Chapter 28 - Discovery

Question 1

DISCOVERY

Overview

Answer 1

1) General principles on discovery
2) General discovery
3) Specific discovery
4) Pre-action discovery against a person
5) Action discovery against a non-party
6) Discovery for the purpose of discovering identity
7) Inspection of documents referred to in pleadings

Question 2

GENERAL PRINCIPLES ON DISCOVERY

Overview

Answer 2

1) Stages of discovery
2) Meaning of documents in possession, custody or power
3) Relevant documents to be discovered under common law
4) Relevant documents to be discovered under ROC
5) Power of court
6) Public official privilege
7) Failure to allow inspection

Question 3

GENERAL PRINCIPLES ON DISCOVERY

Stages of discovery

Answer 3

1) Application, when necessary.
2) Disclosure.
3) Inspection of the documents.
4) Production if inspection fails.

Question 4

GENERAL PRINCIPLES ON DISCOVERY

Meaning of documents in possession, custody or power

Answer 4

Lonrho Ltd v Shell:

• The phrase looks to the present and the past, not to the future;
• they must be or have at one time been available to be looked at by the person upon whom the duty lies to provide the list.
• Such is the case when they are or have been in the possession or custody of that person;
• The expression “power” must mean a presently enforceable legal right to obtain from whoever actually holds the document or inspection of it without the need to obtain the consent of anyone else.
• in the absence of a presently enforceable right, there is nothing in O.24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.

Question 5

GENERAL PRINCIPLES ON DISCOVERY

Relevant documents to be discovered at common law

Answer 5

The Compagnie Financiere Et Commerciale Du Pacificque v The Peruvian Guano Company:

• Relevant documents are every document relates to the matters in question in the action;
• It consists of documents which not only would be evidence upon any issue;
• Also which is reasonable to suppose, contains information which may either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.

Question 6

GENERAL PRINCIPLES ON DISCOVERY

Relevant documents to be discovered under ROC

Answer 6

O.24

• r.3(4):
• r.7(3):
• r.12(1):

Question 7

GENERAL PRINCIPLES ON DISCOVERY

Power of court

Answer 7

Faber Merlin M’sia v Ban Guan Sdn Bhd:

• court may order for an issue as to whether a document is relevant to be determined first before deciding on the extent on the discovery.
• Even where it is clearly relevant, the court will go on and consider whether the order for discovery is necessary at this stage of proceedings.
• The complexity and the immensity of the task should not be a deterrent.

Question 8

GENERAL PRINCIPLES ON DISCOVERY

Public official privilege

Answer 8

1) The law:
- O.24, r.15
2) Scope - Suruhanjaya Sekuriti v Datuk Ishak Ismail:

• r.3 must be read subject to r.15;
• the court would have first to determine whether the communication had been made to public officer in official confidence.
• If the answer is in the negative, then the s.134 statements will have to be disclosed.
• If the answer is in the affirmative, then it is for the officer concern to decide whether the statements should be disclosed or not;
• The next question for determination is whether the public interest would suffer by the disclosure of the S.134 statements & it is for the officer to determine whether public interests would suffer by the disclosure of the S.134 statements.

Question 9

GENERAL PRINCIPLES ON DISCOVERY

Failure to allow inspection

Answer 9

1) Order for production:
O.24, r.11:

2) Order for dismissal of the action or judgment against D:
O.24, r.16:

3) Order for committal:
- r.16(2)

Question 10

GENERAL PRINCIPLES ON DISCOVERY

Requirement of prior unless order

Answer 10

Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:

• If any party fails to discover or produce or allow inspection of documents as provided by any of the foregoing rules, or as ordered, the court has power under rule 16(1) to make any order it thinks just.
• This includes the power to order that an action be dismissed, or that a defence be struck out with judgment to be entered accordingly.
• Normally court is reluctant to exercise such power and will only do so when a party has at least once disobeyed a peremptory order insisting, for example, that he make discovery within a time specified in the order.
• A party who fails to comply with an order for discovery or production is also liable to committal [rule 16(2)].
• These are highly penal provisions and will only be enforced in the last resort, where it seems clear that the party in default really intends not to comply with an order of the court.

Question 11

GENERAL DISCOVERY

Overview

Answer 11

1) The law
2) Requirements
3) Procedures
4) Failure to comply

Question 12

GENERAL DISCOVERY

The law

Answer 12

O.24, r.3

Question 13

GENERAL DISCOVERY

Requirements

Answer 13

1) Application:
- No application needed, court will automatically order for discovery during case management.
2) Relevant documents to be discovered:

Meaning of relevant documents:

• The Compagnie Financiere v Peruvian Guano Co
• O.24, r.3(4), r.7(3), r.12(1):

3) Public official privilege:

• O.24, r.15:
• Suruhanjaya Sekuriti v Datuk Ishak Ismail:

Question 14

GENERAL DISCOVERY

Procedures

Answer 14

1) Disclosure:
- Court order for discovery - O.24, r.3(1):
2) Test for order - O.24, r.8:
3) Inspection - O.24, r.9:
4) Production - O.24, r.11:

Question 15

GENERAL DISCOVERY

Failure to comply

Answer 15

1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.

Question 16

SPECIFIC DISCOVERY

Overview

Answer 16

1) The law
2) Requirements
3) Procedures
4) Failure to comply

Question 17

SPECIFIC DISCOVERY

The law

Answer 17

O.24, r.7

Question 18

SPECIFIC DISCOVERY

Requirements

Answer 18

1) Application: O.24, r.7(1)

• O.24, r.7(1):
  Must be made.
  Must specify the documents.
• O.24, r.7(3):
  Affidavit.
• O.24, r.7(4):
  Order under r.3 should be obtained prior making an application.

2) Relevant documents to be discovered:

Meaning of relevant documents:

• The Compagnie Financiere v Peruvian Guano Co
• O.24, r.3(4), r.7(3), r.12(1):

3) Public official privilege:

• O.24, r.15:
• Suruhanjaya Sekuriti v Datuk Ishak Ismail:

Question 19

SPECIFIC DISCOVERY

Procedures

Answer 19

1) Disclosure:
O.24, r.7(1):

2) Court order for discovery.

O.24, r.8: Test - only if it is necessary.

3) Inspection - O.24, r.9:
4) Production - O.24, r.11:

Question 20

SPECIFIC DISCOVERY

Failure to comply

Answer 20

1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.

Question 21

PRE-ACTION DISCOVERY AGAINST A PERSON

Overview

Answer 21

1) The law
2) Purpose
3) Meaning of viable
4) General requirements
5) Specific requirements
6) Procedural requirements
7) Procedures
8) Failure to comply

Question 22

PRE-ACTION DISCOVERY AGAINST A PERSON

The law

Answer 22

O.24, r.7A(1):

• before commencement of proceedings;
• for discovery of documents;
• sought from a person who is a potential defendant.

Question 23

PRE-ACTION DISCOVERY AGAINST A PERSON

Purpose

Answer 23

1) Infoline Sdn Bhd v Benjamin Lim Keong Hoe:

• to assist a prospective litigant plaintiff to determine whether he has a viable claim against the intended defendant;
• to determine whether there is a viable cause of action for the plaintiff.

2) Ching Mung Fong v Standard Chartered Bank:

• Pre-action discovery serves a somewhat more modest purpose than discovery under r.3 & r.7;
• It is merely to allow the plaintiff who suspects he has a case to obtain the necessary information to allow him to commence proceedings

Question 24

PRE-ACTION DISCOVERY AGAINST A PERSON

Meaning of viable

Answer 24

Ching Mung Fong v Standard Chartered Bank:

• The word “viable” must NOT be understood to mean that the plaintiff is entitled to pre-action discovery for the purposes of augmenting his case or to “complete his entire picture of the case”.

Question 25

PRE-ACTION DISCOVERY AGAINST A PERSON General requirements

Answer 25

Infoline Sdn Bhd v Benjamin Lim Keong Hoe: 1) EXPLANATION: - Applicant needs to provide an explanation as to why pre-action discovery and not discovery in the course of action or proceedings is necessary. 2) MATERIAL FACTS: - The applicant must provide the material facts pertaining to the intended proceedings or the substance of the potential claim; 3) DESCRIPTION OF SPECIFIC DOCUMENTS: - the documents sought must be specified or sufficiently described. 4) RELEVANT DOCUMENTS: - the documents sought must relevant to an issue arising or likely to arise in the intended proceedings. 5) IDENTITY OF THE PERSON: - applicant has to identify the person having possession, custody or power over the documents sought although this averment may, in appropriate cases, be the same person who is a potential defendant.

Question 26

PRE-ACTION DISCOVERY AGAINST A PERSON Specific requirements

Answer 26

Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd: - No discovery for the purpose of fishing expedition; - “fishing expedition” refers to the aimless trawling of an unlimited sea; where the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), it is NOT a “ fishing expedition”. - if subsequently no relevant information was found in the documents disclosed, that does not in itself, mean that it was a fishing expedition.

Question 27

PRE-ACTION DISCOVERY AGAINST A PERSON Procedural requirements

Answer 27

1) Application - O.24, r.7A(1): - Mode: Originating Summons 2) Service - O.24, r.7A(4): 3) Affidavit - O.24, r.7A(3)(a) & (b): 4) Necessities - O.24, r.8:

Question 28

PRE-ACTION DISCOVERY AGAINST A PERSON Procedures

Answer 28

1) Application: Must be made - O.24, r.7A(1): Affidavit- O.24, r.7A(3): Service - O.24, r.7A(4): 2) Disclosure: Test for order - O.24, r.8: 3) Inspection - O.24, r.9: 4) Production - O.24, r.11:

Question 29

PRE-ACTION DISCOVERY AGAINST A PERSON Failure to comply

Answer 29

1) The law: - O.24, r.16 2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri: - Dismissal subjected to unless order.

Question 30

PRE-ACTION DISCOVERY AGAINST A PERSON When discovery shall not be ordered

Answer 30

O.24, r.7A(7)

Question 31

ACTION DISCOVERY AGAINST A NON-PARTY Overview

Answer 31

1) The law 2) Requirements 3) Procedures 4) When discovery shall not be ordered

Question 32

ACTION DISCOVERY AGAINST A NON-PARTY The law

Answer 32

O.24, r.7A(2): - Discovery after the commencement of proceedings; - For discovery of documents; - Sought from a person who is NOT the party to the proceedings.

Question 33

ACTION DISCOVERY AGAINST A NON-PARTY Requirements

Answer 33

Billion Prima Sdn Bhd v Nutech Company Limited: 1) AFFIDAVIT - r.7A(3)(b): - specify or describe the sought documents; show that the documents are relevant. 2) RELEVANCY - r.7A(3)(b): - the documents must be “relevant to an issue arising or likely to arise out of the claim made”. - This relevancy requirement is not as stringent as that provided by r3(4). 3) POSSESSION, CUSTODY OR POWER: - person against whom the order is sought is likely to have or have had [the documents] in his possession, custody or power. includes third parties who are “likely” to have or have had the documents in their possession, custody or power. 4) NECESSITY: - Applicant bears the legal onus to satisfy the court that the application is necessary, either: (i) to fairly dispose of the pending suit; or (ii) to save costs. - It suffices if either one of these two matters is satisfied. 5) NON-PRIVILEGED: - the documents are not privileged and the non-party can be compelled by an order under r.7A(5) to produce them. 6) SERVICE: - must be served in accordance with r.7A(2) and (4). 7) DISCRETION: court nevertheless retains a discretion as to whether to allow the application.

Question 34

ACTION DISCOVERY AGAINST A NON-PARTY Procedures

Answer 34

1) Application: Must be made - O.24, r.7A(2): Notice of application Affidavit- O.24, r.7A(3): Service - O.24, r.7A(4): 2) Disclosure: Test for order - O.24, r.8: 3) Inspection - O.24, r.9: 4) Production - O.24, r.11:

Question 35

ACTION DISCOVERY AGAINST A NON-PARTY Failure to comply

Answer 35

1) The law: - O.24, r.16 2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri: - Dismissal subjected to unless order.

Question 36

ACTION DISCOVERY AGAINST A NON-PARTY When order shall not be made

Answer 36

O.24, r.7A(7)

Question 37

DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT Overview

Answer 37

1) Origin & conditions 2) The law & scope in Malaysia 3) Applicability of Norwich Pharmacal Order in Malaysia

Question 38

DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT Origin & conditions

Answer 38

1) Origins - Norwich Pharmacal v Commissioners of Customs: - Party could bring a specific action by writ against a person for discovery of the name of a potential defendant; - This specially so if that person has facilitated the wrongdoing of a potential defendant & has the necessary information. - He is under a legal duty to assist the person who has been wronged by giving him full information and in making disclosure of the identity of the wrongdoers. 2) What is NPO - Norwich Pharmacal v Commissioners of Customs: - made by an applicant in order to force a third-party respondent to disclose information or certain documents to the applicant. - These orders are quite often used to obtain the identity of a potential defendant to a proceeding. 3) Conditions for issuance - Mitsui and Co Limited v Nexen Petroleum UK Ltd: - A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer. - There must be a need for the information in order to bring some form of action against the wrongdoer. - The respondent to the application (in most cases an innocent third party), must be ‘mixed-up’ in the wrongdoing in any way which distinguishes themselves from being a mere witness. - This need for involvement is a justification for the intrusion on the respondent.

Question 39

DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT Law & scope in Malaysia

Answer 39

1) The law: - O.24, r.7A(5) 2) Scope of r.7A(5): - allows discovery for the purpose of finding a potential defendant; - either against potential D himself - 7A(1); or - against a third party - 7A(2).

Question 40

DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT Applicability of Norwich Pharmacal Order in Malaysia

Answer 40

First Malaysia Finance Bhd v Dato’ Mohd Fathi: - Discovery to find the identity of the wrongdoer is available against anyone whom the P has a cause of action in relation to the same wrong. - Norwich Pharmacal order is an equitable remedy & will not be granted as of right even when the requirements for it are satisfied; - The court has a discretion as to whether to grant or refuse it.

Question 41

xxx

Answer 41

xx

Question 42

INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS Overview

Answer 42

1) The law 2) Meaning of documents referred to in pleadings 3) Procedures

Question 43

INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS The law

Answer 43

O.24, r.10

Question 44

INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS Meaning of documents referred to in pleadings

Answer 44

1) Documents which are being referred - Smith v Harris: - The pleading need not describe the documents in details; - It only needs to refer to that document. 2) Documents that become part of pleadings - Day v William Hill: - If a document is referred to in a pleading, it becomes part of the pleading and ought to be open to inspection.

Question 45

INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS Procedures

Answer 45

1) Service of notice: O.24, r.10(1) - Form 41 2) Inspection: O.24, r.10(1) & (2) 3) Production: O.24, r.11(1)