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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

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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

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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

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.

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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

h d f ll

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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

d lt ith d

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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.

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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