MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING SUIT NO: 22-45-2005-III (I) BETWEEN BORNEO UNITED

SAWMILLS SDN. BHD. (Incorporated in Malaysia) No. 7 9 Lorong 3, 1st Floor, Jalan Kampung Datu, 96000, Sibu, Sarawak, East Malaysia. AND MUI CONTINENTAL INSURANCE BERHAD (29123-D) Lot 176 (1st Floor) Jalan Song Thian Cheok, 93100 Kuching, Sarawak, East Malaysia. .

..

Plaintiff

Defendant

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. TUAN DAVID WONG DAK WAH VIA THE INTERNET JUDGMENT

At the last pre trial case management (PTCM) on the 13.6.2006, I enquired from counsels whether or not they would agree to my proposal that all future non contentious PTCM hearings be done by way of electronic form whereby counsels will not be required to attend Court and communicate with the Court and opposing counsel by way of emails which mode will be

known as Electronic Case Management (ECM). Counsels agreed to my proposal and upon which I made the following orders:1.
2.

The next hearing date for this matter is 18.7.2006. Counsels must inform the Court at least three days prior to 18.7.2006 the status of the case.

3.

If the Court finds that there is nothing contentious in the directions asked for, the Court will dispense with the presence of counsels and make the appropriate directions.

4.

If in the event that one of the counsels wishes to see the Judge on a contentious matter, the proceedings will not done by way of ECM and counsels will be required to attend on the adjourned date.

However before I make my directions via the internet, I should state the reasons for introducing and the mode in creating what I call an ECM Court as I have before me no less than 15 cases where counsels have agreed to conduct future PTCM hearings by way of ECM. It is an undisputed fact that in most PTCM hearings at least in my Court, nothing contentious is involved and counsels only attend the hearings to inform the status and invariably request for a new mention date so that they

can comply with the timetable for discovery of documents. Not only do I find this inefficient, it is costly to all parties concerned. Counsels invariably have to wait outside the Judges chambers (in some cases for one hour) to attend a chamber hearing which only takes no more than five minutes. In this case, the Plaintiffs counsel is from Sibu and invariably will have to travel to Kuching to attend Court if this PTCM hearing is done in the normal way. With an ECM Court, lots of time and costs will be saved for the Court and the public. In fact it makes access to the Court by the public less expensive. That said, if I find that a case is not progressing at the appropriate pace, counsels will be requested to attend Court to explain the lack of progress. Further as we live in a digital age, there is no reason why we should not utilize the technology at our disposal to enhance the judicial system. For an ECM Court to be clothed with legality, I need the consents of counsels as we do not have the enabling legislations to create an ECM Court. In the state of New South Wales in Australia, they have the Electronic Transactions Act 2000 and Uniform Civil Procedure Rules 2005 which provide the framework for the establishment of an ECM Court. To gain an insight on how it works, one can refer to the first internet judgment of Gzell J in the case of Koompahtoo Local Aboriginal Land Council v KLALC Property & Investments Pty Ltd & Anor (No 2) [2006] NSWSC 169.

Reverting back to the present case, Mr George Lim, the Plaintiffs counsel, pursuant to my order dated 13.6.2006, by an email dated

15.7.2006 to the Court requested for trial dates to be fixed as the Defendants counsel had failed to comply with the directions given during the summons for directions hearing(SIC directions). In response, Mr Alan Lao, the Defendants counsel, on 17.7.2006 emailed to the Court to inform that he had just received instructions from the Defendant and is now able to comply with the SIC directions. Hence in his email, he requested that today hearing be adjourned and mentioned again 30 days from his email. Mr George Lim by an email of the same day raised no objection to Mr Alan Laos application for adjournment but requested from the Court for an unless order to the effect that if the list of documents and verifying affidavit it is not filed and served within 15 days from today, the Defendant be precluded from filing the list and the case be set down for trial. After taking into consideration of the counsels emails, I now make the following directions:1. This matter is adjourned for mention again on the 29.8.2006 at 9.00 .am.

2. The Defendant shall file and serve its list of documents on or before 29.8.2006. 3. In the event that the Defendant fails to comply with direction 2, the Court will hear counsels why an unless order as requested by the Plaintiffs counsel should be granted on the 29.8.2006. 4. In the event that the Defendant complies with direction 2, counsels presence on 29.8.2006 will be dispensed with and the counsels shall inform the Court the status of the case by email at least five days prior to the 29.8.2006. 5. Trial dates will be fixed once the Court is satisfied that parties are ready for trial.

Date of delivery of judgment - 18.7.2006.

SGD. (Y.A. TUAN DAVID WONG DAK WAH) Judicial Commissioner

For the Plaintiff:-

Mr. George Lim Battenberg & Talma Advocates No 12 and 14, 1st Floor, Jalan Chew Geok Lin Sibu, Sarawak.

For the Defendant:-

Mr. Alan Lao M/s David Allan Sagah &Teng A2-4, Wisma Nation Horizon, Jalan Petanak Kuching, Sarawak.