10.

Kehadiran dan Kegagalan Hadir ke Pengurusan Kes sebelum bicara

SYED OMAR BIN SYED MOHAMED v. PERBADANAN NASIONAL

BERHAD [2012] 9 CLJ 557
FEDERAL COURT, PUTRAJAYA
ZULKEFLI MAKINUDIN CJ (MALAYA), HASHIM YUSOFF FCJ,
ABDULL HAMID EMBONG FCJ, AHMAD MAAROP FCJ, ZAINUN ALI FCJ
Summary of Facts
1. The respondent (P) had filed an action against the appellant (D) in the High Court (the
2006 suit). Pursuant to an application by the defendant for discovery of documents, an
order was issued against the plaintiff to file an affidavit to disclose all documents in its
possession within a stipulated time.
2. The court on its own volition had issued a notice to show cause to the plaintiff since (i) it
failed to comply with the order for discovery; and (ii) it did not lodge any appeal against
the order.
3. The Deputy Registrar then proceeded to strike out the 2006 suit holding that the plaintiffs
delay in proceeding with the further prosecution of the suit was an intentional and
contumelious default. The plaintiffs appeal was dismissed.
4. The plaintiff did not file any appeal against the said decision but chose to file the present
action (the 2010 suit) based on the same facts and relief as set out in the 2006 suit since
no statutory limitation had set in.
5. The defendants application to strike out the 2010 suit was allowed by the High Court
holding that pursuant to O. 34 of the Rules of the High Court 1980 (RHC) and its inherent
jurisdiction, the court had the power to dismiss an action for want of prosecution.
6. The Court of Appeal allowed the plaintiffs appeal.
7. Aggrieved by the said decision, the defendant appealed to this court.
Issue:
Whether the plaintiffs part in not complying with the discovery order within the specified time
bore no relationship to the default on the plaintiffs part to comply with O. 34 r. 2(1) of the RHC.
Judgment:
The court allowed this appeal with costs. The order of the Court of Appeal is set aside and the
order of the High Court is hereby restored.
Plaintiff/
N/A
Applicant Arguments

Defendant Arguments
Courts decision and
reasoning

N/A
1. Under O. 34 of the RHC, it requires the High Court to take into
account all the breaches and non-compliances by the plaintiff at
the time of evaluation of its failure to progress the case before
deciding whether to dismiss the action.
2. The Court of Appeal was wrong in deciding that the plaintiff
could re-file and maintain the 2010 suit in spite of holding that
the 2006 suit was rightfully dismissed for delay in failing to
progress with the case.
3. There was clearly an abuse of the process of the court and the
2010 suit ought to be struck out.