The appellate court will not interfere with a trial court's discretion in procedural matters unless a clear error is demonstrated, affirming the relevance of subpoenas to ensure just outcomes.

[1] We heard the appeal of the appellant/plaintiff in respect of the decision of the learned High Court Judge who allowed the respondents' (witness) application under O 92 r 4 of the Rules of High 1980 and/or inherent jurisdiction of the Court to set aside the subpoena served on Tan Yeo Hwa an employee of Alliance Investment Bank (AIBB) on 27 November 2012 and dismissed the appeal with costs. The draft judgment was approved by my learned brothers, Datuk Clement Skinner and Dato' Mah Weng Kwai earlier. This is our judgment.

[2] It is not in dispute that the subpoena was issued for the purpose of producing the documents and also to give evidence.

Brief Facts

[3] The appellant was interested in employing the defendants as remisiers who were then working as "Paid Dealers Representatives" in AIBB and not remisiers. The defendants have signed a letter of offer for a position as a remisier with the plaintiff. One of the main issues to be tried before the High Court is whether there was a concluded contract between the plaintiff and the defendants. It will follow if there is a breach then the issue will be whether the plaintiff did suffer any loss or damage.

[4] During the trial the plaintiff has adduced evidence of alleged loss of future earnings and has adduced evidence of the cost and revenue projection of the plaintiff based on the gross commission of the 7th defendant (excluding the 4th and 5th defendants). Notwithstanding the projection relates to the Year 2008 and April 2009, the plaintiff has issued subpoena requiring the witness to produce documents relating to the defendants' commission from the date of their appointment as remisier till date as well as documents which state the percentage of commission paid by AIBB to the defendants from Year 2010.

[5] It must be noted that the application to set aside the subpoena was filed by the witness through the defendants' firm of solicitors, on the grounds, inter alia, that (i) documents are confidential and not relevant; and (ii) the witness has no personal knowledge of the appellant's claim against the defendants and the writ of subpoena was issued with mala fide intent.

[6] The learned High Court Judge agreed with the submission of the defendants' counsel and allowed the application and hence this appeal.

[7] We have read the appeal record and the submission of the parties in detail. Both the learned counsel have submitted on the facts and law in detail. The Court is grateful. We do not wish to repeat the same save to deal with the core issues. After having given much consideration to the submission of the learned counsel for the appellant, we take the view that the appeal must be dismissed. Our reasons, inter alia, are as follows:

(a) It is well settled that the appellate Court will not ordinarily interfere with the exercise of discretion of a trial Court in relation to procedural and/or interlocutory matters [see Gary v. Garrett [1878] Ch D 473].

(b) The appeal relates to an interlocutory procedural order and exercise of discretion. It is well settled that in an appeal against the exercise of discretion by a judge, the initial function of the appellate Court is one of review only, there being no original discretion vested in the appellate Court. It is for the appellant to demonstrate that an error in the exercise of discretion has indeed occurred and it is also one of the categories of cases where appellate interference is warranted [see Wah Bee Construction Engineering v. Pembenaan Fungsi Baik Sdn Bhd , 1996 MarsdenLR 555 ; Majlis Peguam Malaysia & Ors v. Raja Segaran S Krishnan; 2002 MarsdenLR 2294 ; 2002 MarsdenLR 1635 ; 2004 MarsdenLR 2027 ].