Leong Wai Hong JC:

INTRODUCTION

[1]This is a tragic case. The plaintiff is the mother of a son who had died while under remand in the Kuala Kubu Bharu Satellite Prison on 3 March 2021. On 18 July 2023 she filed a suit at the High Court against the investigating officer for negligence, breach of duty and omission of duty; his superiors and the Malaysian Government for vicarious liability.

[2]I fixed the trial for eight days commencing on 6 May 2024 to 9 May 2024 and from 25 November 2024 to 28 November 2024.

[3]However, on 3 May 2024 solicitors for the plaintiff filed a notice of application in encl 27 for leave to discontinue the plaintiff’s suit with liberty to file afresh under O 21 r 3 of the Rules of Court 2012

[4]The supporting affidavit dated 3 May 2024 was affirmed not by the plaintiff but by a solicitor from the firm of solicitors acting for the plaintiff. The reason given was that allegedly the plaintiff has failed to give documents to them to do the trial. I find this reason flimsy for reasons I will articulate below.

[5]As the application for leave to discontinue was only filed on 3 May 2024, just three days before the eight day trial commenced on 6 May 2024, I heard the application for leave to discontinue urgently on 6 May 2024.

[6]It was obvious counsel for the plaintiff did not prepare for trial for reasons best known to him:

(a)I had way back on 23 November 2023 given directions to file all necessary documents and witness statements for trial by 3 January 2024 and fixed trial for eight days on 6 May 2024 to 9 May 2024 and from 25 November 2024 to 28 November 2024;

(b)as of 6 May 2024 which is the first day of trial solicitors for the plaintiff have yet to file any bundle of documents or witness statements of the plaintiff for trial;

(c)the statement of claim contained a detailed account of the facts and claim and it is inconceivable that the witness statement of the plaintiff was not even prepared and filed;

(d)the affidavit in support of the application for leave to discontinue dated 3 May 2024 (encl 28) was not affirmed by the plaintiff but by the solicitor. It was a bare affidavit without any documents exhibited. It merely said the plaintiff had failed to give them documents to prepare for trial; and

(e)the defendants have filed their bundle of documents and six witness statements for trial on 29 March 2024.

[7]On 6 May 2024 after hearing submissions I had allowed the plaintiff discontinuance of her suit but without liberty to file afresh with costs of RM5,000 to the defendants.

[8]The court sympathises with the plaintiff’s predicament but ordered no liberty to file afresh as learned counsel for the defendants objected to liberty to file afresh as a new suit is now barred by limitation.

[9]The plaintiff has appealed to the Court of Appeal on 4 June 2024 against the part of my order which had ordered no liberty to file afresh. These are my grounds of judgment.

THE LAW ON DISCONTINUANCE OF ACTION REQUIRING LEAVE OF COURT UNDER O 21 R 3 ROC

[10]The law on the discontinuance of a suit by a plaintiff is found in O 21 of the ROCOrder 21 r 2(1) of the ROCNewlake Development Sdn Bhd v Zenith Delight Sdn Bhd Prof Dato’ Dr Rahmat bin Mohamad v Shahizad bin Sulaiman

[11] Order 21 r 2 of the ROC

(2) Discontinuance of action without leave (O 21 r 2)

The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than fourteen days after the service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice in Form 32 to that effect on the defendant concerned. (Emphasis added.)

[12]The law on discontinuance of an action requiring leave of court under O 21 r 3(1) of the ROC 2012

[13]The two decisions of the Court of Appeal in Majlis Peguam Malaysia & Ors v Raja Segaran a/l S Krishnan Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd

[14]