LAW 601: CIVIL PROCEDURE 1

Past year question

on inherent powers,
limitations and parties
PREPARED BY:
RIZWANA BINTI ROSLAN (2016239334)
CLASS : LWH07K
PREPARED FOR : PROF MADYA DR. WAN LIZA BT. MD AMIN
Question
On a one fine day, Amir was a passenger in a car driven by his
friend, Ahmad when the said car collided with a motor van driven
by Chin. He was injured in the collision and has since filed an action
in negligence against Chin. Following the filing of his defence, Chin
has filed an application to join Ahmad as the second defendant. His
application is based on the contention that Ahmad contributed to
the collision and that any finding of liability should be apportioned
equally. However, Amir did not want to sue Ahmad because he is
Amir’s best friend.
con..
The following week, Amir’s father was caught in a cross-
fire between the police personnel and a robber. He was
accidently shot in the chest and died a week later. Amir
intends to sue the Malaysian Police and the Government
of Malaysia today for the death his father.
Answer the following:
a)Explain the legal criteria on which Chin application for
joinder could be considered by the court.
b)Assume that you act for Amir, on what grounds that
Amir can object to the abovementioned joinder by
Chin and what would be the likely approach of the
court in this issue?
c) Can Amir sue the Government of Malaysia for causing
the death of his father?
Issue 1:
The issue is whether Chin may bring Ahmad
into the proceedings as a co-defendant by
virtue of Order 15 Rule 6(2)(b) of Rules of
Court?
Principles of law :
• Order 15 Rule 6(1) of Rules of Court, no action shall be defeated by
the misjoinder or non-joinder of parties. Non-joinder is where a
person should have been joined as a party to a case but is not made
to.
• Order 15 Rule 6(2)(b) of Rules of Court, at any stage of the
proceeding, but before the final judgment, the court may order any
person whose presence is necessary to ensure the matters be
effectually and completely determined and adjudicated or any
person which the addition of his or her would be just and
convenient to determine the cause of matter.
The test to determine joinder can be referred in the case of Pegang Mining v
Choong sam & Ors [1969] 2 MLJ 52, where it provides that,

“will his right against, or liabilities to, any party to the action be directly affected
by any order which may be made in the action”

In this case, the subject matter before the court is whether or not the rights of
the applicant in respect of the trade mark ‘MISTER’ had been infringed by the
intervener’s use of the mark ‘SISTER’. The intervener as the distributor certainly
has direct interest in the matter. Any finding of the court in the matter will
directly affect the intervener. The order of the court is given ex parte where it is
a provisional order that is always liable to be set aside by the court on the
application of any person who is affected by the order.
The principle before was applied in Hee Awa & Ors v Syed
Muhammad [1988] 1 MLJ 300,
It was held that the person to be added must be a person who
ought to have been joined as a party and whose presence is
necessary to ensure all matters may be effectively determined.
• In this case, there was a road accident involving a motorcycle
and a government motor van in which the pillion rider of the
motorcycle was killed and a passenger in the motor van was
injured.
• The respondents applied under Order 15 rule 6(2) (b) of the Rules of the
High Court 1980 for an order that the motorcyclist be joined as a party.
• The court held that the respondents' application to add the motorcyclist
as a co-defendant falls squarely within terms of Order 15 rule 6(2) (b) of
the Rules of the High Court 1980.
• The defendant has the right to add a co-defendant despite an objection
made by the plaintiff. In the circumstances of this case, the order
allowing the motorcyclist to be joined as a co-defendant is to ensure that
all matters in dispute in the cause be effectually and completely
determined and adjudicated upon as envisaged by Order 15 rule 6(2) (b)
of the Rules of the High Court 1980.
Application:
In this question, the non-joinder in this current situation is Ahmad
because he is one of the co-defendants in the car collision causing
Amir to suffer injuries but only Chin is being sued as the
defendant. Upon application by Chin to add Ahmad as a co-
defendant, the court has discretion to add Ahmad as co-
defendant. This is because the questions in dispute affect the
rights and interests of Chin if he is the only one being made as a
defendant where Ahmad had also contributed to Amir’s injuries as
he drove the car at the time of the collision.
Issue 2:
The issue is whether Amir may oppose the mentioned joinder
and what approach the court will take regarding this issue?
Principles of law:

Order 15 Rule 4 of the Rules of the Court 2012 allows for joinder of
two or more Plaintiff and Defendant when commencing the action
with the leave of the Court. However, certain cases didn’t need the
leave of the court where the separate actions brought by or against
them have common question of law or fact and all rights or relief
claimed are in respect arise at the same transaction.
Order 15 rule 6(1) of the Rules of the Court 2012 had illustrated
that an action shall not fail just because of misjoinder or non-
joinder.

Again in the case of Hee Awa & Ors v Syed Muhammad Sazalay &
Anor, the court ruled that a defendant has the right to add a co-
defendant despite an objection made by the plaintiff. The court
also added that there is nothing in the Rules that will prevent a
defendant from making the choice to add a co-defendant and once
the choice is made, that will be the end of the matter.
Con..
Per Mohamed Azmi SCJ in deciding states that, from the provision of
Order 15 rule 6(2)(b)) RHC, it is clear that the court has a discretion to
grant or refuse the order of making any person as a party with the
exception that such order cannot be made to add a person as a plaintiff
without his consent. The order can be granted either on the court's own
motion or on the application of any person who is already a party, or of an
intervener who wishes to be added as a party. The person to be added as a
party must be a person who ought to have been joined as a party or whose
presence in court is necessary to ensure that all matters in dispute may be
"effectually and completely determined and adjudicated upon".
In Tajjul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143,
the court ruled that a defendant against whom no relief is sought by
the plaintiff will not be added against the plaintiff’s wishes. The power
of the Court to add a defendant upon the application of the defendant
is entirely discretionary which O.15 r.6(2)(b)(ii) RHC 1980 places upon
the exercise of the discretion which it gives the Judge of first instance,
is that it shall be exercised when there may exist a question or issue
arising out of or related to or connected with any relief or remedy
claimed in the cause or matter which in the opinion of the Court it
would be just and convenient to determine as between the person
sought to be joined and that party as well as between the parties to
the cause or matter.
The court in this case also explains that a plaintiff cannot be
forced to have a second defendant added against whom he does
not wish to proceed.
Next, the court has the discretion under Order 92 rule 4 to strike out
pleadings on the grounds which are stated under Order 18 rule 19
ROC 2012.
Under Order 18 rule 10 ROC 2012, a pleading or endorsement may be
struck out on the following grounds:
• It discloses nor reasonable cause of action or defence;
• It is scandalous, frivolous or vexatious
• It may prejudice, embarrass or delay the fair trial of the action;
or
• Abuse of process of the court
Application :
In this question, Chin intended to bring Ahmad a co-defendant.
Generally, in the case of Hee Awa & Ors v Syed Muhammad
Sazalay & Anor, Chin has the rights to add Ahmad as co-defendant.

However, Amir may oppose to the court by the Order 15 rule 6 of

the Rules of the Court 2012 that the court has a power to strike
out Ahmad as co-defendant. It can be said that Amir does not
intend to sue his own friend. Moreover, the negligence caused by
Ahmad is not an issue in this case. The most important thing is the
people intended to be sued by Amir.
Next, as in the case of Tajjul Ariffin bin Mustafa v Heng Cheng
Hong, Edgar Joseph Jr. SCJ had laid down the principle that the
Defendant against whom Plaintiff not sought the remedy will
generally not be added against Plaintiff’s wish, Amir may object the
presence of Ahmad as the co-defendant in his case.

Moreover, by virtue under Order 92 rule 4 the court has the

discretion to strike out the pleading.

To conclude , Amir may oppose by applying Order 15 Rule 6 of the

Rules of the Court 2012 and show to the court that Ahmad is not
the party intended to be sue by him.
Issue 3:
The issue is whether Amir can take civil
action against the government on behalf of
his deceased father.
Principles of law:
A valid cause of action also depends on other factors, such as whether
the claim would be made within the proscribed time. Malaysia’s general
statute of limitations is the Limitation Act 1953. Law of limitation deals
with the law restricting the time in which an action can be brought.

Section 3 Limitation Act 1953

The act shall not apply to any action or arbitration for which a period of
limitation is prescribed by any other written law or to any action or
arbitration to which the Government or the Government of any State is a
party and for which if it were between subjects a period of limitation
would have been prescribed by any other written law.
Section 2(a) of Public Authorities Protection Act 1948
The action or civil suit must be done within 36 months from the date of the
incident.
Lee Hock Ning v Government of Malaysia [1982] CLJ Rep 321,
The appellant was a contractor and the respondent was the Government of
Malaysia. The claim against the respondent was for the non-payment of
monies and owing under a series of building contracts.
The respondent’s contention was that as the contract for the building of
schools was entered into in the performance of a public duty or was incidental
therefore, Section 2(a) of PAPA applied, so that the action should have been
brought within twelve months next after the act, neglect or default
complained of in relation to that contract.
According to Section 38 of the Government Proceeding
Ordinance stated that any written law relating to the
limitation of time for bringing proceedings against public
authorities may be relied upon by the government as a
defense in any civil proceedings against the government
Application :
Applying to the question, Amir’s father was fatally shot and here
Amir can bring a claim against the government.
Based on Section 2 of PAPA 1948 assuming that the negligence is
committed by the police who is on duty at the time when the
collision took place, then Section 2 of PAPA 1948 is applicable.
However in applying Section 2 of PAPA 1948 to the issue, the period
to take action against the Government must be within three years.
In the event that the police officer is not on duty at the time of the
collision, Section 2 of PAPA is not applicable and will not be able to
protect him.
Thus, in order to succeed in claiming
damages against the government. The
period for Amir to take action against the
Government must be within three years.