3. Modes of Originating Process

Question 1

Originating Summons - Benefits

Answer 1

• no pleadings
• no witness
• no oral testimonies
• matter decided based on each party’s case as stated in their affidavits
• hearing in chambers
• save costs and time

Question 2

Modes of Originating Process

Answer 2

O5 RoC

• Either writ of summons or originating summons
• other modes e.g. petition only used when provided under specific law (Appendix C/O94)

Question 3

When to use OS

Answer 3

• making an application

- unlikely to be any dispute of facts

Question 4

When NOT to use OS

Answer 4

When the plaintiff should have known that there is likely to be a dispute of facts / conflict of testimony and there is likely to be a necessity for taking parol evidence [Abdul Majid v Haji Abdul Razak]

Question 5

When to use writ

Answer 5

O5 r4 RoC

• Case involves dispute of fact
• P wishes to apply for summary judgment

Question 6

Wrong originating process?

Answer 6

[Dato Wong Gek Meng] Strict compliance

However, although Court has a discretion to set aside but only if there’s substantial miscarriage of justice that cannot be cured by amendment or order for cost [O1A/O2 RoC]
-“overriding interest of justice”

Court entitled to order for a proceeding that commenced by way of originating summons to continue as if it was commenced by writ [O28]