WHETHER THE PLAINTIFF MAY WITHDRAW HER SUIT WITH LIBERTY TO FILE
AFRESH DUE TO HER ISSUE ON LOCUS STANDI
1.
In Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd (2017) MLJU
671 at pages 5 and 6, the Court of Appeal held:
” [21] In an action begun by writ, a Plaintiff may, without leave of the court,
discontinue the action not later than 14 days after service of the defence (see O
21 r 2 (1) of the Rules of Court 2012). Once the 14 days for service of the
defence has passed, discontinuance may be done only with leave. The court in
granting such leave may impose such terms as it thinks just, inter alia, in
respect of costs and in respect of bringing a further subsequent actions
(see O 21 r 3 (1) of the Rules of Court 2012)
…
[23] Before granting the order for discontinuance of an action, the court must
be satisfied that:
i)
if a defendant is dominus litis, the general rule is to refuse leave to
discontinue (see Overseas Union Finance Ltd v Lim Joo Chong [1971] 2
MLJ 124);
ii)
the case is not at an advanced stage; if so, care must be taken not to
permit discontinuance. What constitutes an advanced stage depends on
the facts and circumstances of the case (see Fox v Star Newspaper
Company [1898] 1 QB 636;
iii)
the plaintiff may have gained an interim interlocutory advantage
between the date of issue of the writ and the point of time he seeks to
discontinue (O’Neal v Mann [2000] FCA 1680);
iv)
there is no miscarriage of justice occasioned by its refusal to permit
the discontinuance;
v)
it will not prejudice the opponent to the application or take away from
him any advantage to which he is fairly and reasonably entitled.
[24] In summary, the discretion to allow the application to discontinue an
action and the discretion to impose the terms accompanying it, depends very
much on the facts and circumstances of each case “
“i)
If a defendant is dominus litis, the general rule is to refuse leave to
discontinue”
2.
In relation to the five factors listed above, the Plaintiff may not succeed in
applying for leave to discontinue the action with liberty to file afresh as the
Defendants have become ‘dominus litis’ in this suit because the Plaintiff’s
locus standi has become an issue. The Defendants may gain an upper hand as
the Plaintiff appears to have not been cloaked with the necessary locus standi
prior to commencing this suit.
“ii)
the case is not at an advanced stage; if so, care must be taken not
to permit discontinuance.”
3.
Secondly, The Court of Appeal in Newlake Development Sdn Bhd was of the
opinion that the matter before them was not at an ‘advanced stage’ wherein
the trial had not begun.. In contrast, this case is at a significantly advanced
stage as the trial for this matter has commenced and the Plaintiff’s witnesses
has already completed their testimony..
4.
Thus, by allowing the Plaintiff’s withdrawal, the Defendants would be
significantly prejudiced as the advantages gained through the cross
examination of the Plaintiff’s witnesses would be lost.
“iii)
the plaintiff may have gained an interim interlocutory advantage
between the date of issue of the writ and the point of time he seeks to
discontinue”
5.
The Plaintiff is certainly at a disadvantage as the issue of the Plaintiff’s locus
standi has yet to be determined by the court. However, previously there was
no issue regarding the Plaintiff’s locus standi.
“iv)
There is no miscarriage of justice occasioned by its refusal to
permit the discontinuance
v)
it will not prejudice the opponent to the application or take away
from him any advantage to which he is fairly and reasonably
entitled.”
6.
It is submitted that by permitting the withdrawal of the Plaintiff’s action, the
Defendants would certainly suffer a miscarriage of justice and be
prejudiced by the withdrawal as the Defendants have already filed their
respective Defences, list of witnesses, witness statements and expert
affidavits. Therefore, the Plaintiff should not be allowed to enjoy the benefits
of restructuring her case at this juncture. Furthermore, granting the Plaintiff
an application to withdraw her suit to file afresh would deprive the
Defendants’ of their rights from dismissing the case expeditiously, should the
court find that the Plaintiff is not cloaked with the necessary locus standi to
commence this suit on behalf of the estate of the deceased.
7.
Moving on, in the case of Jega Jothy A/P C Thiagarajah & Ors v Persatuan
Rumah Berhala Sri Nageswari (2021) 1 LNS 1708, YA Tuan Mohd Nazlan
of the High Court at pages 7,8,10 and 11 held:
” [14] The defendant here has also gained an upper hand and the position of
dominus litis in this case. The defendant has unmistakably and clearly
pleaded a number of key matters including that the plaintiffs lacked
locus standi, that they are not members of the association, that they are
barred under the Societies Act 1966 from asking for relief on behalf of
the association, that they are also not entitled to rely on purported public
importance, as public trust has not been pleaded, that the plaintiffs have also
not obtained the Attorney General’s consent under Section 9 of the
Government Proceedings Act 1956, as well as that the plaintiffs have referred
the same dispute to [2021] 1 LNS 1708 Legal Network Series 8 multiple
forums, including in Suit 572 and to the registrar of societies.
….
[16] It bears repetition that the plaintiffs specified the striking out of the
claim of the plaintiffs against one of the defendants in Suit 572 on account of
absence of locus standi as the very reason for the present discontinuance
application. This is a most significant evidence of the position of the
defendant becoming the dominis litis in this case. It is for all intents and
purposes also a patent acknowledgement on the part of the plaintiffs that the
defendant has indeed acquired the position of dominus litis in this
proceedings. This therefore strongly suggests that the withdrawal
application by the plaintiffs was designed more to obtain an advantage
to which they have no right to retain since they have ceased to be dominus
litis.
….
[24] The plaintiffs in truth only decided to make this withdrawal request after
having the benefit of reading the defences in this case and the decision made
Suit 572 which struck out the claim of the plaintiffs there (against an
applicant defendant) by reason of the absence of locus. A discontinuance now
and with liberty to file afresh [2021] 1 LNS 1708 Legal Network Series 11
later would enable the plaintiffs to make good any earlier deficiency in their
case, occasioning a disadvantage to the defendant since in a new suit,
pleadings are filed afresh
….
[26] This must mean that if the appellate court overturns the striking out in
Suit 572, the plaintiffs here would file their suit afresh on substantially the
same basis as presently as there would in that event be no concerns with their
locus to institute and maintain the suit. This correspondingly means the
defendant would then have to again defend its case. This would
disadvantage the defendant who could have in the instant proceedings
successfully resisted the claim and get it dismissed.”
8.
Similarly, the Plaintiff’s contention to discontinue an action with liberty to file
afresh must be objected based on the above-mentioned cases. The Plaintiff
only took notice of the absence of locus standi only after the Defendants
pointed this out during trial. The Plaintiff should have sorted out the issue of
locus standi prior to the commencement of this action. The omission by the
Plaintiff to ensure that she was cloaked with the necessary locus standi
should not be taken lightly.
9.
It would be completely unjust and prejudiced against the Defendants should the
withdrawal application by the Plaintiff be allowed because this suit is null and
void ab initio as the Plaintiff was not cloaked with the necessary locus standi to
even commence this suit.
10.
Further, by allowing the withdrawal application, the court would be opening the
floodgates by allowing parties to commence legal proceedings without being
cloaked with the necessary locus standi.
11.
Over and above that, the outright and blatant injustice cannot be cured with costs
as the Defendants had endured great stress, mental and emotional loss as a result
of being hauled to court, wherein should the withdrawal application be allowed
the Defendants would have to relive the entire proceedings again.
12.
As such, it is clear that we should strongly object to the Plaintiff’s withdrawal
application to prevent further injustice and prejudice to our client.