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TRANSFER APPLICATION: WITH REMOTE COMMUNICATION TECHNOLOGY, IS IT A REDUNDANT TOOL?

By:

Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]



INTRODUCTION

The Question was posed by Su Tiang Joo JC in the case of Liziz Plantation v Liew Ah Hong [2020] 10 CLJ 94 as follows:


“With the growing acceptance of remote communication technology, should the forum of the court be changed to keep pace with where the defendant has his place of residence or business?”



BRIEF FACTS

The Plaintiff filed an action for removal of private caveats lodged by the Defendant over lands in Gua Musang, Kelantan.


The Defendant made an application pursuant to Order 57 of the Rules of Court 2012 and / or Section 23 of the Court of Judicature Act 1964 and / or the inherent jurisdiction of the Court for the claim to be transferred to the High Court of Malaya at Kota Bahru. The claim was filed at the High Court of Malaya in Ipoh.


Order 57 rule 1(4) of the Rules of Court 2012 states as follows:


“Before making any order to transfer any proceedings from-

(a) the High Court to another High Court of co-ordinate jurisdiction;

(b) a Subordinate Court to the High Court;

(c) the High Court to a Subordinate Court; or

(d) a Subordinate Court to another Subordinate Court,


the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or Subordinate Court which shall hear the case is located at or nearest to the place where-


(A) the cause of action arose;

(B) the defendant, or one of the several defendants, resides or has his place of business;

(C) the facts on which the proceedings are based exist or are alleged to have occurred;

(D) the land the ownership of which is disputed is situated; or

(E) for other reasons it is desirable in the interests of justice that the proceedings should be transferred.”


The Defendant advanced the following reasons for the said application:

(a) The said lands are situated in Kelantan;


(b) The private caveats were entered at the Land and Mines Office in Kelantan, the cause of action arose in Kelantan;


(c) The proceedings in this action will have a bearing on the registered owner of the said lands namely the Perbadanan Menteri Besar of Kelantan; and


(d) While the defendant's residential address is listed in Ipoh, he currently resides in Kuala Terengganu where his business is based and where he spends most of his time.”


DECISION OF THE HIGH COURT

The High Court judge noted that the cause of action did arise in Kelantan and the facts on which the proceedings are based exist or are alleged to have occurred did happen in Kelantan. Sub-paragraph (A) and (C) of Order 57 rule 1(4) of the Rules of Court 2012 were considered.


However, the High Court also noted just because the caveats were lodged at the Kelantan Land and Mines office does not necessarily mean that the cause of action accrued in Kelantan and that the grounds relied upon for the lodgement of the private caveats are also facts which make up the cause of action.


In the forms and accompanying statutory declarations filed for the entry of the private caveats, the Defendant declared that he had an address in Ipoh, Perak and that the Defendant is entering a private caveat as the shareholder of the Plaintiff which has a registered and business address in Ipoh, Perak.


Accordingly, the High Court judge acknowledged that it is arguable where the cause of action arose and where the facts on which the proceedings are based exist or alleged to have occurred.


The Court also considered sub-paragraph (E) of Order 57 rule 1(4) of the Rules of Court 2012 and opined that it is included in this sub-paragraph the need to secure the just, expeditious and economical disposal of the action. The Court further stated whether it would be in the interest of justice to allow the transfer would be dependent upon the facts of each case.


In the case before the High Court, it was of the opinion that the critical issue in the main action is whether the defendant who lodged the private caveats has any registrable interest in or a right to claim title to the said lands. Such critical issue could be tried without the necessity of calling witnesses as the facts of lodgement of the private caveats, why and where they were lodged have been set out in the affidavits filed in this action and are undisputed. The only issue as whether such lodgement was lawful.


Accordingly, the Court was satisfied that the Transfer Application ought to be dismissed for the following:

(a) As the proceedings in this action having reached an advanced stage of being ready for hearing, it would not be in the interest of justice to have the action transferred to another court as a transfer would not secure the just, expeditious and economical disposal of the action.


(b) Sub-paragraph (A) and (C) of Order 57 rule 1(4) of the Rules of Court 2012 are not determinative of a transfer application where the issue, a claim for removal of a caveat is supposed to be a simple and summary procedure.


(c) Sub-paragraph (B) of Order 57 rule 1(4) of the Rules of Court 2012 had been satisfied as the Defendant had an address in Ipoh, Perak. Accordingly, little weight ought to be given to the fact that the Defendant currently resides in Kuala Terengganu as it would be absurd if any one defendant can seek a transfer of proceedings just by relocating to another local jurisdiction in the course of proceedings and inviting the court to play catch-up.


(d) There were no supporting materials to support the fact that witnesses from all over Gua Musang, Kelantan will be called for the assessment of damages if the order for removal of the caveats was granted. Such foresight was premature, to say the least.


(e) With the experience gained during the movement control order, conditional movement control order and the recovery movement control order in the use of remote communication technology, the physical location of any one litigant or witness and the issue of having to physically travel to any court has become very much less important. The need for counsel, litigants and witnesses to physically travel to the court for the hearing of their matters is getting less and less. Hearings and meetings can now be done electronically.


(f) Accordingly, in the circumstance of the case and the increasing acceptance of remote communication technology, it would not be in the interest of justice to allow the transfer application. It would not secure the just, expeditious and economical disposal of the action.


CONCLUSION

It must be appreciated that this decision was made before the coming into force of Section 15A of the Court of Judicature Act 1964 on 22.10.2020.


Section 15A of the Court of Judicature Act 1964 states as follows:

“(1) Without limiting section 15, the Court may, in the interest of justice, conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology.

(2) In the case of the High Court, the place in which the High Court is held to conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology shall be deemed to be conducted within the local jurisdiction of such High Court.

(3) Nothing in this section shall affect the operation of section 5 of the Evidence of Child Witness Act 2007 [Act 676], sections 265A and 272B of the Criminal Procedure Code [Act 593] and section 32A of the Evidence Act 1950 [Act 56].

(4) In this section, "place" includes cyberspace, virtual place or virtual space.”


With the introduction of Section 15A of the Court of Judicature Act 1964, it is likely that a transfer application would be viewed as a redundant tool with the growing acceptance of remote communication technology.


The question posed by the High Court judge as mentioned above was answered in the negative and will likely continue to be answered in the negative.



Image by Jan Vašek from Pixabay




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