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RULES OF COURT 2012
Amarjeet Singh Serjit Singh
Timbalan Ketua Bahagian Guaman 1Jabatan Peguam Negara
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Who makes the Rules?
There are 2 Rules Committees:
(i) The Rules Committee set up by section 17Courts of Judicature Act 1964 [Act 91]
(ii) The Subordinate Courts Rules Committee
set up by section 3 Subordinate CourtsRules Act 1955 [Act 55]
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Objectives of the new Rules of Court
1. To house all rules governing civil
procedure in one statute.
2. To simplify and make clearer theprocedures.
3. To delete superfluous and obsolete
provisions.
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General observations
1. The Rules Committees have maintainedthe numbering of the Orders as it appearsin the Rules of the High Court 1980.However many of the Forms have new
numbers.2. Any changes on the same subject are made
to the existing provisions e.g. O. 42 r. 12.
3. Previous deleted provisions remaindeleted e.g. O. 62 r. 4A but stated as[thereis no rule 4A] or are given new life e.g. O. 63r. 5.
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4. New provisions are given new numberse.g. O. 15 r. 13A.
5. The major changes would be to theSubordinate Courts where all partiesmust get adjusted to the numbering of theRules of the High Court 1980 e.g.
(i) Pleadings is now O. 18it wasO. 14 in the Subordinate CourtRules 1980
(ii) Striking Out is now O. 18 r. 19it was O. 14 r. 21 in theSubordinate Court Rules 1980.
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6. There is an overriding objective to
continue with law that is settled by
the courts since 1980. The decisions
by the courts in interpreting various in
pari materia provisions therefore
remain.
7. Many of the new changes made
follow the Singapore Civil ProcedureRules. Reference can therefore be
made to case-law from Singapore.
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Commencement
When did the Rules of Court 2012 come intoforce?
1stAugust 2012 except for Order 91 (O. 1
r. 2) vide P.U. (A) 205/2012.
(Order 91 concerns Court fees.)
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Rules of Court to be up to date must
include:(i) Corrigendum (Pembetulan) Rules of
Court 2012 vide P.U. (A) 226/2012
dated 25.7.2012 which came into force
1.8.2012.
(ii) Rules of Court (Amendment) 2012 videP.U. (A) 232/2012dated 1.8.2012
which came into force 1.8.2012.
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(iii) Rules of Court (Amendment) (No. 2)
2012 vide P.U. (A) 286/2012 dated
12.9.2012 which came into force on1.8.2012.
Without all these your Rules of Court 2012 isnot up to date (as at 6thNovember 2012).
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Order 91 must be brought in force because P.U.
(A) 205/2012 said that it will come into operationon a date to be appointed.
By virtue of P.U. (B) 282/2012 (dated 12.9.2012)
the Rules Committees appoint 1.8.2012 as thedate on which Order 91 is deemedto have come
into operation.
That was on the same day (i.e. 12.9.2012) when
Amendment No. 2 vide P.U. (A) 286/2012 was
published and which came into force on 1.8.2012
where Order 91 was substituted with a new one.10
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The Amendment No. 2 had substituted
Appendix B in Order 91 with Appendix B1(Fees for High Court) and Appendix B2
(Fees for Subordinate Court) with a new
Order 91.
The Court Fees to be paid presently is the
fees introduced by Amendment No.2 as
stated in Appendix B1 and B2.
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Effects of the Rules of Court 2012
By virtue of O. 1 r. 2(1) the Rules apply to:
(i) Magistrates Court;
(ii) Sessions Court; and(iii) High Courts
The Magistrates Court and the Sessions Court
are the Subordinate Courts in the Rules. Themeaning in the Courts of Judicature Act 1964 is
taken by the definition provision in O. 1 r. 4.
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What happened to the Subordinate Court
Rules 1980 and the High Court Rules 1980?Both Rules were repealed under O. 94 r. 1.
Do the 2012 Rules apply to written law that
provides its own rules?
The 2012 Rules do not apply where rules
have been made under any written law and
do not apply to any criminal proceedings
(O. 1 r. 2(2)).
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When a written law, made before the
coming into force of these Rules, makesreference to Rules of Court that reference
will be to the 2012 Rules (O.1 r. 2(3)).
The 2012 Rules by O. 1 r. 8(1) make it clear
that certain Orders are only applicable tothe High Court (i.e. they do not apply to the
Subordinate Courts). These Orders are:
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Order 30: Receivers
Order 31: Sales of immovable propertyOrder 43: Accounts and inquiries
Order 44: Proceedings on the equity side
Order 50: Charging and stop orders
Order 51: Receivers. Equitable execution
Order 51A: Rateable distribution
Order 53: Application for judicial review
Order 56: Appeals from Registrar of High Court
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Order 66: Obtaining evidence from foreign court
Order 67: Reciprocal enforcement of judgmentsOrder 69: Arbitration proceedings
Order 70: Admiralty proceedings
Order 71: Non-contentious probate proceedings
Order 72: Contentious probate proceedings
Order 80: Administration actions
Order 82: Debenture holders action
Order 83: Charge actions
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Order 86: Inheritance (Family Provision) Act
Order 87: Trade Marks Act 1976Order 88: Companies Act 1965
Order 89: Summary Proceedings for possession
of land
This Order is inserted to avoid any doubt
and to ensure that the matters outside thejurisdiction of the Subordinate Courts
remain outside that jurisdiction.17
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The Rules by O. 1 r. 8(2) make it clear thatcertain Orders are only applicable to the
Subordinate Courts. These Orders are:
Order 85A: Proceedings arising out ofHire Purchase agreements
Order 86A: Inheritance (Family Provisions)Act 1971
Order 93: Small claims procedure
E.g. hire-purchase procedure was O. 46 in theSubordinate Court Rules 1980.
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Definitions
Some of the new definitions are as follows. Theyapply unless the context otherwise requires.
However as seen the definitions are not
according to alphabetical order.officer: means an officer of the High Court,
Sessions Court or Magistrates Court,
and includes a Registrar, Court
interpreter, bailiff, clerk, process
server and other officer who is
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Registrar means all the registrars in the High
Court and Subordinate Courts and includes theChief Registrar and the Deputy Chief Registrar of
the Federal Court
Sheriff: means the Registrar of the High Courtand the Subordinate Court.
bailiff: includes the Registrar, any clerk or
other officer of the Court chargedwith performing the duties of a
bailiff.
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solicitor: means an advocate and solicitor asdefined in section 3 of the LegalProfession Act 1976
What has happened to the advocate and solicitorin Sabah and Sarawak?
O. 1 r. 5A provides the answer.
This provision states that where references aremade in the 2012 Rules to any provisions in theActs, Ordinances or Enactments or any otherwritten laws in force in Peninsular Malaysia, there
shall be substituted therefor references to thecorresponding Acts, Ordinances or Enactments orother written laws in force in Sabah and Sarawak,as the case may be.
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Court, is given a meaning separately in O. 1 r.4(2), refers to:
(i) the Magistrates Court, or any one or moreMagistrates thereof;
(ii) the Sessions Court, or any one or more of the
Judges thereof;(iii) the High Court or any one or more Judges or
Judicial Commissioners thereof;
whether sitting in Court or in Chambers. Thishowever shall not affect by virtue of which theauthority and jurisdiction of the Registrar of theCourt is defined and regulated (see O. 32 r. 9).
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Judge: means a Judge or JudicialCommissioner of the High Court and
includes, where he is empowered toact, a Judge of a Sessions Court, aMagistrate or a Registrar, as the casemay require.
proceedings: means any proceedingswhether in open Court or inChambers and includes an
application at any stage of aproceeding which is deemed tohave started when an action isfiled.
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pleading:does not include a notice ofapplication or a preliminary act.
attend: includes the appearance by any personusing electronic, mechanical or othermeans permitted by the Court.
filing: in relation to a document, meansdelivering it, by post or otherwise, tothe Court office.
Registry: means the Registry of the High Court,the Sessions Court or the MagistratesCourt.
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document:meansanything in which information
of any description is recorded and
includes a claim, summons, application,judgment, order, affidavit, witness
statement or any other document used
in a Court proceedings.copy: in relation to a document, means
anything onto which information
recorded in the document has been
copied, by whatever means and
whether directly or indirectly.
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mechanical means: includes by means of
any equipment, devise, apparatus or
medium operated digitally, electronically,
magnetically or mechanically.There is also specific definition provisions in
certain orders e.g. the new Order 63A which
concerns Electronic Filing or e-filing. Thedefinitions are only for that Order.
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Effect of non-compliance: Order 2
1. Basically the earlier principle remainsthe same i.e. that non-compliance withthe rules is treated as an irregularity and
will not nullify the proceedings.
2. The major change is that the rule nowintroduces the concept of overriding
justice i.e. to deal with cases justly.Parties are required to assist the Courtto achieve this objective.
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3. The court/judge is given discretionary
powers to achieve this objective and
how to deal with applications to set-
aside for non-compliance. The
application to set aside must be made:
i. within reasonable time
ii. before the party applying hastaken a fresh step after being
aware of the irregularity; and28
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iii. that the non-compliance hasoccasioned a substantialmiscarriage of justice orprejudice that cannot be curedby amendment or an order as to
costs.
The application can only be made after anotice of the irregularityhas been given to
the other party. The grounds of objectionmust be stated in the application.
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A preliminary objection can also be made
on non-compliance but the Court/judgewill not allow the application unless:
the non-compliance has occasioned
a substantial miscarriage of justice orprejudice that cannot be cured byamendment or an order as to costs.
What is substantial miscarriage of justiceor prejudice?
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The new Order 2has made it very difficult
to set-aside proceedings for non-compliance. All the pre-conditions states
above must be satisfied.
The judge also vide O. 1A has to have
regard for overriding interest of justice
and not only to the technical non-
compliance with the Rules. What is
overriding interest of justice.
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Time: Order 3
Remains the same except that:
1. Order 3. r. 3 has been deleted.This Order previously excluded the
period of Court Vacation from the
computation of time prescribed fromserving, filing or amending pleadings.
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2. Order 3. r. 6 has been deleted.
This Order previously required that a
Notice of Intention to proceed afterone year since the last proceeding
must be given to every party of the
intention to proceed.
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Savings and Transitional Provisions
Order. 94 r. 2(1) provides that Order. 5r. 1 willnot apply to proceedingsunder the writtenlaws listed in Appendix C, except as providedunder these Rules.
There are 8 laws listed in Appendix C:
1. Bankruptcy proceedings under the
Bankruptcy Act2. Winding up and capital reduction
proceedings under the Companies Act
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3. Any criminal proceedings under the
Criminal Procedure Code
4. Proceedings under the Elections
Offences Act
5. Matrimonial proceedings under the
Law Reform (Marriage and Divorce) Act
6. Land reference proceedings under theLand Acquisition Act
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7. Admission to the Bar proceedings made
under the Legal Profession Act, SabahAdvocates Ordinance and the Sarawak
Advocates Ordinance
8. Proceedings under the Income Tax Act1967
Why is this important?
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Presently, by virtue of O. 5 r. 1 proceedings
can only be begun by 2 modes:(i) Originating Summons; and
(ii) Writ
The 2012 Rules cannot override Acts ofParliament. Rules of Court 2012 aresubsidiary legislation. Where the Act of
Parliament provides a specific procedure tobe followed then that procedure prevails(see also O. 94 r. 2(2)).
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What happens where a written law, other
than that stated in Appendix C, which has a
mode other than Originating Summons or
Writ?
The mode shall be:(i) treated as having commenced by way
of Originating Summons; and
(ii) shall be dealt with accordingly inaccordance with the 2012 Rules.
(see O. 94 r. 2(3))38
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What happens to pending actions andapplications that were commenced before1.8.2012?
All these actions and applications shall fromthe 1.8.2012 proceed in accordance withthe provisions of these Rules (O. 94 r. 3(2)).
Finally, all references in any written law tothe Rules of the High Court 1980 and theSubordinate Court Rules 1980 shall beconstrued as references to the 2012 Rules.
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Commencement of proceedings: Order 5
Now O. 5 r. 1 only allows proceedings to be
commenced by 2 modes:
(i) Originating Summons; and(ii) Writ of Summons
and this is subject to O. 94 r. 2 and where it
is expressly otherwise provided in theseRules(e.g. judicial review proceedings).
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O. 5 r. 2 which previously specified the typeof proceeding that must be begun by Writis deleted and replaced by a generalstatement that proceedings in whichsubstantial dispute of facts arise must be
begun by Writ.
Previously this rule specified particularcauses of action that must be begun by
Writ i.e. tort (other than trespass to land),fraud, damages for breach of duty etc).
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Previously in the High Court the modeswere: i. Writ of Summons
ii. Originating Summons
iii. Originating Motion
iv. Petition;v. Judicial Review.
Previously in the Subordinate Courts the
modes were Summons, OriginatingApplication and Petition.
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As a result Order 8which governed OriginatingMotions and Order 9which governed Petitionsunder the Rules of the High Court 1980 doesnot exist anymore.
There is no Order 8 and Order 9 in the 2012
Rules.As pointed out earlier these modes may stillexist in specific written laws e.g. winding up,
matrimonial matters and election petitions.The modes provided in these written law mustbe followed.
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It is mandatory and this is the same as the
established law that:1. Proceedings in which a substantial
dispute of facts arise shall be begun
by Writ (O. 5 r. 2).2. Proceedings by which an application is
to be made to the Court or the judge
under any written law shall be begunby Originating Summons. O. 5 r. 3
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It is appropriate to begin proceedings byway of Originating Summons (i.e. samewith present law) where:
1. The sole or principal question in issueis one of construction of a written lawor instrument under any written law,deed, will, contract or any question oflaw; or
2. There is unlikely to be any substantialdispute of fact.
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Writs of Summons
O. 6 r. 1 provides that every writ shall be inForm 2 (for the High Court) and Form 2A(for the Subordinate Court. O. 6 r. 2
provides for the various endorsementsthat a writ must have i.e. a statement ofclaim as in O. 18, capacity in which a party
sues or is sued, solicitor and address, andthe number of days an appearance isrequired to be entered under O. 12 r. 4.
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With O. 6 r. 2 being made simple and
includes items in the previous O. 6 rr. 2 and3 RHC 1980, there is no rr. 2 and 3 in theseRules. The position is the same as before
only that it is made simple and clearer.There is no more O. 6 r. 6(1). Howevernotice of writ to be served out of
jurisdiction still requires leave of courtunder O. 11.
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Appearance
1. Time limited for appearance. Major
changes took place.
(a) In respect of a writ served inPeninsular Malaysia the time limit
for entering appearance is 14 days.
The previous condition of whether inor outside local jurisdiction no
longer exist.
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(b) In respect of a writ served in Sabah and
Sarawak the time limit for enteringappearance is 14 days. But if thedefendants residence (person) orregistered office of business
(incorporated society) is not within theDivision or Residency in which theRegistry from which the writ was issued
is situated, the time limit for entering appearance is 20 days.
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(c) To a notice of a writ served outside
jurisdiction under O. 11 r. 4, the timelimited for appearance is 21 days.
(d) In the case of a writ served on the
agent of an overseas principal underO. 10. r. 2, the time limited for
appearance is 14 days.
The 8 days, 10 days or 12 days time limits
no longer exist.
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2. Conditional Appearance (O. 12 r. 6),
Application to set-aside writ (O. 12 r.7), and Appearance to Originating
Summons (O. 12 r. 8) is no more.
There is no more conditionalappearance.
However 2 new rules are introduced
i.e. O. 12 r. 9 and r. 10.
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3. Order 12 rule 9. (for avoidance of doubt )
it is provided that an entry of appearanceis not a waiver of irregularity:
(i) in the writ or service of the writ
(ii) in any order giving leave to servea notice of writ out of jurisdiction
(iii) in any order extending the validity
of the writ for the purpose of
service
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4. Order 12 rule 10. Where a defendantintends to dispute the jurisdiction of the
court, he can do so by 2 grounds:(a) by reason of any irregularity
mentioned in rule 9; or
(b) on any other ground.The defendant can only apply to court:
(i) after entering an appearance; and
(ii) making the application within thetime limited for serving a defence.
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The applications the defendant can make:
(a) an order setting aside the writ orservice of the writ;
(b) an order that the writ has not been
duly served on him;
(c) the discharge of any order giving
leave to serve a notice of the writ on
him out of jurisdiction;
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(d) the discharge of any order extending
the validity of the writ for the purposeof service;
(e) the protection or release of any
property seized or threatened toseizure;
(f) the discharge of any order made to
prevent any dealing with anyproperty;
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(g) a declaration that the court has no
jurisdiction over the defendant inrespect of the subject matter of the
claim or relief or remedy sought in
the action; and(h) any other relief as may be
appropriate.
The application must be made by Notice ofApplication supported by an affidavit.
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For example:
The most common order asked for is forthe setting aside of the writ on the groundthat the High Court of Malaya has no
jurisdiction to hear the action as the properforum is the High Court of Sabah orSarawak.
Or that the service is bad because it is notserved according to the contract enteredbetween the parties.
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A defendant who whishes to contend that
the High Court should not assume
jurisdiction over the action on the ground
that Malaysia is not the proper forum for
the dispute shall enter appearance and
within the time limited for serving a
defence apply to the Court for an order to
stay the proceedings(see O. 12 r. 10(2)).
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5. Time to file defence is extended to 14days from dismissal of the application
to set aside or any other period thecourt may order after the application tois dismissed (O. 12 r. 10(7)).
6. O. 12 r. 8 is no more. The previous ruleconcerned appearance for OriginatingSummons. A new rule i.e. O. 12 r. 12 is
introduced which provides that anappearance need not be entered foran Originating Summons.
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Notice of action to non-parties
O. 15 r. 13A is a new provision. It applies to estatesof deceased persons or trust property. The Courton application or on its own motion direct that anotice of action be served on any person who is
not a party but will be affected by any judgmentmade. This order can be made at any stage of theproceedings. The affected party will become aparty to the action if he files an appearance within14 days of service of the notice on him. Howeverin default of appearance he will be bound by any
judgment given as if he were a party.
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Actions by paupers
The provisions relating to action bypaupers are no more. Previously theproceedings were governed by O. 15 r. 18
to O. 15 r. 26.It would appear that there are no actionsof this nature filed in court and this is the
justification for the deletion of theseOrders.
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Withdrawal or admission of interpleader
O. 17 r. 7A is a new provision that isintroduced. Interpleader is a proceedingmade by either a person who owes money
or goods and is sued by 2 or more personsmaking claims on that money or goods or athe Sheriff where a claim is made a person
on money or goods taken by the Sheriff.Sheriff here includes any other officer ofcourt charged with the execution process.
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UnderO. 17 r. 7A before the hearing of the
application, if the claimant files a noticethat he withdraws his claim and gives a
notice of withdrawal to the execution
creditor or the execution creditor files anadmission of the claimants title, the
interpleader proceedings shall be dealt
with as if a claim to the monies or goodshad not been made.
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Pleadings: O. 18
1. O. 18 r. 5 of the Rules of the High Court1980 relating to service of pleadings
during court vacation is no more.
This used to be a very useful provision.Court vacation is when most lawyers go
on vacation. Now lawyers have to be
vigilant. Someone must be in theoffice at all times so as not to miss the
time limit provisions.64
2 O 18 12(1A) i i i It
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2. O. 18 r. 12(1A) is a new provision. Itstates that no party shall quantify any
claim or counterclaim for generaldamages.
3. O. 18 r. 22(4) of the Rules of the High
Court 1980 relating to trial withoutpleadings is no more. Previously thisprovision excluded actions for libel,slander, fraud, malicious prosecution,false imprisonment, seduction or breachof promise of marriage from its ambit.
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Amendments
1. O. 20 r. 6 of the Rules of the HighCourt 1980 relating to amendmentsduring court vacation is no more.
Previously this provision allowedamendments for which leave of courtwas not required during courtvacation.
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2. O. 20 r. 12 is a new provision. Sub-rule(1) allows amendment of pleadings byagreement of parties. It states thatpleadings can now by a writtenagreement of all parties be amended
before the commencement by trial.Sub-rule (2) requires the parties to filethe amended pleading and serve it on
all the parties within 14 days of theamendment.
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However there are exceptions:
This is provided by O. 20 r. 12(3). Itstates that this rule does not apply to
an amendment which consist of:
(i) addition;
(ii) omission; and
(iii) substitutionof a party.
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Payment into and out of Court and Offer
to settle
Order 22 which governed payment into and outof court is no more and a new order is
introduced in Order 22B known as the Offer toSettle.
An offer to settle can be made at any time andaccepted at any time before the court disposes
of the action in Form 34. An offer can also havea time limit to be accepted or can be withdrawnbefore acceptance.
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An offer to settle is made without prejudice. It
shall not be filed in court or made known in any
pleading or affidavit.
Where an offer to settle is not accepted, any
communication of the offer shall not be made to
court until issues of liability and relief except for
costs have been determined.
Where an offer has been accepted, its terms can
be incorporated into a judgment.
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This provision is a play as to costs.
However where an accepted offer does notprovide for costs then each party shall bear itsown costs.
When an offer to settle by the defendant has not
expired before the disposal of the claim and notaccepted by the plaintiff and the plaintiff obtains
judgment not more favourable than the terms ofthe offer to settle the plaintiff is entitled to coststo the date the offer was served and thedefendant is entitled to costs from that date.
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Security for Costs
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Security for Costs
Three sub-rules are introduced to O. 23 r. 1. They
are O. 23 r. 1(2A), (2B) and (2C).
These provisions concern the situation where a
non-party to the proceedings has assigned the
right to the claim to the plaintiff with a view to
avoid his liability for costs or where the non-party
has contributed or agreed to contribute to the
plaintiffs costs in return of a share of any moneyor property the plaintiff may recover in the action.
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In this situation the defendant may apply to thecourt for an order that the non-party gives such
security for the defendants costs of the action.The application must be served on the non-partyand all the parties to the action.
The Court must before it makes its decision haveregard to all the circumstances of the case andthinks it is just to do so make the order for thenon-party to provide security for the defendants
costs. The Court will determine the appropriatesecurity.
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Discovery and inspection of documents
1. There is no more mutual discovery of
documents and discovery by parties
without an order of court. Therefore O. 24
r. 1 and 2 are no more.2. O. 24 r. 3 has introduced a new sub-rule (4)
and deleted sub-rules (2) and (3) which
were connected with discovery ofdocument by party without an order.
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Sub-rule (4) states that any order made by
the court to give discovery refers to:
(i) Documents which the parties rely or
will rely; and
(ii) Documents which could
(a) adversely affect his own case;
(b) adversely affect another partys
case; or
(c) support another partys case.
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4. O. 24 r. 7A is a new provision introducedwhich provides discovery against other
persons.An application can be made before thecommencement of proceedings by way oforiginating summons and the personagainst whom the order is sought is namedthe defendant (sub-rule (1)).
An application after the commencement of
proceedings can be made by way of noticeof application.
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In the affidavit the plaintiff must:
(i) specify or describe the documents ifpracticable by reference to any pleadingserved or intended to be served;
(ii) the documents are relevant to the issue
arising or likely to arise out of the claim orthe identity of likely parties to theproceedings; and
(iii) the person against whom the order is soughtis likely to have or have the documents in hispossession, custody or power
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5. A new provision is introduced in O. 24 r. 8Awhere there the party required to give
discovery under any such order shallremain under a duty to continue to givediscovery of all documents falling withinthe ambit of such order until theproceedings are concluded.
6. O. 24 r. 12(1) sees some additions made tomake the provision clearer. The court
rarely exercises this power to orderdiscovery on its own motion.
78
h d b f h
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The Court does so because it is of the
opinion that the discovery is necessary for
disposing fairly the matter or for savingcosts. The documents however must fall
under one of the following:
(i) Documents which the parties rely orwill rely; and
(ii) Documents which could
(a) adversely affect a partys case;(b) support a partys case.
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(iii) Documents which may lead to a series
of inquiry in obtaining of information
which may
(a) adversely affect a partys case; or
(b) support a partys case.
6. O. 24 r. 16 deals with failure to comply with
requirements . This is very serious because
the court has the power to order the action
to be dismissed or that the defence be
struck out and judgment entered.
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The changes made to this rule are that sub-
rules (2), (3) and (4) are deleted. These
provisions deal with committal of the party
and his solicitor who fails to comply with
the order for discovery.
Sub-rule (5) is introduced which states thata party who is required to make a discovery
of documents or to produce any document
and fails to do so may not rely on thosedocuments save with the leave of the court.
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Summons for directions
O. 25 governs this provision and it has been
taken out. Previously there was a Practice
Direction which suspended the use of this Order.
However some courts followed it. With theprovisions case management this provision has
become obsolete. It was a very time and costs
consuming provision.
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Interrogatories
O. 26 governs this provision. It is a provisionwhere the applicant prepares questions relating
to any matter between him and any other party
and the other party is required to answer thosequestions (see Form 45). O. 26 r. 1 now has
introduced a 14 day time limit for the questions
to be answered. It is not just any questions butthose necessary for disposing fairly the cause or
matter or for saving costs.
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The answer must be made by affidavit. A party
may object answering on ground of privilege
but he must expressly state this fact in the
affidavit.
If the question is answered insufficiently the
Court may order him to make a further answeror be subject to oral examination.
O. 26 r. 6(2) is introduced which allows a party
to ask for further and better particulars on theanswers given.
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Failure to deal with interrogatories is very
serious. The action may be dismissed or thedefence struck out as the case may be.
Further without prejudice to such action the
party or solicitor in default of the courtorder is liable to civil committal.
The answers can be put in evidence at the
trial.
85
O i i i S P d
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Originating Summons Procedure
1. The fixing of time for attendance of partiesbefore the Court is taken out because no
appearance is required for an originating
summons (so O. 28 r. 2 is no more).2. The notice of first hearing in O. 28 r. 3 is
also taken out for the same reasons.
However in its place is introduced O. 28 r.3A which states that an Originating
Summons will be heard in Chambers.
86
Thi i i i bj t t
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This provision is subject to:
(i) any express provision in the 2012
Rules;(ii) any written law;
(iii) any direction of Court;
(iv) any practice direction issued by theRegistrar.
This is a very wide provision and is also
designed to give effect to practicedirections which otherwise cannotoverride the Rules.
87
3 l O 28 3 i i d d
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3. A new rule O. 28 r. 3B is introduced to
cover applications disputing jurisdiction
and for setting aside the originatingsummons. The grounds are similar to the
grounds for challenging the jurisdiction
and for the setting aside of the writ action.4. A new rule O. 28 r. 3C is introduced to
cover affidavits in support, affidavits in
reply and subsequent affidavits. Timelimits are fixed now.
88
( ) S b l (1) i h l i iff fil d
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(a) Sub-rule (1) requires the plaintiff to file and
serve the affidavit in support not later than 7
daysafter the service of the originatingsummons.
(b) Sub-rule (2) requires the plaintiff to file the
affidavit in support at the time of filing an ex- parte originating summons.
(c) Sub-rule (3) requires a defendant to file and
serve any affidavit in reply not later than 21days after being served with a copy of the
affidavit in support.
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(d) Sub-rule (4) requires a defendant tofile and serve any subsequent
affidavit within 14 days from thedate the affidavit e intends to reply towas served on him served on himunless the Court otherwise directs.
This is an important change as specific timelimits have been set to be complied with. Failureto comply would result in the affidavit filed out
of time not being considered or an applicationmust be made to extend time under O. 3 r. 5.
90
I t l t I j ti O d 29
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Interlocutory Injunctions: Order 29
1. Order 29 r. 2 has the following changesand now provides that an application:
(i) is required to be made by notice of
application;(ii) is open to the defendant as well
(previously only the plaintiff couldfile the application; and
(iii) in cases of urgency can be made exparte.
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2 O 29 1(2BA) i h d t t t th t th
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2. O. 29 r. 1(2BA) is changed to state that the
Court must fix the inter partes date within
14 days of the ex parte interim injunctionorder was made. Previously it was 21 days.
3. O. 29 r. 1(3) is changed to state that if an
interim injunction is obtained on urgencybefore the issue of the originating process
the injunction may be discharged on an
application made by the defendant if theoriginating process is not issued within 2
days of the granting of the injunction.
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How much these provisions change the
position under the 1980 Rules remain to be
seen. The rule appears not to have the
desired effect:
(i) due to ad interim injunctions given
(ii) inter partes hearing required
under O.29 r.1(2BA) is hardly fixedwithin 21 days (now 14 days)
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(iii) There is no point in making an
application to set aside the ex- parte interim injunction because
the ex-parte injunction lapses
automatically at the end of 21days. It takes longer to make an
application to set aside the ex-
parte injunction and for it to beheard.
94
Interest
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Interest
The 2012 Rules has made changes to the
provisions regarding interest. Now the
interest to be imposed is determined by the
Chief Justice from time to time instead of theprevious fixed rate.
See: O. 30 r. 6(2) on Receivers
O. 42 r. 12 on post judgment
O. 44 r. 18 on equitable judgments
95
P i l O 42 12 d E j d t
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Previously O. 42 r. 12 read: Every judgment
debt shall carry interest at the rate of 4%
per annum (after it was amended from 8%
vide P.U. (A) 210/2011 with effect from
1.3.2011) or at such other rate not
exceeding the rate aforesaid as the court
directs (unless the rate has been otherwise
agreed upon by the parties), such interest
to be calculated from the date of the
judgment until the judgment is satisfied.
96
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Now the new O. 42 r. 12 reads as follows:
Subject to rule 12A, except when it has beenotherwise agreed between the parties, every
judgment debt shall carry interest at such
rate as the Chief Justice may from time totime determine or at such other rate not
exceeding the rate aforesaid as the Court
determines, such interest to be calculatedfrom the date of judgment until the
judgment is satisfied.
97
O 42 r 12A concerns late payment charge on
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O. 42 r. 12A concerns late payment charge on
judgment debts arising out of Shariahfinancial
matters. The late payment charge is calculated atthe rate provided under O. 42 r. 12 (i.e. date of
judgment until the judgment is satisfied) subject
to the following conditions:(a) the judgment creditor shall only be
entitled to tawidhi.e. compensation
for actual loss and be calculated at
the rate determined by the Shariah
Advisory Council(SAC);
98
(b) the amount of late payment charge
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(b) the amount of late payment charge
shall not exceed the outstanding
principal amount; and
(c) if the amount of tawidhis less than
the amount of late payment charge,
the balance shall be channeled toany charitable organisation as
determined by the SAC.
The SAC is established under the Central Bank ofMalaysia Act 2009 and the Capital Markets and
Services Act 2007.
99
Sale of immovable property by Order
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Sale of immovable property by Order
O. 31 r. 2(2) and (3) have been removed.Previously sub-rule (2) and (3) required the party
entitled to prosecute the court order for sale of
the immovable property take out a summons toproceed with the order of sale. Now sub-rule (4)
states that the Court may give directions it thinks
fit for the purpose of effecting the sale. This is a
savings of time change. The Court gives the
directions without an application being made.
100
Applications and proceedings in
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Chambers: Order 32
1. Now every application in Chambers is tobe made by aNotice of Applicationin Form
57. There is no more Summons in Chambers.
2. O. 32 r. 7 is no more. This rule concerned awrit of subpoena ad testificandum or a writ of
subpoena duces tecum to compel the
attendance of a witness for proceedings inChambers.
101
3 O 32 r 8 is no more This rule concerned
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3. O. 32 r. 8 is no more. This rule concernedapplications for the granting of leave under
the Mental Disorders Ordinance 1952.4. O. 32 r. 13 which deals with the service or
use of affidavits have undergone somechanges.
(a) Rule 1 states that a party filing anaffidavit in any proceeding or intending
to use in the proceeding an affidavit filed
in a previous proceedings shall do one oftwo things:
102
(i) serve the affidavit on every party;
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(i) serve the affidavit on every party;
or
(ii) give notice of his intention to do
so in Form 58.
[The previous procedure of giving notice to
every party of the filing is no more. Now theservice of the affidavit is sufficient.]
(b) Rule (2) provides that unless provided
by the 2012 Rules or otherwise directedby the Court the following times apply:
103
(i) ffid i i f
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(i) an affidavit in support of an
application must be filed and
served within 14 days from the
date of filing of the application;
(ii) an affidavit in reply to the affidavit
in support must be filed and
served within 14 days from the
date of the sealed application and
the affidavit in support was servedon him whichever is later;
104
(iii) a party intending to reply to an
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(iii) a party intending to reply to an
affidavit served on him must file
and serve his affidavit within 14days from the date the affidavit
he intends to reply was served on
him;(iv) if an affidavit or an exhibit is
deposed or affirmed out of
Malaysia then the time to file and
serve a reply is 21 days.
105
[This provision clarified that:
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(a) The Court could change the time on its
direction to file and serve an affidavit.Previously there was no such provision.
(b) An affidavit in reply is to be served 14 days
from the sealed copy of the application andaffidavit in support was served on him which
ever is the later. Previously it was only from
the date the affidavit was served on him.
(c) The time within which a reply is to be made
on an affidavit served on a party.]
106
Pre-trial case management: Order 34
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Pre-trial case management: Order 34
This provision has been substantially changedfrom before and encapsulates all pre-trialdirections.
1. Previously the plaintiff must give a noticemust to attend before the judge 14 daysafter close of pleadings. Now the Rule
states that the judge on his own motion
after the commencement of theproceedings direct parties to appearbefore him to obtain directions:
107
(i) so that all interlocutory matters be
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dealt with; and
(ii) directions as to the future course of
the proceedings so as to secure a just,
expeditious and economical disposal of
the action.
At this stage the judge can take into account
whether a party has complied with any pre-
trial protocol or practice direction. This is not
the proper pre-trial case management yet.
108
2. Pre-trial case management is provided by
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g p y
Rule 2. At this stage the Court can:
(i) consider any matter including thepossibility of settlement of all or any of
the issues;
(ii) require the parties to furnish anyinformation it thinks fit;
(iii) make directions to secure the just,
expeditious, and economical disposalof the action including:
109
(a) mediation according to any practicedirection
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(b) filing of the bundle of pleadings
(c) filing of the bundle of documents(d) agreed documents to be marked Part A
(e) documents where the authenticity isnot disputed but the contents are
disputed to be marked Part B anddocuments where the authenticity andcontents are disputed to be markedPart C
110
(f) the documents in all bundles shall be
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( )arranged chronologically or logical order
and be paginated(g) there must not be duplication in thesame bundle
(h) contents and format of the documents
must be must comply with the practicedirection in force at the time
(i) parties may apply for directions in
respect of the bundles for the just,expeditious, and economical disposalof the action
111
(j) the filing of the statement of agreed
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j g gfacts;
(k) the filing of a statement of issues to be tried;
(l) the period within which the partieshave to exchange and file their lists of
witnesses;
(m) the period within which the partieshave to exchange and file the witnesses
statements;(n) whether the number of witnesses is to
be limited;
112
(o) the mode in which examination-in-chief
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( )
is to be given by a witness where a party
is unable, on sufficient cause beingshown,to obtain a witness statement
and the manner of disclosure of such
evidence to the other party prior to thetrial
(p) whether the number of witnesses is to
be limited
(q) how evidence in chief of the expert
witness is to be set out
113
(r) whether the experts should discuss
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( ) p
first to identify the issues and where
possible to reach an agreement onthose issues before the exchange of
their reports by affidavits
(s) period within which objections to thecontents of witness statements or
other evidence of a witness is to be
taken
(t) estimate length and date of trial
114
3 The Court will inform parties by Notice
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3. The Court will inform parties by Notice
the date and time of the pre-trial case
management.
4. Failure to comply with any directions or
orders of the Court in respect of the
conduct of the case and failure to appearduring case management will result in the
dismissal of the action or the striking out
of the defence.
115
5. Any judgment, order or direction made
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against any party for non-compliance or
non-appearance during casemanagement may be set aside or varied
by the court on such terms the Court
thinks just. This means that anapplication must be made to set aside
such orders by the defaulting party.
116
6 Parties and their solicitors are under a
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6. Parties and their solicitors are under a
duty to give all information and produce
all documents as the Court requires
except on the grounds of privilege.
7. Automatic directions in personal injurycases is dealt in Rule 10.
117
Proceedings at trial: Order 35
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Proceedings at trial: Order 35
The provision of judgment given in the absence of aparty is dealt with in O. 35 r. 2. Any judgment or
order given where one party does not appear nay
be set aside by the Court on an application made by
the party.
O. 35 r. 2(2) is a new provision. It states that the
application must be made within 14 days after the
judgment or order was made but without prejudiceto the courts power to extend this period.
118
However O. 35 r. 2(3) provide for the factors to be
k i i id i h
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taken into account in considering such an
application:
(a) the interest of justice
(b) whether the absence was deliberate or
due to accident or mistake(c) the prospects of success at the trial
(d) whether there was any delay in
making the application(e) whether there is prejudice that cannot
be compensated by costs119
Witness Statements: Order 35A
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This Order is no more because the previousprovisions are covered in O. 34 and O. 38 r.2.
Previously O. 35A r. 2 stated that unless
otherwise ordered by the Court, a copy of suchwitness statement shall be furnished to the
other party not later than 7 days prior to it being
tendered and read at the hearing. This provisioncaused a lot of problems.
120
Assessment of Damages: Order 37
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g
Changes are made to O. 37 r. 1.1. This provision concerns the assessment of
damages by the Registrar. Where the
judgment is silent as to how the damagesare to be assessed the party entitled tohave damages assessed must within onemonth from the judgment apply to the
registrar for directions.2. The Registrar can give directions under
Order 34 with necessary modifications.
121
3 Notice of appointment for assessment
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3. Notice of appointment for assessment
must be filed and served on the party
against whom judgment is given not later
than 7 days of the hearing.
4. If the party entitled to the benefit of the
judgment fails to obtain directions theparty against whom the judgment is given
may on application to the Court seek an
order to proceed with the assessment.
122
5. The attendance of the witnesses and
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production of documents may be
compelled by subpoena.6. Subject to any directions given by the
Registrar, the party entitled to the benefit
of any judgment shall file a notice ofappointment for assessment of damages
within 6 months of the date of the
judgment.
123
7. A party shall not file a notice of appointment
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for assessment by the Registrar unless
directions for filing and exchanging ofaffidavit evidence pursuant to O. 34 have
been given or complied with.
8. If the party entitled to judgment does not filethe notice within the prescribed period the
other party may apply for directions.
124
Evidence General: Order 38
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1. Rule 2 provides for witness statements. Itsa new provision. It states that:
Notwithstanding Rule 1 (i.e. which
provides the general rule that evidence ofwitnesses shall be proved by examinationof the witnesses in open Court) and unlessprovided by any written law or by these
Rules, evidence-in-chief of a witness shallbe given by way of witness statement.
125
Unless the Court otherwise orders or the
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Unless the Court otherwise orders or theparties agree and subject to such directions
the Court may make, such witnesses shallattend trial for cross-examination and indefault of his attendance his witnessstatement shall not be received in evidenceexcept with leave of Court.
2. In the case of matters begun by OriginatingSummons evidence shall be by affidavit
unless otherwise provided by the Rules orCourt.
126
The Court however may order the
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attendance of a witness for cross-
examination of the person making such anaffidavit.
3. Notwithstanding the above the Court mayif it thinks just order that the evidence of a
witness be given otherwise than by witnessstatement.
4. Unless otherwise ordered by the Court a
witness statement must be filed and servednot less than 7 days before it is to betendered and read at the trial.
127
5. O. 38 r. 4 and r. 6 which concerns expertevidence is no more. The provisions for case
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evidence is no more. The provisions for casemanagement covers these former provisions
namely, on limiting the number of expertsand expert evidence arising out of accidentscaused by collisions on land.
6. The Writ of Subpoena is now known asSubpoena only. It is in Form 63, 64 or 65 i.e.oral, documentary or both. The subpoena maybe revoked by application by any person or the
Registrar on his own motion. This decision issubject to review by a Judge within 14 days ofthe decision made by notice of application.
128
Order 40A: Experts of Parties
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1. This is a new provision. It limits experts tothe person who has been instructed to giveevidence for the purpose of Courtproceedings.
2. The duty of the expert is to assist the Courtand this overrides any obligation to theinstructing party or the paying party.
3. Evidence is to be given by a written reportand exhibited in an affidavit sworn oraffirmed by him.
129
4. The affidavit must state that the report is
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his and that he takes full responsibility for
his report.5. Rule 3(2) now provides guidance as to
what the report must contain i.e.
qualifications, literature or materialreferred, the issues he was asked to
consider, the basis upon which the
evidence is given tests carried out and by
whom, summarise the range of opinions,
reasons for the opinion, conclusions.
130
6. The report must also state that his belief as
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pto the correctness of his opinion and that
he understands that he has an overridingduty to the Court and that he complieswith that duty.
7. A party may put to the opposing expertwritten questions about his report with theleave of Court for the purpose ofclarification only. Any reply becomes part
of the experts report. There areconsequences for the failure to reply.
131
Affidavits: Order 41
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1. The previous position that a deponent whois giving evidence in a professional,
business or other occupational capacity
may give the address at which he works,the position he holds and the name of the
employer instead of his place of residence
is no more.
132
2. A new provision in Rule 13 is introduced . It
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p
states that an affidavit of a deponent
affirmed outside the jurisdiction may befiled in the English language and need not
be accompanied by a translation in the
national language unless the Courtotherwise orders.
133
Judgment and Orders: Order 42
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There is a new provision in Rule 1A.This concerns judgment in
proceedings heard in camera. Such
judgment shall not be available forpublic inspection. The Court retains
the power to allow inspection to a
non-party to the proceedings on suchterms as it thinks just.
134
Accounts and Inquiries: Order 43
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1. This Order concerns a claim for taking anaccount. A new Rule 2 now extends thetaking of accounts to counterclaims.Previously it was only for claims.
2. New Sub-rules (3) to (6) are added to Rule3 for directions on account taking.
3. A new Rule 5A is added that provides the
procedure to be complied with before thetaking of accounrs or inquiries takes can takeplace.
135
Enforcement of Judgments and Orders
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1. O. 45 r. 1 is amended to reflect thatcharging order and appointment ofreceiver cannot be done in theSubordinate Courts. It applies only to the
High Court (see Rule 1(2A)).
2. New Rules 11A is introduced which givesthe Court power to give directions for the
just, expeditious and economical disposalof the proceedings.
136
Writs of Seizure and Sale: Order 47
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Order 47 r 6 is amended to state how theapplication is to be made and what is to be
contained in the affidavit. The provision is for
the removal of any doubt and guidance forpreparing the affidavit.
137
Garnishee Proceedings: Order 49
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Rule 1 is amended to include a new Sub-rule (3).It states that any debt due or accruing due
includes a current account or a deposit account
with a bank or other financial institutionwhether or not the deposit has matured and
notwithstanding any restriction as to the mode
of withdrawal.
138
Judicial Review: Order 53
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There are some major changes in this1. O. 53 r. 2(4) has been changed by extending
the scope of the Order. Previously any person
who is adversely affected by the decisionofany public authority may make the application. Now it is any person who is affected by the
decision, action or omission in the exercise of a
public duty or function is entitled to make theapplication.
139
2. Rule 3(6) which provides the time period
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( ) c p o des t e t e pe od
to make the application has been changed.
Previously it was 40 days. Now it is 3months from the date the application first
arose or when the decision is first
communicated to the applicant.3. Rule 3(7) and (8) are introduced. The Court
is given the power to extend time to make
the application if there is a good reason for
doing so. The application must be heard inter
partestherefore it is served on all parties.
140
4. O. 53 r. 6 has is changed. Previously only
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within 14 days after leave has been
granted the parties may apply for discoveryand inspection of documents. Now the
words are after leave has been granted.
This means that that an application fordiscovery and inspection of documents can
be made at anytime even during the
substantive course of the judicial review
proceedings.
141
Appeals to High Court from Subordinate
Courts: Order 55
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Courts: Order 55
1. Substantial changes are made to thisprovision. Firstly the word decision in tis
Order includes the words judgment, order
or decree. It does not include the wordruling in the course of proceedings (r. 1).
2. All appeals are by way of rehearing and
must be brought within 14 days of the dateof the decision appealed (r. 2).
142
3. A notice of appeal against a decision aftertrial shall be in Form 111 and shall be filed
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trialshall be in Form 111 and shall be filedin the Court which made the decision.
4. The notice of appeal shall state the wholeor which part of the judgment or order isappealed against.
5. At the time of filing the notice of appealthe appellant shall lodge in Court RM1,000.00 by way of security for costswithin the time limited for appeal.Previously it was RM250.00 (see r. 3(3)).
143
6. The notice of appeal must also be servedon all the respondents within 14 days of
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on all the respondents within 14 days of
the decision.7. The appellant must also within the 14 daysapply to the Court appealed from inwriting for the notes of proceedings and
the grounds of judgment (see r. 3(5)).8. The appellant has 1 month from the date
of filing the Notice of Appeal to file the
Record of Appeal (see r. 4(1)). Previously itwas 6 weeks.
144
9. The Record of Appeal shall contain:
( ) th l di
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(a) the pleadings
(b) notes of evidence recorded wholly orpartly by mechanical means includingwitness statements
(c) grounds of judgment (if available)
(d) the memorandum of appeal
(e) decision, order or judgment
(f) duplicate copy of the notice of appeal
(g) duplicate copy of the notice of crossappeal (if any)
(h) documentary exhibits145
10. The Record of Appeal shall be filed even if
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the notes of evidence, grounds of
judgment and the sealed decision, order orjudgment is not ready.
11. These documents when ready shall be filedby way of a Supplementary Record ofAppeal without the leave of the HighCourt.
12. The Court can still proceed with the appeal
even if the grounds of judgment areabsent (see proviso to r. 4(2)).
146
10. The Record of Appeal shall be filed even if
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the notes of evidence, grounds of
judgment and the sealed decision, order orjudgment is not ready.
11. These documents when ready shall be filedby way of a Supplementary Record ofAppeal without the leave of the HighCourt.
12. The Court can still proceed with the appeal
even if the grounds of judgment areabsent (see proviso to r. 4(2)).
147
13. The requirements of the memorandum ofl h h ll
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appeal are the same. However the appellant
can file an amended memorandum in theSupplementary Record of Appeal stated in r.4(2).
14. The index of documents to be included in therecord of Appeal must be sent to theRespondent who must within 48 hoursobject to the inclusion or exclusion of any
document. Any disagreement must bereferred to the Registrar of the High Court.
148
15. The Record of Appeal must be served on eachRespondent within the time limited for filing
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espo de t t t e t e ted o gthe Record of Appeal.
16. An appeal from any decision other than adecision made after trial by the SubordinateCourt shall lie to a Judge in Chambers of theHigh Court (see r. 5(1)).
17. A notice of appeal in such case shall be inForm 111A and shall be filed in the Courtwhich made the decision with a copy
extended to the relevant High Court and servedon every party to the proceedings within 14 daysfrom the date of the decision.
149
18. The Appellant has 1 month to file the
Record of Appeal which consist of:
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Record of Appeal which consist of:
(a) the application for the decision(b) the pleadings
(c) all affidavits to the application
(d) the order or draft order of the decision
19. This Record of Appeal shall not consist of the
notes of evidence, grounds of judgment and
memorandum of appeal.
150
20. The respondent may within 14 days from
th d t f i f th R d f A l
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the date of service of the Record of Appeal
file a Notice of Cross Appeal in the HighCourt and serve a duplicate copy of such
notice on the appellant which conveys his
intent to content that the decision should
be varied.
21. The High Court may at any time allow
amendments to the memorandum, notice
of cross appeal and any part of the record
of appeal on such terms as it thinks fit.
151
22. The appellant may at any time before the
appeal is called for hearing file and serve a
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appeal is called for hearing file and serve a
notice of withdrawal of appeal on the
parties to the appeal. If all parties consent
to the withdrawal the appellant may file
the document signifying such consent and
the appeal is deemed withdrawn and will
be struck off the list of appeals by the
Registrar. In such case the deposit shall be
returned to the appellant.
152
23. If the parties do not consent to the
withdrawal the matter will be called for
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withdrawal the matter will be called for
hearing to determine any issue as to costs
or other issue remaining outstanding.
24. An appeal shall not operate as a stay of
execution except if the Court appealed
from or the High Court may order. An
application for stay must be made in the
first instance to the Court appealed from.
153
Appeals to High Court under any Written Law
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O. 55A governs this and is a new provision.1. Where under any written law if an appeal
lies to the High Court from any decision of
a person or body of persons such appeal:(i) shall be made to the High Court in
the State where the decision was
given;(ii) by way of Originating Summons;
154
(iii) which set out the grounds of appeal;
(iv) is supported by an affidavit in support;
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(v) if the High Court so directs by way of
oral evidence
2. The following documents shall be exhibits in
the affidavit in support:
(i) notes of evidence (if available)
(ii) grounds of decision (if available)
(iii) decision of the statutory body (ifavailable); and
(iv) documentary exhibits155
The Originating Summons shall be filed
notwithstanding that the grounds of
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notwithstanding that the grounds of
decision is not available or ready. If thegrounds become available, it should be fled
in a further affidavit.
3. Such appeal must be filed within 1 monthfrom the date of the decision was given or
notified to the person appealing in absence
of any provision in the written law stating
otherwise.
156
4. Unless provided by such written law, the
Originating Summons shall be served on
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Originating Summons shall be served on
the respondent or where the respondent is
a body of persons on the secretary,
registrar or such other officer of that body
of persons.
157
Issues concerning O. 55 and O. 55A
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There are written laws that provide appeals to the
High Court from decisions of statutory bodies ortribunals. Example: Section 77of the EmploymentAct 1955 provides that any person dissatisfiedwith the decision (made under certain sections ofthe Act) of the Director-General of Labour mayappeal to the High Court against that decision.Section 77(2) provides that the procedure in an
appeal to the High Court shall be the procedurein a civil appeal from a Sessions Court".
158
The question is under which is the proper
procedure to follow: O 55 or O 55A? Order 55A
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procedure to follow: O. 55 or O. 55A? Order 55A
expressly provides that Appeals to High Courtunder Written Law is to be commenced by an
originating summons supported by affidavit. The
time limited for appeal is 1 month from the date
of the decision. There is no need for a deposit.
However section 77(2) states that the procedure
in a civil appeal from a Sessions Court is to be
followed.
159
The procedure to follow is O. 55. Sessions Court isa Subordinate Court and any appeal from suchCourt is governed by O 55 Section 77(2) of the Act
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Court is governed by O. 55. Section 77(2) of the Act
is enacted by Parliament. It would override anysubsidiary legislation like the 2012 Rules. InSYARIKAT MALTACO [1985] CLJ 307 it was heldthat it is clearly the intention of the Legislature
that the procedure of appeal against the decisionof the Director General under s. 69 of the Act shallbe the procedure in a civil appeal from theSessions Court as provided by O. 49 r. 2 of theSubordinate Courts Rules 1980 and not O. 55 r. 13of the High Court Rules 1980.
160
Appeal from Registrar of the High Court to a
Judge in Chambers: Order 56
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The time period for appeal from Registrar ofthe High Court to Judge in Chambers is
changed from 10 days to 14 days. The Notice
of Appeal in Form 114 must be served not lessthan 5 days before the date fixed for hearing
of the appeal.
161
Transfer of Proceedings: Order 57
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This is a new provision. It provides themechanism of transfer from Subordinate Courtsto the High Court and vice versa.
1. If a Judge of the High Court or SessionsCourt or a Magistrate is satisfied that anyproceeding in that Court can be moreconveniently or fairly tried in some other
court of co-ordinate jurisdiction he mayorder the proceedings to be transferred tothat other Court.
162
2. A transfer from:
( ) S b di t C t t Hi h C t
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(a) a Subordinate Court to a High Court; or
(b) High Court to a Subordinate Court
shall only be made by an order of that High
Court on application by any party by way of
Originating Summons or notice ofApplication whichever is appropriate.
If High Court to Subordinate Court?
If Subordinate Court to High Court?
163
3. A transfer of any proceedings from:
(a) a Magistrates Court to a Sessions Court
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(a) a Magistrate s Court to a Sessions Court
(b) a Sessions Court to a Magistrates Courtshall only be made by order of a Sessions
Court Judge by way of Originating summons
or notice of application whichever isappropriate.
4. At the hearing of the transfer application the
relevant Judge or Magistrate shall take intoconsideration whether the High Court or
Subordinate Court which shall hear the case:
164
is located at or nearest to the place where
(a) the cause of action arose
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(a) the cause of action arose
(b) defendant resides or has his place ofbusiness
(c) the facts on which the proceedings arebased exist or are alleged to have occurred
(d) the land the ownership of which is disputedis situated; or
(e) for other reasons it is desirable in the
interest of justice that the proceedingsshould be transferred
165
O. 57 gives the Sessions Court power to transfera matter from the Magistrates Court to the
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Sessions Court and from the Sessions Court tothe Magistrates Court. HoweverParagraph 3 ofthe 3rdSchedule in the Subordinate Courts Act1948 states that, power to transfer any
proceedings to another court of co-ordinatejurisdiction.It appears that the 2012 Rules havegiven wider powers of transfer than allowed bythe Act. thanks.
166
Costs: Order 59
High Court costs.
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High Court costs.
Substantial changes are made to this Order. Thereare some new phrases that are introduced.Determined costs and fixed cost. The phrasetaxed costs is taken out. The stage of proceedings
when costs can be dealt with is now under O. 59 r.7 which still maintains the basic rule that costs canbe dealt with at any stage of the proceedings. Butnow any costs ordered is to be paid at theconclusion of the proceedings unless the courtotherwise orders. The position is reversed now.
167
Now the amount of costs is determined by the
Judge himself at the conclusion of the proceeding.
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g p g
The Court will hear submissions from the partiesas to the quantum of costs to be awarded and
shall order such costs as it deems fit. The Court
shall direct that parties submit on costs as part of
the substantive submissions or separately. A bill
of costs shall be annexed to the submissions which
must include the work done to support the getting
up and disbursements reasonably incurred.
168
In the case of an appeal all costs connected with
the appeal will be dealt with by the Court
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the appeal will be dealt with by the Court
hearing the appeal at the conclusion of theappeal.
Where the costs are determined in respect of
proceedings in the High Court an allocatorcertificate shall be issued by the Registrar upon
payment of an allocator fee is 4% of the costs or
a rate which the Chief Justice from time to time
determine.
169
There will be separate Order drawn up for costs
so that the extraction of the main Order will not
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so that the extraction of the main Order will not
be held up by non-payment of allocator fees.The effect of this is that there is no more
taxation of costs. The Court is now given
discretion to determine the amount of costsinstead of the taxation of a Bill of Costs. This
process saves the Courts time. There is no
more review processes. These provisions have
been removed.
170
O. 59 r. 10 penalises a party who has failed to
establish any claim or issue which he has
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establish any claim or issue which he has
raised and this has unnecessarily orunreasonably protracted the trial or added to
the costs or complexity of those proceedings.
The Court may order that:(i) the costs of that party shall not be allowed
in whole or in part
(ii) costs occasioned by the failure of thatclaim or issue be paid to the other party
regardless of the outcome.171
Costs for interlocutory applications in the High
Court is at the discretion of the Court (Rule 21)
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Court is at the discretion of the Court (Rule 21)
Costs on judgment without trial in the HighCourt and Subordinate Courts are on a scale of
costs in 4 parts set out in Rule 22.
Part I: is the Basic CostsPart II: is costs for additional items
Part III: costs on indemnity basis
Part IV: costs for miscellaneous items
172
What of the Subordinate Courts?
At the conclusion of a trial the party entitled to
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At the conclusion of a trial the party entitled to
costs shall be paid fixed costs pursuant to O. 59 r.23 which provides a new scale of costs. The scale
starts with a judgment sum not exceeding
RM1000.00 right up to a sum not exceeding RM500,000.00. This amount if fixed. The last fixed
amount is RM 3,375.00 for suing/defending and
RMRM13,450.00 for advocacy = RM16,825.
173
However any judgment sum that exceeds
RM500,000.00 the amount is discretionary but
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500,000.00 t e a ou t s d sc et o a y but
must not exceed RM40,000.00.Every attendance in the Subordinate Court now
is RM100.00 even for a mention.
However the advocacy costs will be affected in 4instances as provided in Rule 23(5).
(i) No advocacy is allowed when
judgment is entered by admission.(ii) Half advocacy is allowed if matter
settled after it is fixed for trial.174
(iii) Half advocacy is allowed if at the
date of the trial but before the trial
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date of the trial but before the trial
begins if the matter is dismissed orjudgment is given.
(iv) Full advocacy is allowed if after the
trial has begun but before the Courtdetermines the action, the matter is
dismissed or judgment is given.
Costs thrown away is advocacy if trialadjourned at the instance of a party.
175
Costs for interlocutory applications in Subordinate
Courts. The costs have increased from a mere
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RM25.00 to RM100. Now it is not exceedingRM2,500.00 in the Magistrates Court and not
exceeding RM8,000.00 in the Sessions Court.
176
Service of Documents: Order 62
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1. There are now 2 new provisions for serviceby ordinary service under Rule 6(1):
(i) Sub-rule (c) allows ordinary service to
be to be affected by facsimile inaccordance with sub-rule (3).
(ii) Sub-rule (d) allows service in any
manner agreed between the partyserving and the party to be served.
177
2. Sub-rule (3) provides that service byfacsimile is to be affected where:
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(a) the party serving the document actsby solicitor (A);
(b) the party on whom the document isserved acts by a solicitor (B) and
service is affected by transmission tothe business address of (B);
(c) (B) has indicated in writing to (A) that
he is willing to accept such service at aspecified facsimile number; and
178
(d) within 3 days after service (A) servesa copy of the document by either:
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(i) leaving the document at theaddress of (B)
(ii) by pre paid registered post
(iii) any other manner as agreed bythe parties in writing
(iv) as the court directs
This provision does not affect personal serviceor
any written law that provides the mannerdocuments are to be served on a body corporate.
179
3. Rule 11 provides that notices sent by the
C t b t l t i ll t
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Court may be sent now electronically apart
from post. If sent electronically, the time
for service would be the time the notice
would be received in the computer system
of the registered user. This type oftransmission is now sufficient service. The
burden is on the receiving party to show
that he has not been so served. This typeof service is crucial in the e-filing system.
180
Paper, Printing, etc: Order 63
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1. Rule 1 allows a document to be printed onboth sides of the paper. This is a new
provision.
2. Rule 5 is new. It states that non- compliance with the rules on documents
i.e. quality, length and width, margins
would not now render the documents
defective nor the proceedings void.
181
Electronic Filing: Order 63A
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This is a new Order.1. Rule 1 is a definition provision and providesfor the meaning of the various phrases inthe order. E.g. electronic transmission means
transmission by a registered user (registeredperson who has been given access to use the
electronic filing service) using the courtscomputer system.
2. Rule 7 provides that specified documents tobe filed with the Registrar can also be filedusing the e-filing service in accordance withthis order and any practice directions
182
The filing is satisfied by filing a single copy
using the system. It can be done by
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electronic transmission or via the service bureau.
3. The requirement of the Rules relating to signing
or signatureis satisfied where the:
(i) registered user has applied his
identification name, his authentication
code and endorsement on the document
(ii) Registrar has applied his identification
name, his authentication code andsignature on the document.
183
4. The date of the successful payment of theprescribed fees in the Courts computer systemis taken as the date of filing using this system
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is taken as the date of filing using this system.
5. The time for service is different for adocument which requires a seal and adocument that does not require a seal.
(a) Where seal is not required:Time runs from the registrars notification
of his acceptance of the document isreceived in the computer system of theregistered user.
184
Time runs from the successfulpayment of the fees into the courtscomputer system if the document is
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computer system if the document is
filed using a service bureau.(b) Where seal is required:
Time for service runs when the
sealed copy is received in thecomputer system of the registereduser.
If the document is received other than a working day
it is deemed to have been received on the nextworking day.
185
Service of foreign process: Order 65
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A new Rule 2A is introduced. It provides for analternate mode of service of foreign legal
process.
186
Arbitration: Order 69
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The provisions have been substantially redraftedto take into account the Arbitration Act 2005which had replaced the Arbitration Act 1952 andthe matters pending under the 1952 Act.
The matters concerning arbitration that can bebrought to the High Court has been widened.
The others provision concerns enforcement of
the awards and the registration andenforcement of foreign award.
187
Admiralty: Order 70
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Substantial
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