Court of Appeal widens access to documents in judicial review cases

 Appellate court says the old ‘relevancy’ test no longer applies, rejects ‘fishing expedition’ as basis to deny discovery.

The Court of Appeal said applying the old relevancy test would undermine the Rules Committee’s intention in expressly setting out the current discovery provisions in the Rules of Court 2012.

KUALA LUMPUR:

The Court of Appeal has widened access to documents in judicial review cases, ruling that courts should not reject discovery applications simply by labelling them a “fishing expedition”.

A three-member bench said the applicable test was now set out in Order 24 Rule 7 of the Rules of Court 2012, and that the old “relevancy” test developed in Yekambaran Marimuthu v Malayawata Steel Bhd no longer applied.

Justice Wong Kian Kheong, who wrote the judgment, said Order 24 Rule 7 allowed discovery of documents relied on by either party, documents that could harm either side’s case, and documents that could lead to further inquiries yielding relevant information.

Wong, sitting with Justices Choo Kah Sing and Ong Chee Kwan, said applying the old test would undermine the Rules Committee’s intention in expressly setting out the current discovery provisions.

The ruling arose from an appeal by six residents and representatives of residents’ associations and joint management bodies at Lake Fields, Sungai Besi.

The residents – Chin Tong Lim, Wang Wee Keong, Heng Fok Aun, Fendi Shareef Ang, Yong Pitt Lok and Saifuddin Ahmad – are challenging a development order issued by the Kuala Lumpur mayor for Lot 103675, part of the former Lake Fields mining pool, as well as approval for a bridge providing access to the proposed development.

The High Court had refused their request for six categories of documents, finding that they had failed to meet the requirements set out under Yekambaran’s case and that the application bordered on a “fishing expedition”.

However, the Court of Appeal found three errors in the High Court’s approach, including its reliance on the old relevancy test instead of Order 24 Rule 7.

The residents had sought correspondence between the mayor and developer Astana Setia & Euro Saga Sdn Bhd, bridge plans, traffic, environmental and flood assessments, documents on alternative access routes and records relating to the land’s alienation.

Wong said the residents had discharged the evidential burden under Order 24 by showing that the documents fell within the categories specified and that discovery was necessary for a fair disposal of the judicial review or to save costs.

He also said the mayor, as a public authority, owed a duty of candour in judicial review proceedings.

Citing the Federal Court’s 2023 decision in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises, Wong said public authorities must make full and fair disclosure of relevant materials and assist the court with accurate explanations of facts relevant to the issues.

The court said “fishing expedition” did not appear in Order 24 and could not replace the legal tests prescribed by the rules.

It set aside the High Court order and allowed the discovery application, while allowing the respondents to claim privilege and seek redaction before the High Court.

The mayor and developer were ordered to pay RM30,000 in costs to the appellants, who were represented by N Ganesan and Alicia Gomez.

L Narendran appeared for the mayor, while Alliff Benjamin Suhaimi and Phoebe Loi acted for the developer.

Alliff said the respondents had obtained leave to appeal to the Federal Court, with the merits of the case expected to be heard early next year. - FMT