The court emphasized that discovery applications must demonstrate a genuine cause of action and that vicarious liability does not apply to independent contractors in defamation cases.

Evrol Mariette Peters J:

Introduction

[1] This is the Plaintiff-Husband's application ("this Application") for discovery of the identification documents of six individuals who were present with the Defendant-Wife at the relevant place and time as specified.

[2] In the interest of privacy of the parties concerned and sensitivity of the issues, the Plaintiff and Defendant have been anonymised respectively as HAY and HER.

The Factual Background

[3] The Plaintiff, a Cambodian citizen, and the Defendant, originally a Malaysian citizen who later acquired Cambodian citizenship (collectively "the Parties"), were married in February 2019. Their union was blessed with a son ("the Child") in February 2022.

[4] In April 2023, the Defendant returned to Malaysia with the Child, and neither has since returned to Cambodia. Meanwhile, in May 2023, the Plaintiff filed for divorce in Cambodia and subsequently obtained a court order in June 2023, in his favour.

[5] In September 2023, the Plaintiff filed an application in the High court of Malaya under case number WA-24F-281-09/2023, seeking, among other things, the return of the Child to Cambodia.

[6] In November 2023, this court granted, amongst others, interim custody of the Child to the Defendant. The Plaintiff was granted supervised access to the Child, with visits to occur in a public location at specified times every Saturday and Sunday.

[7] On 19 November 2023, while exercising his access rights, the Plaintiff alleged that he was intimidated and harassed by six men who were accompanying the Defendant ("the Incident"). The Plaintiff subsequently lodged a police report on 20 November 2023 regarding the Incident.

[8] On 13 December 2023, the Plaintiff filed this Application.

The Issues

[9] At the outset the court had to address the preliminary objections raised by both Parties regarding the Originating Summons and affidavits.

[10] The substantive issues for consideration were (a) whether the Plaintiff, in this Application, sought information or documents; (b) whether the documents sought were in the Defendant's possession; and (c) whether the Plaintiff had a genuine cause of action against the Defendant.

[11] The preliminary objections as well as this Application were dismissed for the following reasons.

Contentions, Evaluation, And Findings

Whether Preliminary Objections Regarding The Originating Summons And Affidavits Should Be Allowed

[12] Preliminary objections were raised regarding the Plaintiff's Originating Summons and affidavits filed by both Parties.

[13] With respect to the Originating Summons, the Defendant contended that it failed to clearly specify which particular limb of O 24 r 7A of the Rules of 2012 ("Rules of ") the Plaintiff was relying upon to invoke the court's jurisdiction. The relevant provision states:

Order 24 - Discovery and inspection of documents

Rule 7A - Discovery against other person

(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

(2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

(3) An originating summons under para (1) or a notice of application under para (2) shall be supported by an affidavit which shall-

(a) in the case of an originating summons under para (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in court; and

(b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedi