Modes Of Civil Proceedings

MODES OF CIVIL PROCEEDINGS The ROC provides for only two modes of commencement of proceedings both in the High Court and Subordinate Court i.e.  

Writ of Summons Originating Summons

However, Order 94 r. 2 of the ROC preserves the modes of commencement of proceedings prescribed by written laws listed in Appendix C.

Writ action Order 5 r.2 provides that proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ. However it does not state that it is compulsory for some actions to be commenced by write as in the RHC. It is left to the plaintiff to begin proceedings by writ if it is appropriate by reason of there being a substantial dispute of fact. However, Order 5 r.4 permits a plaintiff to begin a proceeding by writ even if there is no substantial dispute of fact if he intends to apply for judgment under Order 14 or Order 81. Jumatsah v Voon Kim Kuet (1981) 1 MLJ 254 i.e. an action is deemed to have been commenced when the plaintiff files the writ at the relevant High Court Registry and pay the requisite fees.

Originating Summons Order 5. r.3 provides that applications under written law shall be made by originating summons. This is the same position as in the RHC. The rule in the RHC that originating summons is appropriate for matters that do not involve substantial dispute of facts is preserved in Order 5 r.4. It states that originating summons is appropriate for matters involving question of law, construction of any instrument made under any written law, or of any deed, will, contract or other document or in matters where there is no substantial dispute of facts.

Modes of commencement prescribed by written laws in Appendix C Order 94 r.2 provides an exception to the two modes of commencement of proceedings prescribed by Order 5 r.1. It preserves the right to commence proceedings other than by writ or originating summons if required by written law. Order 94 r.2 reads as follows: Exception (O.94 r.2) 2.(1) Order 5, rule 1 shall not apply to the proceedings under the written laws in Appendix C, except as provided under these Rules. In Appendix C, eight types of proceedings and then statues are listed :     

Bankruptcy Proceedings Winding up and capital reduction Criminal proceedings Proceedings under the Election Offences Act 1954 (Act 5) Matrimonial proceedings

  

Land reference Admission to bar Proceedings under the Income Tax Act 1967 (Act 53)

Most of the above written laws require proceedings to commence by way of petition. Many of the common proceedings that are commenced by way of petition from time immemorial such as bankruptcy and divorce would not be affected by Order 5 r.1 that requires actions to proceed by way of writ or originating summons only. However, curiously Admission to Bar proceedings under the Advocates Ordinances of Sabah and Sarawak are included in Appendix C. i.e. In Sabah, admission applications are commenced by way of originating summons. However in Sarawak, although the Advocates Ordinance does not require the Admission to the Bar application to be commenced by way of petition, for some reason, it is so begun as a matter of practice.

Modes of commencement in written laws apart from Appendix C The ROC appears to require applications under written laws that are not in Appendix C to be begun by writ or originating summons although it does not specifically prohibit it. 1. Mode of beginning civil proceedings (O. 5 r.1) Except as provided in these Rules and subject to Order 95, rule 2, proceedings shall be commenced either by originating summons or by writ. Order 94 r.2(3) states as follows: (3) any application under any written law, other than those listed in Appendix C, which is by way of a mode other than originating summons or writ, shall be treated as having been commenced by way of originating summons and shall be dealt with accordingly in accordance with these Rules. The language of Order 94 r.2(3) is permissive and not imperative. It would mean that if a plaintiff commenced proceeding by petition if so authorised by written law (other than that listed in Appendix C), the court should merely treat it as having been commenced by originating summons instead of striking it out.

APPEARANCE AND JUDGMENT IN DEFAULT When the defendant is served with the writ, he may enter an appearance and defend the action by himself or by his solicitor. However, if the defendant is a person under disability, he must act by a litigation representative while a body corporate may only enter appearance and defend an action by a solicitor. Order 12 r.(1), (2) and (3) ROC states the mode of entering appearance. Why does the defendant need to enter appearance? The rationale is that the process of appearance will enable the defendant to communicate his intention to defend or challenge the action against him. However, appearance need not to be entered in the following three situations:  

Where the claim is for a debt or liquated demand only, and the defendant pays the amount due and costs within the time limited for appearing; Where the judgment in default of appearance is entered against the defendant, the court may set it aside in which case the action proceeds; or



A person who is served with notice of a judgment may, within a month of the service of notice, apply to the court to discharge, vary or add to the judgment without entering an appearance.

Manner of entering appearance A defendant may enter an appearance by completing Form 11 ROC and its copy which need to be presented or sending them to the Registry. The memorandum of appearance must be in Form 11 and must be signed by the solicitor who represents the defendant or, if the defendant appears in person, it must be signed by the defendant himself. (this procedure is for the High Court) In the subordinate courts, the manner of entering appearance is different. For the defendant who wishes to dispute his liability in respect of the whole or part of the claim, he has a choice. While for the defendant who wishes to admit liability at this stage, he may follow the procedure for tendering his admission. The notice of appearance which is appended to the summons may be used for this purpose. The defendant who disputes liability may serve a notice of appearance or a defence prior to the return day and indicate that he intends to dispute the claim. At the later stage, the court will usually order the defendant to file his defence within an appropriate time. If a defendant is a person under disability, he must act by a guardian ad litem, in which the guardian must act through a solicitor. If the defendant is a company or body corporate, it may only enter appearance and defend the action by a solicitor.

Time limit for entering appearance In the case of service within a local jurisdiction of the High Court, the period is eight days after the write is served to the defendant. If the write is served out of local jurisdiction, but within Malaysia, the period is twelve days including the day of service. However, these limits are subject to the power of the court to extend the time. (see : Order 12 r.4 (a) ROC) For the writ served within Sarawak and Sabah, the period is 14 days including the day of service. According to Order 12 r.4 (b), the period is extended to twenty days including the day of service if the defendant’s place of residence, or an incorporated society’s registered office of business “is not within the Division or residency in which is situated the Registry out of which the writ of summons was issued”. (see: Order 12 r.4(b) ROC) In the case of a write served out of the jurisdiction, the time limited for appearance is fourteen days after service of the write as provided for in Order 10 rule 2 / Order 11 rule 2 or to such extended time as the court may otherwise allow.

Judgment in default Order 13 rule 1(1) states that if the defendant fails to enter appearance within the time limit specified, the plaintiff may enter judgment in default of appearance against him. The nature of the judgment will depend on the type of the claim involved. The type of claim may range from the claim for liquated damages, the claim for unliquidated damages, the claim for the possession of land, a claim in respect for the detention for movable property and to a combination of claims which are specifically referred to by the rules.

There are final judgment, interlocutory judgment and partly final and partly interlocutory judgment. The type of judgment will depend on the nature of the claim. An interlocutory judgment occurs when further steps need to be taken to finalise it. For instance, the court may give an interlocutory judgment for unliquidated damages. It will be finalised on the assessment of those damages. This type of judgment also may be obtained when the claim concerns the detention of goods or where there is a combination of claims between unliquidated damages and detention of goods. A final judgment is granted in the case of a liquidated claim or a claim for the possession of land or a combination of such claims. If the action involves a mixture of claims, the judgment obtained may be partly final and partly interlocutory. Where the claim is for a liquidated demand only, the plaintiff may, after the time limited for appearing, enter a final judgment for an amount not exceeding the claim stated in the write (for the demand and for the cost). In other words, the judgment in default of appearance must only be entered for the amount actually due at the time judgment is entered. If the judgment is entered for an amount larger than is due, the defendant is entitled to have it set aside. (see: Order 13 r 1 ROC; Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457. In respect of the claims for unliquidated damages, the plaintiff may, after the time limit for appearing, enter interlocutory judgment against the defendant for damages to be assessed and costs. In the case of land possession, the plaintiff may enter judgment for the land and costs if the defendant fails to enter appearance within the required time. In order to obtain judgment in these circumstances, the plaintiff must show that he is not pursuing a mortgage action under Order 83 r.1 ROC. Where the writ includes a combination of claims, the judgment must be entered severally, in isolation from the other. (i.e. Order 13 r. 5 ROC)

Procedure for entering judgment in default of appearance The procedure involves the production of appropriate documents at the court registry. The judgment will be entered if all the documents are in order and the procedures have been complied with. If not, the court may not enter judgment in default of appearance or defence. However, in certain actions, specific rules apply so as to exclude or to modify the operation of Order 13. For eg, the order does not apply to probate action in respect of which a separate set of provisions operate and similarly in action in rem, a different set of procedures governs judgment by default in place of Order 13. In the case of judgment in default of pleadings, a party who fails to serve a pleading in the prescribed period will be in default. i.e. if the plaintiff fails to serve a SOC or defence to counterclaim within the prescribed period, the defendant may apply to dismiss the action or enter judgment on the counterclaim. While in the situation where the defendant fails to serve a defence in time, judgment may be entered against him and in the case of judgment in default of appearance, the nature of the judgment will depend on the type of claim involved.

Setting aside judgment in default of appearance A judgment in default, like any other judgment of the court, is valid and binding unless set aside. However, the general principle is that, unlike a judgment on the merits, a judgment in default can be set aside by the court that granted it. The rationale is this a judgment on the merits is pronounced after the court hears both parties on the merits of the case whereas a judgment in default is pronounced without hearing the defendant. The court has therefore the power to revoke its own judgment. As stated in Lord Atkin in Evans v Bartlam [1937] AC 473 : “…unless and until the Court has pronounced a judgment upon the merits r by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of the procedure.” (i.e. Order 13 r.8 ROC ;Tetuan Tan Teng Siah Realty Sdn Bhd v Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634.

Procedure The rule that confers the power to the curt to set aside its own default judgment where there has been a failure to enter appearance is Order 13 r.8 i.e. “The Court may, on such terms as it thinks just set aside or vary any judgment entered in pursuance of this Order.” The equivalent provision in respect of default of pleadings is Order 19 r.9. The application to set aside must be made by Notice of Application in Form 57 supported by an affidavit (see: Order 32 ROC). The three primary considerations that apply to the setting aside of a judgment in default are as follows: (the content of the affidavit in support would therefore depend on these considerations)   

Whether a judgment is irregular; If regular; whether the defendant has a defence on the merits or an arguable defence; Whether there was inordinate delay in applying to set aside the judgment in default

Irregular judgment is one which has been entered otherwise than in strict compliance with the rules or some statute, or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity. Tuan Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 CLJ 241 Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457 (Eg where a judgment had been entered for a higher amount than due or cases where service is defective) Regular judgment – the defendant must disclose a defence on the merits in the affidavits in support of the application. This has been described as an “inflexible rule”. (i.e. Seng Huat Hang Sdn Bhd v Chee Seng & Co Sdn Bhd [1986] 1 MLJ 348 ) A defence on the merits has also been describe as an arguable defence or a prima facie defence. The rationale of this principle is that an indolent defendant should not be allowed to set aside a judgment in default if he only has a sham defence to put up However, it must be noted that there is a distinction between an arguable defence or prima facie defence and a good defence. The defendant is not obliged to disclose a good defence (i.e. Seng Huat Hang Sdn Bhd v Chee Seng & Co Sdn Bhd (supra)) Delay and explanation –

Tuan Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd. [1996] 1 CLJ 241 i.e. the court expressed the view that an irregular judgment can be set aside despite long delay. The general rule is that those who approach the court to set aside a judgment in default must do so timeously. The court has a discretion to set aside in proper case on the ground that it would be just to do so (Order 19 r.9 ROC). The cases that deal with this issue turn on their own facts and it would be difficult to state what constitutes reasonable delay or what qualifies as a good explanation. (Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223)