NIK AZLEE BIN NIK MOHD AFFANDI 1. DR NIK MUZAIMAN BIN MUSTAPHA 2. DR SHAMSUL KAHAR BIN KAMARUL GHANI 3. DR MAHAYIDIN BIN MUHAMAD 4. PERDAMA SPECIALIST HOSPITAL SDN BHD

NIK AZLEE BIN NIK MOHD AFFANDI 1. DR NIK MUZAIMAN BIN MUSTAPHA 2. DR SHAMSUL KAHAR BIN KAMARUL GHANI 3. DR MAHAYIDIN BIN MUHAMAD 4. PERDAMA SPECIALIST HOSPITAL SDN BHD

Application to set aside dismissal under O 34 r 2(4) was dismissed because the plaintiff failed to demonstrate that non‑compliance with the unless order was due to extraneous circumstances or that there was no intention to flout the order; ignorance or mistake of former solicitors is not a sufficient ground; and a party who has filed an appeal cannot concurrently seek to set aside the same order as that would amount to approbation and reprobation and abuse of process.

Citation
DA-22NCVC-22-06/2017 (Mahkamah Tinggi)
Parties
Plaintiff: NIK AZLEE BIN NIK MOHD AFFANDI; 1st Defendant: DR NIK MUZAIMAN BIN MUSTAPHA; 2nd Defendant: DR SHAMSUL KAHAR BIN KAMARUL GHANI; 3rd Defendant: DR MAHAYIDIN BIN MUHAMAD; 4th Defendant: PERDAMA SPECIALIST HOSPITAL SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
19 November 2019
Case Number
DA-22NCVC-22-06/2017 (Mahkamah Tinggi)
Procedural Posture
Medical Negligence (civil Claim) / Application to Reinstate Writ and Statement of Claim After Dismissal Under Order 34
Outcome
Application dismissed
Legal Topics
Unless Order, Setting Aside Dismissal, Order 34 Rule 2(4) Rules of Court 2012, Approbate and Reprobate (election), Abuse of Process
Source Language
Malay/English
Civil Procedure Medical Negligence Evidence (expert Reports) Unless Order Setting Aside Dismissal Order 34 Rule 2(4) Rules of Court 2012 Approbate and Reprobate (election) Abuse of Process

Case Brief

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Parties

NIK AZLEE BIN NIK MOHD AFFANDI

Plaintiff

DR NIK MUZAIMAN BIN MUSTAPHA

1st Defendant

DR SHAMSUL KAHAR BIN KAMARUL GHANI

2nd Defendant

DR MAHAYIDIN BIN MUHAMAD

3rd Defendant

PERDAMA SPECIALIST HOSPITAL SDN BHD

4th Defendant

Procedural Posture

Medical Negligence (civil Claim) / Application to Reinstate Writ and Statement of Claim After Dismissal Under Order 34

Legal Issues

  1. 1 Whether an order made under an unless order can be set aside under O 34 r 2(4) ROC
  2. 2 What test applies to set aside a dismissal entered under an unless order
  3. 3 Whether the plaintiff's or former solicitor's ignorance or mistake constitute 'extraneous circumstances' sufficient to set aside the order

Ratio Decidendi

Application to set aside dismissal under O 34 r 2(4) was dismissed because the plaintiff failed to demonstrate that non‑compliance with the unless order was due to extraneous circumstances or that there was no intention to flout the order; ignorance or mistake of former solicitors is not a sufficient ground; and a party who has filed an appeal cannot concurrently seek to set aside the same order as that would amount to approbation and reprobation and abuse of process.

Court Disposition

Application dismissed

Orders

  • Application in Encl 86 dismissed with costs of RM3,000 to each defendant subject to allocatur