The High Court in SS Precast Sdn Bhd v Serba Dinamik Group Bhd & Ors [2020] MLJU 400 held that the Court has the jurisdiction to direct hearing by way of video conference without the consent of parties and that unaffirmed affidavits may be used in proceedings. The decision was given by Wong Kian Kheong J on 26.4.2020.
The facts. The Plaintiff had obtained judgment in default of defence against the defendants on 28.3.2020. On 14.4.2020, the defendants filed applications to set aside the default judgment with a certificate of urgency supported by unaffirmed affidavits. The Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) Regulations 2020 (‘Covid-19 Regulations’) were in force by then.
Following the Court’s enquiry, all parties agreed for the applications to be heard by way of video conference through Skype. At the hearing on 17.4.2020, counsel for both parties again recorded consent for hearing by way of video conference and for the use of unaffirmed affidavit (with the undertaking that a properly sworn affidavit will be filed upon cessation of the Covid-19 Regulations). The Court issued the necessary directions for hearing and also issued an ad interim stay of execution with conditions that included the defendants depositing a certain sum of money with the Plaintiff’s solicitors as stakeholders.
Three days later, the Court was informed that the Plaintiff amongst others, was not agreeable to the hearing by way of video conferencing and the use of unaffirmed affidavits. It was contended that the court had no power to hear the applications by video conference and the court cannot consider the unaffirmed affidavits.
The Court deliberated on the issues. It was held that as the Plaintiff’s counsel had consented and also actively participated in the proceedings, the Court could proceed by way of video conference.
The Court then deliberated whether the Court could have directed hearing by way of video conference if the Plaintiff had objected and held that the Court had the power to issue the direction even if the Plaintiff had objected. The Court referred to the Defendant’s right of access to justice under Article 5(1) of the Federal Constitution and that all subsidiary legislations including the Rules of Courts 2012 must be consistent with the Constitution. O. 32 r 10 and r 11(1) provides the discretion to the Court to issue directions as the Judge thinks fit in order to dispose a matter and the overriding consideration was the interest of justice – consistent with Art 5(1) and O. 1A. In view of the urgency and the movement restrictions, hearing by video conference was necessary and consistent with the defendant’s fundamental right of access to justice under Art 5(1). Not allowing hearing by video conference due to objections by the Plaintiff would render illusory the Defendant’s fundamental right to have access to justice. Hence, even if the Plaintiff had not given their consent, the Court still had the power to order hearing by way of video conference.
On the use of unaffirmed affidavits, the Court held that pursuant to O. 41 r 9(2) the Court has the discretion to allow the use of such affidavits in the interest of justice. In view of the movement restrictions that had hindered access to the Commissioner of Oath the Court may allow the use of unaffirmed affidavits provided that the party’s counsel give an undertaking that a sworn affidavit similar to the unaffirmed affidavit will be filed after the lapse of the movements restrictions.
This case is of interest as it is the first case that decided on the validity of proceedings by way of video conference. The general opinion has been that in the absence of clear provisions the validity of hearing by way of video conference could be brought to question and one way to overcome this had been by getting the consent of all parties. This pioneering decision by Wong Kian Kheong J however has now decided that consent is not a pre-requisite and the Court has the power to issue such direction even without consent. This case is also notable for allowing the use of unaffirmed affidavits. Whilst defective affidavits had been used before in proceedings with the leave of Court the affidavits were however affirmed but defective for some other reasons. This case could probably be the first that allowed an unsworn affidavit to be used under O. 41 r 9(2).
In appreciating the decision, it is important to note the overriding background fact – the Covid-19 outbreak, movement restrictions and the Regulations that were in force. The Court probably had to find an effective way to ensure that access to justice was given to the parties even under such limiting background and hence judicial creativity and innovation was required. Justice and access to justice was the overriding consideration and rightly so.
JAYABALAN RAMAN KUTTY
