UTHAYAKUMARI A/P KARUNAKARAN v 1. ) CHOON SHEE CHIEN 2. ) CHOON SHEE FOONG

Case Significance

Illustrates the tension between reinstating a struck-out action under Order 34 rule 1(5) of the Rules of Court 2012 and the expiry of the three-year limitation for dependency claims under section 7(5) of the Civil Law Act 1956, holding that reinstatement should not be granted once limitation has expired.

This High Court decision concerns whether a struck-out dependency claim can be reinstated once the statutory limitation period has expired. The appellant, suing as the lawful wife and dependant of a man who was killed as a pedestrian in a road accident, had brought a loss-of-dependency claim against the respondents under section 7 of the Civil Law Act 1956, section 7(5) of which requires such a claim to be brought within three years after the death. The action was commenced in the Sessions Court within the three-year period, but was struck out, with liberty to file afresh, for failure to comply with pre-trial case-management directions. The difficulty was that by the time a fresh action could be filed the three-year limitation period would already have expired, so that any new claim would be time-barred under section 7(5). To avoid that consequence, the appellant applied to reinstate the struck-out action under Order 34 rule 1(5) of the Rules of Court 2012, but the Sessions Court dismissed the application, and she appealed. The issues were whether the struck-out action ought to be reinstated under that rule, and whether the expiry of the limitation period rendered reinstatement legally untenable or otherwise inappropriate. The court accepted that reinstatement should not be granted once the limitation period has expired, treating that principle as applicable notwithstanding a High Court decision, Gan Kong Eng, in which reinstatement had been permitted after expiry, which the court considered not binding on it. While acknowledging the appellant's personal explanation for the earlier default, the court considered that it had remained the responsibility of counsel to arrange for the file to be handled or to notify the court, and, balancing the Rules against substantive justice, it dismissed the appeal with costs of RM5,000.00. The judgment is a useful illustration of the tension between reinstating a struck-out action and the expiry of a statutory limitation period in a dependency claim.