Chapter 12 - Trial of a Preliminary Issue, O.33, r.2

Question 1

TRIAL OF A PRELIMINARY ISSUE

Overview

Answer 1

1) The law & scope
2) General rule & exceptions
3) Test to invoke O.33, r.2
4) Non-applicability of O.33, r.2
5) Procedures for application for O.33, r.2
6) Outcomes of O.33, r.2
7) Recent application

Question 2

TRIAL OF A PRELIMINARY ISSUE

The law & scope

Answer 2

1) The law:
- O.33, r.2
2) Scope:
- It allows any question or issue of fact, law, or mixed fact and law to be tried at any stage of proceedings prior to judgment being handed down.
3) Distinction with O.14A:

• O.33, r.2 has a far wider scope than the one envisaged by O.14A;
• O.14A envisages the final determination of an action purely on a question of law and without the use of oral testimonies.

4) Principles - Krishnan Rajan a/l V Krishnan v. Bank Negara Malaysia:
- O.33, r.2 confers upon the court a wide discretionary power to order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter;
5) Purpose of O.33, r.2 - Tenaga Nasional Bhd v. JCY HDD Technology Sdn Bhd:

• purpose of O. 33 r. 2 preliminary trial is to save costs and time by determining a fundamental legal question in advance of the main trial.
• Such conclusion could avoid an unnecessary protracted trial.

Question 3

TRIAL OF A PRELIMINARY ISSUE

General rule & exceptions

Answer 3

Federal Insurance Co v Nakano Singapore (Pte):

1) General rule:
- the court will not exercise its power under O. 33 r. 2;
2) Exception:

• if the trial of that issue will result in a substantial saving of time and expenditure in respect of the trial of the action as a whole (including any counterclaim).
• It is a matter of discretion for the court to exercise in the circumstances of each case, bearing in mind that “Preliminary points of law too often are treacherous short cuts.”

Question 4

TRIAL OF A PRELIMINARY ISSUE

Test to invoke O.33, r.2

Answer 4

1) The test - Si Rajah & Anor v Dato’ Mak Ron Kam:
i) SUBSTANTIAL SAVING:

• The court will exercise its power under O.33 r.2 if and only if the trial of the question will result in a substantial saving of time and expenditure;
• which otherwise would have to be expended should the action go to trial as a whole;

ii) SIGNIFICANCE:

• An order under the rule should not be made in respect of matters which is insignificance;
• either of the facts or the law which ought to be decided at the trial of the suit.

iii) PRECISELY FRAMED:
- A preliminary question should be carefully and precisely framed so as to avoid difficulties of interpretation as to what is the real question which is being ordered to be tried as a preliminary issue.
2) Duty of judge - Savant-Asia Sdn Bhd v. Sunway PMI-Pile Construction Sdn Bhd:
- Judge should be cautious & should not invoke O. 33 r. 2 “unless the trial of that issue will result in substantial savings in judicial time and costs.
3) Duty of judge - Tenaga Nasional Bhd v. JCY HDD Technology Sdn Bhd:
- The duty of judge is to ask whether there are merits in the application to warrant the Court to exercise its power under O. 33 r. 2 of the ROC 2012 and order that those questions or issues posed by the D in this application be tried before this action goes on trial as a whole and whether the trial of those preliminary questions or issues will result in a substantial saving of time and expenditure.
4) Main consideration - Krishnan Rajan a/l V Krishnan v. Bank Negara Malaysia:
- the overriding consideration is whether the application would result in a substantial saving of time and expenditure.

Question 5

TRIAL OF A PRELIMINARY ISSUE

Non-applicability of O.33, r.2

Answer 5

1) Krishnan Rajan A/L N Krishnan v Bank Negara Malaysia & Ors:
- O.33, r.2 is not a suitable when facts are in dispute or when extrinsic evidence needs to be adduced.
2) Heah Theare Haw v Chin Kim Gan & Anor (2016):

• where there is an obscurity of facts or law or both where further light can only be thrown at the trial, O.33, r.2 application should not be used.
• OTF, the question framed entails serious disputes among parties that can properly be adjudicated only at a full trial.

Question 6

TRIAL OF A PRELIMINARY ISSUE

Procedures for application O.33, r.2

Answer 6

1) How should be made:
- NoA to apply for court to make order under O.33, r.2.
2) When should be made - Daud Arshad & Ors v Felcra Bhd:
- O.33 r.2 expressly provides that the application may be made either before, at or after the trial.
3) When should be made - Dayapi Holdings Sdn Bhd & Anor v. Arab Malaysian Finance Bhd & Anor:

• when the proceeding has reached such an advanced stage of the proceeding or had practically reached the trial stage, the appropriate course to adopt is not to invoke O. 14A, but to invoke O. 33, r. 2;
• Court may then make decisions under O.33, r.5.

Question 7

TRIAL OF A PRELIMINARY ISSUE

Outcomes of O.33, r.2

Answer 7

O.33, r.5:

• the court may dismiss or give judgment in the matter

Question 8

TRIAL OF A PRELIMINARY ISSUE

Recent application

HC, 2019

Answer 8

Pamela Esther v Fatimah Hospital Ipoh & Anor:

• The question of law crafted cannot be conclusively determined despite the preliminary hearing that is conducted pursuant to O. 33 r. 2.
• therefore, it is just and appropriate to keep the Main Suit alive;
• the question of law as drafted by this Court for purposes of this preliminary hearing shall join the other questions of facts and law to be determined by this Court at a full trial.