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INTRODUCTION TO CIVIL PROCEDURE

Civil Procedure
- 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
- 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 field
- rules are definite and certain, provides for uniformity

Sources of Civil Procedure

Primary source;
i) Federal Constitution
ii) Statutes - a) The Courts of Judicature Act 1964
b) The Subordinate Courts Act 1948
c) Limitation Act 1948
d) Civil Law Act 1958
e) Public Authority Protection Act
f) Specific Relief Act 1950
g) Debtors Act 1948
iii) Rules of Court
- Rules govern pre-trial, post-trial and post-judgment proceedings.
They contain all appropriate forms which are used in aaccordance
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 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.

INHERENT POWERS

Per Lord Morris in Connely v DPP, the essential character of a superior
court of law that it should be invested with a power to maintain its
authority and to prevent its process being obstructed and abused. Such a
power is intrinsic in a superior court. Without such a power, the court
would have form but would lack of substance. The jurisidction which is
inherent in a superior court of law is that which enables it to fulfil itself as
court of law.


In Cocker v Tempess, it was held that the power is certainly a matter of
most careful discretion to avoid the process from being abused and caused
injustice. Essentially, inherent powers are necessary for the administration
of justice. It is essential to the existence and proper functioning of the
courts.

It was decided in the case of Pacific Centre v United Engineers (Msia),
that when there is lacunae in procedure, the court may determine its own
rule to prevent injustice and abuse of the process.

- Basically, inherent powers are powers reasonably necessary for the
administration of justice.

- They are powers considered essential to the existence and proper
functioning of the courts. The purpose is to avoid abuse of procedures
by party who have an extra advantage over the others.

- Rules of court should be utilised to facilitate the administration of
justice.

- Inherent power of the court is exercisable as part of the process of the
administration of justice.

- It is procedural in nature and is applicable to both civil and criminal.

- They key feauture of this power is that It can be exercised in summary
process, which basically means ANYTIME.

These principles are embedded in ROC 2012 in O92 r4;
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 the Court.
- We read this to mean that the rules cannot interfere with the
exercise of the inherent powers by the court so long as it deems it
necessary to prevent any injustice or any abuse of its own process.
(Permodalan MBF v Tan Sri Datuk Sri Hamzah)

The Scope of the Inherent Powers

1. May be curtailed by provisions of written law where the riights of
parties are clearly definied in a particular sitatuions, these will not be
distrubed by resort to O92 r4.

In the case of Permodalan MBF Sdn Bhd v Tan Sri Datuk Sri Hamzah, it
was held that where the rules contain provisions making available
sufficient remedies, the court will not invoke its inherent powers.


2. Power used as a basis for granting substantive right

- Pacific Centre Sdn Bhd v United Engineers
- The issue is whether the court can exercise its inherent power to grant
mareva injunction.
- The court is of the opinion that the Rules have statutory force and are
not mere rules of practice.
- There is jurisdiction by virtue of inherent power to grant Mareva
injunction in this country.

3. Power used to resolve situation not covered by the rules so that the court
can determine it in the interest of justice.

- Application for Anton Piller order grant of ex parte relief see O29 r 2.
- In Anton Piller KG v Manufacturing Process Ltd, even though the rules
does not provide for certain situation, the court is at liberty to exercise
its inherent jurisdiction to prevent injustice.

4. Is there a broader jurisdiction than merely resolving lacunae in the rules?

- Suppuletchimi v Palmco Bina Sdn Bhd; the court stated that the
inherent powers of the court can be exercised concurrently or in the
alternative, as many of the rules are framed to prevent injustice in
particular situations. Th court state that O92 r4 of RHC is an
overriding provisio which applies to all other rules & provisions in the
rules of the RHC. This decision appears to be a departure from well
established principles in the past. It is a cardinal rule that inherent
power of the court cannot be invoked to nullify a statutory provisions.


Practice Directions
- In Ooi Bee Tat v Tan Ah Chim & Sons Sdn Bhd, Zakaria Yatim JCA
stated that practice directions are intended to be no more than a
direction for administrative purposes.

NON-COMPLIANCE WITH RULES

The general approach of the courts as expressed in Cropper v Smith;
I know 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.

- Order 2 rule 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.

- The court is given a discretion to cure the irregulairty by way of
amendment or by way of any other oder the cour thinks fit OR
empower to set aside.

- In Duli Amat Mulia Tunku Ibrahim v Datuk Captain Hamzah, if the non
compliance is done intentionally, the court will not assist.

- In Metroinvest Ansalt v. Commercial Union; In most cases the way in
which the court exercise its power under O2 r1(2) is likely to depend
upon whether it appears that the opposite party has suffered
prejudice as a direct conseqence of the irregularity, that is to say, the
particular failure to comply with the rules. But I would construe O2
r1(2) as being so framed as to give the court the widest possible
power in order to do justice.

- The traditional approach has been that where the failure of 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, as seen in the case of;

- Lam Kong Co Ltd v Thong Guan & Co, in an application for specific
performance, pf entered default judgment when Defendant failed to
enter appearance. The breach and non-compliance with the rules in
this case were not mere irregularities but fundamental defects. The
fundamental defect was not curable as the effect of the breach and
non-compliance was to defeat the right of other party to the action.

It must now be noted that under the new O2 r2, the criteria for setting aside has
been spelled out viz

i) the non-compliance must have occasioned a substantial miscarriage of
justice, or
ii) occasioned prejudice that cannot be cured either by amendment or an
appropriate order as to costs.

Irregularities have been cured, for example;

- in Lee Tain Tsahung v Hong Leong Finance Bhd, where judgment
entered for an excess amount. The judge held that the court in
recognizing the irregularity of the incorrect amount on the
judgment has the power under O2 r1(2) to correct the error in the
judgment by amending it to the correct amount.

Time period provided exceeded

- Order 3 rule 5(1),(2).
- Power to extend or abridge even after expiry
- Should give reasons for delay.
- Not inordinate delay and should not cause prejudice.
- Court will not help the lazy, the idle, and the indolent
- Strict compliance
- Lee Lam v Lim Yoon Loy & Ors notice of appeal was not served
within time. It was held that the appeal was not propoerly before the
court. Appeal is deemed not to exist.

The 2002 Amendment
- The court is no longer rigid, but more focused on justice to be served.
- With the new amendment, the courts are less inclined to entertaine
objection in regard to technicalities.
- Allow the judges to determine case based on justice and merits.
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 rule 3
A court or a judge should not allow any preliminary objetion 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.

Cases decided after 2002 Amendment

Beauford Bam Sdn Bhd
- Application for extension oftime to file a notice of appeal due to bona
fide mistake of Ds sided.
- 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.

Megnaway Enterprise v Soon Lian Hock
- The defendant raised several preliminary issues such as non-
compliance with form 18 of RHC, and that O14 of RHC should not be
invoked.
- The Court held that O1A states that in administering any rules herein,
the court shall have regard to the justice of the particular case and not
only to technical non-compliance with any of the rules herein, where
as O2 r3 expressly says that a court or judge shall not allow any
preliminary objection by any party to any proceeding only on the
ground of non-compliance with any of these rules unless the court or
judge is of the opinion that such non-compliance has occasioned a
substantial miscarriage of justice.
- In this case, since the procedural technical objections raised by the
defendant were strictly in relation to non-compliance, disregarding
them would occasion no miscarriage of justice.


CAUSE OF ACTION

- First matter to consider when a client comes with a problem
whether the legal requirements governing the right to sue are
satisfied.
- In this respect, it is necessary to determine whether the facts of the
case give rise to cause of action by establishing the elements of legal
liability.

What is cause of action?
- Lim Kean v Choo Koon; a cause of action normally accrues where
there is in existence a person who can sue and another who can be
sued, and whell all the facts have happened which are material to be
proved to entitle the plaintiff to succeed.
- Cooke v Gill, cause of action is defined as every fact which is material
to be proved to entitle the plaintiff to succeed.

Taib bin Awang v Mohamad bin Abdullah.
- Plaintiff was convicted in the Kadis court. He appealed. Before the
appeal was heard he commenced an action for malicious prosecution.
Plaintiffs action failed because the cause of action was incomplete.
- The court held that in an action for malicious prosecution it is
essential for the plaintiff to aver and prove that the proceeding
complained of, terminated in his favour.
- It was also held that since the criminal proceedings against the
plaintiff in the Kadi's court had not been finally determined by the
Syariah Appeal Court in the plaintiff's favour, it was premature for the
plaintiff to bring this action

Government of Malaysia v Lim Kit Siang
- The respondent, who was an opposition leader in Msia filed a
declaration that the letter of intent issued by the Gov of Malaysia to
UEM in respect of NSE highwhay as an invalid contract.
- However, the Court held that, the respondent did not have cause of
action as his right, either at law or by statute, was not adversely
affected prejudiced by the act of the Government.

Recent development in locus standi can be seen in the case of MTUC v
Government of Malaysia, whereby the Lim Kit Siangs case was overruled. In this
case, the Federal Court reviewed the test for locus standi, ruling that a person
needs at least a genuine interest in an issue but no longer needs to prove his
rights affected by it.







- In contract case, when did the cause of action arise?

Eshelby v Federated European Bank Ltd (English case)
- The plaintiff issued his writ claiming payment of one installment of
money under a particular contract.
- After the issue of the writ, the defendant defaulted in paying further
installment of money under the same contract.
- The pf sought to amend his pleading to claim in actionthe second
installment also.
- It was held that he could not do so.
- The non-payment of the second installment was a separate cause of
action that did not exist at the time the writ, was issued and would
therefore have to be claimed in a separate action.

Sio Koon Lin v SB Mehra
- The pf commenced an action for recovery of arrears that were in fact
not yet due at the time of the claim
- The amendment to the writ dated back to the date of the original issue
of the writ.
- The pfs case was struck out because the debt had not falled due when
he initiated the claim. Therefore, there was no cause of action accrued.

Simetech v Yeoh Cheng Liam
- As the amendment related back to the date of the original pleading, no
new cause of action accruing since the original pleading would be
allowed.
- Applying this principle, the plaintiff is not entitled to claim the
additional sum.


LIMITATION OF ACTION

Law of limitation deals with the law restricting the time in which an action can
be brought, Ince limitation sets in, cause of action is time-barred. Unless the time
limit is subject to extension or exclusion, thedefendant in an action has an
absolute defence to the plaintiffs claim if the pfs action was commenced outside
the prescribed limitation period.

In Perwira Affin Bank Berhad, the court held that where it is thought to be clear
that there is a defence under the Limitation Act, the either defendant can either
plead that defence and seek the trial of a preliminary issue or, in a very clear
case, he can seek to strike out the claim upon the ground that it is frivolous,
vexatious, and an abuse to the process of the court and support his application
with evidence.

Hashim Yeop explains the rationale for limitation in the case of Fong Tak Seng v
Credit Corporation where the doctrine of limittation is said to be based on two
broad considartions. Firstly, there is a presumption that a right not exercised for
a long time is non-existent. The other consideration is that it is necessary that
matters of right in general should not be left too long in a state of uncertainty.

The period of limitation normally runs from the date when the cause of action
arises.

Periods of Limitation

i) - Actions founded on a contract for tort six years from thed ate on
which the cause of action accrued
- Actions founded on contract exceptions to the application of s.6(1);
o Actions to recover land
Governed by s. 9 (1) 12 years from the date in which
the right accrued.
Actions for specific performance of agreement for sale
and purchase agreement.
Nasri v Mesah Pf were asking for specific performance
of the agreement and seeking to obtain land by a
judgment of the court. Federal court whether the
action was for specific performance of an agreement for
the sale of land or for a declaration of title to land, it was
essentially an action to recover land, so that period of
limitation would be 12 years in either case.
S. 9(2)(b) of LA / s. 341 NLC LA 1953 shall in no
circumstances operate to extinguish any title to, or
interest in, land.
o Actions on respect of trust property
S. 22(1)(a) & (b)
No limitation for fraudulent breach
S. 22(2)
Breach of trust other than fraudulent breach of trust 5
years.

Computations of limitation period.

A. Issues to be considered
a. Action is deemed to have commenced when writ is issued?
- When is writ deemed to be issued?
o O6 r3
o The writ should be dated on the day the writ is filed and the
filing fee paid. If the court official fails to affix the seal of the
court so as to give the writ its validity, the plaintiff should not
be faulted as he has completed his part on the issue of writ.
(Jumatsah bin Daud & Anor v Voon Kin Kuet & Anor)
- General rule: limitation will begin to run from the date cause of action
accrues when is cause deemed to have accrued and why is this issue
important?

(a) Acrrual of action in Tort actions - negligent
Three elements must be shown
1. Duty of care owed by the def to plaintiff
2. Defendant breached that duty of care
3. Plaintiff suffered injury or damage as a result
- In the case of Pirelli General Cable Works, The HOL held that the cause
of action accrues at the date when physical damage occurred to the
building, and not at the time when it was discovered.
- In tort cases, knowledge is not an essential element. The cause of
action accrues ath the date when physical damage occuredor injury
suffered by the plaintiff.

- Professional negligence, when doess the cause of action start to
accrue?
o Forster v Outred
Whether damage occurred when she signed the
mortgage deed or after the creditor sought to enforce
the security.
It was held that she had suffered her loss in 1973 when
she entered into the security agreemenet.
The reasoning was that as soon as she executed the
mortgage as security for the loan, the value of her
propeorty was reduced because it was no longer free
from encumbrances.
So her cause of action was complete when she acts on
solicitors negligent advice and entered into the
mortgage, suffered damage at the time of transaction,
not when she suffered loss when she repaid the loan.
o DW Moore v Ferrier
IN regard to limitation period which involve a
professional negligence made on the part of the solicitor
for the company of DW Moore.
Through careles drafting, the covenant prepared by the
solicitors was ineffective.
The court held that from the moment of executing each
agreement the plaintiffs suffered damages because they
did not get what they bargained for, so there is
economic loss which is measurable.
o AmBank v Abdul Aziz bin Hassan
- Accrual of action I ncontract cases.
o To succeed in a claim for damages for nreach of contract, the pf
will have to prove
the existence of a valid contract.
Breach of the contract by the defendant. Limitation
period runs from the date of the breach of the contract.





Extension or postponement of limitation periods.

- Courts have o power whatsoever to extend a alimitation period in
statute unless the power to do so can be found in a statute or any
other written law.

1. Disability s. 24(1)
- Person under a disability s. 2(3)
- Application of provision in cases where limitation is prescribed by
other statutes.
- Eg; where period of limitation is prescribed by other stautes, see s.3,
s.33.
- Phua Chin Chiew v KM
o the issue was whether the provision of s. 2(a) of PAPA applies
in the circumstances of this case to the exclusion of the LA. This
was an appeal case where the appellant argued that the
respondant failed to file an action within 3 years after his
service was terminated by the appellant.
o It was conteded that at the time of the resignation, the
respondent was unsound mind and therefore his resignation
letter should not be accepted by the appellant.
o His disability to institute legal proceeding ceases when a
committee is appointed under the Mental Disorders Ordinance
to manage his affair.
o Time begins to run from the date of appointment of the
committee and not from the date of the letter of resignation or
the acceptance by the Government of the offer tor esign.


Dependency claim 3 years wafte rthe death of the person deceased.

Kuan Hip Peng v Yap Yin
- The terms of s.7(5) are absolute and contain no exceptations. There can
be no question of importng into the matter any of the saving provisions of
the Limitation Ordinance by any process of construction for by s. 3 of that
Ordinace it shall not apply to any action.. for which a period of limitation
is prescribed by any other written law.

Limitations under other Acts
a) Public Authorities Protection Act 1948
- The Act is only applicable to any civil action instituted against the
government.
- S. 2 PAPA provide that the limitation period is 36 months aft the act,
neglect or default complained of.
- Lee Hock Ning v Government of Malaysia, the act is one, which is
either an act in the direct execution of a statute, or in discharge of a
public duty, or the exercise of public authority. I regard these latter
word as meaning a duty owed to all the public alike or an authority
exercised impartially with regard to all the public.
-