Civil PROCEDURE 1 Intro
Civil PROCEDURE 1 Intro
Civil PROCEDURE 1 Intro
LAW 547
A SYLLABUS CONTENT
17. Amendment
B. Rules/Statutes
B.2 Statutes
Limitation Act 1953
Civil Law Act 1956 ,
Court of Judicature Act 1964
Subordinate Courts Act 1948
Specific Relief Act 1950
Public Authorities Protection Act 1948
Debtors Act 1957
C. TEXT BOOKS & REFERNENCES Latest edition of the following
books:
Definition?
mechanism by which legal rights and interests are pursued and
enforced
the whole of the practice and procedure which operates in relation to a claim
pursued in court
‘it is by procedure that the law is put into motion, and it is procedural law
which puts life into the substantive law, gives it its remedy and
effectiveness, and brings it into being.' - Halsfcury's Laws, 4 ed, vol 37,
para 3. Objects
grounded on the principle of natural justice - a person should not be
condemned unheard
ensures fairness between parties - no party will be able to take unfair advantage
create level playing fieldrules are definite and certain. Provides for uniformity.
They set a) time
b) set samples, forms, formats - how to be done
c) provides well defined and uniform procedures for dispensing
justice
d) ensures rules of natural justice are complied with
e) enables the parties to fully prepare their cases for trial while
leaving open the option of settlement at any stage of the
proceedings - achieved by a structure of chronological steps
which the parties must follow fromthe time the writ is served until
the matter is ready for trial.
Secondary Source
Case law
an essential source of procedure . It is the means by which the rules are interpreted and
explained, and through which governing principles are established. In many instances these
principles stand as procedural law created by the courts.
e.g. the principles governing the grant of interlocutory injunctions as laid down by the House of
Lords in the case of American Cyanamid v Ethicon Ltd [1975] AC 396
Rules of Court
Rules govern pre-trial, post-trial and post-judgment proceedings. They contain all appropriate
forms (Appendix A RHC 1980 ) which are used in accordance with the Rules. They have the
same legal effect and authority as the rules themselves . They may however be varied 'as the
circumstances of the particular case require'
In Yu Oi Yong & Anor v Ho Toong Peng & Ors [1970] 1 MLJ 120
Court stated strict and slavish adherence to forms and rules is deplored and it can sometimes
hinder the administration of justice , but the form and the rules should not be disregarded for no
reason whatsoever , since they embody the experience of the courts over the years in the cause
of speedy and efficient administration of justice
See TR Hamzah & Yeang Sdn Bhd v Lazar Sdn Bhd [1985] 2 MLJ 45
The essential character of a superior court of law necessarily involves that it should be invested
with a power to maintain its authority and to prevent its processes being obstructed and
abused. Such a power is intrinsic in a superior court; it is its very life blood, its essence, its
immanent attribute. Without such a power, the court would have form but would lack
substance. The jurisdiction which is inherent in a superior court of law is that which enables it
to fulfill itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of
the judiciary to uphold, to protect and to fulfill the judicial function of administering justice
according to law in a regular, orderly and effective manner.
Per Lord Morris in Connely v DPP. [1964] AC 1 The Rule-O 92 r 4 ROC
For the removal of doubt it is hereby declared that nothing in these rules shall be deemed
to limit or affect the inherent powers of the court to make any order as may be necessary
to prevent injustice or to prevent an abuse of the process of court.
see Tan Beng Sooi v Penolong Kanan Pendaftar [1995] 2 MLJ 421
Permodalan MBF Sdn Bhd v Tan Sri Datuk Sri Hamzah [1988] 1
MLJ 178
• power used as a basis for granting substantive rights
Pacific Centre Sdn Bhd v. United Engineers (M) Bhd [1984] jLMLJ 143
Tan Lay Soon v. Kam Mah Theatre Sdn Bhd [1992] 2 MLJ 434
• power used to resolve a situation not covered by the rules so that
the court can determine it in the interests of justice.
Can the rules , as subsidiary legislation be tampered with or disregarded when they
do not accord with the court's subjective notion of justice? Usurpation of the function
of the rules committee?
The Chief Justice may from time to time give such directions with
respect to the business in the Registry, as he may consider necessary
Rule 77 Rules of the Court of Appeal 1994 .
Directions by President.
The president may from time to time give such directions with respect
to the business in the Registry, as he may consider necessary.
Purpose ?
Effect ?
see Ooi Bee Tat v Tan Ah Cbim & Sons Sdn Bhd [1995] 3 MLJ 465
Where Zakaria Yatim JCA stated that practice directions 'are intended to be no more
than a direction for administrative purposes'.
Therefore they do not have the force of a rule of court and cannot vary its force
However, non - compliance may result in adverse orders against the defaulting
party e.g. the court could use its power to order costs to be paid by the defaulting
party.
See Jayasankaran v PP [1983] 1 MLJ 379
MEGAT NAJMUDDIN BIN DATO SERI (DR) MEGAT KHAS v BANK BUMIPUTRA
(M) BHD[2002] 1 MLJ 385
The general approach of the courts as expressed by Bowen LJ in Cropper v Smith (1884)
26 ChD 700
‘I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the
court ought not to correct, if it can be done without injustice to the other party.'
O 2 r 1 ROC specifically concerns the discretion exercisable by the courts when it is faced
with non- compliance
Under this rule non-compliance with a rule of procedure (by action or omission) at
whatever stage of the proceedings is treated as an irregularity.
It does not
nullify -the proceedings
any step taken in the proceedings
or any document, judgment or order therein
The traditional approach has been that where the failure or non-compliance with the
rules are so fundamental or serious so as to go to the very root of the legal process the
court is generally unwilling to exercise its discretion to cure any defect and would
proceed to set aside the proceedings. The following cases demonstrate this
It must now be noted that under the new 02 r 2 the criteria for setting aside has been
spelled out viz
Strict compliance.
See Lee Lam v Lim Yoon Loy & Ors [1991] 3 MLJ 419 - Notice of Appeal was not
served within time. Held: Appeal was not properly before the court. Appeal is deemed not
to exist.
a) Order 1A
"In administering any of the Rules herein, the court or a judge shall have
regard to the justice of the particular case and not only to the technical non-
compliance of any of the rules herein."
b) Order 2 r 3
'A court or a judge shall not allow any preliminary objection by any party to
any cause or matter or proceedings only on the ground of non-compliance of
any of the Rules unless the court or judge is of the opinion that such non-
compliance has occasioned a substantial miscarriage."
There is a similar amendment to the Court of Appeal Rules
Cases after 2002 Amendments.
Beauford Bam Sdn Bhd v Gopala Krishnan a/l VK Gopalan [2002] 6 ML J 134
- Extension of time to file Notice of Appeal allowed.
As we move towards the era of facilitating the process of litigation, the raising of preliminary
objections on technical grounds would certainly and clearly be a thing of the past”
Megat Najmuddin Dato' Seri (Dr) Megat Khas v Bank Bumiputra Malaysia Berhad [2002]
1 CLJ 645
Feedmeal Malaysia Sdn Bhd v Teh Cho Yeow & Ors [2003] 6 MLJ 19
Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103 -
Eon Bank Berhad v Jafuong Plywood Corporation Sdn Bhd & Ors [2004] 1 CLJ 473
See also :
Abd Hamid Bin Jaafar (t/a Sale Proprietor As Bintang Enterprise) v Shamsiah Dan
Keluarga Sdn Bhd [2004] 5 MLJ 349
Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] MLJ481
John Denis De Silva v Cresent Court Management Corp [2006] 3 MLJ 631
Amirthanayaki Kumara Amy v Lembaga Profesion Undang-Undang Malaysia(Legal
Profession Qualifying Board) [2010] 1 MLJ 656
Duli yang Amat Mulia Tunku Ibrahim Ismail ibni Sultan Iskandar Al-Haj v Datuk
Captain Hamzah Mohd Noor & Anor [2009] 4 CLJ 329
Kertih Port Sdn Bhd v Owner of the Vessel ‘Shema’ [2009] 2 MLJ 589