PTCM, Admissions, and Dismissal for Want of Prosecution

Pretrial Case Management (PTCM)

  • Order 34 of the Rules of Court 2012.
  • Takes place after the close of pleadings.

Process During PTCM

  • Directions on:
    • Discovery
    • Interrogatories
    • Admissions
    • Agreed facts
    • Mode of evidence
    • Mediation
    • Number of witnesses
    • Amendments
    • Bundle of documents
  • Setting down for trial.

Object of PTCM

  • Court to manage the case.
  • Set time frames for compliance.
  • Sanctions for noncompliance.

Hong Leong Finance v. Laotian Po

  • Federal Court case.
  • Progress of the case is no longer left in the hands of litigants.
  • Court directs parties to move towards the trial date.
  • Prior to the Rules of Court 2012, direction was dependent on litigants, leading to delays.
  • Courts are "now in the driver's seat" to direct parties.
  • Aims to cut down on unnecessary delays.

Order 34, Rule 1(1)

  • Court may direct parties to appear.
  • Give directions for a just, expeditious, and economical disposal of the trial.
  • Court can direct parties to file interlocutory applications if not already filed.
  • Further direction on the future course of action.
  • Court can direct parties to appear before them by their own motion.
  • Matters can be dealt with on notice of interlocutory application.

Fixing PTCM Date

  • Fixed by the court.
  • Notice (Pungodu san case).
  • If the court does not fix, parties can file Form 59 (Order 34, Rule 3).

Order 34, Rule 2(2)

  • Directions the court can give during PTCM.
    • Bundle of documents.
    • c.
    • d.
    • e.
    • Direction to the plaintiff (Order 34, Rule 2(2)(b), (c), (d), (j)):
      • Bundle of pleadings(b).
      • Common bundle of documents(c).
      • Statement of agreed facts (j).
      • Issues to be tried.
  • Plaintiff's solicitor provides documents to the defendant, classifying documents under Part A, Part B, or Part C.
  • Plaintiff provides a draft containing issues to be tried and agreed facts.
  • Defendant's counsel returns the list of documents to the plaintiff's solicitor.
  • Plaintiff's solicitor files the common bundle of documents (Bundle A, B, or C) into court.
  • Court directs both parties to file:
    • Plaintiff's summary of case.
    • Defendant's summary of case.
    • Plaintiff's list of witnesses.
    • Defendant's list of witnesses.
    • Plaintiff witness statement.
    • Defendant's witness statement.
      • Witnesses affirm the statement in court, saving time, and shortening the case duration.
  • Court may suggest mediation.
  • Order 34, Rule 2(2) (p, q, r) gives direction as to the manner that evidence should be produced in court, especially regarding expert witnesses.

Preemptory Order

  • Also known as "unless order."
  • Order 34, Rule 2(3) gives the court power to make a preemptory order.
  • Requires a party to do a particular act within a stated time period.
  • Consequences for noncompliance.
  • Court can dismiss the action if the plaintiff defaults or strike out the defense if the defendant defaults.
  • Order 34, Rule 1(3) allows the court to dismiss an action, strike out the defense, and make any other order.

Considerations for the Court

  • Should not amount to a miscarriage of justice.

Cases

  • Mohammed Amin Mohammed Yusuf v. Siti Villa Sundrian Brahat.
  • Syed Omar Syed Mohammed v. Prabhadanan National Burhat (MBIT of Order 34).

Setting Aside Orders

  • Parties can apply to set aside the order (Order 34, Rule 2(4)).

Refiling a Suit

  • If a party's action has been dismissed for noncompliance, it is an abuse of process to file a suit based on the same cause of action.

Cases

  • Syed Omar Syed Mohammad v. Purwadar and National Burhat.
  • Allen and Gladhill case; Linpo v. Allen and Gladhill.

Failure to Attend PTCM

  • Order 34, Rule 6(1).
  • If the plaintiff does not come, the court can dismiss the action.
  • If the defendant does not come, the court can strike out the defense and enter judgment for the plaintiff on the counterclaim.
  • If neither party appears, the court can make other orders, adjourn the matter, and provide preemptory orders.
  • Affected party can apply to set aside the order (Rule 2).

Automatic Directions (Personal Injury)

  • Order 34, Rule 10.
  • Directions take effect automatically at the close of pleadings.
  • Discovery of documents.
  • Expert report within three months from the close of pleadings.

Key Questions

  • What is the object/purpose of PTCM?
  • What directions can the court give (Order 34, Rule 2(2)(b), (c), (d), (j), (k))?
  • What is a preemptory order (unless order)?
  • What is the consequence of noncompliance?
  • If there is noncompliance, what directions will the court give?
  • If the matter is dismissed, what can the parties do?
  • If the parties fail to attend PTCM, what can the court do?
  • What happens in a personal injury matter (Order 34, Rule 10)?
  • Discovery, interregulators, right, is happening during your pretrial case management, your mediation, your amendments, your filing of certain interlocutory applications, all that happens.

Admissions (Order 27)

Definition

  • Statements in pleadings admitting the truth of the whole or part of the action.

Evidence Act 1950

  • Section 58: Facts that are admitted need not be proved.
  • Section 21: Proof of Admissions.
  • Section 23: Civil admission made in civil cases.
  • Admission must be voluntary, clear, and unambiguous.

Cases

  • Against against against to Swan Lin

Order 27, Rule 1

  • A party may, by notice, in the pleading or writing, voluntarily admit the truth of the whole or part of the case to save time and cost.
Admissions - Order 27 of the Rules of Court 2012. They provide mechanisms for parties to admit facts or documents, thereby streamlining the trial process.

Order 27, Rule 2

  • Notice to admit facts.
  • A party, within fourteen days after the action has been set down for trial, can issue a notice in Form 48 asking the other party to admit to certain specific facts.
  • If Order 27, Rule 2 has been done, then you cannot go for your interrogatories.
  • Admission can be only used for that action.
  • The other party can admit in Form 49.
  • If you don't admit to the facts, then you will bear the cost of proving the facts.
  • The court at any time can allow a party to amend or withdraw any admission which they think it is just and fair.

Order 27, Rule 3

  • Judgment on admission of facts.
    • Once the admission is obtained, the party can apply to the court for judgment for the claim that has been admitted without waiting for the determination of any other issues.
    • Whether to give the judgment based on admission is at the discretion of the court.
    • The court will only give judgment if there have been an unambiguous, unequivocal admission.
  • If there is an issue of fact and law or some complication, they will not give you judgment based on admission.

Cases

  • Aetna Universal v. fire accident and marine.
  • Sucha Singh v. housing development.

Order 27, Rule 4

  • When a party is deemed to have admitted.
  • Rule 4, subrule 2 says within fourteen days from the time you get the lease, you must serve a notice that you do not admit to that fact.
  • Challenging the authenticity of a document
  • Now if it is not in your discovery list you must give a notice to admit the documents.
  • The procedure that will apply is the same.

Order 27, Rule 5

  • Notice to produce document at the trial itself.
    A party can be required by notice to produce at the hearing any document which has not been admitted or challenged.

Dismissal for Want of Prosecution

  • Reverse of judgment in default.
  • Plaintiff does not take necessary steps.
  • Actions can be dismissed under:
    • Rules of Court.
    • Inherent jurisdiction of the court.

Rules

  • Order 19, Rule 1: Fail to deliver statement of claim.
  • Order 26: Interrogatories, you don't answer.
  • Order Rule 7, Rule 16. 16: Discovery failure.
  • Order 34: Noncompliance with orders given during case management.
  • Examiners like to test is about the delay.

Dismissal for Want of Prosecution of OS.

  • Order 28 rule 10

Order 34, Rule 7

  • The defendant can apply to the court to dismiss the plaintiff's action for want of prosecution.
  • The court has discretion to dismiss the plaintiff's action.

Cases

  • Confidence Concrete, Sindriyan Berhat v. Shimizu, Karemba, Sindriyan Berhat.
  • Nagara Properties.
  • Site Mahazir v. Qatar Police Nagara.

Inherent Jurisdiction of the Court

  • Record v. James: the inherent power of the court to dismiss the plaintiff's action can be done, but it must be exercised cautiously when the plaintiff default had been intentional and continuous or there had been inordinate or inexcusable delay, which has prejudiced the defendant.
  • Tohoktai v. Tohchubu.
  • Syed Omar, Syed Muhammad v. Prabhadanan National, which expressly states that the Brirkard and James principle is no longer suitable for the new regime under order 34.
  • Order 34 Rule two. - Sub rule three.
  • Principles can still be used when exercising their powers under your order 34., *Inordinate and inexcusable delay.
    • Birkard and James, right, where they clearly said it will also include, you know, the delay if it is done by the council also. Doesn't matter. It's still a delay. Right?
    • UMBC against, palm and vegetable oils Malaysia (parties to reach sort of settlement).
  • Vasudevan Damodaran (land dispute matter).
    • Action was begun. So then the defendant basically said, you know, he he basically had bought the land for development, but he could not move on move on with the plan, right, because of the halted proceedings or the pending proceedings. And he went for order 34 rule two, then your rules of high court to dismiss the plaintiff's action for want of prosecution.

Plaintiff Can Take Fresh Action

  • Ramanathan, Paliapan Ramanathan: dismissal for want of prosecution does not bar the plaintiff from starting a fresh action (must pay cost of the action).
  • Syed Omar Syed Muhammad against Burbadanan National Berhat: Abuse of process of courts, and they struck up.