1. Appeal against refusal to join third party — Application made after trial concluded — Discretion of trial judge. (Para 1 , 2 , 3 , 4 , 6 , 9 )
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2026 MarsdenLR 1787
MAHKAMAH TINGGI MALAYA KUALA LUMPUR
ROSLAN MAT NOR, J
NG KOK MEE – Appellant
Versus
IQBAL ZAIM BAHARUDDIN & SATU LAGI – Respondent
[Rayuan Sivil No: WA-12ANCvC-90-07/2025]
Petitioner Advocates:Shanmugam Ramasamy,Surenthiram Raj Selvarajan ,Respondent Advocate: Ranizan Mokhtar,Muhammad Aliff Shafiq Maskor
The court reaffirmed that an appellate court will not lightly interfere with a trial judge's discretionary decision on procedural matters, unless the discretion was exercised on a wrong principle.
Headnote:
(A) Rules of the High Court 1980 (RHC) - Order 15 rule 6(2)(b)(ii) - Third party proceedings - Joinder of parties - Discretion of court - Principles governing appellate interference with discretion.
(B) Civil Procedure - Third party proceedings - Nature of - Third-party proceedings for contribution are independent of and separate from proceedings by a plaintiff against a defendant - Time to file such claim runs from date defendant is held liable. (Paras 8-9)
(C) Appeal - Appellate review of discretion - Appellate court will not interfere with exercise of discretion by trial judge unless it is clearly satisfied that the discretion was exercised on a wrong principle, resulting in a miscarriage of justice. (Paras 11-14)
Facts of the case:
The appeal was against the decision of the Sessions Court Judge who dismissed the defendant's application to join a third party in the proceedings. The proposed third party was the hospital that performed surgery and treatment on the plaintiff. The application was made nearly two years after the main proceedings had closed and after a decision date had been fixed. The Sessions Court Judge dismissed the application due to the delay, noting no explanation for the delay was provided.
Findings of Court:
The appellate court found that the Sessions Court Judge had properly exercised his discretion. The cause of action between the plaintiff and defendant (negligent driving causing a road accident) was different from the cause of action in the proposed third-party proceedings (medical negligence). The defendant was free to file a separate action against the third party. The appellate court refused to interfere with the discretionary decision.
Issues: Whether the Sessions Court Judge had erred in exercising his discretion to dismiss the defendant's application to join a third party, made after a significant delay and after the main trial had concluded.
Ratio Decidendi: The court held that the trial judge's discretion should not be interfered with on appeal unless it was exercised on a wrong principle or resulted in a miscarriage of justice. The delay in filing the application for third-party proceedings, without any explanation, was a valid basis for dismissal. Furthermore, as the cause of action against the proposed third party (medical negligence) was distinct from the main claim (negligent driving), the defendant was not prejudiced and could pursue a separate action.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
Table of Contents
2. Appeal dismissed — Refusal to join third party affirmed. (Para 10 , 17 , 18 )
3. What is the test for joinder of a defendant on the defendant's application against the plaintiff's wishes?
The court has discretionary power; the only fetter is that there must be a question or issue arising out of or relating to the relief claimed, and it must be just and convenient to determine. (Para 5 )
4. Does delay in filing a third-party notice justify refusal of joinder?
Yes, lateness without explanation, especially after trial concluded, justifies refusal; third-party proceedings are independent and can be brought separately. (Para 6 , 7 , 8 , 9 )
5. What is the standard of appellate review of a trial judge's exercise of discretion?
The appellate court will not interfere unless the judge exercised discretion on a wrong principle or there is a miscarriage of justice; there is a presumption the judge rightly exercised discretion. (Para 11 , 12 , 13 , 14 , 15 , 16 )
PENGHAKIMAN
[1] Ini adalah rayuan terhadap keputusan Hakim Mahkamah Sesyen menolak permohonan memasukkan pihak ketiga sebagai pihak di dalam prosiding.
[2] Penelitian kepada permohonan pihak ketiga itu menunjukkan hospital yang melakukan pembedahan dan rawatan terhadap plaintif dicadangkan untuk dijadikan pihak ketiga.
[3] Hakim Mahkamah Sesyen telah menolak permohonan tersebut disebabkan permohonan pihak ketiga telah dibuat lewat setelah perbicaraan utama kes ini telah selesai dan tarikh keputusan telah ditetapkan.
[4] Mahkamah ini mendapati asas utama kepada keputusan Hakim Mahkamah Sesyen menolak permohonan pihak ketiga ini adalah kelewatan defendan mengemukakan permohonan pihak ketiga tersebut.
Analisa
[5] Adalah menjadi prinsip undang-undang yang mantap bahawa plaintif tidak boleh dipaksa untuk menamakan mana-mana orang sebagai defendan. Ia adalah pertimbangan plaintif semasa mengemukakan tuntutan. Walau bagaimanapun, mahkamah boleh mempertimbangkan permohonan defendan untuk menambah mana-mana pihak. Mahkamah Agung dalam kes Tajjul Ariffin Mustafa v. Heng Cheng Hong ; [1993] 2 MLJ 143; [1993] 3 CLJ 117; [1993] 1 AMR 1119 telah menggariskan pertimbangan seperti berikut:
Secondly, insofar as the power of the court to add a defendant on the application of the defendant against the wishes of the plaintiff is concerned, the jurisdiction of the court is entirely discretionary and the only fetter which RHC O 15 r 6(2)(b)(ii) places upon the exercise of the discretion which it gives to the judge of first instance is that it shall be exercised when there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between the person sought to be joined and that party as well as between the parties to the cause or matter.
Thirdly, the objects of para 2(b)(ii) as to joinder of parties are generally speaking the same as the objects of the rules governing third party proceedings, that is to say: (1) to prevent multiplicity of proceedings and to enable the court to determine disputes between all parties to them in one action; and (2) to prevent the same or substantially the same questions or issues being tried all over again with possibly different results. (See Supreme court Practice (1991) para 15/6/7 at p 193.)
Fourthly, the most scrupulous attention must be paid to the facts of previous cases cited to the court. This requirement is the anchor sheet of the doctrine of precedent according to which like cases must be decided alike. And so, the probability that a court will decide a particular case in the same way as would the court which decided one of the cases cited will become less and less as the differences between the facts of the two cases increase. We are thus reminded, of the oft quoted passage in the judgment of Lord Halsbury in Quinn v. Leathern 15 which runs as follows:
Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found.
It is in the light of these principles that the cases of Hee Awa 2 and Chan Yee 3 should be considered. In other words, the judgment in those cases should be read in the light of the facts of those cases and not as imposing any fetter on the exercise of the discretion given to a judge when considering an application by the defendant for joinder of a defendant, over the objections of the plaintiff, in any new case.
[6] Tindakan kes ini permohonan mengeluar notis pihak ketiga dibuat selepas hampir dua tahun prosiding ditutup. la juga dibuat setelah mahkamah menetapkan tarikh keputusan pada 28 Mac 2025.
[7] Hakim Mahkamah Sesyen telah meneliti afidavit permohonan tersebut dan berpendapat tia
