ADVANCED CIVIL PROCEDURE 1

LAW 547
A SYLLABUS CONTENT

1. Civil Procedure — Introduction

2. Cause of Action
3. Limitation
4. Civil Courts and their Jurisdiction
5. Modes of Originating Process
6. Parties
7. Writ
8. Default of Appearance
9. Summary Judgment under 0.14 RC 2012
10. Disposal of Case on point of law - 0.14A RC
11. Summary Judgment under 0.81 RC 2012
12. Offer to Settle
13. Third Party Proceeding
14. Interpleader Proceeding
15. Pleadings

16 Striking Out Pleading and indorsement

17. Amendment

B. Rules/Statutes

B.l Rules of Court

The Rules of Court 2012

B.2 Statutes
Limitation Act 1953
Civil Law Act 1956 ,
Court of Judicature Act 1964
Subordinate Courts Act 1948
Specific Relief Act 1950
Public Authorities Protection Act 1948
Debtors Act 1957
C. TEXT BOOKS & REFERNENCES Latest edition of the following
books:

1. Grace Chang, Introduction to Civil Procedure in Malaysia and

Singapore (Malayan Law Journal) (a student's textbook)
2. Hamid Sultan bin Abu Backer, Janab's Key to Civil Procedure
in Malaysia & Singapore (Janab (M) Sdn Bhd) (a students textbook)
3. Malaysian Civil Procedure and Practice – Ravi Nekoo CLJ
4. Jeffrey Pinsler, Civil Practice in Singapore and Malaysia

5. Malaysian High Court Practice- Malayan Law Journal

6. Malaysian Rules of Court 2012. An Annotation- LexisNexis

English textbooks and reference books which are useful for

reference:
1. David Barnard, The New Civil Court in Action, Butterworth.
2. D.B. Casson, Odgers on High Court Pleading and Practice
3. 0’Hare& Hill, Civil Litigation
4. Langarj & Lawrence, Civil Procedure
5. Supreme Court Practice (white book) (a practioner’s book)
CIVIL PROCEDURE
1. Introduction

1.1 Civil Procedure - its nature and purpose

Definition?
 mechanism by which legal rights and interests are pursued and
enforced
 the whole of the practice and procedure which operates in relation to a claim
pursued in court
 ‘it is by procedure that the law is put into motion, and it is procedural law
which puts life into the substantive law, gives it its remedy and
effectiveness, and brings it into being.' - Halsfcury's Laws, 4 ed, vol 37,
para 3. Objects
 grounded on the principle of natural justice - a person should not be
condemned unheard
 ensures fairness between parties - no party will be able to take unfair advantage
create level playing fieldrules are definite and certain. Provides for uniformity.
They set a) time
b) set samples, forms, formats - how to be done
c) provides well defined and uniform procedures for dispensing
justice
d) ensures rules of natural justice are complied with
e) enables the parties to fully prepare their cases for trial while
leaving open the option of settlement at any stage of the
proceedings - achieved by a structure of chronological steps
which the parties must follow fromthe time the writ is served until
the matter is ready for trial.

Sources of Civil Procedure

Primary Source.
i) Federal Constitution
ii) Statutes- a) The Courts of Judicature Act 1964
b) The Subordinate Courts Act 1948
c) Limitation Act 1948
d) Civil Law Act 1956
e) Public Authority Protection Act
f) Specific Relief Act 1950
g) Debtors Act 1948
CIVIL PROCEDURE

iii) Rules of Court

a) Rules of Court 2012 (RC)
b) The Rules of the Court of Appeal 1994(RCA)
c) The Rules of the Federal Court 1995 (RFC)

Secondary Source

Case law
an essential source of procedure . It is the means by which the rules are interpreted and
explained, and through which governing principles are established. In many instances these
principles stand as procedural law created by the courts.
e.g. the principles governing the grant of interlocutory injunctions as laid down by the House of
Lords in the case of American Cyanamid v Ethicon Ltd [1975] AC 396

Rules of Court
Rules govern pre-trial, post-trial and post-judgment proceedings. They contain all appropriate
forms (Appendix A RHC 1980 ) which are used in accordance with the Rules. They have the
same legal effect and authority as the rules themselves . They may however be varied 'as the
circumstances of the particular case require'

In Yu Oi Yong & Anor v Ho Toong Peng & Ors [1970] 1 MLJ 120

Court stated strict and slavish adherence to forms and rules is deplored and it can sometimes
hinder the administration of justice , but the form and the rules should not be disregarded for no
reason whatsoever , since they embody the experience of the courts over the years in the cause
of speedy and efficient administration of justice
See TR Hamzah & Yeang Sdn Bhd v Lazar Sdn Bhd [1985] 2 MLJ 45

Inherent powers - What is its basis?

The essential character of a superior court of law necessarily involves that it should be invested
with a power to maintain its authority and to prevent its processes being obstructed and
abused. Such a power is intrinsic in a superior court; it is its very life blood, its essence, its
immanent attribute. Without such a power, the court would have form but would lack
substance. The jurisdiction which is inherent in a superior court of law is that which enables it
to fulfill itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of
the judiciary to uphold, to protect and to fulfill the judicial function of administering justice
according to law in a regular, orderly and effective manner.
Per Lord Morris in Connely v DPP. [1964] AC 1 The Rule-O 92 r 4 ROC
For the removal of doubt it is hereby declared that nothing in these rules shall be deemed
to limit or affect the inherent powers of the court to make any order as may be necessary
to prevent injustice or to prevent an abuse of the process of court.

The Scope of the inherent powers

• may be curtailed by provisions of written law - where rights of parties are clearly
defined in a particular situation these will not be disturbed by resort to 092 r 4

see Tan Beng Sooi v Penolong Kanan Pendaftar [1995] 2 MLJ 421
Permodalan MBF Sdn Bhd v Tan Sri Datuk Sri Hamzah [1988] 1
MLJ 178
• power used as a basis for granting substantive rights
Pacific Centre Sdn Bhd v. United Engineers (M) Bhd [1984] jLMLJ 143
Tan Lay Soon v. Kam Mah Theatre Sdn Bhd [1992] 2 MLJ 434
• power used to resolve a situation not covered by the rules so that
the court can determine it in the interests of justice.

Application for Anton Piller order - grant of ex parte relief see 29 r 2

See EMI Ltd v Pandit [1975] 1 All ER 418

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779

See also Loo Chay Meng v. Ong Cheng Hoe [1990] 1 MLJ 445
Repco (M) Sdn Bhd v Tan Tho Fatt &. Ors [2003] 6 MLJ 146
Public Prosecutor v Abdullah bin Idris [2009] 5 MLJ 192

• is there a broader jurisdiction than merely resolving lacunae in the

rules?

Can the rules , as subsidiary legislation be tampered with or disregarded when they
do not accord with the court's subjective notion of justice? Usurpation of the function
of the rules committee?

See Suppuletchimi v. Palmco Bina Sdn Bhd [1994] 2 MLJ 368

Arab-Malaysian Credit Bhd v Tan Seang Meng [1995] 1 MLJ 525
Practice Directions

Jurisdiction : Rule 110 Rules of the Federal Court 1995

The Chief Justice may from time to time give such directions with
respect to the business in the Registry, as he may consider necessary
Rule 77 Rules of the Court of Appeal 1994 .
Directions by President.

The president may from time to time give such directions with respect
to the business in the Registry, as he may consider necessary.

Rules of practice as opposed to rules of law

Purpose ?

Supplements rules of court - rules will be obfuscated if they remain

the sole source of every procedural detail
• Explains the proper practice under the rules
• Shows how the rules are to be complied with
 May provide the details which may not be included in a particular
rule

Effect ?

see Ooi Bee Tat v Tan Ah Cbim & Sons Sdn Bhd [1995] 3 MLJ 465
Where Zakaria Yatim JCA stated that practice directions 'are intended to be no more
than a direction for administrative purposes'.
Therefore they do not have the force of a rule of court and cannot vary its force
However, non - compliance may result in adverse orders against the defaulting
party e.g. the court could use its power to order costs to be paid by the defaulting
party.
See Jayasankaran v PP [1983] 1 MLJ 379
MEGAT NAJMUDDIN BIN DATO SERI (DR) MEGAT KHAS v BANK BUMIPUTRA
(M) BHD[2002] 1 MLJ 385
The general approach of the courts as expressed by Bowen LJ in Cropper v Smith (1884)
26 ChD 700
‘I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the
court ought not to correct, if it can be done without injustice to the other party.'
O 2 r 1 ROC specifically concerns the discretion exercisable by the courts when it is faced
with non- compliance
Under this rule non-compliance with a rule of procedure (by action or omission) at
whatever stage of the proceedings is treated as an irregularity.

It does not
 nullify -the proceedings
 any step taken in the proceedings
 or any document, judgment or order therein

Nevertheless, the court is

i) given a discretion to cure the irregularity by way of amendment
or by way of any other order the court thinks fit
ii) empowered to set aside
> the proceedings in which the failure occurred
> any step taken in those proceedings or
> any document, judgment or order therein
subject to the conditions laid out in O 2 r 2 RC.
Note the conditions.

Note mode of application - 02 r 2(2)

In Harkness v Bell’s Asbestos and Engineering Ltd [1976] 2 QB 729, Lord Denning
said:
‘It appears that 0.2 has eliminated the distinction between irregularity and nullity; every
omission or mistake in practice or procedure is to be regarded as an irregularity which the
court could and should rectify so long as it could do so without injustice. ’

''The approach of the court to the exercise of discretion as stated by Cumming-Bruce U in

Metroinvest Ansaltv. Commercial Union [1985] 1 WL,R 513
I would say that in most cases the way in which the court exercises its powers under
Order 2, rule 1(2) is likely to depend upon whether it appears that the opposite party
has suffered prejudice as a direct consequence of the particular irregularity, that is to
say, the particular failure to comply with the rules. But I would construe Order 2 rule
1(2) as being so framed as to give the court the widest possible power in order to do
justice

The traditional approach has been that where the failure or non-compliance with the
rules are so fundamental or serious so as to go to the very root of the legal process the
court is generally unwilling to exercise its discretion to cure any defect and would
proceed to set aside the proceedings. The following cases demonstrate this

Bank of Commerce v. Tanjung Petri Enterprise [1992] 2 MLJ 322

Application for the appointment of a receiver was made under O 30 RHC despite
nonexistence of a pending action. The court held that the non-compliance of this basic
requirement of O 30 went to the ’heart and core of the matter’. Application can only be
made under a pending suit as the purpose of the appointment is to preserve property
until final resolution of the suit. Right to apply for the appointment of
a receiver to preserve such property is not a cause of action and cannot stand on its own.
Lam Kong Co Ltd v Thong Guan & Co(Pte) Ltd [1985] 2 MLJ 429
In an application for specific performance, Plaintiff entered default judgment when
Defendant failed to enter appearance. This is contrary to the requirements of 013 r 6.
The breach and the non-compliance with the rules in this case were not mere
irregularities but fundamental defects. The fundamental defect was not curable as the
effect of the breach and non-compliance was to defeat the right of the other party to the
action;
Bernstein v. Jackson [1982] 1 WLR1082
The Court of Appeal held that the failure to renew a writ within the time specified in the
rules was such a 'fundamental defect in the proceedings' that it was not a proper case
for the exercise of discretion under O 2 r 1.

Leal v. Dunlop Bio-Processes [1984] 1 WLR 1082

Plaintiff had issued and served a writ out of the jurisdiction without obtaining the leave o
the court. Defendant applied to have the service set aside and the action dismissed. By
this time , the limitation period had expired and the plaintiff applied for the renewal of the
writ and for leave to serve it outside the jurisdiction .
The Court of appeal held that in the circumstances , the writ would not be renewed
under O 6, and the purported service could not be made good under O 2 r 1
Slade LJ stated that a party who 'cannot properly enter through the front door of
Order 6, rule 8.... should not be allowed to enter through the back door of Order
2, rule 1 ’
See The Official Receiver, Liquidator of Jason Textile Industries Pte Ltd v QBE
Insurance (International) Ltd [1989] 1 MLJ 1

Cf Arab-Malaysian Credit Bhd v. Tan Seang Meng [1995]1 MLJ 525

It would appear that the courts would not readily cure irregularities where separate rules
set out the principles governing non-compliance and rectification of the irregularity.
See also
Utama Merchant Bank Bhd v Dato’ Mohd Nadzmi bin Mohd Salleh [2001] 5 MLJ
317
Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 MLJ 364

It must now be noted that under the new 02 r 2 the criteria for setting aside has been
spelled out viz

i) the non-compliance must have occasioned a substantial miscarriage of

justice, or
ii) occasioned prejudice that cannot be cured either by amendment or an
appropriate order as to costs.

■ Irregularities have been cured in the following situations :

a) In Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd
[1989]1 MLJ 317
Plaintiff filed writ against defendant claiming certain sums under commodities
futures trading transactions. Defendant then applied to strike out the plaintiffs
claim under OI8 r 19 RHC. At the hearing of the application Plaintiff raised
preliminary objection that the conditional appearance and defence filed by the
defendant to her writ was filed out of time and that she was entitled to a judgment
in default under019 r2 .
 Court held the objections raised were technicalities curable under 02 r 1 & 03 r 5
RHC
In Singh v. Atombrook Ltd (trading as Sterling Travel) [1989] 1 All ER 385

Plaintiff obtained judgment in default of appearance. Judgment was irregular because

the defendants had been misdescribed in the writ, the name in the writ was the
defendant's trading name (Sterling Travel), whereas the actual company was
Atombrook Ltd. The court refused to set aside the proceedings under O 2. There had
been no prejudice in this case as the defendant, who had received the writ, knew that
the proceedings were against them. The court pointed out that if the named defendant
had been non-existent, as opposed to being misdescribed, his decision would be
different.
These cases seem to suggest that where no prejudice is suffered, the court may be
willing to validate relatively serious breaches of procedure.
In Lee Tain Tsahung v Hong Leong Finance Bhd [2000] 3 MLJ 364 judgment entered
for an excess amount
Per NH Chan JCA- this court on recognizing the irregularity of the incorrect amount on
the judgment has the power under 02 r 1 (2) to correct the error in the judgment by
amending it to the correct amount regardless of who had initiated the application to
have the judgment set aside. This was plainly a case where the court should put the
matter right and the court accordingly amended the judgment to reflect the correct
amount.

Time period Provided Exceeded,

Order 3 rule 5(1), (2).

Power to extend or abridge even after expiry. Should give reasons for delay. Not
inordinate delay. Should not cause prejudice. Court will not help the lazy, the idle, and
the indolent, e.g delay in filing Notice of Appeal and serving the same.

Strict compliance.
See Lee Lam v Lim Yoon Loy & Ors [1991] 3 MLJ 419 - Notice of Appeal was not
served within time. Held: Appeal was not properly before the court. Appeal is deemed not
to exist.

The 2002 Amendments

PU( A) 197/2002 w.e.f. 16.5.2002:

a) Order 1A
"In administering any of the Rules herein, the court or a judge shall have
regard to the justice of the particular case and not only to the technical non-
compliance of any of the rules herein."

b) Order 2 r 3

'A court or a judge shall not allow any preliminary objection by any party to
any cause or matter or proceedings only on the ground of non-compliance of
any of the Rules unless the court or judge is of the opinion that such non-
compliance has occasioned a substantial miscarriage."
There is a similar amendment to the Court of Appeal Rules
 Cases after 2002 Amendments.

Beauford Bam Sdn Bhd v Gopala Krishnan a/l VK Gopalan [2002] 6 ML J 134
- Extension of time to file Notice of Appeal allowed.
As we move towards the era of facilitating the process of litigation, the raising of preliminary
objections on technical grounds would certainly and clearly be a thing of the past”

Megat Najmuddin Dato' Seri (Dr) Megat Khas v Bank Bumiputra Malaysia Berhad [2002]
1 CLJ 645

Defective Appeal Record accepted

Court of Appeal was clearly wrong in upholding the preliminary objection…..This wasa clear
case where injustice had been done to the appellant who had been denied his right to have
his appeal heard on its merits."

Feedmeal Malaysia Sdn Bhd v Teh Cho Yeow & Ors [2003] 6 MLJ 19

Service not in accordance with procedure.

Such objections would have been attractive and upheld had there been no subsequent
judicial exhortations and recent amendments to the RHC, which had collectively put an end
to any reliance on procedural objections based on technical non-compliance with the rules,
and to proceed with substantive issues and justice of the case."

Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103 -

Non-compliance with Form 18 in a Order 14 application.

……the technicalities raised for the defendant are strictly in relation to non-compliance and
disregarding them would occasion no miscarriage of justice [Beauford] demonstrates the
new trendsetter in rejecting preliminary objections founded on technical grounds.
In my considered opinion, the advent of these amendments would mark the beginning of
the end of learned counsel's urge to raise objections merely on strictly technical grounds.
Preliminary procedural technical objections would henceforth be consigned to oblivion for
good."

Eon Bank Berhad v Jafuong Plywood Corporation Sdn Bhd & Ors [2004] 1 CLJ 473

Validity of writ extended after it has expired.

Vong Thsu Khin & Anor v MMCE Proties and another action [2005] 5 MLJ 419
Notice of
Discontinuance filed without leave of court.
……procedural matters are now secondary to the justice of the matter………..
With the wind of change behind me, the procedural inadequacies of the Notice of
Discontinuance, if any, for the purpose of this case is irrelevant."

See also :
Abd Hamid Bin Jaafar (t/a Sale Proprietor As Bintang Enterprise) v Shamsiah Dan
Keluarga Sdn Bhd [2004] 5 MLJ 349
Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] MLJ481
John Denis De Silva v Cresent Court Management Corp [2006] 3 MLJ 631
Amirthanayaki Kumara Amy v Lembaga Profesion Undang-Undang Malaysia(Legal
Profession Qualifying Board) [2010] 1 MLJ 656
Duli yang Amat Mulia Tunku Ibrahim Ismail ibni Sultan Iskandar Al-Haj v Datuk
Captain Hamzah Mohd Noor & Anor [2009] 4 CLJ 329
Kertih Port Sdn Bhd v Owner of the Vessel ‘Shema’ [2009] 2 MLJ 589