Yeo Eng Lam v Dewan Bandaraya Kuala Lumpur (DBKL)

Case Significance

Marks the boundary of Order 24 rule 7A pre-action discovery: where the defendant and cause of action are already known, an application to obtain supporting evidence in advance is a fishing expedition and will be refused.

This High Court decision at Kuala Lumpur concerns an application for pre-action discovery under Order 24 rule 7A of the Rules of Court 2012. The plaintiff, a resident living near an ongoing construction project, sought disclosure from Datuk Bandar Kuala Lumpur (the Mayor of Kuala Lumpur, DBKL) of approvals, plans and records for the project, complaining that a structure exceeding three storeys had been erected and that the works had caused dust and noise. The stated purpose was to ascertain whether the development had been properly authorised under the Street, Drainage and Building Act 1974. DBKL resisted on two grounds: a jurisdictional objection that the originating summons was defective for failing to cite provisions properly in the intitulement under Order 7 rule 2(1A), and a substantive objection that the plaintiff had not met the threshold under Order 24 rule 7A and that the application was an impermissible fishing expedition. On the jurisdictional point the court held that the citation, though imperfect, was sufficient, so the originating summons was not void for want of jurisdiction. On the substantive point, however, the court found that the plaintiff had not shown necessity. The defendant was already identified and a cause of action in nuisance, negligence or breach of statutory duty could be pleaded without discovery; the application was in substance an attempt to gather evidence in advance of an anticipated claim, which falls outside the purpose of Order 24 rule 7A. The court distinguished the Court of Appeal's decision in Infoline Sdn Bhd v Benjamin Lim Keong Hoe, where discovery had been necessary to determine whether a cause of action existed at all, whereas here the cause of action already existed independently of the documents sought. Allowing discovery would encourage speculative or satellite litigation. The court dismissed the application with costs of RM2,000. The judgment usefully marks the boundary between legitimate pre-action discovery and an impermissible fishing expedition.