Technology Reduces the Need for Transfers, Encourages Remote Trials
In Muhammad Hafidz bin Mohd Dusuki v Hassan bin Zulkifli[1], the defendant in a copyright infringement claim applied to transfer the case from Kuala Lumpur to Kota Bharu on the following grounds:
- The alleged infringement occurred in Tumpat, Kelantan;
- The defendant’s place of business and residence are both in Tumpat, Kelantan;
- The cause of action and alleged facts all arose in Kelantan; and
- The defendant’s witnesses, including his 75-year-old father, reside in Kelantan. Due to COVID-19, travel was said to be ill-advised.
After considering the circumstances and weighing all relevant factors under Order 57 Rule 1 of the Rules of Court 2012, the Court dismissed the application. The defendant’s appeal was also dismissed.
The Court ruled that the pandemic and the difficulty of travelling do not constitute sufficient grounds to warrant a case transfer, as the Court may dispense with physical attendance and utilise technology for evidence-taking. The fact that the place of business and witnesses are in Kelantan was also found to be insufficient to justify the transfer.
Further, the Court acknowledged that the Judiciary’s move towards establishing specialised High Courts dealing with intellectual property matters (including in Kuala Lumpur) promotes expeditious, consistent, and efficient disposal of intellectual property cases. This, in turn, contributes positively to the development of Malaysian jurisprudence in intellectual property law.
Consistent with the Judiciary’s efforts to encourage remote trials, this decision strikes a balance between the interests of justice of both parties while taking into account the challenges posed by the pandemic.
This article is authored by:
Lim Zhi Jian
Partner
Gan Partnership
E: zhijian@ganlaw.my
Ng Lih Jiun
Associate
Gan Partnership
E: lihjiun@ganlaw.my
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice. The position stated herein is as at the date of publication on 25 January 2021. For any enquiries on this article, please contact our partner, Lim Zhi Jian (zhijian@ganlaw.my).
Endnote
[1] WA-22IP-25-04/2020
