Alcim Holdings Sdn. Bhd. & Anor v Toralf Mueller & 9 Ors, 03-01-2014

• Judge: HASNAH BINTI DATO’ MOHAMMED HASHIM
• Judgment Date: 03 January 2014
• Court: High Court (Malaysia)
• Record Number: 22NCC-1688-10/2011

3

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(COMMERCIAL DIVISION)

SUIT NO. 22NCC-1688-10/2011

ALCIM HOLDINGS SDN. BHD. & ANOR

v.

TORALF MUELLER & 9 ORS

GROUNDS OF JUDGMENT

Enclosure 208 is the Plaintiffs’ application pursuant to O24 rule 12 and order 24 rule 13 of the Rules of the Courts (ROC) and/or the inherent jurisdiction of the Court for the following orders:-

(a) that the Defendants do within seven (7) days from the date of the service of the Order herein, produce and serve on the Plaintiffs the documents described in Annexure B for the purposes of adducing the same as evidence during the trial of this action;

(b) alternatively in the event any of the documents described in Annexure A are not in the possession, custody or power of the Defendants, an order to be given that the Plaintiff herein be given leave to produce and serve to this Honorable Court the documents in Annexure B as evidence during the trial of this action;

(c) that the Plaintiffs herein be given leave to produce and serve to this Honourable Court the documents described in Annexure A & C within seven (7) days from the date of the Order herein, for the purposes of adducing the same as evidence during the trial of this action;

(d) that the costs of this application to be cause in the costs; and

(e) that this Honourable Court grants any further or other relief as it deems fit and proper to grant.

Grounds of the Application

1. This case has been fixed for continued hearing in November 2013. During the course of the trial and during the cross-examination of the 1^st Defendant the Plaintiffs sought to produce documents to put to the Defendants. These documents are relevant and necessary to support the Defendants’ case and to challenge the veracity of the Defendants’ case.

2. The Court has consistently refused the Plaintiffs production of the documents to be discovered in this application.

3. The Court has taken the position that no additional documents be produced notwithstanding the relevancy and that they may establish the evidence being put before the court is untrue and misleading. Despite the directions given the Defendant adduced new bundles of documents and allowed by the Court.

4. On 20.7.2013 during the cross-examination of the Plaintiff’s witness, Thomas George by the 8^th - 10^th Defendants’ Counsel he was allowed to produce an additional document Exhibit D109. The 8^th Defendant was allowed to produce in order to show that he was telling the truth and presumably to discredit the Plaintiffs’ witness.

5. The documents in Annexure A, B & C ought to be allowed.

Background

The Plaintiff is engaged in the business of providing conformation solution to inter alia the oil and gas and the power and nuclear industry. The information management solution provided by the Plaintiff is a system that has been developed by the Plaintiff and sold to its customers over a period of approximately eight (8) years.

The 1^st Defendant was employed as Chief Information Officer of the Plaintiff pursuant to an Employment Agreement dated 13.11.2007. As Chief Information Officer and then Chief Executive Officer the 1^st Defendants duties included, inter alia implementing an effective Project and Portfolio Management process creating methodical and transparent decision making processes for PPM, structuring, securing and improving the accuracy and integrity of enterprise information, leading and coordinating on all Information Management matters, leading and coordinating all Information Technology and Information System, leading and coordinating on all Research and Development matters and leading and coordinating all Customer Support.

In the course of developing and providing the Plaintiff’s IMS and conducting its business in relation thereto, the Plaintiff developed, acquired and maintained valuable trade secrets and/or confidential information relating to its business.

Reasons for Decision

I have considered the Written Submissions together with the authorities by the Plaintiff’s Counsel as well as that of all the Defendants’ Counsels I dismissed the application for the production of the documents. Being dissatisfied with the decision the Plaintiff have filed their Notice of Appeal dated 12.11.2013. The following are my grounds for dismissing the application with costs.

This application is made under O. 24 r. 1(1) r. 2, 12 and 13(1) of the Rules of the Court 2012 (ROC). Under O. 24 r. 12 ROC, an application for discovery can be made “at any stage of the proceedings in any cause or matter” and the Court may, subject to r. 13(1), order any party to produce to the Court any documents in his possession, custody or power and the court may deal with the document when produced “in such manner as it thinks fit”. Rule 13(1) provides that no order for the production of such documents “for inspection or to the Court” shall be made “unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter for saving costs.

An order for the production of documents for inspection is not to be made unless the Court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. Therefore it is for the party seeking production to satisfy the Court that such production is necessary for the purpose specified in

r. 13(1). Sir Thomas Bingham MR in Taylor v. Anderton [1995] 1 WLR 447 at p 462 said that in considering the application the Court should bear in mind the words of that the purpose of the rule is to ensure that one party does not enjoy an advantage or suffer an unfair disadvantage in the litigation as the result of a document not being produced for inspection.

The Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 held that,

“ Under O. 24 r. 13(1) of the RHC, an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r. 13(1). The court would dismiss a plaintiff's application for discovery if the plaintiff is merely fishing for evidence to prop up his case and to allow him discovery would be unduly oppressive to the party giving discovery.”.

Edgar Joseph Jr SCJ in the case of Yekambaran Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581 held:

“ The essential elements for an order for discovery are threefold, namely first, there must be a “document”, secondly, the document must be “relevant” and thirdly, the document must be or have been in the “possession, custody or power” of the person against whom the order for discovery is sought... As to “relevance”, our Rules of the High Court limit discovery to documents which are “relevant to” or “relatez’ to the factual issues in dispute.”.

Donaldson MR in his judgment in Davies v. Eli Lilly & Co and Ors [1987] 1 WLR 428 explained the rationale for discovery as follows:

“ The right (to discovery) is peculiar to the common law jurisdiction. In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. ‘Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties, and, if the court does not have all the relevant information, it cannot achieve this object. But that said, there have to be safeguards. The party who is required to place all or most of his cards face up on the table is entitled to say. "Some of these cards are highly confidential. You may see them for the purpose of this litigation but, unless their contents are disclosed to all the world as part of the evidence given in open court, their contents must be used for no other purpose.” This is only fair, because as has been well said, discovery of documents involves a serious invasion of privacy which can be justified only in so far as it is absolutely necessary for the achievement of justice between the parties.”.

It is therefore incumbent for the Plaintiff that the documents sought to be discovered has satisfied the three criteria;

1. the document has been identified specifically;

2. relevant to the Plaintiffs’ case; and

iii. in the possession of the Defendants.

This suit was filed on 14.10.2011 with the Plaintiffs amending its Statement of Claim on 3.11.2011 and 20.6.2012. Numerous case managements were conducted in preparation of the trial and this Court also gave numerous directions for Parties to comply in filing documents.

At the time when this application was filed by the Plaintiffs the case has gone through more than 40 days of trial and the Plaintiffs have in fact closed their case.

The documents which the Plaintiffs sought to be produced are as set out below:-

Annexure A

INDEX

VOLUME 11

PART C

(Disagreed Documents)

No.	Document	Page
1.	ALCIM Technology Sdn Bhd’s Statement of Account of transfers made to Cfim Consulting Gmbh/Toralf Mueller	1
2...