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2024 MarsdenLR 1116
HIGH COURT MALAYA SHAH ALAM
EKVE SDN BHD – Appellant
Versus
LAND ADMINISTRATOR DISTRICT OF GOMBAK & ORS AND ANOTHER CASE – Respondent
[Civil Suit Nos: BA-22NCVC-31-06/2019 & BA-21NCVC-23-05/2020]
Discovery requests must be specific and relevant; failure to demonstrate necessity results in dismissal.
Headnote:(A) Rules of 2012 - Order 24 - Discovery of documents - The appellants sought discovery of documents related to ramp redesign, asserting relevance to their defense. The court emphasized that discovery requests must be specific and relevant to the issues in dispute. (Paras 6, 15, 20)
(B) Relevance of documents - The court ruled that the appellants failed to demonstrate the relevance of the requested documents, which were overly broad and not necessary for fair disposal. (Paras 15, 20)
Facts of the case:
The appellants contended that documents regarding the ramp's redesign were necessary to support their claim that the redesign was unnecessary. The respondent argued the documents were irrelevant and the application lacked specificity.
Findings of Court:
The court found no relevance in the documents requested for discovery and noted the delay in filing the application was prejudicial to the respondent.
Issues: The main issues included the relevance of the requested documents and the specificity of the discovery application.
Ratio Decidendi: The court held that discovery requests must be specific and relevant; failure to demonstrate necessity results in dismissal. (Paras 10, 12)
Result: Application for Discovery dismissed with costs.
JUDGMENT
Introduction
[1] This is an application by the appellants / 6th and 7th defendants in encl 308 for discovery of documents under O 24 rr 3, 5, 7, 9 and/or 10 of the Rules of the 2012 and/or upon the inherent jurisdiction of the Court under O 92 r 4 of the Rules of 2012 .
The Appellants / 6th and 7th Defendants Contentions
[2] The appellants have contended that the documents pertaining to the redesign and realignment of the ramp, which the plaintiff asserts as a mitigation effort, hold relevance. They assert that these documents substantiate their claim that the redesign or realignment of the ramp was unnecessary and posed a greater risk than the original design, as articulated in the appellants' reamended pleadings.
The Respondent / Plaintiff's Submissions
[3] The respondent argued that the documents sought by the appellants are irrelevant and unnecessary for the fair disposal of the case before this Court .
[4] The respondent argues that the discovery application is too broad and lacks specificity.
[5] The respondent also argues that there has been an excessive delay by the appellants in applying for the discovery of documents.
The Applicable Law and Legal Principles
[6] Order 24, rr 3, 5, 7, 9, and 10 of the 2012 Rules of govern the law for the discovery of documents.
[7] In the High Court case of Yekambaran Marimuthu v. Melayawata Steel Berhad ; , Edgar Joseph Jr. J (as His Lordship then was) explained what are the essential elements for an order for discovery as follows:
"[1] 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 person against whom the order for discovery is sought. It is indisputable that the items sought were documents and were in the possession, custody or power of the defendant."
[8] He further elaborated that what is "relevant" is limited to the discovery of documents which are "relevant to" or "relate to" the featured issues in dispute. (refer to page 585, paragraph g of the Case).
[9] Order 24 r 13 of the Rules of the 2012 stipulates that an order for the production of any documents for inspection shall be made if the Court is of the opinion that the order is necessary either for fairly disposing of the cause or matter or for saving costs.
[10] In the Court of Appeal case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors; [2010] 2 CLJ 338 , it was explained the test of necessity for specific discovery as follows:
"As stated earlier the real issue is compliance with r 13(1) which stipulates that discovery may only be ordered if the Court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfy the Court , see Dolling-Baker's case and Ventouris v. Mountain. Because of that erroneous premise the learned judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The respondents also failed to provide any materials to satisfy the Court of such necessity.
If necessity is not the prime concern of the Court , allowing discovery would be tantamount to allowing the respondents to fish for evidence, which defeats the purpose of the rule by causing the appellants to suffer unfair disadvantage if they fail to comply with an order which is oppressive and incapable of compliance - see Taylor v. Anderton and Leslie S Holmes."
[11] It is settled law that an order for the discovery of documents must be specific. Failing to do so would be equivalent to a fishing expedition.
[12] In the High Court case of Datuk Amar James Wong Kim Min & Anor v Pendaftar Pertubuhan; [2004] 6 MLJ 235; , it was held as follows:
"[12]...To me, discovery is not relevant because t
