Lee Hun Hoe CJ (Borneo)

This appeal is concerned with the construction of Order 15 rule 1(4) of the Subordinate Courts Rules, 1980 which is substantially the same as Order 20 rule 5(4) of the Rules of the High Court, 1980.

The plaintiff/respondent was the father of the deceased, Mohamed Shaiful bin Mohamed Amin, On May 3, 1978 deceased and his mother, Hanah binte Ahmad were passengers in the motor car MD 8589 driven by the respondent. A collision occurred between the motor car and a motor lorry Z7378 driven by 1st defendant, an employee of the 2nd defendant. As a result of the accident deceased died and both his parents suffered injuries. On April 23, 1981 the respondent sued the defendants in the Magistrate's Court at Seremban for damages on the ground of negligence. The statement of claim states clearly that:-

"… he brings this action on behalf of the deceased's estate by virtue of Section 8 of the Civil Law Act 1956 (hereinafter called 'the said Act')."

The defendants denied liability and blamed the respondent for the collision and counterclaimed against him for negligence.

It is not in dispute that the action was filed within the three-year period as prescribed by the Public Authorities Protection Act, 1948. However, on February 9, 1982, after the expiry of the limitation period, the respondent applied for an order to amend the statement of claim by adding himself as 1st plaintiff and his wife as 2nd plaintiff in their own personal capacity under Order 15 rule 1(4) of the Subordinate Courts Rules, 1980. The reason they gave was that their medical reports were not available at the time when the action was filed. It was also said that the action was filed in a representative capacity to save the cause of action from being time-barred. The application was heard by the learned President of the Sessions Court sitting as Magistrate in the Magistrate's Court. Despite objection that the action was time-barred under section 2(a) of the Public Authorities Protection Act, 1948 he gave the respondent leave to add himself as plaintiff but refused leave for the respondent's wife to be added as the 2nd plaintiff. The appellant/2nd defendant appealed. There was also a cross-appeal which was abandoned at the hearing before the learned Judge. Both the appeal and cross-appeal were dismissed. Hence, the present appeal.

At this point it would be convenient to set out the relevant provisions of Order 15 rule 1 of the Subordinate Courts Rules, 1980 as follows:

"Order 15 rule 1

1. (1) Subject to Order 8, rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his summons, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraphs (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the summons has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) …

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the summons or the making of the counterclaim, as the case may be, he might have sued.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

It is the counterclaim of the appellant that the application under Order 15 rule 1(4) ought not to have been