The court held that discontinuance without liberty to refile is justified where the plaintiff has gained a tactical advantage, upholding the principle of preventing misuse of judicial processes.

JUDGMENT

Awang Armadajaya Awang Mahmud JC:

Introduction

[1] This is an appeal pursuant to O 55 r 5 against the decision of the Learned Magistrate given on 21 August 2019 who partially allowed the application (pursuant to encl 26) by the Appellant/Plaintiff to withdraw the Writ of Summons (encl 1) as well as the Statement of Claim (encl 2) WITHOUT liberty to file afresh. The Writ of Summons and Statement of Claim against the Respondent / Defendant was for alleged professional negligence in the filing for tax returns with the Inland Revenue Board ("Lembaga Hasil Dalam Negeri" which is known by its acronym "LHDN").

Background Facts

[2] The Plaintiff filed the Writ of Summons ("Writ") on 29 October 2018. The Magistrates Court gave pre-trial management directives on 21 March 2019 and the matter was set down for full trial on 20th and 21 May 2019. Among the directives were the instructions that documents are to be prepared and filed before the trial dates. The documents are:

i. Bundle of Pleadings

ii. The Plaintiff's Bundle of Documents

iii. The Defendant's Bundle of Documents

iv. The Defendant's case Summary

v. The Plaintiff's case summary

vi. Agreed facts

vii. Contentious issues

viii. List of Plaintiff's witnesses

ix. List of Defendant's witnesses

x. Defendant's Witness statement.

xi. Plaintiff's witness statement

[3] By way of a letter dated 30 April 2019, the Plaintiff instructed the Plaintiff's previous solicitors (M/s Elyas Majeed & Co) that the Plaintiff wishes to appoint new solicitors to handle the case.

[4] As of 13 May 2019, the Plaintiff's previous solicitors has not receive any notification of appointment of new solicitors.

[5] Since there was only 7 days left before the commencement of the trial, the Plaintiff's previous solicitors filed an Application to Discharge themselves as solicitors acting for the Plaintiff.

[6] The Magistrates Court allowed the discharge and vacated the trial dates and adjourned them to 26 June and 27 June 2019. However, by way of a letter dated 30 May 2019, the Plaintiff (unrepresented) informed the Court that the Plaintiff intended to withdraw the Writ action due to logistics reasons and sought adjournment of the trial dates.

[7] On 4 July 2019, new solicitors were appointed to act on behalf of the Plaintiff. On 8 July 2019, the Plaintiff filed a notice of application to withdraw the writ action with liberty to file afresh pursuant to O 21 r 3 (encl 26). The Defendant agreed to the withdrawal but not the condition attached to the application, namely "the liberty to file afresh".

[8] In the affidavit-in-support by the Plaintiff to support the Application for Discontinuance pursuant to encl 26, the Plaintiff informed the Court that the previous solicitors did not file documents in support of the Plaintiff's case and hence the Plaintiff is at a disadvantage. No detail was given on what these documents were (Learned Magistrates Grounds of Judgment, encl 9, p 112 para 10.1)

[9] The application pursuant to O 21 r 3 (encl 26) was heard by the Learned Magistrate on 14 August 2019 and the Learned Magistrate delivered the ruling on 21 August 2019 whereby the Learned Magistrate allowed the application for discontinuance of the Writ of Summons but not with liberty to file afresh and the Plaintiff to pay cost of RM2000-00 to the Defendant.

This Appeal

[10] The essence of this appeal is that the Learned Magistrate was said to have erred in law and in fact when she allowed the discontinuance of the action but without liberty to file afresh. Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd & Ors was cited in support.

[11] We reproduced O 21 Rules of 2012 for easy reference.

21 Withdrawal and discontinuance

1. Withdrawal of appearance (O 21 r 1)

A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.

2. Discontinuance of action without leave (O 21 r 2)

(1) The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action or withdraw any