Tengku Baharudin Shah JCA:

[1] We heard these related appeals against the decision of the learned judge of the High Court ordering the production for inspection by the respondents of various documents alleged to be in the possession, custody or power of the appellants who were the defendants in the case being tried before him in the Court below. We allowed both appeals and set aside orders of the learned judge allowing discovery in the midst of the trial which had already begun when the applications were made. We now state our reasons for so deciding.

BACKGROUND

[2] The first and third appellants instituted the KL High Court Civil Suit No D4-22-34 of 1995 ('the D4 action') against the first respondent claiming various reliefs for alleged defamation, malicious prosecution and unlawful interference with their trade and business as responsible dealers of a particular brand of a chinese medicinel wine ('the said Chinese wine'). Some two years later the respondents filed KL Civil Suit No D1-22-400 of 1997 ('the D1 action') against all the appellants for alleged passing off and infringement of the respondents proprietary rights by distributing and selling counterfeit said Chinese wine.

[3] On 5 August 1997 the D1 action was ordered to be tried together with the D4 action. However on 6 December 1999 the parties agreed to the mode of trial in which the parties in the D1 action would proceed with their respective claim and counterclaim and that the parties in the D4 action would be bound by the decision in the D1 action as well as any order as to costs made therein (see terms of the recorded agreement at p 271 of the AR 541).

[4] The trial commenced on 19 June 2000 through 22 June 2000 and was adjourned for continued hearing for three days in November 2000. Before the resumption of trial however the respondents on 14 September 2000 filed summons in chambers encl 40 in the D1 action ('encl 40') under O 24 r 11 of the Rules of the High Court 1980('RHC') requiring the appellants to produce for their inspection various documents evidencing the purchase and/or import of 1500 cartons of counterfeit said Chinese wine ('the said documents') alleged to be in the appellants' possession. The application was grounded on the fact that the witness statement of the appellants' Ngan Meow Yiap (Ngan) acknowledged the existence and/or made reference to the purchase/import of 1500 cartons of counterfeit said Chinese wine, that the appellants had failed to comply with the notice to produce the said documents dated 13 July 2000 and that the said documents are essential and relate to the issue in the action and are material to the respondents' claim. Enclosure 40 was twice adjourned at the instance of the respondents' solicitors.

[5] The respondents then on 9 February 2001 filed summons in chambers encl 61 in the D4 action ('encl 61') also under O 24 r 11 of the RHC seeking an order to produce for inspection of the respondents the appellants' purchase/import documents dated after April 1994 (the import documents) relating to the same brand of the Chinese wine referred to in Ngan's affidavit affirmed on 8 February 1995. The application was not supported by any affidavit. On the next hearing date of encl 40 the learned judge acceded to respondent counsel's request for encl 61 and another SIC for discovery to be heard together with encl 40 and determined as they were said to be related. He directed that written submissions be lodged by both parties. His Lordship subsequently on 23 April 2001 allowed all three applications with costs, hence these appeals before us against his decision on encls 40 and 61.

FINDING OF THE HIGH Court

[6] The learned trial judge gave identical grounds of decision which are short and simple. He states that the respondent's cause of action against the appellants raises the main issue of whether the subject matter of the slander was counterfeit. Therefore the discovery and production of the documents sought are relevant to the issues