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2020 MarsdenLR 2335
HIGH COURT OF MALAYA SHAH ALAM
KOH HSI-PIN VIVIAN – Appellant
Versus
RSD HOSPITALS SDN BHD – Respondent
[Originating Summons No: BA-24NCVC-589-05-2018]
Form 83, a penal notice concerning judgment enforcement, does not form part of the Judgment or Order, and its endorsement is mandatory upon application by the successful party.
Headnote:(A) Rules of Court 2012 – Order 24 r 7A(1) – Order 42 r 8(1) – Order 45 r 7(4) – Courts of Judicature Act 1964 – The plaintiff seeks production of medical records for potential negligence suit, referencing Billion Prima Sdn Bhd & Anor v Nutech Company Limited & Anor, [2017] 10 MLJ 213 – Consent Order for delivery of records disputed regarding inclusion of Form 83 Penal Notice – Court finds endorsed Form 83 does not form part of a Judgment/Order, and must be included at the instance of the successful party to facilitate enforcement (Paras 4, 14, 22).
(B)
The Court has no discretion to refuse the application to endorse Form 83, mandated by O 45 r 7(4) RC (Paras 18, 22).
(C)
The decision regarding endorsement does not constitute a 'decision' for appeal per s 3 CJA, and is not subject to appeal (Paras 23-28).
Facts of the case:
The plaintiff, widow of the deceased, filed an OS against the defendant for medical records necessary to assess negligence after the deceased's death while treated in SJMC.
Findings of Court:
The SAR's Decision endorsing Form 83 was deemed correct and within jurisdiction.
Issues
: The main issues included whether Form 83 is part of the judgment and if the Court has discretion to endorse it.
Ratio Decidendi:
Form 83 serves solely as a notice for enforcement and does not alter the Judgment/Order. The Court's ruling followed precedents and allowed for record enforcement.
Result:
Appeal dismissed with costs.
JUDGMENT
A. Background
[1] The plaintiff (plaintiff) is the widow of the late Mr Anthony Paul John Mather (Deceased).
[2] On 28 December 2017, the Deceased passed away while he was under medical treatment in Subang Jaya Medical Centre (SJMC).
[3] The plaintiff has filed this Originating Summons (OS) as the executrix, trustee and dependent of the Deceased against the defendant company (defendant) which owns and operates SJMC.
[4] This OS applies under O 24 r 7A (1) of the Rules of 2012 (RC) for the defendant to produce to the plaintiff all medical and patient records of the Deceased during the period of time when the Deceased was treated at SJMC (Records). The Records are needed by the plaintiff to decide whether a suit should be filed regarding the Deceased's death based on medical negligence. This OS is a "Pre-Trial Discovery Application" as explained in Billion Prima Sdn Bhd & Anor v. Nutech Company Limited & Anor, .
[5] On 14 August 2018, the plaintiff and defendant entered into a consent order regarding the OS before Azimah Omar J (Consent Order). According to the Consent Order, the defendant shall deliver the Records to the plaintiff within 14 days from the service of the Consent Order on the defendant.
[6] Upon Azimah Omar J's transfer to the Kuala Lumpur High Court, I took over this OS.
[7] When the Consent Order was drafted by the plaintiff's solicitors (Draft), a notice in Form 83 in Appendix A to RC (Form 83) had been inserted by the plaintiff's solicitors into the Draft. Form 83 in the Draft stated that if the defendant did not comply with the Consent Order within the time period stipulated in the Consent Order, the four directors of the defendant named in Form 83 (defendant's Directors) would be liable to process of execution for the purpose of compelling the defendant's Directors to obey the Consent Order. Form 83 is commonly known among practising lawyers as a "Penal Notice".
[8] The Draft was forwarded by the plaintiff's solicitors to the defendant's solicitors for approval under O 42 r 8(1) RC. The defendant's solicitors deleted Form 83 from the Draft.
[9] As the solicitors for the plaintiff and defendant could not agree regarding whether Form 83 should be inserted into the Draft, this dispute was referred to my learned Senior Assistant Registrar, Puan Sharifah Muhaymin Binti Abdul Khalib (SAR).
[10] The learned SAR inserted Form 83 into the Consent Order (SAR's Decision). Hence, the defendant filed this appeal to the High Court Judge against the SAR's Decision under O 56 r 1(1) RC (This Appeal).
B. Issues
[11] The following questions arise in This Appeal:
(1) if Form 83 is endorsed on a judgment or order (Judgment/Order), is the endorsed Form 83 a part of the Judgment/Order? This is a novel issue;
(2) whether Form 83 should be endorsed on a Judgment/Order at the behest of:
(a) the successful party who has obtained the Judgment/Order (X); or
(b) the party against whom the Judgment/Order has been obtained (Y);
(3) if X applies to Court to endorse Form 83 in a Judgment/Order -
(a) does the Court have any discretionary power under O 42 r 8(4) and/or O 45 r 7(4) RC to refuse such an endorsement?; and
(b) in the event the Court refuses to endorse Form 83 in a Judgment/Order (Court's Refusal) -
(i) whether X can appeal to a higher Court against the Court's Refusal. This concerns the effect of the definition of "decision" in s 3 of the Courts of Judicature Act 1964 (CJA); and
(ii) can X apply by way of a notice of application to the same Court to endorse Form 83 in the Judgment/ Order? In this regard, is X barred by the functus officio doctrine and/or issue estoppel principle from revisiting the Court's Refusal?; and
(4) if Form 83 is endorsed in a Judgment/Order:
(a) whether any party can appeal against the Endorsed Form 83 in view of the definition of "decision" in s 3 CJA; and
(b) can any party apply to the same Court (which has earlier endorsed Form 83 in the Judgment/Order) to delete the Endorsed Form 83? Is such an ap
