Chapter 1 - Introduction to Civil Procedure Flashcards
OVERVIEW
NON-COMPLIANCE OF THE RULES
1) Purpose of the Rules.
2) Technical objection - pre-amendment position & post-amendment position.
3) Jurisdictional Objection.
PRACTICE DIRECTIONS
1) General purpose of PD
2) Specific purpose of PD
3) Effect of PD
TIME
1) Reckoning period of time
2) Extension of time
NON-COMPLIANCE OF THE RULES
Purpose of the Rules
1) Boustead Trading v Arab Malaysian Merchant Bank Bhd:
- To facilitate attainment of justice.
2) Tan Chwee Geok & Anor v Khaw Ten Yen:
- To remove fussy technicalities & make it easier for parties to get justice.
Technical Objection - What
NOC
- Non-compliance: objection based on non-compliance of technical rules
- Opponent: seeks to defeat the opponent based on the non-compliance
- Court: prevent the court from determining the issues on merits
Technical Objection - Pre-amendment Position
1) Test:
- Mokhtar v Mohd Mokhtar: miscarriage of justice.
2) Example:
- UMBC Bhd v Ernest Cheong Yong Yin: notice of appeal filed out of time, objection dismissed.
Technical Objection - Post-amendment Position
1) The rules: O.1A & O.2, r.3
2) Intention of amendment - Beauford Baru Sdn Bhd v Gopala Krishnan:
- Smooth administration of due process of litigation.
3) Effect of amendment - Beauford Baru Sdn Bhd v Gopala Krishnan:
- There won’t be any objections strictly on technical grounds.
4) Example - Amirthanayaki v LPQB
- Wrong form used, objection dismissed.
- Procedural technical objections should not be allowed to obstruct the process of justice to the deserving.
Technical Objection - Post-amendment Position - The Test
1) Fundamental or Mandatory Approach & Intentional or Accidental Approach - DYAM Tunku Ibrahim Ismail v Datuk Captain Hamzah:
- Whether the non-compliance or omission is intentional or accidental.
- O.1A refers to non-compliance of the rules which are not fundamental or mandatory.
2) Serious miscarriage of justice - Perbadanan Nasional Berhad v Syed Omar Syed Mohamad:
- The court has to balance justice.
- The test: Whether any serious miscarriage of justice would be occasioned.
Jurisdictional Objection - The Rule
Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd:
- Irregularity that affects the jurisdiction & jurisdictional objection raised cannot be waived;
- Jurisdictional issue affects the legality of the judgment or order pronounced
Jurisdictional Objection - Examples
1) Order made in breach of statute - Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd:
- Order made in breach of statute is made without jurisdiction.
- It may be declared void & be set aside.
2) Summary judgment made for different applications - Lee Teng Siong v Lee Kheng Lian:
- O.14 & O.81 are two different jurisdictions;
- Court has no jurisdiction to deal with application made under O.14 when it is supposed to be taken under O.81.
PRACTICE DIRECTIONS
General purpose of PD
Ooi Bee Tat v Tan Ah Chim
- for administrative purpose
Specific purpose of PD
Megat Najmuddin v BBMB
- clarifies & highlights existing rules
- provides guidelines for effective implementation of the rules
Effect of PD
Megat Najmuddin v BBMB
- Cannot supercede relevant court rules without Court authority;
- Once PD has been properly & legally issued, they must be complied with.
TIME
Reckoning period of time
1) General rule: O.3 r.2
2) Weekly holidays - CIMB v Sivakadatcham v CIMB Bank Bhd:
- Saturday & Sunday are weekly holidays.
Extension of time
1) General rule: O.3, r.5
2) Factors for consideration - LRCP - Chen Chien Wen Edwin
- Length of delay;
- Reasons for delay;
- Chance of success, i.e. extension of time for appeal;
- Prejudice to the other party.
