Shum Kai Cheong v See Too Woon Yee

[1998] 4 MLJ (Abdul Kadir Sulaiman J) 155

Shum Kai Cheong v See Too Woon Yee

HIGH COURT (KUALA LUMPUR) — CIVIL APPEAL NO R1-22-2 OF

1997
ABDUL KADIR SULAIMAN J
10 AUGUST 1998

Civil Procedure — Interrogatories — Application for leave to deliver — Application

after close of pleadings — Whether necessary to give explanation for delay — Whether
merit of application is relevant — Rules of the High Court 1980 O 26 r 1(1)
The appellant, after the close of the pleadings, applied pursuant to
0O 26 r 1(1) of the Rules of the High Court 1980 for an order giving
him leave to serve interrogatories upon the respondent. The senior
assistant registrar dismissed the application on the ground that the
appellant did not give any reason for the delay in the application
which was made after the close of the pleadings. It was submitted
that O 26 r 1 does not prescribe any time period for such an
application to be made and that all that is necessary for the court to
consider is whether the proposed interrogatories are relevant and
necessary either for disposing fairly of the course or matter or for
saving costs.

Held, dismissing the appeal:

(1) Interrogatories is a matter of right if made before the close of
pleadings. However, leave to deliver interrogatories is necessary
when made after the close of pleadings. The court would then
have the discretion to decide whether to grant or refuse the leave
sought. In such instance, the satisfactory explanation for the
delay is a prerequisite. In this case, the appellant gave no
explanation at all for such a delay except to explain the need for
such interrogatories. Therefore, the senior assistant registrar was
correct in dismissing the application for lack of explanation for
the delay (see pp 159D-I and 160A-B).
(2) The issues of delay and merit are not to be taken as separate
issues in an application for interrogatories. Merit is relevant only
if the position relating to delay is even in that in the balance
between the granting or refusal of the leave sought, having
considered the explanation put forward for the delay, something
else is necessary to tilt the balance one way or the other. In the
circumstances of this case, in view of the delay in the filing of the
summons until the close of the pleading, which delay remained
unexplained, the merit if any was of no relevance at all (see
p 160B-E).

[Bahasa Malaysia summary

Selepas penutupan pliding, perayu telah memohon menurut A 26
k 1(1) Kaedah-Kaedah Mahkamah Tinggi 1980 untuk satu perintah
156 Malayan Law Journal [1998] 4 MLJ

yang memberikannya kebenaran untuk menyampaikan interogatori

kepada penentang. Penolong kanan pendaftar telah menolak
permohonan atas alasan bahawa perayu tidak memberikan sebarang
sebab untuk kelewatan dalam permohonan yang dibuat selepas
penutupan pliding. Ia dihujahkan bahawa A 26 k 1 tidak menetapkan
jangkamasa untuk permohonan sedemikian dibuat dan bahawa apa
yang perlu dilakukan oleh mahkamah adalah untuk
mempertimbangkan sama ada interogatori yang dicadangkan adalah
relevan dan perlu sama ada untuk menyelesaikan tindakan atau hal
secara adil atau untuk menjimatkan kos.

Diputuskan, menolak rayuan:

(1) Interogatori merupakan suatu soal hak sekiranya dibuat sebelum
penutupan pliding. Namun demikian, kebenaran untuk
menyampaikan interogatori adalah periu apabila dibuat selepas
penutupan pliding. Mahkamah kemudiannya mempunyai budi
bicara untuk memutuskan sama ada untuk memberikan atau
menolak kebenaran yang dipohon. Dalam keadaan begitu,
penjelasan yang memuaskan atas kelewatan adalah suatu
keperluan. Dalam kes ini, perayu tidak memberi sebarang
penjelasan atas kelewatan sedemikian melainkan menjelaskan
keperluan untuk interogatori. Maka, penolong kanan pendaftar
adalah betul dalam menolak permohonan atas kekurangan
penjelasan untuk kelewatan (lihat ms 159D-1 dan 160A-B).
(2) Isu-isu kelewatan dan merit tidak haruslah diambil sebagai isu
berasingan dalam satu permohonan untuk interogatori. Merit
hanya relevan sekiranya kedudukan yang berkaitan dengan
kelewatan adalah sekata dalam ertikata berkenaan dengan
imbangan di antara pemberian atau penolakan kebenaran yang
dipohon, selepas mempertimbangkan penjelasan yang
dikemukakan untuk kelewatan, sesuatu yang lain dikehendaki
bagi menyengetkan imbangan walau apa cara pun. Dalam keadaan
kes ini, memandangkan kelewatan dalam memfailkan saman
sehingga penutupan pliding, yang mana kelewatan tidak
dijelaskan, merit jika ada tidaklah relevan sama sekali (lihat
ms 160B-E).]

Notes
For a case on application for leave to deliver interrogatories, see
2(1) Mallal’s Digest (4th Ed, 1998 Reissue) para 2435.

Cases referred to
Pertubohan Berita Nasional Malaysia v Stephen Kalong Ningkan [1980]
2 MLJ 19 (refd)
Sheikh Abdullah bin Sheikh Mohamed v Kang Kock Seng [1975]
1 MLJ 89 (refd)
 Shum Kai Cheong v See Too Woon Yee
[1998] 4 ML] (Abdul Kadir Sulaiman J) 157

Legislation referred to
Rules of the High Court 1980 O 25, O 26 1 1, (1), 2
Leong Chuan Wah (Tee Tan & Parners) for the appeliant.
Leong Khai Yan (S Sothi Leong & Partners) for the respondent.

Cur Adv Vult

Abdul Kadir Sulaiman J: The arpellant/defendant is the secretary of

Chee Sen Khor Moral Uplifting Society, Selangor and was sued on his
own behalf and on behalf of all the other members of the committee and
of the society in Suit No $5-22-648 of 1996. When the pleadings were
closed, the respondent/ plaintiff on 27 February 1997 took out a summons
for directions pursuant to O 25 of the Rules of the High Court 1980 (‘the
1980 Rules’). Then on 11 July 1997, after the close of the pleadings, the
appellant applied by summons pursuant to O 26 r 1(1) of the 1980 Rules
for an order giving him leave to serve interrogatories upon the respondent
and requiring the respondent to answer the interrogatories. At the hearing
before the learned SAR, this summons of the appellant was dismissed on
the ground that the appellant did not give any reason for the delay in the
application by summons when made after the close of the pleadings. The
appellant being dissatisfied with the said decision of the learned SAR now
appeals to the judge in chambers against the same. Indeed, the said
summons and the affidavit-in-support of it did not contain any reason for
the delay in the making of the said application after the close of the
pleadings.
Before me in this appeal, it is submitted that O 26 r 1 of the 1980
Rules does not prescribe any time period for such an application to be
made. It is contended that the purpose for the seeking of the leave of the
court under the said rule was purely to avoid the process for interrogatories
from being abused. All that is necessary for the court to consider is
whether the proposed interrogatories are relevant and necessary either for
disposing fairly of the course or matter or for saving costs. If this is
satisfied, the court ought to exercise the discretion in giving leave. In
support, learned counsel for the appellant cited what Gill CJ said at p 90
in Sheikh Abdullah bin Sheikh Mohamed v Kang Kock Seng [1975] 1 ML]
89 (FC) as follows (at pp 90-91):
In addition to all his other reasons for dismissing the application, the
learned judge took the view that on the authority of Ellis v Amber (1877)
36 LT 410, he did not have to consider the application at all as the plaintiff
had given no reason for presenting the interrogatories after the pleadings
had been closed. But the case was decided under the old rule as to
interrogatories. Cases decided under the old rule indicate that only in
exceptional circumstances would the court give leave to deliver interrogatories
after the close of the pleadings. The position under our new rule is that it
is only in exceptional circumstances that an order for leave to deliver
interrogatories will be made before the close of the pleadings. This is clear
from the following passage in 22 Atkin’s Court Forms (2nd Ed) at p 367:
158 Malayan Law Journal [1998] 4 MLJ

“Although the court has jurisdiction to grant leave to interrogate at any

stage of the proceedings, in practice leave will not be granted, unless
there are exceptional circumstances, before the pleadings are closed
and the issues to be tried are clearly defined. It has been said that
interrogatories must relate to an issue between the parties, and since
the issues are not generally clear until after defence, such a course
would be very unusual and the burden on the applicant to persuade the
court that leave should be given would be a heavy one. Indeed,
interrogatories are not very often ordered (other than by consent) until
after discovery has taken place.”
The learned judge, through an oversight, referred to the above passage for
the contrary view.
In further support of his contention, learned counsel cited Pertubohan
Berita Nasional Malaysia v Stephen Kalong Ningkan [1980] 2 MLJ 19 (FC)
where at p 20 Chang Min Tat FJ said:
Late though it was, we do not, in the circumstances of this case, think the
application too late. The defendant can always be compensated by an order
for costs and where the application occasions an adjournment, by an order
for all costs thrown away.
Hence, it is submirtted that the time for the filing of the application for
interrogatories is not of a very material factor when considering whether to
grant or to refuse the leave sought by the application. For that reason, it
was contended that the learned SAR was wrong in dismissing the summons
on the ground of delay on the part of the appellant.
For the respondent, it is being submitted that as the said application
of the appellant before the learned SAR was not made within reasonable
time, it is to be considered as it being done without bona fide. It is
contended that at the summons for directions stage, the appellant did not
seek for interrogatories. In the affidavit-in-support of the said application
for interrogatories, no reason was given on behalf of the appellant for not
having done so during the summons for directions stage. Therefore, it is
not so much of the fact that the appellant was late in the filing of the said
application for interrogatories but for the fact that it was done after the
close of the pleadings without any explanation at all being given as to why
it was thought necessary to do so. Thus, it would go to show that it was not
so done bona fide. One of the purposes behind the need for interrogatories
is to save costs. However, since the application was made after the suit had
been set down for trial, if granted, it would not meet the said purpose. On
the other hand, by so doing, additional costs are being incurred and would
further delay the hearing of the suit. It is further submitted that the
appellant by O 26 r 2 of the 1980 Rules could have served the interrogatories
without leave before the close of the pleadings. Since that opportunity was
not taken up, it is for the appellant now to explain to the satisfaction of the
court to enable it to invoke its discretion to grant leave to do so at this
late stage.
To resolve the issue raised in this appeal, it is appropriate to consider
the operation of the relevant provisions of O 26 of the 1980 Rules itself.
 Shum Kai Cheong v See Too Woon Yee
[1998] 4 ML} (Abdul Kadir Sulaiman J) 159

The first thing to note is that O 26 r 2 is a new provision. There is no

corresponding rule in the Rules of the High Court 1957 upon which the
cases in Sheikh Abdullah bin Sheikh Mohamed and Perubatan Berita Nasional
Malaysia were decided. To that extent therefore, the dicta cited earlier as
found in the two cases are of no assistance to the appellant as the facts of
the present case are governed by the express provisions of the 1980 Rules.
As regards the new provisions in O 25 r 2 of the 1980 Rules, the learned
author of Mallal’s Supreme Court Practice (Vol 1) (2nd Ed) at p 337 said:
This rule apparently permits the delivery without leave of the court by one
party to the other interrogatories relating to any matter in question between
the parties. But this is in direct conflict with O 26 r 1. It is therefore suggested
that the inclusion of this rule is a mistake. (Emphasis added.)
With greatest respect, I do not think that it is at all a mistake in the face
of the express intention of the Order itself. As clearly indicated in the
passage quoted earlier in Shetkh Abdullah bin Sheikh Mohamed, in the
relevant rule prior to the RHC 1957, only in exceptional circumstances
would the court give leave to deliver interrogatories after the close of the
pleadings which tend to suggest that for interrogatories, at whatever stage
of the proceedings at all, leave must first be sought. It was not as a matter
of right as so presently provided in O 26 r 2 of the 1980 Rules, if made
before the close of the pleadings. However, since the coming into force of
the RHC 1957, the converse is true, ie only in exceptional circumstances
that an order for leave to deliver interrogatories will be made before the
close of the pleadings. Still the position under the RHC 1957 would
appear to be that leave at any stage was necessary, until the rule is
superseded by the 1980 Rules. This is so when reference is made to p 367
of 22 Atkin’s Form (2nd Ed) by the Federal Court wherein it is stated that
the court has jurisdiction to grant leave to interrogatories at any stage of
the proceedings. However, there was a radical change in the Rules of the
High Court when the 1980 Rules came into force. This is reflected in O 26
rr 1(1) and 2 of the 1980 Rules itself. Under r 2, a party to any cause or
matter may at any time before the close of the pleadings without leave of the
court deliver interrogatories relating to any matter in question between the
parties, which means that if made before the close of the pleading, it is
made as a matter of right. Whereas, if not so done at that stage, then r 1
would apply wherein leave of the court is required. In other words, leave
is only necessary when made after the close of the pleadings, as happens in
this present case before me. Rule 1 involves the discretion of the court in
deciding whether to grant or refuse the leave sought. Like any other
discretion, it is to be exercised judiciously on settled principles as otherwise
the need to come before the court for leave becomes a mockery. The first
thing that an applicant in such a situation would face is to satisfactorily
explain to the court as to why it was not done as so provided by r 2 to call
for the need to come to court for leave. Thus the satisfactory explanation
for the delay is a prerequisite. In this case, the appellant gave no explanation
at all for such a delay except to explain the need for such interrogatories.
The affidavit in support explains the need for them as being necessary for
disposing fairly of the cause or matter and for saving costs and saving the
160 Malayan Law Journal [1998] 4 MLJ

time of the court. As for the first two reasons, they are not really the reason
explaining the delay because they were for the very purpose that
interrogatories are necessary. As for saving the time of the court, as rightly
submitted by learned counsel for the respondent, it creates a further
increase in the time of the court. Therefore, on that ground for lack of
explanation for the delay alone the decision of the learned SAR was correct
in dismissing the said application of the appellant. Then there is another
principle relating to any application for leave when made to the court. The
applicant must show merit. To my mind, these issues of delay and merit
are not to be taken as separate issues in that even if delay is not satisfactorily
explained, the applicant can still get away with it by showing merit in the
matter. To me, merit will come for consideration only if the position
relating to delay is even in that in the balance between the granting or
refusal of the leave sought, having considered the explanation put forward
for the delay, something else is necessary to tilt the balance one way or the
other. It is in such a situation only where merit in the matter is of
relevance. However, if the reason for the delay is not forthcoming at all,
then it is irrelevant to consider merit, as otherwise, for so long as there is
merit in the matter, the applicant can choose his own time to seek for
leave. In the circumstances of this case, in view of the delay in the filing of
the summons until the close of the pleading, which delay remains
unexplained, the merit if any is of no relevance at all. In his submission
before me in this appeal, learned counsel for the appellant attempts at
explaining the delay by putting the blame on the respondent. But these are
statements from the Bar. There was nothing in the evidence as contained
in the affidavit-in-support to indicate the blameworthiness on the part of
the respondent. Such being the position, I have no alternative but to
dismiss this appeal of the appellant with costs and to affirm the decision of
the learned SAR.
Appeal dismissed.

Reported by Loo Lai Mee