Discovery

July 2017: Question 2(a)
The question mainly regard dispute governed under the law on civil procedure in
Malaysia which is discovery.
The issue is.........................
Discovery in general can be defined as the act or process of making known upon
something. From the scope of civil procedure, discovery is a legal process of which
party is obliged by order from court to disclose all evidence within his possession,
custody or power relating to the subject matter of the action. In simpler words, discovery
is a method which enables party to gather documents. However, as entrenched in
Mulley v Manifold, only documents related to the matter in issue is discoverable, in
order to prevent the abuse of order for discovery from court.
In Malaysia, discovery and inspection of document is provided under Order 24

Rule 3, of which the court is empowered to grant order enabling one party to disclose
necessary documents or evidence in relation to the dispute, including documents to
support another party’s case per Order 24 Rule 3(4)(b)(iii) of ROC 2012. To distinguish
from the previous RHC 1980, there is only one type of discovery under the new ROC
2012 which is non-automatic discovery. There are several procedures which need to be
complied with in order to obtain order for discovery.
Firstly, determining type of discovery. Before application for discovery is made,

the plaintiff must first determine the type of discovery which is dependent on the
documents which the plaintiff seeks to discover. In the question, as it is not stated the
documents that parties seek to discover, application for general discovery per Order 24
Rule 3 of ROC 2012/ specific discovery under Order 24 Rule 7 of ROC 2012 is
advisable in order to obtain general documents or .................................
Secondly, application. Once the type of discovery has been determine, the next
step is for the plaintiff to apply for order from court to compel the defendant to disclose
necessary evidence which are related to the matter in dispute. In such, parties may
Adham Hensem
apply before the court by way of notice of application for discovery in order to obtain and
inspect documents which are in possession of .................................
Thirdly, order from court. Once application has been made, the court will take
into consideration the surrounding factors, before granting approval for the application
hence make order for the defendant to disclose listed documents. However, the order
will only be granted if the court consider the disclosure of documents necessary, as
provided under Order 24 Rule 8 of ROC 2012. In Kenwood Electronics (M) Sdn Bhd
v People’s Audio Sdn Bhd, the court will only grant discovery if it is necessary for the
case, but not to extend it will cause injustice or deemed unfair against the other party.
In The Compagnie Financiere et Commerciale Du Pacifique v. The Peruvian

Guano Company, the court stated that discovery will only be allowed upon relevant
documents, which either directly or indirectly enables the party seeking information to
either advance his own case or damage the other party’s case.
Applying in the question .............................
Fourthly, service of list. In pursuance of Order 24 Rule 3 of ROC 2012, once

order has been granted in favour of the applicant, the other party shall prepare list of
documents in Form 38 per Order 24 Rule 5(1) of ROC 2012, and subsequently serve
the list to the applicant. Within the list, the party shall acknowledge documents which
are in possession of the party who received the court order, and documents which he
objected to disclose. In the event that the defendant had provided new document which
is not requested, the applicant may invoke Order 24 Rule 5(5) of ROC 2012 which
precludes the tendering of new document which was not requested for inspection.
Fifth, attachment of affidavit. Apart from the list of document, the party who
received the order and serve the list of documents shall attached affidavit verifying the
list of documents and serve its copy to the applicant. The affidavit shall be in Form 39
per Order 24 Rule 5(3) of ROC 2012.
Sixth, notice of inspection. Apart from list of documents and affidavit, the party
who received the order shall also prepare notice of inspection, with the purpose of
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notifying the applicant that the documents listed may be inspect within 7 days of the
service of the notice. Notice shall be served together with the list of documents and
affidavit, and shall be done in Form 40 as provided under Order 24 Rule 9 of ROC
2012.
Applying in the question, the defendant has the duty to serve list of documents
which are in their possession, affidavit as well as notice of inspection to Mr Malang’s
widow. Failure to do so will enable applicant to apply for court order to compel them to
do so. As for the applicant, he must comply with the time span to inspect the
documents, as provided under Order 24 Rule 9 of ROC 2012, which is 7 days after the
date of service.
On behalf of the defendant, he has the duty to disclose the relevant documents
up until the proceedings have been concluded, per Order 24 Rule 8A of ROC 2012.
Nonetheless, although the duty to allow discovery continue up until the proceedings are
concluded, they are also entitle not to disclose documents which are subject to the rule
of privilege, as stipulated under Order 24 Rule 5(2) of ROC 2012. However, the
defendant has the burden to convince the court and provide sufficient grounds of
privilege, reduce into statement within Form 38.
It shall be made known that the procedural aspect of discovery shall be complied
with accordingly. Failure to comply the necessary requirement will lead the court to an
order that the action be dismissed or, as the case may be, an order that the defence be
struck out and judgment be entered accordingly, as provided under Order 24 Rule
16(1) of ROC 2012. Additionally, if the party failed to comply with discovery
requirements and wishes to refer or rely on the documents for the purpose of the
proceedings, leave of the Court must first be obtained or else it will not be admissible,
per Order 24 Rule 16(5) of ROC 2012.
To conclude, there are several procedures which need to be complied with, in

order to enable ..................... to seek for documents which are in possession of the
defendant, in her action against the Defendant.
Adham Hensem
Discovery against Stranger
Apart from party to the proceedings, discovery can also be enforced against
strangers who are alien to the case. The general rule has been stipulated in the case of
Norwich Pharmacal Co. v Customs and Excise Commissioners, of which no action
for discovery is permissible against any individual having no interest to the suit or case,
as it would be unjust and prejudicial against them.
However, there are several exceptions to the general rule. Firstly, third party
facilitated in the wrongdoings of the defendant. As such, the idea is that discovery is
only permissible against any third party if the applicant can prove that the third party had
involved whether directly or indirectly to the commission of wrongdoings by the
defendant. In the case of Bankers Trust Co. v Shapira & Co, in order for discovery
against third party to be permissible, the applicant must convince the court that; there is
clear evidence of facilitation, purpose of discovery is only to be aid tracing, and there
must be some real prospect that the information possessed by the third party useful or
material to the case.
Secondly, third party has the knowledge on the wrongdoings or wrongdoers. In

certain cases, even if there suit is no capable to be commenced due to absent of parties
to be pinned with liability, the court may order discovery against third party who have
the knowledge with regard to individual capable of being pinned with such liability
towards the plaintiff. However, the sole purpose must only be to determine the identity
of wrongdoers, as stated in Teoh Peng Phe v Wan & Co. In Golden Palmolina Sdn
Bhd v Lai Yang Chee, the court granted order for discovery against third party, as the
third party has the knowledge with regard to the payment of commissions without the
plaintiff’s knowledge, and the third party has the identity of parties involved.
Thirdly, third party is jointly liable with the defendant. In certain cases, injured
party may seek to initiate action against one party, although the commission of the
wrongdoings was done by more than a single party. However, even if so, the party of
which legal action is not taken has the duty to make full disclosure towards the injured
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party in the event that order for discovery was made against him. In Loose v
Williamson, plaintiff is entitled to discovery where the defendant is not mixed up
innocently in the third party’s wrongdoings but is jointly liable with him.
It shall be made known that application for discovery against other person can be
made either before the commencement of proceedings by way of originating summon
per Order 24 Rule 7A(1) of ROC 2012, which shall be supported with affidavit clarifying
the ground of application, material facts and whether the person of which order was
sought after is likely to be the party to the proceedings, per Order 24 Rule 7A(3) of
ROC 2012. In Dunning v Board of Governors of the United Liverpool Hospitals, the
court allow application for discovery against third party before the commencement of
proceedings to enable the plaintiff to determine whether she has a good cause of action
against the prospective defendant.
Apart from that, application can also be made after the commencement of
proceedings by way of notice of application which then served to the third party and
party to the proceedings, per Order 24 Rule 7A(2) of ROC 2012.
If Defendant Still Conceal Evidence
1. Ask defendant to verify the list under oath, of which any untrue statement under
oath is deemed to be contempt of court
2. Tender evidence showing that the defendant have indeed such document
3. Apply for Anton Piller Order
Adham Hensem

Discovery

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July 2017: Question 2(a)

The issue is.........................

In Malaysia, discovery and inspection of document is provided under Order 24

Firstly, determining type of discovery. Before application for discovery is made,

In The Compagnie Financiere et Commerciale Du Pacifique v. The Peruvian

Applying in the question .............................

Fourthly, service of list. In pursuance of Order 24 Rule 3 of ROC 2012, once

To conclude, there are several procedures which need to be complied with, in

Secondly, third party has the knowledge on the wrongdoings or wrongdoers. In

If Defendant Still Conceal Evidence

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