Back
2022 MarsdenLR 2338
HIGH COURT MALAYA KUALA LUMPUR
ING BANK NV – Appellant
Versus
ANISH RESOURCES SDN BHD – Respondent
[Civil Suit No: WA-12ANCVC-2-01/2021]
The doctrine of forum non conveniens requires the defendant to demonstrate another forum is distinctly more appropriate; Malaysian jurisdiction upheld due to recent amendments allowing remote hearings.
Headnote:(A) Courts of Judicature Act 1964 – Section 15A – Subordinate Courts Act 1948 – Section 101B – Appeal by ING Bank NV against the Sessions Court's dismissal of application for stay of proceedings on grounds of forum non conveniens – Recent amendments provide for remote hearings, affecting considerations under the doctrine – Validity of service on foreign bank's branch in Malaysia upheld – Jurisdiction of Sessions Court affirmed. (Paras 7, 11, 17, 18, 60)
(B)
Forum non conveniens – Doctrine requires defendant to prove that another forum is distinctly more appropriate – Factors: convenience, availability of witnesses, applicable law – Court may refuse stay if justice cannot be secured in the alternative forum. (Paras 33-37, 54-58)
Facts of the case:
Plaintiff filed suit against Public Bank and ING Bank NV for failure to refund telegraphic transfers made for non-delivered masks – Claims included breach of contract and duty of care.
Findings of Court:
Appeal dismissed – ING Bank NV failed to prove that Netherlands was the more appropriate forum, and the validity of service was affirmed.
Issues
: Jurisdiction of Malaysian courts over foreign banks, validity of service, considerations for forum non conveniens.
Ratio Decidendi:
Service on ING's Labuan branch valid; Malaysian courts have jurisdiction; remote hearings diminish traditional factors favoring stays.
Result:
Appeal dismissed.
JUDGMENT
Introduction
[1] This is an appeal by ING Bank NV, the appellant against the decision of a Sessions Court. The Sessions Court had dismissed an application by ING Bank NV under O 12 r 10 Rules of 2012 ["ROC 2012"] and/or O 92 r 4 of the ROC 2012 for, inter alia, an order to stay the proceedings against ING Bank NV on the ground of forum non conveniens.
[2] In this Judgment, the appellant/the 2nd defendant in the Sessions Court will be referred to as ING Bank NV, the respondent as the plaintiff and the 1st defendant in the Sessions Court as Public Bank.
[3] I heard counsel on 8 March 2022. At the conclusion of hearing I directed counsel to file further written submissions on whether the plaintiff having to litigate in Malaysia and Netherlands is a relevant factor against the granting of a stay in favour of ING Bank NV when considering the application of ING Bank NV to stay proceedings on the ground of forum non conveniens. I also fixed the appeal for decision on 16 March 2022.
[4] On 16 March 2022 I dismissed the appeal with costs. ING Bank NV has now appealed to the Court of Appeal. This is my Grounds of Judgment.
[5] In my Grounds of Judgment, I will examine whether the recent 2020 amendments to our rules of Court have modified the factors to be considered by our courts under the doctrine of forum non conveniens, as expounded by the UK House of Lords in Spiliada Maritime Corp v. Cansulex Ltd The Spiliada [1986] 3 All ER 843. ["The Spiliada"].
[6] The doctrine of forum non conveniens has been recognised for a long time in Scots law prior to its adoption by English courts. It is now also followed in the United States and by other Commonwealth jurisdictions [The Spiliada p 853 (c) Lord Goff]. Our courts have also adopted this doctrine.
[7] The amendments to our rules of Court which came into force on 20 October 2020 were:
a] A new s 15A to our Courts of Judicature Act 1964 to allow the Malaysian Federal Court, the Court of Appeal and the High Court to conduct proceedings of any cause or matter, civil or criminal, through a "remote communication technology". Remote communication technology is defined in s 3 of the to mean "a live video link, a live television link or any other electronic means of communication."; and
b] A new s 101B to our Subordinate Courts Act 1948 to allow the Malaysian Sessions Courts and the Magistrates' Courts to conduct the proceedings of any cause or matter, civil or criminal, or hold any inquiry, through a "remote communication technology". Remote communication technology is defined in s 2 of the to mean "a live video link, a live television link or any other electronic means of communication."
[8] Section 15A of our Courts of Judicature Act 1964 and s 101B of our Subordinate Courts Act 1948 were passed by Parliament through the initiatives of the Judiciary, the Government and the litigation bar to allow our courts to hear cases through "remote communication technology" as physical Court hearings were prevented and/or hampered by the COVID-19 pandemic and "Lockdowns/ Movement Control Orders" in Malaysia.
[9] Our courts use the "Zoom video conferencing" and e-Review [an-online chat platform involving the parties and the Court] for remote Court proceedings.
[10] A recent High Court trial conducted successfully in Malaysia in 2021 involving 3 witnesses testifying from Munich, Germany and one witness testifying from Riyadh, Saudi Arabia vide "remote communication technology" is the case of Celcom (Malaysia) Bhd & Anor v. Tan Sri Dato' Tajudin Ramli & Ors And Another Case, [2022] 4 CLJ 381 Wong Kian Kheong J.
[11] Our courts now from the Federal Court right down to the Magistrates' Courts are equipped to hear cases through "remote communication technology". This is a development that we can all justly be proud of. After all the well-known legal maxim is Justice delayed is justice denied.
Background Facts
[12] The plaintiff on 19 June 2020 had filed a suit at the Sessions Court against Public Bank/t
