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Application To Cross-Examine Deponents of Affidavits: Calling Out Pinocchio

January 2026

By Shafiq Zafran Bin Roseman

Deponents of affidavits are essential in litigation. The Court relies on their statements to understand the full picture as they provide perspective and context to the materialised events.

However, a deponent’s version of what transpired should not extend into the realm of lies and dishonesty. Affidavits are after all sworn statements.

Where there are reasons to doubt the truth of an affidavit, Order 38 rule 2(2) of the Rules of Court 2012 empowers the Court to order, on an application by the other party, the attendance of the deponent to be cross-examined, to uncover if parties are indeed in the presence of Pinocchio.

Three conditions to be satisfied for a successful application

The Rules of Court 2012 is silent on the requisite elements for an application to cross-examine a deponent. The elements are laid out through case law.

The Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638 laid down 3 conditions to be satisfied for an application of this nature. These are as follows:-

(a) the truth of an averment is being challenged or an issue of fact must be identified;

(b) the disputed fact must be relevant to the issue to be decided; and

(c) there are insufficient affidavit evidence or contemporaneous documents to enable the Court to properly decide without cross-examining the deponent.1

First condition: The averment/issue which truth is being challenged must be identified with sufficient clarity

In applying to cross-examine a deponent, the assertion which truth is being questioned must be specifically identified in the application. Failure to satisfy this condition has been held by the Court to be fatal.2 Two cases illustrate this:-

(a) In Tun Dr Mahathir bin Mohamad & Ors v Datuk Seri Mohd Najib bin Tun Hj Abdul Razak [2016] 11 MLJ 1, the defendant, the then-Prime Minister of Malaysia, Datuk Seri Najib Razak, attempted to strike out a suit by the plaintiffs, which included his predecessor, Tun Dr Mahathir. In this battle of premiers, the plaintiffs applied to cross-examine the defendant on his averment in an affidavit that the Prime Minister and Minister of Finance is not a public officer or public service member. The High Court held that the said application satisfied the first condition as the disputed assertion was clearly identified.3

(b) Conversely, in Cheng Teik Chor v Cheng Hooi Chor (as a disabled person who making claim through his litigation representative Wong Sim Cheng) (Boon Leong Development Sdn Bhd, intervener) [2020] 1 LNS 2041, an application which sought to cross-examine a deponent on his mental capacity in affirming the affidavit without identifying any specific statement or issue in the affidavit was dismissed by the High Court.4

Second condition: The disputed averment/issue must be relevant to issue(s) to be decided by the Court

The averment/issue identified must be relevant to the issue(s) to be decided in the application or the action (commenced by way of Originating Summons) for which the affidavit was filed.

The case of Tetuan Kumar (supra) demonstrates this. In the case, the matter concerned a dispute involving the taxation of legal fees. The court registrar awarded a reduced fee that was deemed unsatisfactory by the appellant (law firm). The appellant then applied to the High Court for a review of the registrar’s decision, stating that the fee charged by the appellant reflected the seniority of the specific solicitor appointed. The respondent (client) disputed this, saying that no specific lawyer was appointed. The appellant applied to cross-examine the deponent of the respondent’s affidavit on this averment. The Court of Appeal held that the issue of whether a specific solicitor or the firm was engaged is irrelevant to the taxation of the legal fees. The application was accordingly dismissed.5

If the affidavit in question was filed for purposes of an interlocutory application, the averment in question must be relevant to the issue which the Court is asked to determine in the interlocutory proceeding and not in respect of any other issue which should be determined at the trial of the action proper.6

Third condition: Insufficient affidavit evidence/Lack of contemporaneous documents

Cross-examination must be necessary. The application will not be permitted if there are already sufficient documentary evidence which enables the Court to decide the core issue(s) of the application or action (commenced by way of Originating Summons).

In Tetuan Kumar (supra), the salient facts of which were recited above, the Court of Appeal dismissed the application to cross-examine on the basis that there were adequate documents before the Court (i.e. the court litigation files)7 to determine the issues pertaining to the taxation of the appellant’s legal fees.8

Additional condition: Good Faith 

Calling out Pinocchio must not be done out of spite. The Court will refuse an application for cross-examination if it is established that the application was made in bad faith with an improper purpose to delay, harass, intimidate and/or oppress the deponent or the opposing party.9

To conclude, an application to cross-examine a deponent of an affidavit will not be granted as of right. The conditions laid out by case law ought to be observed and adhered to strictly to prevent abuse of this procedure.

Having said the above, a deponent does not have carte blanche to state whatever he wishes in his affidavit, as the Rules of Court 2012 provides a mechanism for litigants to reveal a deponent’s wooden nose.

    1. Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638, at para 25.
    2.  Co-operative Central Bank Ltd v Railway Co-operative Multi-Purpose Society Ltd [1999] 2 MLJ 673, at pg 676.
    3. See para 50.
    4. See paras 15, 19 and 20.
    5. Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638, at paras 29-31.
    6. Balwant Singh Purba v R Rajasingam [1987] CLJ (Rep) 468, at pg 469; and SAP (M) Sdn Bhd & Anor v I World HRM Net Sdn Bhd & Anor [2006] 2 MLJ 678, at paras 14 to 18.
    7. See paras 29 & 42.
    8. See the converse in Kerk Han Ming v Lee Yu Meng & Ors [2025] 10 MLJ 567, at paras 98 & 108, where the High Court allowed the application to cross-examine despite the considerable amount of evidence (11 affidavits with 82 exhibits were quoted) before the Court as the issues in contention are not easily determined from the documents alone.
    9. Charles Koo Ho-Tung & Ors v Koo Lin Shen & Ors [2015] CLJU 755, at para 59; and Chan Weng Fui v Pan Malaysia Capital Berhad & Ors [2023] CLJU 1668, at para 25.