Hassan Bin Zulkifli (hereinafter referred as the “Defendant”) had applied for pursuant to Order 57 Rule 1 (4)(a) of the Rules of Court 2012 (“ROC”) for the current suit filed by Muhammad Hafidz Bin Mohd Dusuki (hereinafter referred as the “Plaintiff”) against him to be transferred to the Kota Bharu High Court. However, this application was dismissed by the Court.
Order 57 r.1 of ROC – Transfer of proceedings to another court. Before making any order to transfer any proceeding from a High Court to another High Court, the High Court Judge shall take into consideration whether the High Court which shall hear the case is located at or nearest to the place where (a) the cause of action arose; (b) the defendant resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; (d) the land of ownership of which is disputed is situated; or (e) for other reasons it is desirable in the interests of justice that the proceedings should be transferred.
Paragraph (a), (b) and (e) of the provision had been fulfilled by the Defendant as his supporting affidavit averred that the alleged infringement of the Plaintiff’s artwork arose at the Defendant’s place of residence in Tumpat, Kelantan, and the Defendant resides and has his business in Tumpat, Kelantan as well. Furthermore, the witnesses and the father of the Defendant are all residing in Kelantan. The Defendant’s father who is the main witness, is now 75 years old would render it unsuitable to travel to Kuala Lumpur to attend court proceedings due to severe Covid-19 pandemic during the time of the court proceedings.
Are the reasons intimated by the Defendant good grounds for this Court to order a transfer?
Before making any decision or order of transfer, the Court shall have regard to all circumstances of the case, inter alia, forum non conveniens, the financial position and hardship of the Defendant, the ability of the Defendant to defend the action at the transferred court and the Plaintiff’s waiver of his rights to sue in the transferred court. If the Court allows the transfer, then the Court must be satisfied that the provisions had been fulfilled by the Defendant. Consequently, whilst the issue of forum non conveniens does not apply in both High Courts, the issue is applicable as between the courts within the said local jurisdiction.
With reference to Lim Guan Eng v FZ Sdn Bhd, [2015] 8 MLJ 469, the Judge do not regard the fact that the location of residence and business of the Defendant are sufficient ground to allow his case to be transferred. The issue faced by the Defendant’s father to attend the proceedings as well as his condition cannot form the basis for this Court to allow the transfer.
The issue of forum non conveniens does not arise where any one of the two High Courts is properly seized with local or territorial jurisdiction. That principle arises only where any of the two Hight Courts, having jurisdiction over the civil proceedings is considering whether the proceedings are more conveniently tried by the same High Court but sitting in another part of its local jurisdiction or territory. There are 2 distinct High Courts in Malaysia, the High Court in Malaya and the High Court in Sabah and Sarawak, where each of that High Court has its corresponding, separate and distinctive “local jurisdiction”.
The Court having considered the interest of justice for both parties had disallowed the case to be transferred to Kota Bharu High Court.