The Appellate Court has dismissed an appeal by a personal injury claimant seeking to revive his civil action, ruling that the suit had been automatically discontinued due to prolonged inactivity and that there was no basis to reinstate it.
In a judgment delivered on January 20, a three-member panel comprising Chief Justice Dato Seri Paduka Steven Chong, Justices of Appeal Michael Lunn and Sir Peter Gross upheld earlier decisions of both the Senior Registrar and the High Court, which found that the action had been deemed discontinued under Order 21 rule 2(6) of the Rules of the Supreme Court (RSC).
The appeal was brought by the appellant, a personal injury claimant arising from an incident in 2015. He was later identified as Suparni, a Brunei Green IC holder, who had commenced proceedings in April 2018.
The respondents were Metrobina & Partners Sdn Bhd as defendant, Sekuntum Zahrah Sdn Bhd as third party, and Tiong Yin Kay as fourth party.
Suparni was represented on appeal by Vincent Joseph, assisted by Ahmad Tarmizi @ Mohd Faiz Haji Jokeple of Messrs Fortis Law. The respondents were represented by Brandon Chin Wei Chun of Messrs Yusof Halim & Partners, assisted by Nabilah Zainal Abidin.
After the writ and statement of claim were filed in 2018 and the defence entered later that year, the matter was set down for trial in October 2018. However, a series of pre-trial conferences followed, reflecting that the case was not yet ready to proceed to trial.
At a pre-trial conference held on July 27, 2020, the Registrar directed that no further PTCs be fixed for the remainder of the year pending developments, including a counter-offer and possible re-examination of the plaintiff after the reopening of borders, and for parties to write in by 2021.
No procedural step was taken by the appellant for more than a year after that date. When a further PTC was eventually convened in December 2022, it was noted that the action had already been deemed discontinued.
In February 2024, the Senior Registrar ruled that the action had been automatically discontinued under Order 21 rule 2(6) of the RSC and refused to reinstate it under rule 2(10). While accepting that the plaintiff had prosecuted the case diligently before the “trigger date”, the Registrar found no acceptable explanation for the complete inactivity in the year that followed.
An appeal to the High Court was dismissed in August 2024. The judge agreed that, notwithstanding the disruptions caused by the COVID-19 pandemic, the plaintiff remained responsible for advancing his case and had failed to utilise available procedural mechanisms to preserve it.
Before the Court of Appeal, counsel for the appellant argued that the automatic discontinuance regime should not apply because the matter had already been set down for trial and was under active case management. It was further submitted that the court’s earlier decision in Ak Muhd Abdul Hafiz bin Pg Zainal v Awg Lufti bin Haji Awang Lamat should either be distinguished or reconsidered.
For the respondents, counsel argued that setting a case down for trial did not suspend the operation of Order 21 rule 2(6), and that no stay had ever been ordered. The appellant, it was submitted, had simply allowed the matter to lie dormant.
In rejecting the appeal, the Court of Appeal reaffirmed its reasoning in Abdul Hafiz, holding that the automatic discontinuance rule applies generally unless the action has been stayed by court order. The court stressed that setting a matter down for trial is not the same as being ready for trial, and does not relieve parties of their obligation to take active steps to move proceedings forward.
The court found that the July 27, 2020 PTC did not amount to a stay and, on the contrary, contemplated further action by the parties. The appellant could have applied for an extension of time under Order 21 rule 2(8) or taken other procedural steps to preserve the action but failed to do so.
On reinstatement, the court accepted that the appellant met the first limb of the three-stage test in Moguntia-Est Epices SA v Sea Hawk Freight Pte Ltd, relating to diligence before the trigger date. However, it agreed with the lower courts that the appellant failed the second limb, having provided no satisfactory explanation for the prolonged inactivity after July 2020.
The Court of Appeal also declined to depart from its earlier decision in Abdul Hafiz, holding that there was no basis for distinguishing it and no recognised ground for overruling it. The Justices emphasised the policy objective behind the automatic discontinuance regime, which is to ensure that litigation is conducted efficiently and without undue delay.
The appeal was dismissed, with costs awarded to the respondents. The costs orders made by the lower courts were also upheld.