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2022 MarsdenLR 2298
HIGH COURT MALAYA KUALA LUMPUR
DEESIDE FLEXY FLOWLINE SDN BHD – Appellant
Versus
KEVIN FORBES BLUES & ORS – Respondent
[Suit No: WA-22NCC-148-04/2022]
For a successful discovery application, documents must be relevant, possess necessary qualities, and within the opposing party's control.
Headnote:(A) Rules of 2012 - Order 24, Rules 3, 7, 9, and 10 - Plaintiff sought documents for discovery from Defendants regarding contracts related to 'Sepat Oilfield' works, claiming necessity and relevance for the proceedings. The Defendants opposed, asserting that requested documents were not in their possession and that the application amounted to a fishing expedition. The court maintained that discovery requires relevant documents in the possession of the opposing party. (Paras 1, 6, 10)
(B)
Discovery Application - The court emphasized that for successful discovery, a document must be relevant, within the possession of the opposing party, and necessary for a fair resolution of the case. The requirements for discovery were outlined in prior cases, establishing a firm basis that the burden lies on the party seeking documents to prove necessity (Paras 3-4, 5).
(C)
Court's Findings - The court ordered the Defendants to produce documents related to the awarding of Engineering Works and communications relevant to the Plaintiff's claims, ruling that these documents are necessary and relevant for the proper resolution of the matters before it (Paras 8, 9, 16).
(D)
Result - Discovery granted as requested by the Plaintiff (Paras 16).
JUDGMENT
(Discovery Application - Enclosure 21)
Background Facts
[1] Pursuant to the Plaintiff's Discovery Application, the Plaintiff seeks an order, amongst others, that in accordance with O 24 r 3, 7, 9 and 10 of the Rules of 2012 ('RC 2012') the following documents are to be produced by both the Defendants:
(a) All documents, agreements and correspondences which show that Petronas had awarded the "Sepat Oilfield" works to EAT Bhd on 12 June 2019 as pleaded at para 45(d) of the Defendants' Defence;
(b) All documents, agreements and correspondences which show that EAT Bhd had awarded Engineering Works to Blue Seas on 7 July 2019 as pleaded at para 47 and 50(c) of the Defendants' Defence;
(c) Any other documents, agreements and correspondences between Kevin either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and EAT Bhd;
(d) Any other documents, agreements and correspondences between Blue Seas and EAT Bhd;
(e) All documents, agreements and correspondences between Kevin either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and the 3rd Defendant, Pipelife Nederland BV ("Pipelife") between the periods of 17 December 2015 to 31 September 2019; and
(f) All documents, agreements and correspondences between Blue Seas and Pipelife between the periods of 17 December 2015 to 31 September 2019.
(collectively referred to as the 'Requested Documents')
[2] The Plaintiff's Discovery Application is moved under the following three (3) limbs for discovery:
a) General Discovery (O 24 r 3 of RC 2012);
b) Specific Discovery (O 24 r 7 of RC 2012); and
c) Inspection of Documents referred to in Pleadings (O 24 r 10 of RC 2012).
Summary Of Law On Discovery
[3] The governing principles upon which a Court would exercise its powers under O 24 of RC 2012 had been expounded in the case of Yekambaran s/o Marimuthu v. Malayawata Steel Bhd , where Edgar Joseph Jr SCJ stated as follows:
'The essential elements for an order for discovery are threefold; namely, first, there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought.'
[4] This position has been reaffirmed in the recent Court of Appeal case of Malaysia Debt Ventures Berhad v. Platinum Techsolve Sdn Bhd & Ors. It was also further emphasized in this case that the documents sought in a discovery application must not only be relevant, but also proven to be necessary:
'[172] It would be convenient to first deal with the question of relevancy of the DSA. The starting point in the discussion is the case of Yekambaram, where Edgar Joseph Jr said (p 585 of the CLJ report) that:...
[199] In our view, the question as to whether the document for which disclosure is sought is necessary is an important and we might, add pivotal component for the order of discovery under O 24 r 7 ROC. Indeed, O 24 r 8 ROC also makes it imperative that the Court to refuse discovery if it is satisfied that discovery was not necessary.
...
[202] In our view, the proper approach to the question of whether discovery is "necessary" may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 ("Bayerische") where the High Court of Singapore at paragraph [37] stated as follows:
'The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough.'
Further, in paragraph [38] of the judgment, the Singapore High Court had considered O 24 r 7 which is pari materia with our O 24 r 8 and stated that:
'The Court is, by O 24 r 7, concerned with
