JUDGMENT

Salleh Abas FJ:

This is an appeal against my decision allowing the application by the respondent to cross-examine two witnesses of the appellant/plaintiff in Civil Suit No. 1266 of 1975. The two witnesses concerned are Mr. Malcolm D Steinberg of 34, Windara Drive, City Beach, West Australia, and Mr. Chen Kah Leng of Messrs Skrine & Co., Straits Trading Building, No. 4, Leboh Pasar Pesar, Kuala Lumpur. These two witnesses swore affidavits on 27 June 1978, and 5 July 1978 respectively. These affidavits were filed in support of the appellant's application under O. 32 r. 6 for judgment against the respondent "upon admission contained in the letter dated 25 October 1975."

The appellant by its application is seeking to obtain judgment to secure a reimbursement from the respondent of a sum of RM9,688.28 which the appellant incurred in connection with the temporary untraceability of a certain equipment, i.e. container No. 277193. The ground of the application is the admission made by the respondent's solicitor in a letter dated 25 October 1975. The hearing of the appellant's application was postponed twice.

In the meantime, the respondent applied by Summons-in-Chambers under O. 38 r. 1 to cross-examine the two witnesses concerned, or their affidavits should not be used at the hearing of the appellant's application for judgment under O. 32 r. 6, and I had the misfortune to hear the respondent's application. Counsel for the respondent urged me to grant the application because the crossexamination would relate to the question how the respondent would or would not be liable for the loss or untraceability of the container hired by the appellant in an agreement with a third party and for which the respondent was not liable. The respondent's application was also supported by the affidavit of the respondent's office manager who swore it on 11 November and 15 December 1978 challenging the truth of the affidavits of Mr. Malcolm D Steinberg and Mr. Chen Kah Leng. On the other hand, Counsel for the appellant in opposing the application directed my attention to the respondent's admission through its Counsel of its responsibility for the loss in a letter dated 15 October 1975, although the letter was clearly marked without prejudice."

To allow or not to allow the respondent's application to cross-examine the appellant's witnesses upon their affidavits, I take it, is a matter of Court's discretion. In appropriate circumstances, there is no reason why such application should be refused merely because the deponent is a foreigner living outside the jurisdiction (Re Lucas [1952] 1 All ER 102); "otherwise foreigners would have an advantage" (Strauss v. Goldschmidt 8 SLR 239) it is really a matter of common sense and an elementary legal principle that a party who swears an affidavit must be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause vexatious or motivated by desire to delay the proceedings (Allen v. Allen [1894] P 239). in view of the appellant's application for judgment under O. 32 r. 6, I am not, however, prepared to hold the respondent's application to cross-examine the appellant's witnesses as being without just cause or motivated by desire to delay the proceedings or without bona fide or sham or vexatious.

I am not dealing with the merits of the appellant's application for judgment under O. 32 r. 6, but in order to enable me to exercise my discretion as regards the respondent's application to cross- examine the appellant's witnesses, it is necessary for me to see how the proposed cross-examination would be relevant to the issue in the appellant's application. An examination of this issue is therefore essential. This issue itself could not be properly understood without a reference to the civil suit which the appellant commenced against the respondent. I therefore propose to narrate the facts as follows.

On 28 July 1975 in connection with the supply of certain goods a