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RULES OF COURT 2012

Amarjeet Singh Serjit Singh Timbalan Ketua Bahagian Guaman 1 Jabatan Peguam Negara

Who makes the Rules?


There are 2 Rules Committees: (i)
(ii)

The Rules Committee set up by section 17 Courts of Judicature Act 1964 [Act 91] The Subordinate Courts Rules Committee set up by section 3 Subordinate Courts Rules Act 1955 [Act 55]

Objectives of the new Rules of Court

1. To house all rules governing civil procedure in one statute. 2. To simplify and make clearer the procedures. 3. To delete superfluous and obsolete provisions.

General observations
1. The Rules Committees have maintained the numbering of the Orders as it appears in the Rules of the High Court 1980. However many of the Forms have new numbers. Any changes on the same subject are made to the existing provisions e.g. O. 42 r. 12. Previous deleted provisions remain deleted e.g. O. 62 r. 4A but stated as [there is no rule 4A] or are given new life e.g. O. 63 r. 5.
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2.

3.

4. 5.

New provisions are given new numbers e.g. O. 15 r. 13A. The major changes would be to the Subordinate Courts where all parties must get adjusted to the numbering of the Rules of the High Court 1980 e.g. (i) Pleadings is now O. 18 it was O. 14 in the Subordinate Court Rules 1980 (ii) Striking Out is now O. 18 r. 19 it was O. 14 r. 21 in the Subordinate Court Rules 1980.
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6.

7.

There is an overriding objective to continue with law that is settled by the courts since 1980. The decisions by the courts in interpreting various in pari materia provisions therefore remain. Many of the new changes made follow the Singapore Civil Procedure Rules. Reference can therefore be made to case-law from Singapore.
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Commencement
When did the Rules of Court 2012 come into force?
1st August 2012 except for Order 91 (O. 1 r. 2) vide P.U. (A) 205/2012. (Order 91 concerns Court fees.)

Rules of Court to be up to date must include:


(i) Corrigendum (Pembetulan) Rules of Court 2012 vide P.U. (A) 226/2012 dated 25.7.2012 which came into force 1.8.2012. (ii) Rules of Court (Amendment) 2012 vide P.U. (A) 232/2012 dated 1.8.2012 which came into force 1.8.2012.
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(iii) Rules of Court (Amendment) (No. 2) 2012 vide P.U. (A) 286/2012 dated 12.9.2012 which came into force on 1.8.2012. Without all these your Rules of Court 2012 is not up to date (as at 6th November 2012).
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Order 91 must be brought in force because P.U. (A) 205/2012 said that it will come into operation on a date to be appointed. By virtue of P.U. (B) 282/2012 (dated 12.9.2012) the Rules Committees appoint 1.8.2012 as the date on which Order 91 is deemed to have come into operation. That was on the same day (i.e. 12.9.2012) when Amendment No. 2 vide P.U. (A) 286/2012 was published and which came into force on 1.8.2012 where Order 91 was substituted with a new one.
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The Amendment No. 2 had substituted Appendix B in Order 91 with Appendix B1 (Fees for High Court) and Appendix B2 (Fees for Subordinate Court) with a new Order 91. The Court Fees to be paid presently is the fees introduced by Amendment No.2 as stated in Appendix B1 and B2.

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Effects of the Rules of Court 2012


By virtue of O. 1 r. 2(1) the Rules apply to: (i) Magistrates Court; (ii) Sessions Court; and (iii) High Courts The Magistrates Court and the Sessions Court are the Subordinate Courts in the Rules. The meaning in the Courts of Judicature Act 1964 is taken by the definition provision in O. 1 r. 4.
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What happened to the Subordinate Court Rules 1980 and the High Court Rules 1980? Both Rules were repealed under O. 94 r. 1. Do the 2012 Rules apply to written law that provides its own rules? The 2012 Rules do not apply where rules have been made under any written law and do not apply to any criminal proceedings (O. 1 r. 2(2)).
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When a written law, made before the coming into force of these Rules, makes reference to Rules of Court that reference will be to the 2012 Rules (O.1 r. 2(3)).
The 2012 Rules by O. 1 r. 8(1) make it clear that certain Orders are only applicable to the High Court (i.e. they do not apply to the Subordinate Courts). These Orders are:
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Order 30: Receivers Order 31: Sales of immovable property Order 43: Accounts and inquiries Order 44: Proceedings on the equity side Order 50: Charging and stop orders Order 51: Receivers. Equitable execution Order 51A: Rateable distribution Order 53: Application for judicial review Order 56: Appeals from Registrar of High Court
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Order 66: Order 67: Order 69: Order 70: Order 71: Order 72: Order 80: Order 82: Order 83:

Obtaining evidence from foreign court Reciprocal enforcement of judgments Arbitration proceedings Admiralty proceedings Non-contentious probate proceedings Contentious probate proceedings Administration actions Debenture holders action Charge actions
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Order 86: Order 87: Order 88: Order 89:

Inheritance (Family Provision) Act Trade Marks Act 1976 Companies Act 1965 Summary Proceedings for possession of land

This Order is inserted to avoid any doubt and to ensure that the matters outside the jurisdiction of the Subordinate Courts remain outside that jurisdiction.
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The Rules by O. 1 r. 8(2) make it clear that certain Orders are only applicable to the Subordinate Courts. These Orders are: Order 85A: Proceedings arising out of Hire Purchase agreements Order 86A: Inheritance (Family Provisions) Act 1971 Order 93: Small claims procedure E.g. hire-purchase procedure was O. 46 in the Subordinate Court Rules 1980.
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Definitions
Some of the new definitions are as follows. They apply unless the context otherwise requires. However as seen the definitions are not according to alphabetical order. officer: means an officer of the High Court, Sessions Court or Magistrates Court, and includes a Registrar, Court interpreter, bailiff, clerk, process server and other officer who is attached to a Court.
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Registrar means all the registrars in the High Court and Subordinate Courts and includes the Chief Registrar and the Deputy Chief Registrar of the Federal Court Sheriff: means the Registrar of the High Court and the Subordinate Court. bailiff: includes the Registrar, any clerk or other officer of the Court charged with performing the duties of a bailiff.
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solicitor: means an advocate and solicitor as defined in section 3 of the Legal Profession Act 1976 What has happened to the advocate and solicitor in Sabah and Sarawak? O. 1 r. 5A provides the answer. This provision states that where references are made in the 2012 Rules to any provisions in the Acts, Ordinances or Enactments or any other written laws in force in Peninsular Malaysia, there shall be substituted therefor references to the corresponding Acts, Ordinances or Enactments or other written laws in force in Sabah and Sarawak, as the case may be.
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Court, is given a meaning separately in O. 1 r. 4(2), refers to: (i) the Magistrates Court, or any one or more Magistrates thereof; (ii) the Sessions Court, or any one or more of the Judges thereof; (iii) the High Court or any one or more Judges or Judicial Commissioners thereof; whether sitting in Court or in Chambers. This however shall not affect by virtue of which the authority and jurisdiction of the Registrar of the Court is defined and regulated (see O. 32 r. 9).
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Judge:

means a Judge or Judicial Commissioner of the High Court and includes, where he is empowered to act, a Judge of a Sessions Court, a Magistrate or a Registrar, as the case may require. proceedings: means any proceedings whether in open Court or in Chambers and includes an application at any stage of a proceeding which is deemed to have started when an action is filed.
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pleading: does not include a notice of application or a preliminary act. attend: includes the appearance by any person using electronic, mechanical or other means permitted by the Court. filing: in relation to a document, means delivering it, by post or otherwise, to the Court office. Registry : means the Registry of the High Court, the Sessions Court or the Magistrates Court.
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document:means anything in which information of any description is recorded and includes a claim, summons, application, judgment, order, affidavit, witness statement or any other document used in a Court proceedings. copy: in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
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mechanical means: includes by means of any equipment, devise, apparatus or medium operated digitally, electronically, magnetically or mechanically. There is also specific definition provisions in certain orders e.g. the new Order 63A which concerns Electronic Filing or e-filing. The definitions are only for that Order.
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Effect of non-compliance: Order 2

1. Basically the earlier principle remains the same i.e. that non-compliance with the rules is treated as an irregularity and will not nullify the proceedings. 2. The major change is that the rule now introduces the concept of overriding justice i.e. to deal with cases justly. Parties are required to assist the Court to achieve this objective.
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3. The court/judge is given discretionary powers to achieve this objective and how to deal with applications to setaside for non-compliance. The application to set aside must be made: i. within reasonable time ii. before the party applying has taken a fresh step after being aware of the irregularity; and
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that the non-compliance has occasioned a substantial miscarriage of justice or prejudice that cannot be cured by amendment or an order as to costs. The application can only be made after a notice of the irregularity has been given to the other party. The grounds of objection must be stated in the application.
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iii.

A preliminary objection can also be made on non-compliance but the Court/judge will not allow the application unless: the non-compliance has occasioned a substantial miscarriage of justice or prejudice that cannot be cured by amendment or an order as to costs. What is substantial miscarriage of justice or prejudice?
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The new Order 2 has made it very difficult to set-aside proceedings for noncompliance. All the pre-conditions states above must be satisfied. The judge also vide O. 1A has to have regard for overriding interest of justice and not only to the technical noncompliance with the Rules. What is overriding interest of justice.
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Time: Order 3

Remains the same except that: 1. Order 3. r. 3 has been deleted. This Order previously excluded the period of Court Vacation from the computation of time prescribed from serving, filing or amending pleadings.
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2.

Order 3. r. 6 has been deleted. This Order previously required that a Notice of Intention to proceed after one year since the last proceeding must be given to every party of the intention to proceed.

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Savings and Transitional Provisions Order. 94 r. 2(1) provides that Order. 5 r. 1 will not apply to proceedings under the written laws listed in Appendix C, except as provided under these Rules. There are 8 laws listed in Appendix C: 1. Bankruptcy proceedings under the Bankruptcy Act 2. Winding up and capital reduction proceedings under the Companies Act
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3. Any criminal proceedings under the Criminal Procedure Code 4. Proceedings under the Elections Offences Act 5. Matrimonial proceedings under the Law Reform (Marriage and Divorce) Act 6. Land reference proceedings under the Land Acquisition Act
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7. Admission to the Bar proceedings made under the Legal Profession Act, Sabah Advocates Ordinance and the Sarawak Advocates Ordinance 8. Proceedings under the Income Tax Act 1967
Why is this important?
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Presently, by virtue of O. 5 r. 1 proceedings can only be begun by 2 modes: (i) Originating Summons; and (ii) Writ The 2012 Rules cannot override Acts of Parliament. Rules of Court 2012 are subsidiary legislation. Where the Act of Parliament provides a specific procedure to be followed then that procedure prevails (see also O. 94 r. 2(2)).
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What happens where a written law, other than that stated in Appendix C, which has a mode other than Originating Summons or Writ? The mode shall be: (i) treated as having commenced by way of Originating Summons; and (ii) shall be dealt with accordingly in accordance with the 2012 Rules. (see O. 94 r. 2(3))
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What happens to pending actions and applications that were commenced before 1.8.2012? All these actions and applications shall from the 1.8.2012 proceed in accordance with the provisions of these Rules (O. 94 r. 3(2)). Finally, all references in any written law to the Rules of the High Court 1980 and the Subordinate Court Rules 1980 shall be construed as references to the 2012 Rules.
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Commencement of proceedings: Order 5

Now O. 5 r. 1 only allows proceedings to be commenced by 2 modes: (i) Originating Summons; and (ii) Writ of Summons and this is subject to O. 94 r. 2 and where it is expressly otherwise provided in these Rules (e.g. judicial review proceedings).
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O. 5 r. 2 which previously specified the type of proceeding that must be begun by Writ is deleted and replaced by a general statement that proceedings in which substantial dispute of facts arise must be begun by Writ. Previously this rule specified particular causes of action that must be begun by Writ i.e. tort (other than trespass to land), fraud, damages for breach of duty etc).
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Previously in the High Court the modes were: i. Writ of Summons ii. Originating Summons iii. Originating Motion iv. Petition; v. Judicial Review. Previously in the Subordinate Courts the modes were Summons, Originating Application and Petition.
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As a result Order 8 which governed Originating Motions and Order 9 which governed Petitions under the Rules of the High Court 1980 does not exist anymore. There is no Order 8 and Order 9 in the 2012 Rules. As pointed out earlier these modes may still exist in specific written laws e.g. winding up, matrimonial matters and election petitions. The modes provided in these written law must be followed.
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It is mandatory and this is the same as the established law that: 1. Proceedings in which a substantial dispute of facts arise shall be begun by Writ (O. 5 r. 2). 2. Proceedings by which an application is to be made to the Court or the judge under any written law shall be begun by Originating Summons. O. 5 r. 3
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It is appropriate to begin proceedings by way of Originating Summons (i.e. same with present law) where: 1. The sole or principal question in issue is one of construction of a written law or instrument under any written law, deed, will, contract or any question of law; or 2. There is unlikely to be any substantial dispute of fact.
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Writs of Summons

O. 6 r. 1 provides that every writ shall be in Form 2 (for the High Court) and Form 2A (for the Subordinate Court. O. 6 r. 2 provides for the various endorsements that a writ must have i.e. a statement of claim as in O. 18, capacity in which a party sues or is sued, solicitor and address, and the number of days an appearance is required to be entered under O. 12 r. 4.
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With O. 6 r. 2 being made simple and includes items in the previous O. 6 rr. 2 and 3 RHC 1980, there is no rr. 2 and 3 in these Rules. The position is the same as before only that it is made simple and clearer. There is no more O. 6 r. 6(1). However notice of writ to be served out of jurisdiction still requires leave of court under O. 11.
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Appearance 1. Time limited for appearance. Major changes took place. (a) In respect of a writ served in Peninsular Malaysia the time limit for entering appearance is 14 days. The previous condition of whether in or outside local jurisdiction no longer exist.
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(b) In respect of a writ served in Sabah and Sarawak the time limit for entering appearance is 14 days. But if the defendants residence (person) or registered office of business (incorporated society) is not within the Division or Residency in which the Registry from which the writ was issued is situated, the time limit for entering appearance is 20 days.
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(c) To a notice of a writ served outside jurisdiction under O. 11 r. 4, the time limited for appearance is 21 days. (d) In the case of a writ served on the agent of an overseas principal under O. 10. r. 2, the time limited for appearance is 14 days. The 8 days, 10 days or 12 days time limits no longer exist.
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2. Conditional Appearance (O. 12 r. 6), Application to set-aside writ (O. 12 r. 7), and Appearance to Originating Summons (O. 12 r. 8) is no more. There is no more conditional appearance. However 2 new rules are introduced i.e. O. 12 r. 9 and r. 10.

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3. Order 12 rule 9. (for avoidance of doubt ) it is provided that an entry of appearance is not a waiver of irregularity: (i) in the writ or service of the writ (ii) in any order giving leave to serve a notice of writ out of jurisdiction (iii) in any order extending the validity of the writ for the purpose of service
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4. Order 12 rule 10. Where a defendant intends to dispute the jurisdiction of the court, he can do so by 2 grounds: (a) by reason of any irregularity mentioned in rule 9; or (b) on any other ground. The defendant can only apply to court: (i) after entering an appearance; and (ii) making the application within the time limited for serving a defence.
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The applications the defendant can make: (a) an order setting aside the writ or service of the writ; (b) an order that the writ has not been duly served on him; (c) the discharge of any order giving leave to serve a notice of the writ on him out of jurisdiction;
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(d) the discharge of any order extending the validity of the writ for the purpose of service; (e) the protection or release of any property seized or threatened to seizure; (f) the discharge of any order made to prevent any dealing with any property;
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(g) a declaration that the court has no jurisdiction over the defendant in respect of the subject matter of the claim or relief or remedy sought in the action; and (h) any other relief as may be appropriate. The application must be made by Notice of Application supported by an affidavit.
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For example: The most common order asked for is for the setting aside of the writ on the ground that the High Court of Malaya has no jurisdiction to hear the action as the proper forum is the High Court of Sabah or Sarawak. Or that the service is bad because it is not served according to the contract entered between the parties.
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A defendant who whishes to contend that the High Court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute shall enter appearance and within the time limited for serving a defence apply to the Court for an order to stay the proceedings (see O. 12 r. 10(2)).

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5.

6.

Time to file defence is extended to 14 days from dismissal of the application to set aside or any other period the court may order after the application to is dismissed (O. 12 r. 10(7)). O. 12 r. 8 is no more. The previous rule concerned appearance for Originating Summons. A new rule i.e. O. 12 r. 12 is introduced which provides that an appearance need not be entered for an Originating Summons.
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Notice of action to non-parties


O. 15 r. 13A is a new provision. It applies to estates of deceased persons or trust property. The Court on application or on its own motion direct that a notice of action be served on any person who is not a party but will be affected by any judgment made. This order can be made at any stage of the proceedings. The affected party will become a party to the action if he files an appearance within 14 days of service of the notice on him. However in default of appearance he will be bound by any judgment given as if he were a party.
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Actions by paupers

The provisions relating to action by paupers are no more. Previously the proceedings were governed by O. 15 r. 18 to O. 15 r. 26. It would appear that there are no actions of this nature filed in court and this is the justification for the deletion of these Orders.
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Withdrawal or admission of interpleader

O. 17 r. 7A is a new provision that is introduced. Interpleader is a proceeding made by either a person who owes money or goods and is sued by 2 or more persons making claims on that money or goods or a the Sheriff where a claim is made a person on money or goods taken by the Sheriff. Sheriff here includes any other officer of court charged with the execution process.
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Under O. 17 r. 7A before the hearing of the application, if the claimant files a notice that he withdraws his claim and gives a notice of withdrawal to the execution creditor or the execution creditor files an admission of the claimants title, the interpleader proceedings shall be dealt with as if a claim to the monies or goods had not been made.
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Pleadings: O. 18

1.

O. 18 r. 5 of the Rules of the High Court 1980 relating to service of pleadings during court vacation is no more. This used to be a very useful provision. Court vacation is when most lawyers go on vacation. Now lawyers have to be vigilant. Someone must be in the office at all times so as not to miss the time limit provisions.
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2.

3.

O. 18 r. 12(1A) is a new provision. It states that no party shall quantify any claim or counterclaim for general damages. O. 18 r. 22(4) of the Rules of the High Court 1980 relating to trial without pleadings is no more. Previously this provision excluded actions for libel, slander, fraud, malicious prosecution, false imprisonment, seduction or breach of promise of marriage from its ambit.
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Amendments

1.

O. 20 r. 6 of the Rules of the High Court 1980 relating to amendments during court vacation is no more. Previously this provision allowed amendments for which leave of court was not required during court vacation.

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2.

O. 20 r. 12 is a new provision. Sub-rule (1) allows amendment of pleadings by agreement of parties. It states that pleadings can now by a written agreement of all parties be amended before the commencement by trial. Sub-rule (2) requires the parties to file the amended pleading and serve it on all the parties within 14 days of the amendment.
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However there are exceptions: This is provided by O. 20 r. 12(3). It states that this rule does not apply to an amendment which consist of: (i) addition; (ii) omission; and (iii) substitution of a party.
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Payment into and out of Court and Offer to settle


Order 22 which governed payment into and out of court is no more and a new order is introduced in Order 22B known as the Offer to Settle. An offer to settle can be made at any time and accepted at any time before the court disposes of the action in Form 34. An offer can also have a time limit to be accepted or can be withdrawn before acceptance.
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An offer to settle is made without prejudice. It shall not be filed in court or made known in any pleading or affidavit. Where an offer to settle is not accepted, any communication of the offer shall not be made to court until issues of liability and relief except for costs have been determined. Where an offer has been accepted, its terms can be incorporated into a judgment.

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This provision is a play as to costs. However where an accepted offer does not provide for costs then each party shall bear its own costs. When an offer to settle by the defendant has not expired before the disposal of the claim and not accepted by the plaintiff and the plaintiff obtains judgment not more favourable than the terms of the offer to settle the plaintiff is entitled to costs to the date the offer was served and the defendant is entitled to costs from that date.
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Security for Costs


Three sub-rules are introduced to O. 23 r. 1. They are O. 23 r. 1(2A), (2B) and (2C). These provisions concern the situation where a non-party to the proceedings has assigned the right to the claim to the plaintiff with a view to avoid his liability for costs or where the non-party has contributed or agreed to contribute to the plaintiffs costs in return of a share of any money or property the plaintiff may recover in the action.
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In this situation the defendant may apply to the court for an order that the non-party gives such security for the defendants costs of the action. The application must be served on the non-party and all the parties to the action. The Court must before it makes its decision have regard to all the circumstances of the case and thinks it is just to do so make the order for the non-party to provide security for the defendants costs. The Court will determine the appropriate security.
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Discovery and inspection of documents


1. There is no more mutual discovery of documents and discovery by parties without an order of court. Therefore O. 24 r. 1 and 2 are no more. O. 24 r. 3 has introduced a new sub-rule (4) and deleted sub-rules (2) and (3) which were connected with discovery of document by party without an order.
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2.

Sub-rule (4) states that any order made by the court to give discovery refers to: (i) Documents which the parties rely or will rely; and (ii) Documents which could (a) adversely affect his own case; (b) adversely affect another partys case; or (c) support another partys case.
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4.

O. 24 r. 7A is a new provision introduced which provides discovery against other persons. An application can be made before the commencement of proceedings by way of originating summons and the person against whom the order is sought is named the defendant (sub-rule (1)). An application after the commencement of proceedings can be made by way of notice of application.
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In the affidavit the plaintiff must: (i) specify or describe the documents if practicable by reference to any pleading served or intended to be served; (ii) the documents are relevant to the issue arising or likely to arise out of the claim or the identity of likely parties to the proceedings; and (iii) the person against whom the order is sought is likely to have or have the documents in his possession, custody or power
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5.

6.

A new provision is introduced in O. 24 r. 8A where there the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings are concluded. O. 24 r. 12(1) sees some additions made to make the provision clearer. The court rarely exercises this power to order discovery on its own motion.
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The Court does so because it is of the opinion that the discovery is necessary for disposing fairly the matter or for saving costs. The documents however must fall under one of the following: (i) Documents which the parties rely or will rely; and (ii) Documents which could (a) adversely affect a partys case; (b) support a partys case.
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6.

(iii) Documents which may lead to a series of inquiry in obtaining of information which may (a) adversely affect a partys case; or (b) support a partys case. O. 24 r. 16 deals with failure to comply with requirements . This is very serious because the court has the power to order the action to be dismissed or that the defence be struck out and judgment entered.
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The changes made to this rule are that subrules (2), (3) and (4) are deleted. These provisions deal with committal of the party and his solicitor who fails to comply with the order for discovery. Sub-rule (5) is introduced which states that a party who is required to make a discovery of documents or to produce any document and fails to do so may not rely on those documents save with the leave of the court.
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Summons for directions


O. 25 governs this provision and it has been taken out. Previously there was a Practice Direction which suspended the use of this Order. However some courts followed it. With the provisions case management this provision has become obsolete. It was a very time and costs consuming provision.

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Interrogatories
O. 26 governs this provision. It is a provision where the applicant prepares questions relating to any matter between him and any other party and the other party is required to answer those questions (see Form 45). O. 26 r. 1 now has introduced a 14 day time limit for the questions to be answered. It is not just any questions but those necessary for disposing fairly the cause or matter or for saving costs.
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The answer must be made by affidavit. A party may object answering on ground of privilege but he must expressly state this fact in the affidavit. If the question is answered insufficiently the Court may order him to make a further answer or be subject to oral examination. O. 26 r. 6(2) is introduced which allows a party to ask for further and better particulars on the answers given.
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Failure to deal with interrogatories is very serious. The action may be dismissed or the defence struck out as the case may be. Further without prejudice to such action the party or solicitor in default of the court order is liable to civil committal. The answers can be put in evidence at the trial.

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Originating Summons Procedure


1. The fixing of time for attendance of parties before the Court is taken out because no appearance is required for an originating summons (so O. 28 r. 2 is no more). The notice of first hearing in O. 28 r. 3 is also taken out for the same reasons. However in its place is introduced O. 28 r. 3A which states that an Originating Summons will be heard in Chambers.
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2.

This provision is subject to: (i) any express provision in the 2012 Rules; (ii) any written law; (iii) any direction of Court; (iv) any practice direction issued by the Registrar. This is a very wide provision and is also designed to give effect to practice directions which otherwise cannot override the Rules.
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3.

4.

A new rule O. 28 r. 3B is introduced to cover applications disputing jurisdiction and for setting aside the originating summons. The grounds are similar to the grounds for challenging the jurisdiction and for the setting aside of the writ action. A new rule O. 28 r. 3C is introduced to cover affidavits in support, affidavits in reply and subsequent affidavits. Time limits are fixed now.
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(a) Sub-rule (1) requires the plaintiff to file and serve the affidavit in support not later than 7 days after the service of the originating summons. (b) Sub-rule (2) requires the plaintiff to file the affidavit in support at the time of filing an exparte originating summons. (c) Sub-rule (3) requires a defendant to file and serve any affidavit in reply not later than 21 days after being served with a copy of the affidavit in support.
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Sub-rule (4) requires a defendant to file and serve any subsequent affidavit within 14 days from the date the affidavit e intends to reply to was served on him served on him unless the Court otherwise directs. This is an important change as specific time limits have been set to be complied with. Failure to comply would result in the affidavit filed out of time not being considered or an application must be made to extend time under O. 3 r. 5.
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(d)

Interlocutory Injunctions: Order 29


1. Order 29 r. 2 has the following changes and now provides that an application: (i) is required to be made by notice of application; (ii) is open to the defendant as well (previously only the plaintiff could file the application; and (iii) in cases of urgency can be made ex parte.
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2.

3.

O. 29 r. 1(2BA) is changed to state that the Court must fix the inter partes date within 14 days of the ex parte interim injunction order was made. Previously it was 21 days. O. 29 r. 1(3) is changed to state that if an interim injunction is obtained on urgency before the issue of the originating process the injunction may be discharged on an application made by the defendant if the originating process is not issued within 2 days of the granting of the injunction.
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How much these provisions change the position under the 1980 Rules remain to be seen. The rule appears not to have the desired effect: (i) due to ad interim injunctions given (ii) inter partes hearing required under O.29 r.1(2BA) is hardly fixed within 21 days (now 14 days)
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(iii)

There is no point in making an application to set aside the exparte interim injunction because the ex-parte injunction lapses automatically at the end of 21 days. It takes longer to make an application to set aside the exparte injunction and for it to be heard.
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Interest

The 2012 Rules has made changes to the provisions regarding interest. Now the interest to be imposed is determined by the Chief Justice from time to time instead of the previous fixed rate. See: O. 30 r. 6(2) on Receivers O. 42 r. 12 on post judgment O. 44 r. 18 on equitable judgments
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Previously O. 42 r. 12 read: Every judgment debt shall carry interest at the rate of 4% per annum (after it was amended from 8% vide P.U. (A) 210/2011 with effect from 1.3.2011) or at such other rate not exceeding the rate aforesaid as the court directs (unless the rate has been otherwise agreed upon by the parties), such interest to be calculated from the date of the judgment until the judgment is satisfied.
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Now the new O. 42 r. 12 reads as follows: Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied.
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O. 42 r. 12A concerns late payment charge on judgment debts arising out of Shariah financial matters. The late payment charge is calculated at the rate provided under O. 42 r. 12 (i.e. date of judgment until the judgment is satisfied) subject to the following conditions: (a) the judgment creditor shall only be entitled to tawidh i.e. compensation for actual loss and be calculated at the rate determined by the Shariah Advisory Council(SAC);
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the amount of late payment charge shall not exceed the outstanding principal amount; and (c) if the amount of tawidh is less than the amount of late payment charge, the balance shall be channeled to any charitable organisation as determined by the SAC. The SAC is established under the Central Bank of Malaysia Act 2009 and the Capital Markets and Services Act 2007.
99

(b)

Sale of immovable property by Order


O. 31 r. 2(2) and (3) have been removed. Previously sub-rule (2) and (3) required the party entitled to prosecute the court order for sale of the immovable property take out a summons to proceed with the order of sale. Now sub-rule (4) states that the Court may give directions it thinks fit for the purpose of effecting the sale. This is a savings of time change. The Court gives the directions without an application being made.
100

Applications and proceedings in Chambers: Order 32


1. Now every application in Chambers is to be made by a Notice of Application in Form 57. There is no more Summons in Chambers. O. 32 r. 7 is no more. This rule concerned a writ of subpoena ad testificandum or a writ of subpoena duces tecum to compel the attendance of a witness for proceedings in Chambers.
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2.

3. 4.

O. 32 r. 8 is no more. This rule concerned applications for the granting of leave under the Mental Disorders Ordinance 1952. O. 32 r. 13 which deals with the service or use of affidavits have undergone some changes. (a) Rule 1 states that a party filing an affidavit in any proceeding or intending to use in the proceeding an affidavit filed in a previous proceedings shall do one of two things:
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serve the affidavit on every party; or (ii) give notice of his intention to do so in Form 58. [The previous procedure of giving notice to every party of the filing is no more. Now the service of the affidavit is sufficient.] (b) Rule (2) provides that unless provided by the 2012 Rules or otherwise directed by the Court the following times apply:
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(i)

(i)

(ii)

an affidavit in support of an application must be filed and served within 14 days from the date of filing of the application; an affidavit in reply to the affidavit in support must be filed and served within 14 days from the date of the sealed application and the affidavit in support was served on him whichever is later;
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(iii) a party intending to reply to an affidavit served on him must file and serve his affidavit within 14 days from the date the affidavit he intends to reply was served on him; (iv) if an affidavit or an exhibit is deposed or affirmed out of Malaysia then the time to file and serve a reply is 21 days.
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[This provision clarified that: (a) The Court could change the time on its direction to file and serve an affidavit. Previously there was no such provision. (b) An affidavit in reply is to be served 14 days from the sealed copy of the application and affidavit in support was served on him which ever is the later. Previously it was only from the date the affidavit was served on him. (c) The time within which a reply is to be made on an affidavit served on a party.]
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Pre-trial case management: Order 34


This provision has been substantially changed from before and encapsulates all pre-trial directions. 1. Previously the plaintiff must give a notice must to attend before the judge 14 days after close of pleadings. Now the Rule states that the judge on his own motion after the commencement of the proceedings direct parties to appear before him to obtain directions:
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(i)

so that all interlocutory matters be dealt with; and (ii) directions as to the future course of the proceedings so as to secure a just, expeditious and economical disposal of the action. At this stage the judge can take into account whether a party has complied with any pretrial protocol or practice direction. This is not the proper pre-trial case management yet.

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2.

Pre-trial case management is provided by Rule 2. At this stage the Court can: (i) consider any matter including the possibility of settlement of all or any of the issues; (ii) require the parties to furnish any information it thinks fit; (iii) make directions to secure the just, expeditious, and economical disposal of the action including:
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(a)

(b) (c) (d) (e)

mediation according to any practice direction filing of the bundle of pleadings filing of the bundle of documents agreed documents to be marked Part A documents where the authenticity is not disputed but the contents are disputed to be marked Part B and documents where the authenticity and contents are disputed to be marked Part C

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(f) (g) (h) (i)

the documents in all bundles shall be arranged chronologically or logical order and be paginated there must not be duplication in the same bundle contents and format of the documents must be must comply with the practice direction in force at the time parties may apply for directions in respect of the bundles for the just, expeditious, and economical disposal of the action
111

(j)

the filing of the statement of agreed facts; (k) the filing of a statement of issues to be tried; (l) the period within which the parties have to exchange and file their lists of witnesses; (m) the period within which the parties have to exchange and file the witnesses statements; (n) whether the number of witnesses is to be limited;
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(o)

(p) (q)

the mode in which examination-in-chief is to be given by a witness where a party is unable, on sufficient cause being shown, to obtain a witness statement and the manner of disclosure of such evidence to the other party prior to the trial whether the number of witnesses is to be limited how evidence in chief of the expert witness is to be set out
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(r)

(s)

(t)

whether the experts should discuss first to identify the issues and where possible to reach an agreement on those issues before the exchange of their reports by affidavits period within which objections to the contents of witness statements or other evidence of a witness is to be taken estimate length and date of trial
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3.

4.

The Court will inform parties by Notice the date and time of the pre-trial case management. Failure to comply with any directions or orders of the Court in respect of the conduct of the case and failure to appear during case management will result in the dismissal of the action or the striking out of the defence.

115

5.

Any judgment, order or direction made against any party for non-compliance or non-appearance during case management may be set aside or varied by the court on such terms the Court thinks just. This means that an application must be made to set aside such orders by the defaulting party.

116

6.

7.

Parties and their solicitors are under a duty to give all information and produce all documents as the Court requires except on the grounds of privilege. Automatic directions in personal injury cases is dealt in Rule 10.

117

Proceedings at trial: Order 35


The provision of judgment given in the absence of a party is dealt with in O. 35 r. 2. Any judgment or order given where one party does not appear nay be set aside by the Court on an application made by the party. O. 35 r. 2(2) is a new provision. It states that the application must be made within 14 days after the judgment or order was made but without prejudice to the courts power to extend this period.
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However O. 35 r. 2(3) provide for the factors to be taken into account in considering such an application: (a) the interest of justice (b) whether the absence was deliberate or due to accident or mistake (c) the prospects of success at the trial (d) whether there was any delay in making the application (e) whether there is prejudice that cannot be compensated by costs
119

Witness Statements: Order 35A


This Order is no more because the previous provisions are covered in O. 34 and O. 38 r.2. Previously O. 35A r. 2 stated that unless otherwise ordered by the Court, a copy of such witness statement shall be furnished to the other party not later than 7 days prior to it being tendered and read at the hearing. This provision caused a lot of problems.
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Assessment of Damages: Order 37


Changes are made to O. 37 r. 1. 1. This provision concerns the assessment of damages by the Registrar. Where the judgment is silent as to how the damages are to be assessed the party entitled to have damages assessed must within one month from the judgment apply to the registrar for directions. 2. The Registrar can give directions under Order 34 with necessary modifications.
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3.

4.

Notice of appointment for assessment must be filed and served on the party against whom judgment is given not later than 7 days of the hearing. If the party entitled to the benefit of the judgment fails to obtain directions the party against whom the judgment is given may on application to the Court seek an order to proceed with the assessment.

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5.

6.

The attendance of the witnesses and production of documents may be compelled by subpoena. Subject to any directions given by the Registrar, the party entitled to the benefit of any judgment shall file a notice of appointment for assessment of damages within 6 months of the date of the judgment.

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7.

8.

A party shall not file a notice of appointment for assessment by the Registrar unless directions for filing and exchanging of affidavit evidence pursuant to O. 34 have been given or complied with. If the party entitled to judgment does not file the notice within the prescribed period the other party may apply for directions.

124

Evidence General: Order 38


1. Rule 2 provides for witness statements. Its a new provision. It states that: Notwithstanding Rule 1 (i.e. which provides the general rule that evidence of witnesses shall be proved by examination of the witnesses in open Court) and unless provided by any written law or by these Rules, evidence-in-chief of a witness shall be given by way of witness statement.
125

2.

Unless the Court otherwise orders or the parties agree and subject to such directions the Court may make, such witnesses shall attend trial for cross-examination and in default of his attendance his witness statement shall not be received in evidence except with leave of Court. In the case of matters begun by Originating Summons evidence shall be by affidavit unless otherwise provided by the Rules or Court.
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3.

4.

The Court however may order the attendance of a witness for crossexamination of the person making such an affidavit. Notwithstanding the above the Court may if it thinks just order that the evidence of a witness be given otherwise than by witness statement. Unless otherwise ordered by the Court a witness statement must be filed and served not less than 7 days before it is to be tendered and read at the trial.
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5.

6.

O. 38 r. 4 and r. 6 which concerns expert evidence is no more. The provisions for case management covers these former provisions namely, on limiting the number of experts and expert evidence arising out of accidents caused by collisions on land. The Writ of Subpoena is now known as Subpoena only. It is in Form 63, 64 or 65 i.e. oral, documentary or both. The subpoena may be revoked by application by any person or the Registrar on his own motion. This decision is subject to review by a Judge within 14 days of the decision made by notice of application.
128

Order 40A: Experts of Parties


1. This is a new provision. It limits experts to the person who has been instructed to give evidence for the purpose of Court proceedings. The duty of the expert is to assist the Court and this overrides any obligation to the instructing party or the paying party. Evidence is to be given by a written report and exhibited in an affidavit sworn or affirmed by him.
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2. 3.

4.

5.

The affidavit must state that the report is his and that he takes full responsibility for his report. Rule 3(2) now provides guidance as to what the report must contain i.e. qualifications, literature or material referred, the issues he was asked to consider, the basis upon which the evidence is given tests carried out and by whom, summarise the range of opinions, reasons for the opinion, conclusions.
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6.

7.

The report must also state that his belief as to the correctness of his opinion and that he understands that he has an overriding duty to the Court and that he complies with that duty. A party may put to the opposing expert written questions about his report with the leave of Court for the purpose of clarification only. Any reply becomes part of the experts report. There are consequences for the failure to reply.
131

Affidavits: Order 41
1. The previous position that a deponent who is giving evidence in a professional, business or other occupational capacity may give the address at which he works, the position he holds and the name of the employer instead of his place of residence is no more.

132

2.

A new provision in Rule 13 is introduced . It states that an affidavit of a deponent affirmed outside the jurisdiction may be filed in the English language and need not be accompanied by a translation in the national language unless the Court otherwise orders.

133

Judgment and Orders: Order 42

There is a new provision in Rule 1A. This concerns judgment in proceedings heard in camera. Such judgment shall not be available for public inspection. The Court retains the power to allow inspection to a non-party to the proceedings on such terms as it thinks just.
134

Accounts and Inquiries: Order 43


1. This Order concerns a claim for taking an account. A new Rule 2 now extends the taking of accounts to counterclaims. Previously it was only for claims. New Sub-rules (3) to (6) are added to Rule 3 for directions on account taking. A new Rule 5A is added that provides the procedure to be complied with before the taking of accounrs or inquiries takes can take place.
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2.

3.

Enforcement of Judgments and Orders


1. O. 45 r. 1 is amended to reflect that charging order and appointment of receiver cannot be done in the Subordinate Courts. It applies only to the High Court (see Rule 1(2A)). New Rules 11A is introduced which gives the Court power to give directions for the just, expeditious and economical disposal of the proceedings.
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2.

Writs of Seizure and Sale: Order 47


Order 47 r 6 is amended to state how the application is to be made and what is to be contained in the affidavit. The provision is for the removal of any doubt and guidance for preparing the affidavit.

137

Garnishee Proceedings: Order 49


Rule 1 is amended to include a new Sub-rule (3). It states that any debt due or accruing due includes a current account or a deposit account with a bank or other financial institution whether or not the deposit has matured and notwithstanding any restriction as to the mode of withdrawal.

138

Judicial Review: Order 53


There are some major changes in this 1. O. 53 r. 2(4) has been changed by extending the scope of the Order. Previously any person who is adversely affected by the decision of any public authority may make the application. Now it is any person who is affected by the decision, action or omission in the exercise of a public duty or function is entitled to make the application.
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2.

3.

Rule 3(6) which provides the time period to make the application has been changed. Previously it was 40 days. Now it is 3 months from the date the application first arose or when the decision is first communicated to the applicant. Rule 3(7) and (8) are introduced. The Court is given the power to extend time to make the application if there is a good reason for doing so. The application must be heard inter partes therefore it is served on all parties.
140

4.

O. 53 r. 6 has is changed. Previously only within 14 days after leave has been granted the parties may apply for discovery and inspection of documents. Now the words are after leave has been granted. This means that that an application for discovery and inspection of documents can be made at anytime even during the substantive course of the judicial review proceedings.
141

Appeals to High Court from Subordinate Courts: Order 55


1. Substantial changes are made to this provision. Firstly the word decision in tis Order includes the words judgment, order or decree. It does not include the word ruling in the course of proceedings (r. 1). All appeals are by way of rehearing and must be brought within 14 days of the date of the decision appealed (r. 2).
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2.

3. 4.

5.

A notice of appeal against a decision after trial shall be in Form 111 and shall be filed in the Court which made the decision. The notice of appeal shall state the whole or which part of the judgment or order is appealed against. At the time of filing the notice of appeal the appellant shall lodge in Court RM 1,000.00 by way of security for costs within the time limited for appeal. Previously it was RM250.00 (see r. 3(3)).
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6.
7.

8.

The notice of appeal must also be served on all the respondents within 14 days of the decision. The appellant must also within the 14 days apply to the Court appealed from in writing for the notes of proceedings and the grounds of judgment (see r. 3(5)). The appellant has 1 month from the date of filing the Notice of Appeal to file the Record of Appeal (see r. 4(1)). Previously it was 6 weeks.
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9. The Record of Appeal shall contain: (a) the pleadings (b) notes of evidence recorded wholly or partly by mechanical means including witness statements (c) grounds of judgment (if available) (d) the memorandum of appeal (e) decision, order or judgment (f) duplicate copy of the notice of appeal (g) duplicate copy of the notice of cross appeal (if any) (h) documentary exhibits
145

10. The Record of Appeal shall be filed even if the notes of evidence, grounds of judgment and the sealed decision, order or judgment is not ready. 11. These documents when ready shall be filed by way of a Supplementary Record of Appeal without the leave of the High Court. 12. The Court can still proceed with the appeal even if the grounds of judgment are absent (see proviso to r. 4(2)).
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10. The Record of Appeal shall be filed even if the notes of evidence, grounds of judgment and the sealed decision, order or judgment is not ready. 11. These documents when ready shall be filed by way of a Supplementary Record of Appeal without the leave of the High Court. 12. The Court can still proceed with the appeal even if the grounds of judgment are absent (see proviso to r. 4(2)).
147

13. The requirements of the memorandum of appeal are the same. However the appellant can file an amended memorandum in the Supplementary Record of Appeal stated in r. 4(2). 14. The index of documents to be included in the record of Appeal must be sent to the Respondent who must within 48 hours object to the inclusion or exclusion of any document. Any disagreement must be referred to the Registrar of the High Court.
148

15. 16.

17.

The Record of Appeal must be served on each Respondent within the time limited for filing the Record of Appeal. An appeal from any decision other than a decision made after trial by the Subordinate Court shall lie to a Judge in Chambers of the High Court (see r. 5(1)). A notice of appeal in such case shall be in Form 111A and shall be filed in the Court which made the decision with a copy extended to the relevant High Court and served on every party to the proceedings within 14 days from the date of the decision.
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18. The Appellant has 1 month to file the Record of Appeal which consist of: (a) the application for the decision (b) the pleadings (c) all affidavits to the application (d) the order or draft order of the decision 19. This Record of Appeal shall not consist of the notes of evidence, grounds of judgment and memorandum of appeal.

150

20. The respondent may within 14 days from the date of service of the Record of Appeal file a Notice of Cross Appeal in the High Court and serve a duplicate copy of such notice on the appellant which conveys his intent to content that the decision should be varied. 21. The High Court may at any time allow amendments to the memorandum, notice of cross appeal and any part of the record of appeal on such terms as it thinks fit.
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22. The appellant may at any time before the appeal is called for hearing file and serve a notice of withdrawal of appeal on the parties to the appeal. If all parties consent to the withdrawal the appellant may file the document signifying such consent and the appeal is deemed withdrawn and will be struck off the list of appeals by the Registrar. In such case the deposit shall be returned to the appellant.

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23. If the parties do not consent to the withdrawal the matter will be called for hearing to determine any issue as to costs or other issue remaining outstanding. 24. An appeal shall not operate as a stay of execution except if the Court appealed from or the High Court may order. An application for stay must be made in the first instance to the Court appealed from.

153

Appeals to High Court under any Written Law

O. 55A governs this and is a new provision. 1. Where under any written law if an appeal lies to the High Court from any decision of a person or body of persons such appeal: (i) shall be made to the High Court in the State where the decision was given; (ii) by way of Originating Summons;
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2.

(iii) which set out the grounds of appeal; (iv) is supported by an affidavit in support; (v) if the High Court so directs by way of oral evidence The following documents shall be exhibits in the affidavit in support: (i) notes of evidence (if available) (ii) grounds of decision (if available) (iii) decision of the statutory body (if available); and (iv) documentary exhibits
155

3.

The Originating Summons shall be filed notwithstanding that the grounds of decision is not available or ready. If the grounds become available, it should be fled in a further affidavit. Such appeal must be filed within 1 month from the date of the decision was given or notified to the person appealing in absence of any provision in the written law stating otherwise.
156

4.

Unless provided by such written law, the Originating Summons shall be served on the respondent or where the respondent is a body of persons on the secretary, registrar or such other officer of that body of persons.

157

Issues concerning O. 55 and O. 55A


There are written laws that provide appeals to the High Court from decisions of statutory bodies or tribunals. Example: Section 77of the Employment Act 1955 provides that any person dissatisfied with the decision (made under certain sections of the Act) of the Director-General of Labour may appeal to the High Court against that decision. Section 77(2) provides that the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court".
158

The question is under which is the proper procedure to follow: O. 55 or O. 55A? Order 55A expressly provides that Appeals to High Court under Written Law is to be commenced by an originating summons supported by affidavit. The time limited for appeal is 1 month from the date of the decision. There is no need for a deposit. However section 77(2) states that the procedure in a civil appeal from a Sessions Court is to be followed.
159

The procedure to follow is O. 55. Sessions Court is a Subordinate Court and any appeal from such Court is governed by O. 55. Section 77(2) of the Act is enacted by Parliament. It would override any subsidiary legislation like the 2012 Rules. In SYARIKAT MALTACO [1985] CLJ 307 it was held that it is clearly the intention of the Legislature that the procedure of appeal against the decision of the Director General under s. 69 of the Act shall be the procedure in a civil appeal from the Sessions Court as provided by O. 49 r. 2 of the Subordinate Courts Rules 1980 and not O. 55 r. 13 of the High Court Rules 1980.
160

Appeal from Registrar of the High Court to a Judge in Chambers: Order 56 The time period for appeal from Registrar of the High Court to Judge in Chambers is changed from 10 days to 14 days. The Notice of Appeal in Form 114 must be served not less than 5 days before the date fixed for hearing of the appeal.

161

Transfer of Proceedings: Order 57


This is a new provision. It provides the mechanism of transfer from Subordinate Courts to the High Court and vice versa. 1. If a Judge of the High Court or Sessions Court or a Magistrate is satisfied that any proceeding in that Court can be more conveniently or fairly tried in some other court of co-ordinate jurisdiction he may order the proceedings to be transferred to that other Court.
162

2.

A transfer from: (a) a Subordinate Court to a High Court; or (b) High Court to a Subordinate Court shall only be made by an order of that High Court on application by any party by way of Originating Summons or notice of Application whichever is appropriate. If High Court to Subordinate Court? If Subordinate Court to High Court?
163

3.

4.

A transfer of any proceedings from: (a) a Magistrates Court to a Sessions Court (b) a Sessions Court to a Magistrates Court shall only be made by order of a Sessions Court Judge by way of Originating summons or notice of application whichever is appropriate. At the hearing of the transfer application the relevant Judge or Magistrate shall take into consideration whether the High Court or Subordinate Court which shall hear the case:
164

is located at or nearest to the place where (a) the cause of action arose (b) defendant resides or has his place of business (c) the facts on which the proceedings are based exist or are alleged to have occurred (d) the land the ownership of which is disputed is situated; or (e) for other reasons it is desirable in the interest of justice that the proceedings should be transferred
165

O. 57 gives the Sessions Court power to transfer a matter from the Magistrates Court to the Sessions Court and from the Sessions Court to the Magistrates Court. However Paragraph 3 of the 3rd Schedule in the Subordinate Courts Act 1948 states that, power to transfer any proceedings to another court of co-ordinate jurisdiction. It appears that the 2012 Rules have given wider powers of transfer than allowed by the Act. thanks.

166

Costs: Order 59 High Court costs. Substantial changes are made to this Order. There are some new phrases that are introduced. Determined costs and fixed cost. The phrase taxed costs is taken out. The stage of proceedings when costs can be dealt with is now under O. 59 r. 7 which still maintains the basic rule that costs can be dealt with at any stage of the proceedings. But now any costs ordered is to be paid at the conclusion of the proceedings unless the court otherwise orders. The position is reversed now.
167

Now the amount of costs is determined by the Judge himself at the conclusion of the proceeding. The Court will hear submissions from the parties as to the quantum of costs to be awarded and shall order such costs as it deems fit. The Court shall direct that parties submit on costs as part of the substantive submissions or separately. A bill of costs shall be annexed to the submissions which must include the work done to support the getting up and disbursements reasonably incurred.

168

In the case of an appeal all costs connected with the appeal will be dealt with by the Court hearing the appeal at the conclusion of the appeal. Where the costs are determined in respect of proceedings in the High Court an allocator certificate shall be issued by the Registrar upon payment of an allocator fee is 4% of the costs or a rate which the Chief Justice from time to time determine.
169

There will be separate Order drawn up for costs so that the extraction of the main Order will not be held up by non-payment of allocator fees. The effect of this is that there is no more taxation of costs. The Court is now given discretion to determine the amount of costs instead of the taxation of a Bill of Costs. This process saves the Courts time. There is no more review processes. These provisions have been removed.
170

O. 59 r. 10 penalises a party who has failed to establish any claim or issue which he has raised and this has unnecessarily or unreasonably protracted the trial or added to the costs or complexity of those proceedings. The Court may order that: (i) the costs of that party shall not be allowed in whole or in part (ii) costs occasioned by the failure of that claim or issue be paid to the other party regardless of the outcome.
171

Costs for interlocutory applications in the High Court is at the discretion of the Court (Rule 21) Costs on judgment without trial in the High Court and Subordinate Courts are on a scale of costs in 4 parts set out in Rule 22. Part I: is the Basic Costs Part II: is costs for additional items Part III: costs on indemnity basis Part IV: costs for miscellaneous items
172

What of the Subordinate Courts? At the conclusion of a trial the party entitled to costs shall be paid fixed costs pursuant to O. 59 r. 23 which provides a new scale of costs. The scale starts with a judgment sum not exceeding RM1000.00 right up to a sum not exceeding RM 500,000.00. This amount if fixed. The last fixed amount is RM 3,375.00 for suing/defending and RMRM13,450.00 for advocacy = RM16,825.

173

However any judgment sum that exceeds RM500,000.00 the amount is discretionary but must not exceed RM40,000.00. Every attendance in the Subordinate Court now is RM100.00 even for a mention. However the advocacy costs will be affected in 4 instances as provided in Rule 23(5). (i) No advocacy is allowed when judgment is entered by admission. (ii) Half advocacy is allowed if matter settled after it is fixed for trial.
174

(iii) Half advocacy is allowed if at the date of the trial but before the trial begins if the matter is dismissed or judgment is given. (iv) Full advocacy is allowed if after the trial has begun but before the Court determines the action, the matter is dismissed or judgment is given. Costs thrown away is advocacy if trial adjourned at the instance of a party.
175

Costs for interlocutory applications in Subordinate Courts. The costs have increased from a mere RM25.00 to RM100. Now it is not exceeding RM2,500.00 in the Magistrates Court and not exceeding RM8,000.00 in the Sessions Court.

176

Service of Documents: Order 62


1. There are now 2 new provisions for service by ordinary service under Rule 6(1): (i) Sub-rule (c) allows ordinary service to be to be affected by facsimile in accordance with sub-rule (3). (ii) Sub-rule (d) allows service in any manner agreed between the party serving and the party to be served.
177

2.

Sub-rule (3) provides that service by facsimile is to be affected where: (a) the party serving the document acts by solicitor (A); (b) the party on whom the document is served acts by a solicitor (B) and service is affected by transmission to the business address of (B); (c) (B) has indicated in writing to (A) that he is willing to accept such service at a specified facsimile number; and
178

within 3 days after service (A) serves a copy of the document by either: (i) leaving the document at the address of (B) (ii) by pre paid registered post (iii) any other manner as agreed by the parties in writing (iv) as the court directs This provision does not affect personal service or any written law that provides the manner documents are to be served on a body corporate.
179

(d)

3.

Rule 11 provides that notices sent by the Court may be sent now electronically apart from post. If sent electronically, the time for service would be the time the notice would be received in the computer system of the registered user. This type of transmission is now sufficient service. The burden is on the receiving party to show that he has not been so served. This type of service is crucial in the e-filing system.
180

Paper, Printing, etc: Order 63


1. Rule 1 allows a document to be printed on both sides of the paper. This is a new provision. Rule 5 is new. It states that noncompliance with the rules on documents i.e. quality, length and width, margins would not now render the documents defective nor the proceedings void.
181

2.

Electronic Filing: Order 63A


This is a new Order. 1. Rule 1 is a definition provision and provides for the meaning of the various phrases in the order. E.g. electronic transmission means transmission by a registered user (registered person who has been given access to use the electronic filing service) using the courts computer system. 2. Rule 7 provides that specified documents to be filed with the Registrar can also be filed using the e-filing service in accordance with this order and any practice directions
182

3.

The filing is satisfied by filing a single copy using the system. It can be done by electronic transmission or via the service bureau. The requirement of the Rules relating to signing or signature is satisfied where the: (i) registered user has applied his identification name, his authentication code and endorsement on the document (ii) Registrar has applied his identification name, his authentication code and signature on the document.
183

4. 5.

The date of the successful payment of the prescribed fees in the Courts computer system is taken as the date of filing using this system. The time for service is different for a document which requires a seal and a document that does not require a seal. (a) Where seal is not required: Time runs from the registrars notification of his acceptance of the document is received in the computer system of the registered user.
184

Time runs from the successful payment of the fees into the courts computer system if the document is filed using a service bureau. (b) Where seal is required: Time for service runs when the sealed copy is received in the computer system of the registered user. If the document is received other than a working day it is deemed to have been received on the next working day.
185

Service of foreign process: Order 65


A new Rule 2A is introduced. It provides for an alternate mode of service of foreign legal process.

186

Arbitration: Order 69
The provisions have been substantially redrafted to take into account the Arbitration Act 2005 which had replaced the Arbitration Act 1952 and the matters pending under the 1952 Act. The matters concerning arbitration that can be brought to the High Court has been widened. The others provision concerns enforcement of the awards and the registration and enforcement of foreign award.
187

Admiralty: Order 70
Substantial changes are made to this Order.

188

Debtor Act 1957: Order 74


The provisions concerning Judgment Debtors Summons has changes. New Rule 11A to 11D is added but there is nothing new about it. These provisions are the same with O. 37 r. 13 to r. 16 of the Subordinate Courts Rules 1980.

189

Disability: Order 76
What has been done is to do away with the words guardian ad litem and next friend and replace them with litigation representative. Disability here includes a person who is a minor or patient (who is a mentally disturbed person within the meaning of the Mental Health Act 2001). The title in any writ or originating summons or notice of application must now comply with this new term.
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Charge Actions: Order 83


Some changes have been made. 1. Where the charge action claim delivery of possession or payment of money: (i) Rule 2(2) now requires that the service of the originating summons and the affidavit in support must be served not less than 4 clear days from the first hearing of the summons.
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(ii)

Rule 2(3) which concerns delivery of possession now requires the affidavit served on the defendant to be indorsed with a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the charged property.

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(iii) Rule 2(4) now provides that where the hearing is adjourned and the defendant was absent from the hearing, then, subject to any directions given by the Court, the plaintiff must serve a written notice of the adjourned hearing, together with a copy of any further affidavit intended to be used at the hearing, on the defendant not less than two clear days before the day fixed for the hearing.
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2.

Rule 3(3) which concerns delivery of possession has been amended to now require that the particulars of the amount due under the charge as at the hearing date of the Originating Summons be provided.

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Miscellaneous: Order 92
1. Rule 1(3) now requires that an affidavit in a foreign language shall be filed with a translation of such affidavit by a qualified translator or solicitor. The foreign language affidavit and the translation is to be annexed as exhibits to an affidavit by the translator or solicitor verifying the translation. Rule 1(4) now provides that in urgent cases, the use of English is allowed provided that a Bahasa Melayu version is filed within 2 weeks or such extended time as the Court allows.
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2.

THANK YOU

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