Discovery applications against non-parties must demonstrate proper relevance and necessity for legal proceedings.

Table of Content
1. defendants sought discovery of documents related to a third party. (Para 1 , 2)
2. arguments presented by the defendants and the third party regarding document relevance. (Para 3 , 4 , 5 , 6)
3. court's duty in enforcing discovery applications against third parties. (Para 7)
4. court's discretion based on legal standards. (Para 8 , 9)

[1] In this case, the 2 defendants in the Original Action (Defendants) have applied in Court Enclosure No 57 (Court Encl No 57) under O 24 r 7A of the Rules of 2012 (RC) for a discovery order against iRadar Sdn Bhd (Third Party) which is not a party in the Original Action and Counterclaim. I am not able to find a previous Malaysian case on the application of O 24 r 7A RC against a third party in a pending suit.

B. Court Encl No 57

[2] In Court Encl No 57, the Defendants applied for the following orders, among others:-

(1) with respect to the "BBScan Portal X-Ray Screening Machine" (BBScan System), the Third Party shall within 7 days from the date of an order of this Court, make an affidavit and serve on the Defendants' solicitors stating the following:-

(a) whether any of the documents or class of documents described in Schedule A to Court Encl No 57 (Schedule A Documents) are or had been in the possession, custody or power of the Third Party and if so, the details of such documents; and

(b) in the event any of Schedule A Documents are not in the possession, custody or power of the Third Party, the Third Party shall specify:-

(i) when the Third Party has parted with Schedule A Documents; and

(ii) who are the person or party currently having possession, custody or power of Schedule A Documents;

(2) within 7 days from the date of an order of this Court, the Third Party shall produce and give copies of Schedule A Documents for the inspection and custody of the Defendants and/or their solicitors (Prayer 2);

(3) consequent upon an order in terms of Prayer 2, the Defendants and/or their solicitors shall have liberty to peruse and make copies of Schedule A Documents; and

(4) costs of Court Encl No 57 shall be paid by:-

(a) the plaintiffs in the Original Action (Plaintiffs); and/or

(b) the third and fourth defendants in the Counterclaim [3rd and 4th Defendants (Counterclaim)]

- to the Defendants

C. Defendants' Submission

[3] The Third Party had commenced Kuala Lumpur High Court Civil Suit No 22IP-61-11/2015 against the Defendants (Suit No 61). In Suit No 61, the Third Party had admitted that the Third Party had supplied and installed the radar component of the Plaintiffs' BBScan System (Radar Component System). As such, the Defendants are seeking in Court Encl No 57 for Schedule A Documents regarding the Radar Component System.

[4] According to the Defendants, since the Third Party is the manufacturer and supplier of the Radar Component System, it would be "inconceivable" for the Third Party to claim that the Third Party did not have any of Schedule A Documents The Defendants had relied on Edgar Joseph Jr J's (as he then was) judgment in the High Court case of Yekambaran Marimuthu v. Malayawata Steel Bhd , 1994 MarsdenLR 1456 .

D. Third Party's Contentions

[5] The Third Party had resisted Court Encl No 57 on the following grounds, among others:-

(1) the affidavit of Mr Liu Xilong affirmed on 9 June 2016 (Defendants' Affidavit) in support of Court Encl No 57 was "sketchy" and did not fulfil O 24 r 7A(3)(b) RC;

(2) Suit No 61 is not related to this case as:-

(a) the Radar Component System is a "stand-alone" product;

(b) the Third Party was only involved in the supply of an accurate and "robust" Radar Component System. The Third Party was "never involved in any aspect of designing and production" of the Plaintiffs' BBScan System; and

(c) Billion Prima Sdn Bhd, the first plaintiff company in the Original Action (1st Plaintiff), would not disclose to the Third Party any more information than was necessary for the Third Party to supply the Radar Component System;

(3) it is "normal practice" for a supplier of high tec

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