Civil Procedure Notes

Sources of Civil Procedure

  • The primary source of procedural rules are found in the rules of the respective courts:

    • Subordinate Courts: Rules of the Court 2012 (RC)

    • High Court: Rules of the Court 2012 (RC)

    • Court of Appeal: Rules of the Court of Appeal 1994 (RCA)

    • Federal Court: Rules of the Federal Court 1995 (FCR)

  • RC provisions are divided into Orders, then rules and sub-rules. RCA and FCR provisions are referred to as Rules.

Preliminary Objections

  • Preliminary Objections (PO) are raised before the case's merits are heard, relating to non-compliance or breach of rules.

Jurisdictional Objections

  • Cannot be waived because jurisdiction affects the legality of the court's order or judgment..

  • Lee Teng Siong v Lee Kheng Lian & Ors: Consent or waiver cannot confer jurisdiction on a court that lacks it.

Technical Objections

  • Based on non-compliance with Rules, aiming to defeat the opponent on procedural technicality rather than substantive merits.

  • UMBC Bhd v Ernest Cheong Yong Yin: Procedural technical objections should not obstruct justice by preventing the court from addressing the substantive issues before it.

  • Tan Chwee Geok & Anor v Khaw Ten-Yen & Anor “The Rules of the Supreme Court are intended to facilitate, not impede, justice. Technicalities should not cause injustice.

  • Mokhtar v Mohd Mokhtar : Non-compliance should not invalidate actions unless it causes a substantial miscarriage of justice.

  • Megat Najmuddin v BBMB: Rules must be obeyed, but judges should not let technicalities impair their sense of justice and fairness.

  • O1A and O2 r3 of RHC 1980 were inserted to prevent technical non-compliance from obstructing justice.

  • Beauford Baru Sdn Bhd v Gopala Krishnan: Preliminary objections on technical grounds should become a thing of the past

  • Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang- Undang, Malaysia: Litigants should not be deprived of their day in court on technical procedural grounds if all relevant facts and evidence have been presented and no prejudice has occurred.

  • Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor: O1A cannot be invoked when a party intentionally disregards complying with the Rules; it must not supersede a mandatory requirement of the Rules.

  • Fundamental vs. Mandatory: There is a distinction between fundamental and mandatory requirements.

  • Focus on Intention: The focus appears to be on the intention behind the breach.

  • The “fundamental or mandatory in nature” requirement is absent from the language of O1A

  • Jyothy Laboratories Limited v Perusahaan Bumi Tulin Sdn Bhd: Analysis of ROC provisions dealing with technical breaches.

Practice Directions

  • Megat Najmuddin: Practice directions are for administrative purposes, clarifying or highlighting rules, but not superseding statutory court rules.

Time

  • Issues arise regarding computation and extension of time in the Rules.

Computation

  • O3 r2 and s 54(1)(a) of the Interpretation Acts 1948 and 1967 provide the method by which time may be computed.

    • Setali Development Sdn Bhd & Anor v Lim You Keng computation of one month

    • RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd Computation of 21 day period in O29 r1(2B)

    • Sivakadatcham v CIMB Bank Bhd: computation of the “four clear days” requirement in O83 r2(2)

Extension of Time

  • Time periods in the Rules may be extended by consent or court order.

  • Pearson v Chen Chien Wen Edwin: Factors for granting an extension of time:

    • Length of delay

    • Reasons for delay

    • Chances of appeal succeeding if time is extended

    • Degree of prejudice to the opposing party if the application is granted.