An Application for Discovery in a Civil Suit

The case of Mully v Manifold [1959] 103 CLR 341 defines Discovery per Justice Menzies as follows:

“Discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would lead to train of inquiry which would, either advance a party’s own case or damage that of his adversary.”

A) Guiding Principles

When wanting to obtain an order for discovery, an applicant needs to fulfil certain principles. Now, the guidelines in successfully applying for a disclosure can be seen in the case of Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581 where an application for discovery of medical reports and excess Employees’ Provident Fund contributions were filed.

His Lordship Justice Edgar Joseph Jr (later Supreme Court Justice) allowed for the application for discovery, considering the items sought were documents and were in the possession, custody or power of the Defendant. That decision also arose because the plaintiff’s action depended on the ability of obtaining the relevant documents. Justice Edgar further stated that the essential elements of an order for discovery are threefold, as follows:

(a) there must be a ‘document’; (b) the document must be ‘relevant; and (c) the document must be or have been in the ‘possession, custody or power’ of the person against whom the order for discovery is sought;

Moreover, in seeking for discovery, the parties must ensure that documents listed in the List of Documents (Form 38 of the Rules of Courts 2012) are in the other parties’ possession, custody or power and they are not privileged documents.

In relation to that, it should relevant to also point out that the way in which these requirements are laid out are meant to ensure that this process is not abused by parties.

In the case of Nguang Chan Liquor Trader & Ors v HAI-O Enterprise Bhd & Ors [2009] 5 MLJ 40, the Court of Appeal ruled that the document sought must be by way of direct allusion to a document or class or document sought for discovery and not of the inference arise merely by inference. This shows how the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon discovery or disclosure should be conducted on relevant documents only and with the intention to determine certain issues.

B) Courts Discretion

Apart from the rules stated above, whether or not an order of disclosure can be given is also a discretion exercised by courts. In Kanandara A/L Krishnasamy v Dato’ Dr Vijayasingam & Anor [2005] 7 MLJ 120, the plaintiff had applied for discovery of documents against the Defendant.

Initially, the plaintiff alleged that he had a cause of action against the Defendants in medical negligence and that the documents were required for the purpose of pleading particulars in the claim. In response to that, counsel for the Defendants submitted that:

the plaintiff was not entitled to the order sought because the plaintiff had failed to satisfy the conditions for the grant of the order, as the plaintiff was not seeking to discover the identity of the wrongdoers; and the plaintiff was in no doubt as to the identity of the Defendants.

At the end, the Court was in favour of the Defendant and held that the application by the plaintiff was eminently premature and misconceived. This led the court then to then reject the application for discovery by the plaintiff.

Additionally, the case of Dr Pritam Singh v Yap Hong Choon [2007] 1 MLJ 31 where the Court of Appeal dismissed the appeal by the appellant and held that:

“opinions of medical reports obtained by the plaintiff are the subject of legal professional privilege and hence protected from pre-trial discovery. Thus, the Defendant is not entitled to have an exchange of the reports of medical experts”.

Based on these two cases, the discretionary power to reject or to allow the application for discovery is held by the court. This is aligned with situations where certain documents may also be withheld from the other party on the grounds of legal professional privilege.