Back
2022 MarsdenLR 25
HIGH COURT MALAYA KUALA LUMPUR
TERESA KOK SUH SIM – Appellant
Versus
JAMAL MD YUNOS – Respondent
[Writ Summons No: WA-23CY-15-04/2017]
A party seeking discovery of documents must meet the relevant legal requirements, including that the documents are not classified under laws restricting disclosure.
Headnote:(A) Official Secrets Act 1972 – Sections 2, 2B, 5 – Rules of Court 2012 – Order 24 rule 7A – Discovery of documents – Application for discovery of documents classified as "restricted" under the Official Secrets Act was dismissed – The Defendant failed to prove that the documents sought could be produced before the Court as the documents were deemed restricted according to the Act. (Paras 8-12)
(B)
Application for stay of proceedings – The Defendant was unable to present special circumstances that justified staying the trial. (Paras 16-17)
Facts of the case:
The Defendant sought discovery of documents from the Selangor State Government, claiming their relevance to the ongoing proceedings but was opposed due to their classification as restricted documents.
Findings of Court:
The Defendant's application for discovery was dismissed due to insufficient justification, late filing, non-service to the State, and the classification of the documents under the Official Secrets Act.
Issues
: Whether the documents sought could be ordered for discovery despite being classified as restricted.
Ratio Decidendi:
The court ruled that the Official Secrets Act cannot be circumvented through discovery, highlighting the need for the Defendant to have been diligent and prepared throughout the case management.
Result:
Application dismissed.
JUDGMENT
(Enclosure 124 - Discovery And Stay Of Proceedings)
A. Introduction
[1] The Defendant seeks discovery of documents in the possession of the Selangor State Government as identified in Enclosure 124 that was filed on 1 May 2022.
[2] The Defendant also seeks a stay of the proceedings pending the outcome of the application for discovery.
[3] The trial of this matter was set down some time ago during case management and is fixed for hearing of witnesses on 8 June 2022.
[4] After considering the notice of application, the affidavits filed and submissions by parties, I dismiss the said application. My grounds for dismissing the Defendant's application are contained in the paragraphs below.
B. Applicable Law
[5] I reproduce O 24 r 7A(2), (3), (4), (5) and (6) of the Rules of 2012 for ease of convenience:-
(2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.
(3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall-
(a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and
(b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.
(4) A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.
(5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.
(6) An order for the discovery of documents may-
(a) be made conditional on the applicant giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and
(b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.
[6] The applicable law on this area is trite. I refer to the decision of Justice Wong Kian Kheong JC in Billion Prima Sdn Bhd & Anor v. Nutechh Company Ltd & Anor, , where his Lordship summarised the applicable law as follows:-
"[10] My understanding of O 24 rr 7A and 8 of the RC is that an applicant in a discovery application against third party (applicant), must fulfil the following six conditions before the Court may exercise its discretion to order discovery against a third party (six conditions):
(1) the applicant's affidavit in support of the discovery application against third party (supporting affidavit) shall "specify or describe the documents in respect of which the order is sought" (documents) as required by O 24 r 7A(3)(b) of the RC.
....
(2) the supporting affidavit shall "show, if practic
