1. ) Ketua Pengarah Jabatan Penyiaran Malaysia 2. ) Kerajaan Malaysia v Vertex Blue Consulting Sdn Bhd

Case Significance

Illustrates the authority of court orders and the operation of an unless order for discovery non-compliance, the Federal Court holding that such an order binds the trial judge but is not equivalent to a summary judgment or judgment in default, so Order 73 and section 42 of the Government Proceedings Act 1956 do not shield the non-complying Government defendants.

This Federal Court decision concerns the effect of an unless order made for non-compliance with discovery obligations in a contract dispute between a company and government defendants. The respondent, a company providing advertising and media services, was the successful bidder to act as sales agent for the broadcasting authority's advertising time slots under a five-year concession agreement, and it sued the Director General of the broadcasting department and the Government, alleging wrongful termination of the agreement; the defendants denied breach, alleged that the company had failed to pay a guaranteed minimum sum, and counterclaimed a substantial amount. In the course of the litigation the company obtained successive discovery orders, and after complaining that compliance remained incomplete it obtained a further order containing an unless clause providing that, unless the defendants complied, their defence and counterclaim would stand struck out and judgment entered for the company. The appeal to the Federal Court raised whether the trial judge was bound by the unless order pronounced by the interlocutory judge, and whether the unless order had the same effect as a summary judgment or judgment in default such that it had to comply with Order 73 of the Rules of Court 2012 and section 42 of the Government Proceedings Act 1956, which govern proceedings against the Government. The court held that the trial judge was indeed bound by the unless order, but that the order did not have the same effect as a summary judgment or judgment in default; the specific discovery order made under Order 24 took precedence over the general provisions in Order 73 under the maxim generalia specialibus non derogant, and section 42 of the Government Proceedings Act 1956 did not assist the defendants because judgment followed from their non-compliance rather than from any assessment of the merits. The court dismissed the appeal. The judgment illustrates the authority of court orders and the consequences of ignoring them.