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2022 MarsdenLR 1228
HIGH COURT MALAYA PENANG
OSRAM OPTO SEMICONDUCTORS (MALAYSIA) SDN BHD – Appellant
Versus
NG SYEN UUN & ORS (ENCL 36) – Respondent
[Suit No: PA-22NCvC-129-08/2020]
Discovery applications must meet relevancy criteria and cannot be used as fishing expeditions to obtain evidence unrelated to the ongoing case.
Headnote:(A) Rules of Court 2012 – Order 24 – Application for discovery of documents – Plaintiff sought an order for the discovery of specified documents related to alleged breach of contract and fraudulent misrepresentation – Defendants denied the relevance of the documents and argued abuse of court process – Court found the application did not meet the requirements of Order 24 – Discovery not necessary as documents were irrelevant to the Plaintiff's claims and involved third-party confidentiality – Application dismissed with costs. (Paras 1, 11, 14, 19, 28)
(B) Discovery – Purpose of discovery is to allow parties to obtain relevant material that can support their case and narrow down the issues – The Plaintiff's application amounted to a fishing expedition, seeking irrelevant documents beyond the scope of the case. (Paras 19, 22, 27)
Facts of the case: Plaintiff alleged breach of contract and misrepresentation regarding the supply of products. Defendants contended they supplied the correct items, leading to a dispute about the nature and pricing of the products. (Paras 5, 9)
Findings of Court: This court determined the discovery request was irrelevant given the lack of connection to the Plaintiff's claims and the confidential nature of the documents sought. (Paras 19, 28)
Issues: The central questions included the necessity of the requested documents for fair trial proceedings and the relevance to the cause of action. (Paras 2, 19)
Ratio Decidendi: The court reasoned that the Plaintiff's application failed the relevancy test required for discovery and constituted a misuse of court resources for fishing for evidence. (Paras 14, 19, 27)
Result: Application dismissed with costs awarded against the Plaintiff.
[Enclosure 36]
Introduction
[1] This is an appeal against the decision of this court in dismissing an application [Enclosure 36] by the Plaintiff (Appellant) for the discovery of documents specified in the Schedule thereto, pursuant to O 24 and/or O 92 r 4 of the Rules of 2012 ("ROC 2012") ("Discovery Application") on 15 November 2022. Parties were referred to as they were in the High court.
[2] The application by the abovenamed Plaintiff for the following Order:
(i) That the Second to Fourth Defendants are to give discovery of the documents and/or class of documents as set out in the Schedule hereto ("the Documents");
(ii) That within seven (7) days from the date of the Order, the Second to Fourth Defendants are to do as follows: -
(a) Make and serve a list of the documents and/or class of documents stating which of the said documents listed in the Schedule to this application are and/or were at any time within the Second to Fourth Defendants' possession, custody or power, and if not in the Second to Fourth Defendants' possession, custody or power, the Second to Fourth Defendants are to state when did they part with the said documents and what has become of such documents ("Defendants' List of Documents"); and
(b) Affirm an affidavit verifying the Defendants' List of Documents ("Affidavit Verifying List");
(iii) That within three (3) days from the date of filing of the Affidavit Verifying List, the Second to Fourth Defendants are to produce and provide original copies of (or in the absence of original copies, copies of) the documents and/or class of documents set out in the Defendants' List of Documents to the Plaintiff and/or the Plaintiffs solicitors;
(iv) Costs to be in the cause; and
(v) Such further and other relief as deemed fit to be given by this Honourable court.
[3] The grounds of this Application are contained in the Plaintiffs Affidavit in Support of GLEN DAVID BROWNLIE affirmed and filed herein, the summary of which is as follows:
(a) The documents specified in the Schedule hereto are relevant documents which are reasonable or have been in the Second to Fourth Defendants' possession, custody or control;
(b) The documents specified in the Schedule hereto are relevant documents which the Plaintiff intends to rely on, and which could adversely affect the Second to Fourth Defendants' case and/or support the Plaintiffs case;
(c) The Second to Fourth Defendants have not produced the documents specified in the Schedule as part of the Defendants' Bundle of Documents; and
(d) An Order for the discovery and production of the Documents is necessary for disposing of the Plaintiffs case fairly and/or will save costs.
The Cause Papers
[4] In order to support encl 36, the Plaintiff and Defendants filed the following papers:
(a) Plaintiffs Affidavit (1) affirmed by Glen David Brownlie on 17 January 2022 in Enclosure 37 ("PA(1)");
(b) Defendants' Affidavit in Reply affirmed by Liew Wooi Seng on 14 February 2022 in encl 39 ("DAIR"); and
(c) Plaintiffs Affidavit (2) affirmed by Glen David Brownlie on 24 February 2022 in Enclosure 40 ("PA(2)").
Background Facts
[5] The court refers to the Plaintiffs Statement of Claim, the Defendant's Statement of Defence, and the facts of the case provided by the Plaintiff and the Second to Fourth Defendants as follows for ease of reference:
(i) The Plaintiffs cause of action against the Defendants are for among others, breach of contract, fraudulent misrepresentation, unlawful interference with trade and etc. (see paras 19 to 40 of the Statement of Claim dated 4 August 2020).
(ii) The gist of one of the Plaintiffs cause of action and pleaded case is that instead of supplying the Plaintiff with "Fiber Glass Cleaning Pens (RS Stock Number 514-868) ("Cleaning Pens') Wintech had been supplying the Plaintiff with "Fiber Glass Bristle PCB Cleaning Brushes (RS Stock Number 514- 874)("Cleaning Brushes")which is a completely different product contrary to Wintech's representations and contractual terms
(
