Miscellaneous

Compliance with the Rules

-Utama Merchant Bank v Dato’ Nadzmi Salleh
 The rules of court are made to streamline the administration of justice especially on
procedures in litigations. It is the general rule that all the rules and forms have to be
complied with for the purpose of uniformity and certainty.
 There must be strong justifications on the failure to comply these rules by litigants,
and the court should exercise the powers sparingly.

Breach of the Rules of Court Generally

-Look at O.1A ROC 2012.
 This rule must be read together with other provisions in the Rules.
-Look at O.2 r.1 & r.2.
-DYAM Tunku Ibrahim Ismail v Datuk Captain Hamzah (2009)
 O.1A allows the court to do justice over the technical non-compliance.
 However, it must not supersede the mandatory requirement of the rules or else the
parties would be encouraged to ignore the rules.
 The nature of breach is relevant. If it is a fundamental breach or a party intentionally
disregards in complying with rules, then O.1A cannot be invoked to cure the breach.

-Syarikat Joo Seng v Habib Bank (1986)

 In this case, the judgment in default of defence was entered without the leave of
court. The court held that the judgment was irregular.
 The court also held that the word ‘proceedings’ in O.2 r.1 does not include ‘irregular
judgment in default of defence’, thus O.2 r.1 did not apply here and the non-
compliance was incurable.

Technical or Procedural Challenges

-Technical objections can be taken through:
 Preliminary objections at the start of the hearing of a matter.
 A setting aside application under O.2 r.2 ROC 2012.

-Preliminary Objections
 Bar Council Rulings 2008, 11.04: written notice not later than 4 clear days.
 O.2 r.3 ROC 2012
 If an amendment or cost order can be made to redress the prejudice then it is
curable.
 Thus, the courts now are more keen towards the merits of the case rather than issue
of technical non-compliance with the rules.

-Setting Aside Applications

 O.2 r.2 ROC 2012
 The form of this application is by way of notice of application and the grounds of
objection should be stated.
 Conditions:
 o Application should be made within a reasonable time.
o Apart from this application, no other fresh step should be taken by the applicant.
o Notice of irregularity should be given to the other party before applying.
o The non-compliance will cause a substantial miscarriage of justice or prejudice
that cannot be cured by amendments or costs order.

Time
-The governing provision for time periods is O.3 ROC 2012.

-O.3 r.2 ROC 2012

 When an act is required to be done ‘within a specified period after or from’ a
specified date, then time starts to run immediately after that date.
 When an act is required to be done ‘within or not less than’ a specified period before
a specified date, then the period ends immediately before that date.

-O.3 r.4 ROC 2012

 When the time prescribed expires on a weekly holiday or other day on which the
Registry is closed, then the act shall be in time if it is done on the next day on which
the Registry is open.

-O.3 r.5 ROC 2012

 Court has the discretion, as it thinks just, to extend or abridge the time period that a
person is required to do any act in any proceedings.