Pre-Trial Case Management, Trial , Witness Evidence , o83

Significance of o34 - PTCM

• provides radical change in approach to the prosecution of case in court

• [Tan Geok Lan v La Kuan] - court now takes control of the progress of cases at the pre-trial stage - ensuring practices and procedures applicable are promptly complied with and not abused

• Previously, it was left largely in the hands of parties

• moved towards face-pace litigation to ensure just, expeditious and economical disposal of an action

• There are times when the court has to be firm with the litigants to prevent the administration of justice from falling into disrepute

case management after commencement of proceedings but before close of pleadings

o34r1

(3) - failure to comply - crt may dismiss action or strike out defense or counterclaim or make other order

pre-trial case management after close of pleadings

o34r2

(3) - failure to comply - crt may dismiss action, strike out defense or counterclaim or make other order

[Zainal v Suruhanjaya Perkhidmatan Awam] - failure to comply with directions of learned judge without giving satisfactory explanation

Is the argument raised by D on the defect an afterthought?

Eg: material witness not available

• should have informed the court about the situation straightaway during last case management hearing

Is D being recalcitrant and uncooperative to court’s directions?

Is the doc filed late a significant document to the case?

if yes, more likely for crt to strike it out and enter judgment in favor of the other party

• o34r1(3) - party may apply via NOA +affidavit for court to dismiss or strike out

failure to file agreed bundle of docs and changed solicitor last minute

[How Hock Sing v Lee] - non-compliance - P chose to change solicitor so perilously close to the filing deadline

Is there is a possibility of settlement?

o34r2(2) - Court may consider and require the party furnish the court with info to ensure just, expeditious and economical disposal

Can a PTCM be adjourned

o34r5 - not more than 3 times - may be given depending on circumstances

Failure to attend PTCM

• o34r6 - crt may dismiss action or strike out defense or counterclaim or enter judgment or make other order

• o34r6(2) - party who is concerned or affected by the order made by the court in the absence of said party may apply to set aside the order , within 30 days after receipt of judgment (o42r13) via NOA + affidavit

• [Shah Alam v Pentadbir Tanah Daerah Klang] - Prasarana was not aware of the case management dates

claims for delivery of possession of payment of money secured by charge

• o83r1(3) - charge action

If the action begun by OS + affidavit

the affidavit need to be comply with the req under o83r3

Failure to exhibit copy of charge document

• breached o83r3(2)

• affidavit need to exhibit a copy of the charge (Form 16A - not loan document - charge is a statutory doc under NLC 1965 - loan agreement is a contract between borrower and lender)

Failure to show particulars of amount remaining due under the charge

• breached o83r3(3) - delivery of possession - o83r3(6) - payment of money

• serious breach - can rely on this breach to ‘show cause to the contrary’ under s256 NLC

Failure to give particulars of person who to the best of P’s knowledge is in possession of the charged property

• breached o83r3(4)

Failure to show money is due and payable

• breached o83r3(6)

  Eg: issuance of letter of demand

When the hearing is adjourned and the D was absent

• o83r2(4) - P shall serve written notice of adjourned hearing tgt with a copy of further affidavit on D at least 2 days before date of hearing

• o83r2(5) - such service can be proved by an affidavit of service signed by P or his solicitor

• o83r2(6) - copy of exhibit to the affidavit need not be attached

Failure to inform the D of the date of the adjourned hearing

[Malayan Banking v Rajamani] - it is the duty of P to inform - failure amounted to deprivation of D’s fundamental right to fair trial - OFS is an irregularity - liable to be set aside as of right

definition of clear days

o3r2(4) - number of days must intervene between

When can the crt invoke its inherent power under o92r4 to dismiss P’s action for want of prosecution

[Syed Omar v Perbadanan Nasional] interpreting [Birkett v James]

• where the delay is intentional and contumelious (disobedience or abuse of process)

• where the lawyer is guilty of inordinate and inexcusable delay (matter of fact)

P may be barred from taking fresh action.

Eg: breach of o19 (SOC) , o24(discovery), o26(interrogatories), o34(PTCM), o35 (attend)

When can a preliminary objection be raised?

Upon amendment of o1A & o2r3 - shall not allow preliminary objection only on the ground of non-compliance of rules unless it occasioned substantial miscarriage of justice or prejudice that cannot be cured by compensation of costs

When should a notice of preliminary objection be served by D to P?

Bar Council Ruling Chapter 11.04 - 4 days before hearing

[Bukit Melita v Lam Geok Hee] - should serve written notice as early as possible - failure would amount to a waiver of the party’s right to raise objection

What should the notice include?

• nature of the proposed objection

• list of authorities D is relying on to raise the PO

• relief sought after

Filing preliminary objection in appeal

• can raise by filing notion of motion supported by affidavit in the appeal

• r27 RCA94’ - all applications to the COA shall be made by motion and be heard in open court

When one party failed to attend trial

o35r1(2) - may proceed with trial or without trial give judgment

• If P is absent - may dismiss - if D has counterclaim - may proceed and give judgment - o14r2(2) - P may apply to reinstate within 14 days with good reason

• if D is absent - may proceed r1(2) - r2(2) - D may apply to set aside within 14 days with good reason

• court will consider the factors under r2(3) when deciding whether to reinstate suit or set aside judgment

adjournment under o35r3

• - purely discretionary -

• PD 1/2019 - will only be allowed if there are unavoidable circumstances - in the interest of justice

• [Go v Syarikat Pasir Perdana] - counsel couldn’t get a flight - no adjournment - could have booked earlier as date set months ago

• if crt doubtful of the real reason of adjournment - should give parties the opportunity to be heard

If adjournment not given , cased disposed of, can appeal on the decision in rejecting the adjournment?

[MGG Pillai v Tan Sri Dato Vincent Tan] - appellate court will be slow to interfere unless there is a deprivation of essential justice

marking of documents

o34r2(2)(d) & (e)

Part A - both authenticity and content not disputed

Part B - only content disputed

Part C - both authenticity and content disputed

A & B - can call maker of the document to testify in court in relation to the content - [Mohd Fauzi v JR Joint]

C - must first prove the authenticity and solve the issue of admissibility first before calling witness to testify

The weight being attached to the piece of evidence and the witness’s testimony will be determined by court

Conditions of admissibility for Part C docs

[KTL v Leong]

• the maker of doc must be called or the party adducing the doc will have to satisfy the court in regards to the application of any exceptions to the hearsay rule

• primary evidence of Part C doc must be adduced in court - secondary evidence can only be adduced if s65(a) or (g) can apply

o34r2(2)(i) - insist on classification

any party can apply to court for directions to ascertain whether the opposing party insist on classifying the doc as Part C doc - requiring the party to fulfill the condition of admissibility

• if insist - the court may take note of such conduct - may affect the crt’s decision on whether to award costs after trial - o59r8

Witness evidence

o38r2(1) - in action begun by writ - evidence in chief of witness shall be given by way of witness statement

• o38r2(4) - must be file in court and served on other party at least 7 days before date of hearing unless directed otherwise

Application to reopen case

• apply via NOA + affidavit showing necessity, no prejudice to another party and in the interest of justice

• [Tan Kah Khiam v Liew] - more likely to allow after P closes his case - less likely after D close defense

P had failed to discharge his burden to prove his case on the balance of probabilities

• D can make submission of no case

• Generally, in civil case - court makes decision at the end of the trial , not at the end of P’s case

• This submission will compel court to decide at the end of P’s case

• [Jaafar v Siti Jama] - Unless D’s counsel says he is going to call no evidence - the judge should refuse to rule on this submission - the judge might be embarrassed to make premature ruling on P’s evidence

Procedure of making no case submission

• judge must put D to his election - must ensure D is aware of the consequence of making such submission

• if D found to be liable - he will be barred from calling evidence once the court rules on the submission

• If D not put to election - retains the right to call evidence if his submission fails

After D is put to election and elects to call no evidence

P will make his second speech closing P’s case and D will state his case by making his submission of no case to answer