The court determined that admissibility issues concerning subpoenas are to be resolved during trial, not before.

Table of Content
1. question of setting aside subpoenas before trial. (Para 1 , 2)
2. overview of the consolidated suits and allegations. (Para 3 , 4)
3. discussion on setting aside subpoenas pre-trial. (Para 6)
4. court's inherent jurisdiction to address subpoenas. (Para 7)

[1] This judgment discusses, among others, the novel question of whether before the commencement of trial, a person who has been subpoenaed to give evidence at the trial (Subpoenaed Witness), may apply to Court to set aside the subpoena on the ground that the evidence which may be given by the Subpoenaed Witness is not admissible because the evidence is:-

(1) made on a "without prejudice" basis within the meaning of s 23 of the Evidence Act 1950 ( EA ); or

(2) legally privileged under s 126(1) EA .

B. Background

[2] The above two suits (2 Suits), Civil Suit No D5-22-610-2006 (1st Suit) and Civil Suit No D1-22-1960-2008 (2nd Suit), have been consolidated.

[3] In the 1st Suit, the plaintiff companies (Plaintiffs) claimed, among others, that 9 individual defendants had breached their fiduciary and statutory duties as directors of the Plaintiffs regarding, among others, certain contracts and transactions [Breach of Duty Issue (1st Suit)].

[4] The Plaintiffs alleged in the 2nd Suit, among others, that 7 defendants had conspired, either by lawful or unlawful means, to injure the Plaintiffs and had thereby caused loss to the Plaintiffs.

[5] Tan Sri Dato' Tajudin bin Ramli (1st Defendant) and Encik Bistamam bin Ramli (2nd Defendant) are the first and second defendants in the 2 Suits. The 1st and 2nd Defendants have filed 2 counterclaims in the 2 Suits (Counterclaims). The Counterclaims pleaded, among others, as follows:-

(1) there was a "Global Settlement" between:-

(a) the Malaysian Government (Govt) on behalf of, among others, the Plaintiffs; and

(b) the 1st Defendant;

(2) the 1st Defendant had complied with the Global Settlement by, among others, withdrawing all his claims and counterclaims in certain suits against, among others, the Govt, Pengurusan Danaharta Nasional Bhd., Malaysian Airline System Bhd., the Plaintiffs and Telekom Group of Companies;

(3) the Plaintiffs had breached the Global Settlement by refusing to withdraw the 2 Suits [Breach of Global Settlement Issue (Counterclaims)]; and

(4) the Plaintiffs had conspired with each other, among others, by filing the 2 Suits [Conspiracy Issue (Counterclaims)].

C. 7 Applications

[6] This judgment concerns 7 applications filed by the following persons to set aside subpoenas issued by the 1st and 2nd Defendants (Respondents) for them to testify in the trial of the 2 Suits (Trial):-

(1) an application in Court enclosure no 178 (Encl 178) by Tan Sri Mohamed Azman bin Yahya (Tan Sri Azman Yahya);

(2) an application in Court enclosure no 180 (Encl 180) by Tan Sri Dato' Azman bin Mokhtar (Tan Sri Azman Mokhtar);

(3) an application in Court enclosure no 182 (Encl 182) by Tan Sri Zamzamzairani bin Mohd Isa (Tan Sri Zamzamzairani);

(4) an application in Court enclosure no 184 (Encl 184) by Datuk Bazlan bin Osman (Datuk Bazlan);

(5) an application in Court enclosure no 187 (Encl 187) by the Plaintiffs and Puan Putri Noor Shariza binti Noordin Omar (Puan Putri);

(6) an application in Court enclosure no 190 (Encl 190) by the Plaintiffs and Mr Ng Swee Kee (Mr Ng); and

(7) an application in Court enclosure no 210 (Encl 210) by Tan Sri Dato' Dr Mohd Munir Abd. Majid (Tan Sri Munir).

D. Court's Power To Set Aside Subpoenas

[7] It is not disputed that the Court has inherent jurisdiction and/or inherent power under O 92 r 4 of the Rules of 2012 (RC) to set aside a subpoena on the ground that the subpoena is frivolous, vexatious and constitutes an abuse of Court process - please see the cases referred to in World Grand Dynamic Marketing Sdn Bhd v. FJVAA Spa Sdn Bhd & Ors, , at paras 12-15.

D(1). Whether Application To Set Aside Subpoena Is Made Before Commencement Of Trial Or Is Made During Trial

[8] I am of the view that the Court should distinguish betw

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