The plaintiff had commenced an action against the defendant pursuant to the National Land Code 1965, seeking, amongst others, an order that the private caveats lodged by the defendant on certain pieces of land be removed.
The defendant, pursuant to Order 57 of the Rules of Court 2012 ("ROC 2012"), section 23 of the Courts of Judicature Act 1964 and/or the inherent jurisdiction of the court, sought an order that the action be transferred from the High Court at Ipoh to the High Court at Kota Bahru on the grounds that:
- The cause of action arose in Kelantan as the lands were situated in Kelantan and the private caveats were entered at the Land and Mines Office, Kelantan;
- Although his residential address was stated in the prescribed forms for the lodgement of private caveats and the statutory declarations to be in Ipoh, he currently resides in Kuala Terengganu, Terengganu; and
- If an order is granted for the removal of the private caveats, witnesses from all over including from Kota Bahru, and the defendant who was in Gua Musang would have to be called for the assessment of damages.
In dismissing the transfer application, the High Court, amongst others, considered the issue of litigants or witnesses having to physically travel from different parts of the country to the High Court at Ipoh. The learned Judicial Commissioner observed that "with the experience gained in using remote communication technology in dealing with the movement control order, conditional movement control order and the recovery movement control order that is extant and which were necessitated by the COVID-19 pandemic, 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 High Court recognised how the availability of various internet platforms such as "Zoom", "Skype" and "Microsoft Teams" had made the need for stakeholders to physically travel to court for a hearing of their matters less and less.
Having made those observations, the Court went on to highlight the proactive response of the Malaysian Courts in keeping abreast with the use of technology, such as conducting case management via e-reviews, the conduct of hearings online and Federal Court's decision this year to have paperless hearings.
The High Court referred to SS Precast Sdn Bhd v Serba Dinamik Group Bhd  MLJU 400 where Wong Kian Kheong J exercised his discretion, in interest of justice under the ROC (namely O. 32 rr. 10 and 11(1) read with O. 1A and O. 2 r. 1(2)) to dispose of three applications by video conferencing which was later objected to by the plaintiff. The learned judge was of the view, per obiter, that the Court has a discretion to proceed by way of video conferencing even if the plaintiff had objected to the use of such facilities prior to and/or during the conduct of the hearing as access to justice was a fundamental right of the defendants which was guaranteed under Article 5(1) of the Federal Constitution.
This case highlights the increasing willingness of the Malaysian Courts to embrace remote communication technology necessitated by the COVID-19 pandemic. Such a move by the Malaysian Courts is very much welcomed given the experience gained by various stakeholders in using remote communication technology in dealing with the movement control restrictions imposed by the Malaysian Government.
The need for litigants or witnesses to travel to a court located some distance from where they reside or conduct business had hitherto been a significant factor when a court considers an application to transfer a case from a court located in one state to one located in another state. With the increasing adoption of remote communication technology by the Courts, this factor may become a less significant consideration.
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