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Case Summary: U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 5 MLJ 292

Introduction

  1. 1) This is a decision by the Federal Court concerning expert evidence. The Federal Court was required to decide on whether in cases of a technical nature, expert evidence is required for the determination of the dispute between the parties by the trial court.
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  1. 2) The question of law which the Federal Court had to determine – “Whether in a case where the plaintiff had the burden of establishing facts which by their nature required expert evidence to establish them, it was open to the court to rule that the plaintiff had discharged its burden without calling for expert evidence.”.
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  1. 3) The above question was answered in the negative by the Federal Court. This will be explained below.

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Background Facts

  1. 4) The 1st Appellant was a licensed television broadcaster while the Respondent was a provider of software and hardware solutions for the broadcast and telecommunication industries.
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  1. 5) By way of a Letter of Award, the 1st Appellant engaged the Respondent to provide a solution to the various technical problems it faced in its broadcast transmissions. Payment for the work done was guaranteed by the 2nd Appellant.
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  1. 6) In accordance with the Letter of Award, the Respondent was required to pass a “Proof of Concept Site Acceptance Test’ to determine whether its proposed solutions resolved the 1st Appellant’s technical problems. In this regard, it was initially agreed by the parties that the test protocol to be used would the POC SAT version 3.8(a). This version was however aborted mid-way because the 1st Appellant felt that it was unsuitable.
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  1. 7) The 1st Appellant then applied the re-formatted version 3.8(b) which, during the initial testing, failed to solve the 1st Appellant’s problems. Based on the evidence adduced, the test based on the 3.8(a) version was never fully performed. The Respondent refused to accept the test results using this version as it was not a mutually agreed upon test protocol. The Respondent took the position that versions 3.8(a) and 3.8(b) were substantially different from each other but the Appellants contended that they were similar.
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  1. 8) The Respondent then terminated the Letter of Award on the ground that the 1st Appellant repudiated the contract by failing to make payments when due and for preventing or interfering with the Respondent’s work in carrying out the contract. The Respondent then made a call on the guarantee and thereafter sued the Appellants for damages for breach of contract. The 1st Appellant counterclaimed for a refund of all the monies it had paid the Respondent under the contract and also sought damages for breach of contract.
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  1. 9) The High Court allowed the Respondent’s claim and dismissed the Appellants’ counterclaim. In arriving at its decision, the High Court relied primarily on the evidence of PW2 and PW3 whom it considered to have the expertise and know how on the technical aspects of the case. In reliance on their evidence, the High Court found that versions 3.8(a) and 3.8(b) were different.
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  1. 10) The Court of Appeal thereafter dismissed the Appellants’ appeal and affirmed the High Court’s decision.
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  1. 11) The Appellants then applied for leave to appeal to the Federal Court which was given based on the question of law set out in paragraph 2 above. In the appeal proper, the Appellants took the position that the trial court was wrong in deciding the case without the benefit of expert evidence despite the dispute involving technical issues. The Respondent however contended that expert evidence was not required as the dispute centred on whether a mutually agreed upon test protocol version had been used.
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The decision by the Federal Court

  1. 12) In deciding the appeal, the Federal Court had to consider whether the approach adopted by the High Court and the Court of Appeal on the discharge of the burden of proof by a party seeking judgment in respect of matters of a technical nature was correct especially considering that both courts opined that there was a need for technical evidence for parties to prove their respective case.
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  1. 13) In connection thereto, the Federal Court found that expert evidence was required. The Federal Court held that the Respondent’s witnesses, PW2 and PW3 were witnesses of facts and could not be characterised as experts as they did not satisfy the test under Section 45 of the Evidence Act 1950. In this regard, the Federal Court opined that for a witness to be an expert, he had to be truly independent and skilled in the area he was giving evidence.
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  1. 14) In connection thereto, PW2 was the Respondent’s Senior Manager and PW3 was the Respondent’s CEO. PW2 was personally involved in the technical aspects of the project and coordinated and oversaw the implementation of the project and participated in discussions with the 1st Appellant on the test protocol. The Federal Court was therefore of the view that they had an interest in the case which would disqualify them as truly independent witnesses.
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  1. 15) Given the fact that the High Court had established that there was a need for technical evidence, it was therefore the judgment of the Federal Court that it was incumbent for the Respondent to have led evidence through experts. In this respect, as the Respondent did not lead evidence through experts, it had failed to discharge its burden of proof under Sections 101 and 102 of the Evidence Act 1950.
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  3. 16) The appeal was accordingly allowed by the Federal Court with costs with the question of law set out in paragraph 2 above being answered in the negative.
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Key take-aways

  1. 17) This decision by the Federal Court establishes that in cases involving technical issues, expert evidence is required. A party seeking judgment in such cases should lead evidence through experts in order to satisfy their burden of proof under Sections 101 and 102 of the Evidence Act 1950. This is especially so when the trial court recognises that there is a need for expert evidence to determine the technical issues.
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  1. 18) Based on this case, it is also clear that in order for a witness to be characterised as an expert witness, the test laid down under Section 45 of the Evidence Act 1950 must be satisfied. A person who is a representative of one of the parties to the dispute and who has been involved in the project which is the subject matter of the dispute cannot qualify as an expert as he has an interest in the case and would not be independent. Such persons would be witnesses of facts and not expert witnesses.
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This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

About the Author

Satshani N. Radhakrishnan

Partner

Harold & Lam Partnership

satshani@hlplawyers.com

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