GLOCOM MARKETING PTE LTD v MYBRUSH INDUSTRIES SDN. BHD. PENCELAH V.S. INDUSTRY BERHAD

Case Significance

Illustrates the limits of third-party discovery under Order 24: relevance and necessity must be shown, the documents must be demonstrated to lie within the respondent's possession, custody or power, and a late application made near trial without justification may be refused as oppressive and a fishing expedition.

This High Court decision concerns an application by a defendant for discovery of documents against a third party under Order 24 of the Rules of Court 2012. The main action is a commercial dispute in which the plaintiff, Glocom (a Singapore-incorporated company), sued the defendant, Mybrush Industries Sdn. Bhd., over dealings in a supply chain for customised manufactured goods; the defendant in turn brought third-party proceedings against V.S. Industry Berhad, seeking indemnity or contribution should it be found liable to the plaintiff. The application in question sought discovery from that third party.

The court applied the settled requirements for discovery under Order 24. A party seeking discovery must show that the documents are relevant and necessary to the real issues in the action, and that they are, or have been, in the possession, custody or power of the party against whom discovery is sought. The court also had to weigh whether the application was made too late — after pre-trial case-management directions had been given and the common bundle of documents prepared — and whether it amounted to an oppressive "fishing expedition" against the third party.

The court refused the application. It found that the defendant had not shown the requested documents to be relevant to its liability to the plaintiff, nor adduced sufficient evidence that the documents were in the third party's possession, custody or power as Order 24 requires. Procedurally, the application had been filed late, after the pre-trial case-management directions and close to trial, without adequate justification, in a way that risked disrupting case management and prejudicing the third party. Taken cumulatively, the application was unbalanced, risked oppressing the third party and resembled a fishing expedition. The court dismissed it, with costs in the cause.

The judgment is a useful illustration of the limits of third-party discovery under Order 24: relevance and necessity must be shown, the documents must be demonstrated to lie within the respondent's possession, custody or power, and a late application made near trial without justification may be refused as oppressive and a fishing expedition.