Judgment

Haidar Mohd Noor, JCA

(delivering the judgment of the court)

1. This appeal is against the order of the learned Judge who dismissed the appellant's application to amend his statement of defence. It is Civil Appeal No W-02-720-1999. There are two other appeals filed by the appellant. They relate to the issue of the amendment of the appellant's statement of defence. They are Civil Appeal Nos W-02-787-1999 and W-02-788-1999.

2. With the agreement of counsel for both parties we directed the parties to proceed with Civil Appeal No W-02-720-1999. Counsel for the appellant, however, intimated to us that the other two appeals be put on hold pending the outcome of the present appeal. Apparently, he felt that his client should not be prejudiced in the event he failed in the present appeal. We agreed to the stand taken by him.

3. On September 23, 2000 we allowed the appeal in part but dismissed the appeal with costs on the ground of lack of bona fide of the appellant's application.

4. Miss Gurmit Kaur Sidhu, counsel for the appellant, on behalf of the senior counsel, Mr. Cecil Abraham, who, we were told, was away overseas, prayed for adjournment of Civil Appeal Nos W-02-787-1999 and W-02-788-1999 to seek instructions. Mr. Sivaparanjothi, counsel for the respondents, did not object and we adjourned these two appeals to a date to be fixed. We now proceed to give our reasons.

5. The application of the appellant for the amendment of his statement of defence arose out of Civil Suit No S2-23-42-1996 initiated by the respondents against the appellant for damages premised upon alleged slander and libel arising from a publication in the International Commercial Litigation magazine issue for November, 1995 entitled "Malaysian Justice on Trial"

6. Before the hearing of this appeal, there is a motion filed by the appellant on March 8, 2000 praying -

   1. that the appellant be granted an extension of time from November 16, 1999 up to seven (7) days from the hearing on this application to file and serve a supplementary record of appeal in this appeal incorporating a certified true copy of the order dated September 8, 1999 granted by the High Court of Malaya at Kuala Lumpur and under appeal herein and the documents within the common agreed bundle of documents marked as "CABD-3" filed in the High Court;

   2. that the costs of this application be ordered to be costs in the cause;

   3. such further or other relief as this honourable court may deem fit, just and appropriate.

   It is supported by the affidavit of the appellant.

7. In respect of the first part of prayer 1, i.e. the inclusion of the order dated Septembers, 1999 by way of a supplementary record of appeal, counsel for the respondents had no objection. However, in respect of the second part of prayer 1 i.e. the inclusion of "CABD-3", counsel for the respondents objected.

8. We allowed the first part of prayer 1 but disallowed the second part thereof. We ordered the costs of the application, to follow the event of this appeal.

9. In order to appreciate the bona fide issue, a brief chronology of events would be helpful and it is set out hereunder -

   13 Jun  1996		Respondents' writ and statement of claim filed in court.
   09 Sep 1996		Appellant's statement of defence filed and served.
   23 Sep 1996		Respondent's reply to the statement of defence filed and served.
   19 Mac 1999 20 May 1999 07 Jun  1999	) ) )	Case management dates before the learned Judge.
   13 Aug 1999		Oral application made by the appellants' counsel for the learned Judge to excuse himself from hearing and determining this action.
   30 Aug 1999		Oral application to disqualify the Judge dismissed and stay pending appeal refused. This decision formed the subject matter of Court of Appeal Civil Appeal No W-02-662-99 which was dismissed on July 19, 2000. This is now the subject matter of Federal Court Civil Application No 08-57-2000 (W).
   01 Sep 1999		The appellant's application by way of summons-in-chambers dated September 1, 1999 (Encl 40) seeking to amend the prayers within the appellant's summons-in-chambers dated August 21, 1999 was called for hearing. This application was dismissed by the learned Judge with costs. This decision now forms the subject matter of Civil Appeal No W-02-788-99. Following from the above, the court then proceeded to hear Encl 31A (the appellant's summon-in-chambers dated August 21, 1999. By Encl 31 A, the appellant was seeking leave to amend defence filed in the-action. The appellant's counsel's oral application to amend the prayer therein was rejected by the court and the court proceeded to dismiss Encl 31A. This decision now forms the subject matter of Civil Appeal No W02-787-1999.
   03 Sep 1999		Following from the decision given on September 1, 1999 and following from the fact that the appellant's application to amend his defence had been dismissed on purely technical grounds, the appellant filed a fresh application to amend his defence, i.e. by way of summons-in-chambers dated September 3, 1999 (Encl 43).
   06 Sep 1999		The trial commenced. The appellant's counsel made applications for adjournment, one of which was on the grounds that Encl 43 be heard and determined prior to the commencement of trial. Those applications were refused and the trial commenced.
   07 Sep 1999		The trial continued. In the course of the cross-examination of the respondents' third witness it became apparent to the court that it was necessary for the application to amend to be heard and disposed of first and as such, the court directed that Encl 43 be fixed for hearing on September 8, 1999.
   08 Sep 1999		Enclosure 43 was heard and it was dismissed with costs. This now forms the subject matter of Court of Appeal Civil Appeal No W-02-720-99 (the present appeal).

   THE LAW

10. The provision relating to amendment of the writ and pleadings is governed by Order 20 r 5 of the Rules of the High Court 1980. It is trite that amendments can be made at any stage of the proceedings including at the trial. The general principle is that the court will allow such amendments as will cause no injustice to the other parties. It is equally trite that if the application is allowed, the opposite party will normally be compensated by way of costs. Be that as it may, the Federal Court, the apex court of this country, had the occasion to consider and interpret Order 20 r 5. It is the case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213 where the Federal Court set out three basic questions for consideration, viz -

    1. whether the application is bona fide,

    2. whether the prejudice caused to the other side can be compensated by costs; and

    3. whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.

11. As we are here dealing with the application for the amendment of defence, question 1 above would be relevant for consideration. If it is allowed, it follows that the other party should be compensated by costs.

12. This court similarly had considered Order 20 r 5 in Taisho Co Sdn Bhd v Pan Global Equities Bhd [1999] 1 AMR 956. In Taisho case, the amendments relate to the amendment of the statement of claim. Be that as it may, the questions posed in Yamaha would still be equally applicable to the present appeal before us. If the application of the appellant, on the facts before the learned Judge, showed lack of bona fide then he fails in his application altogether. It is then for the appellant asking the court to exercise a discretionary power in his favour to place some material and advance some cogent reasons to impel the court to lean on his side (see Multi-Pak Singapore Pte Ltd (In receivership) v Intraco Ltd [1992] 2 SLR 793; [1993] 2 SLR 113).

13. The learned Judge in his judgment at p 45 of the appeal record ruled

    There is total lack of merit in this application which lacks bona fide.

    Lack of bona fide or put it another way, mala fide is very much a ground in considering an application for amendment under Order 20 r 5 (see also Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230). We then need to examine the material placed before him and whether cogent reasons were advanced by the appellant for the court to exercise its discretionary power in his favour.

    BONA FIDE ISSUE

14. The application of the appellant is supported by his own affidavit (pp 336 to 338 of the appeal record). On the delay in making the application to amend the defence, this is what he, inter alia, deposed at paragraph (b) of his affidavit-

    The delay in making this application to amend the defence is attributable to the need to make careful comparisons and confirmation of the copies of the documents (related to the evidence in relation to the defences of justification and the plea of qualified privilege) to the original documents. For purposes of safekeeping some of the copies of the documents were kept overseas making access more difficult and slow. The need to make careful assessment of these documents before considering them as evidence to the pleas stated are obvious as the defences already raised earlier, especially on justification are rather serious in the light of the controversy relating to the Judiciary.  .... Moreover, there was also a need to confirm and confer some of these documents with the intended witnesses, who are in the country and abroad, confirmation of which has only recently been done as various Official and Non-Official Agencies are involved in certain on-going related investigations.

    At paragraph 11 thereof, he deposed -

    I am advised by my solicitors and verily believe and state that these proposed amendments to the defence is bona fide without malice and that based on paragraph 10 above, the plaintiffs will not be prejudiced in any manner that cannot be compensated by costs.

15. The respondents, through the affidavit of Wong Gian Kim, responded rather strongly on the material placed before the court and the reasons given for the delay by the appellant. Wong Gian Kim, inter alia, states in his affidavit -

    8.	(e)	further the purported particulars of justification sought to be pleaded under paragraph 15 of the proposed Amended Defence namely Paragraphs 15.1 to 15.27 relate to matters which allegedly took place in 1994 and 1995 and it is not understood as to why the Defendant had not pleaded the same in his original Defence which was filed on 9.9.1996 (one (1) year later);
    	(f)	the said Application was filed on 2.9.1999 or 3.9.1999 just three days before the trial of the action which commenced on 6.9.1999 for the sole purpose of adjourning the already fixed trial date and to cause grave injustice and prejudice to the Plaintiffs. "This is evident from the facts stated in paragraph 8(e) above;
    9.	(c)	the Defendant's explanation that the delay is attributable to the need to make comparisons and confirmation of the copies of the document to the original documents are mere allegations not supported by evidence. In any event a Defendant does not take more than three (3) years just to compare and confirm documents;
    	(d)	it does not take more than three (3) years to compare and confirm documents just because they are alleged to be kept overseas unless the place in which the documents are kept is inaccessible by modern transportation;
    	(e)	similarly it does not take a Defendant more than three (3) years to make assessment of documents...
    	(g)	it also does not take more than three (3) years to confirm and confer documents with intended witnesses and the deponent of the said affidavit had not disclosed the alleged "various Official and Non-Official Agencies" and the "certain on going related investigations"
    11.	(d)	Therefore there is an inexcusable and inordinate delay on the part of the Defendant in filing the said Application. As stated in Paragraph 9 above, the purported reasons for the delay in filing the said application as stated in the said affidavit are wholly misconceived and untenable in law. This is a clear tactical manoeuvre by the Defendant to delay and derail the trial of this action by filing an application at such a late stage of the proceedings to the serious detriment and prejudice of the Plaintiffs. [emphasis added]

16. Mr. Cecil Abraham, counsel for the appellant, argued that the respondents themselves were guilty of delay by not taking early steps to set down the action for trial. It may well be true as the pleadings are deemed closed in early October 1996 and the respondents issued notice to set the matter down for trial only on January 6, 1999. However, in our view, it is open to the appellant to move the court for the necessary steps to be taken by the respondents failing which to apply to the court for the action to be dismissed for want of prosecution under order 34.

17. With respect, this is no excuse for the appellant to delay the application for the amendment of his defence at a very late stage without placing sufficient material before the court and to give cogent reasons thereof. It should be noted that an application for amendment of a writ or pleadings is not as a matter of a right of a party but is left to the judicial discretion of the court depending on the circumstances of each case. In dealing with the amendment to the defence, we would quote a passage from Galley on Libel, 9th Edn (1998) under the caption "Granting of leave in discretion of court" at p 447-

    .... the court has shown itself reluctant to grant a defendant leave to amend his defence where the application is made late in the day, either at, or close to, the trial; (Plummer v Charman [1962] 1 WLR 1469, CA), in particular, when he seeks to introduce a plea of justification at a late stage, the defendant's conduct will be closely inquired into, and the court will expect him to have shown due diligence in making his inquiries and investigations (Associated Leisure v Associated Newspapers [1970] 2 QB 450 CA). It has been held that where delay has been due to the defendant's own default in some respect, that circumstance should be taken into consideration by the judge as part of the matters to be weighed in deciding whether or not to allow an amendment. The mere fact that delay may be capable of being compensated in money is not conclusive of the question whether the amendment should or should not be permitted (Bower v Maxwell, unreported, May 8, 1989, 89 / 472, CA).

18. We may not wholly agree with the approach the learned Judge took in dealing with the application when he asked the appellant's counsel to address him on five issues. With respect, he should be guided by the principle set out in the Yamaha case. We may also not totally agree with his reasons on the bona fide issue. However, we agree with his conclusion on the lack of bona fide on the part of the appellant in his application. We were satisfied that on the affidavit evidence there was insufficient material placed before him and even if there was sufficient material, no cogent reasons were advanced by the appellant. The learned Judge had, in our view, correctly exercised his judicial discretion in dismissing the application which borders on lack of bona fide. If the appellant fails on this ground, he fails altogether.

19. There were no compelling grounds for us to interfere with the exercise of his discretion with the exception of the amendment to the title, rewording of the parties and paragraphs 3.1 and 3.3, where we allowed them as they are merely formal. However, the appeal was dismissed with costs. The deposit to go to the respondents towards their taxed costs.

Cases

Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213; Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230; Multi-Pak Singapore Pte Ltd (In receivership) v Intraco Ltd [1992] 2 SLR 793; [1993] 2 SLR 113; Taisho Co Sdn Bhd v Pan Global Equities Bhd [1999] 1 AMR 956.

Legislations

Rules of the High Court 1980: Ord.20 r 5, Ord.34

Authors and other references

Gatley on Libel, 9th Edn, 1998

International Commercial Litigation Magazine, November 1995, "Malaysian Justice on Trial"

Representations

C Abraham, Mohamad Shafee Abdullah & G Rajasingam (Shafee & Co) for Appellants

V Sivaparanjothi, S Rutheran & S Ashokvijay (V Siva & Partners) for Respondents

Notes:-

This decision is also reported at [2000] 4 AMR 4475