6 July 2020 with an award for cost of RM3,000.00 in favour of D7 in which the Court of Appeal had allowed the Respondents to strike out the appeal based on the reason that the Plaintiffs had wrongfully appealed against such order. The Plaintiffs should first apply to the High Court in accordance to O 34 r 2(4) of the Rules of Court 2012."

[Emphasis Added]

[13] The Order to struck out the Plaintiffs' claim was made for non-compliance of the PTCM directions.

Non-Compliance Of The PTCM Directions

[14] On 19 December 2023, during a Case Management, this Court had directed parties, amongst others, to file pre-trial documents on or before 23 January 2024 and had set a further case management date on 29 January 2024.

[15] The PTCM directions were not complied on many instances. The failures are:

a) On 29 January 2024, the Plaintiffs informed the Court that they had not filed any pre-trial documents (first failure). The Plaintiffs had not request for any extension of time. Nonetheless, this Court had allowed the Plaintiffs' request & directed for pre-trial docu