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Civil Procedure > Chapter 31 - PTCM > Flashcards

Chapter 31 - PTCM Flashcards

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Civil Procedure 1L flashcards
1
Q

PTCM

Overview

A

1) General principles on PTCM
2) Overview process in PTCM
3) Scope of PTCM
4) Failure of parties & non-compliance
5) Duty of parties at PTCM
6) Power of court at PTCM
7) Dismissal of the action
8) Dismissal for want of prosecution

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2
Q

GENERAL PRINCIPLES ON PTCM

Overview

A

1) Power to direct PTCM
2) Power of judge
3) Duty of counsel
4) Effect of not having PTCM

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3
Q

GENERAL PRINCIPLES ON PTCM

Power to direct PTCM

A

1) The law:

O.34, r.1

2) Scope - Tan Geok Lan v La Kuan:
- The court controls the progress of cases by the exercise of its powers given to dictate the progress of cases at the pre-trial stage.

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4
Q

GENERAL PRINCIPLES ON PTCM

Power of judge

A

Tan Geok Lan v La Kuan:

  • The power of court includes ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused.
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5
Q

GENERAL PRINCIPLES ON PTCM

Duty of counsel

A

Sunrise West Sdn Bhd & Ors v Pravin Mahtaney Ramchand & Anor:

  • To present to the court in a clear & unequivocal manner the agreed facts & issues to be tried;
  • To attend case management with appropriate focus to facts, issues & documents.
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6
Q

GENERAL PRINCIPLES ON PTCM

Effect of not having PTCM

A

Sunrise West Sdn Bhd & Ors v Pravin Mahtaney Ramchand & Anor:

  • Court expressed its displeasure & disappointment when the basic facts & dispute in relation to the agreed facts are not brought upon the court by the party.
  • It is then becomes difficult and challenging at trial for the matter to be resolved.
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7
Q

OVERVIEW PROCESS IN PTCM

Overview

A

1) Notification

2) Case management at court

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8
Q

OVERVIEW PROCESS IN PTCM

Notification

A

1) Notification of PTCM - O.34, r.3:

Mode:
Form:

2) In practice:

  • Via e-filing login in account or portal;
  • For courts without without e-filing, by official letter from the court.
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9
Q

OVERVIEW PROCESS IN PTCM

Case management at court

A

1) Matters to be discussed:

  • Mediation;
  • Bundle of pleadings & documents;
  • Statement of agreed facts & issues to be tried;
    Statement of witness.

2) Fix date for trial.

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10
Q

SCOPE OF PTCM

Overview

A

1) Notification
2) Attendance of parties
3) Mediation
4) Trial documents

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11
Q

SCOPE OF PTCM

Notification

A

1) O.34, r.2(1):
- Court may direct parties to attend PTCM relating to the matters arising in the action.
2) O.34, r.3:
- Notification in notice in Form 59.

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12
Q

SCOPE OF PTCM

Attendance of parties

A

O.34, r.4:

  • By solicitor; or
  • Personally with the leave of court.
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13
Q

SCOPE OF PTCM

Mediation

A

O.34, r.2(2)(a):

1) Scope:
- Possibility of settlement & mediation, in accordance with PD 5/2010.
2) Benefits:

  • Explore all options available;
  • Identify underlying issues & common grounds;
  • No delay in court hearings.

3) Type of cases, inter alia:

  • Claims for personal injuries;
  • Defamation & matrimonial disputes;
  • Commercial & contractual disputes; and IP cases.

4) Agreement: Form 1 PD 5/2010
5) Settlement: 3 months from the date of reference to mediation.

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14
Q

SCOPE OF PTCM

Trial documents

A

O.34, r.2(2)(b) - (t):

1) Trial documents:

  • Bundle of pleadings;
  • Bundle of documents (Part A, B & C);
  • Statement of agreed facts;
  • Statement of issues to be tried;
  • Summary of P’s & D’s case;
  • List of witnesses & witness statements.

2) Issue on agreed bundle - Yeo Ing King v Melawangi Sdn Bhd:

  • Part A: contents & truths are not disputed;
  • When a document is placed in Part A, it is deemed to be proved without any qualification.
  • Part B & C: content and/or truth is disputed.
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15
Q

FAILURE OF PARTIES & NON-COMPLIANCE

Overview

A

1) Failure to attend
2) Adjournment
3) Effect of failure to comply
4) Issuance of peremptory order

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16
Q

FAILURE OF PARTIES & NON-COMPLIANCE

Failure to attend

A

O.34, r.6

17
Q

FAILURE OF PARTIES & NON-COMPLIANCE

Adjournment

A

O.34, r.5

18
Q

FAILURE OF PARTIES & NON-COMPLIANCE

Effect of failure to comply

A

1) O.34, r.1(3):

  • Dismiss the action;
  • Strike out the defence or counterclaim;
  • Make any other orders.

2) O.34, r.2(3):

  • Dismiss the action;
  • Strike out the defence or counterclaim;
  • Enter judgment;
  • Make any other orders.

3) Application - Zainal Effendi Mohd Daud v Suruhanjaya Perkhidmatan Awam:

  • The plaintiff’s frequent failure to comply with the directions of the judge given during pre-trial case management without a satisfactory explanation was a very serious matter & could not be condoned by the court.
  • Consequently, although not canvassed for by the defendants, the plaintiff’s action should be dismissed.
19
Q

FAILURE OF PARTIES & NON-COMPLIANCE

Issuance of peremptory order

A

Md Amin bin Md Yusof v CityVilla Sdn Bhd:

  • a peremptory or an unless order should not be made unless there is a history of failure to comply with other orders as it is an order of last resort;
  • All the circumstances of the case, inclusive of whether the failure to comply with the peremptory or unless order was indeed intentional and contumelious, should be taken into account before penalizing the defaulting party.
20
Q

DUTY OF PARTIES AT CASE MANAGEMENT

Overview

A

1) Disclose all information

2) Make all interlocutory applications

21
Q

DUTY OF PARTIES AT CASE MANAGEMENT

Disclose all information

A

O.34, r.8:

  • Parties shall give all such information & produce all documents required.
22
Q

DUTY OF PARTIES AT CASE MANAGEMENT

Make all interlocutory applications

A

O.34, r.9:

  • 7 days before the date of case management;
    service in Form 60 specifying orders & directions.
23
Q

POWER OF COURT AT PTCM

Overview

A

1) To issue any orders or directions
2) To order for settlement
3) To deal with non-compliance
4) To make peremptory order

24
Q

POWER OF COURT AT PTCM

To issue any orders or directions

A

O.34, r.1:

  • Issue any orders or directions that will ensure just, expeditious & economical disposal of the proceedings.
25
Q

POWER OF COURT AT PTCM

To order for settlement

A

O.34, r.2(2):

  • Power to explore possibility & issue order of settlement & mediation, in accordance with PD 5/2010.
26
Q

POWER OF COURT AT PTCM

To deal with non-compliance

A

O.34, r.1(3) & r.2(3):

1) O.34, r.1(3):

  • Dismiss the action;
  • Strike out the defence or counterclaim;
  • Make any other orders.

2) O.34, r.2(3):

  • Dismiss the action;
  • Strike out the defence or counterclaim;
  • Enter judgment;
    Make any other orders.
27
Q

POWER OF COURT AT PTCM

To make peremptory order

A

Md. Amin b. Md Yusoff & Anor v Cityvilla Sdn Bhd:

  • Failure to comply with peremptory order emanating from PTCM conference is fatal.
28
Q

DISMISSAL FOR WANT OF PROSECUTION

Overview

A

1) Distinction with dismissal for disobedience
2) Dismissal under ROC
3) Dismissal under inherent jurisdiction

29
Q

DISMISSAL FOR WANT OF PROSECUTION

General principles

A

1) Dismissal for disobedience of peremptory order - Bailey v Bailey:

  • When a suit is dismissed for disobedience of peremptory order;
  • Filing afresh of the suit will constitute an abuse of process.

2) Remedy for dismissal for disobedience of peremptory order - Janov v Morris:

  • For dismissal for disobedience of peremptory order (i.e. under O.34 ROC), the filing of a fresh action may constitute an abuse of process.
  • Instead, he may appeal against that order seeking, if necessary, an extension of time within which to do so.

3) Dismissal for want of prosecution - Birkett v James:

  • Where an action was dismissed for want of prosecution before the limitation period had expired, the court would have no power to prevent the plaintiff from starting a fresh action;
  • i.e. filing afresh of the suit will NOT constitute an abuse of process.
  • Therefore, an action should not be struck out or dismissed for want of prosecution during the limitation period because P would be able to issue a writ the following day in accordance with the law.

4) Position in Malaysia - Syed Omar Syed Mohamed:

  • Both cases are referred to in Syed Omar Syed Mohamed v Perbadanan Nasional Bhd.
  • Held: The principle in Birkett v. James had no application for O. 34 of the RHC purposes on pre-trial case management;
  • Under O.34, the court no longer left it to the parties to move the litigation at their own pace but assumed the role of setting the time table for progress of the case.
  • Issuance of peremptory order & failure to comply with such order that lead to dismissal of the suit will BAR the party from filing afresh;
  • Filing of the second suit may amount to an abuse of process;
  • Instead, he may appeal against the decision.
30
Q

DISMISSAL FOR WANT OF PROSECUTION

Dismissal under ROC

A

1) Rules:
- Order 19 rule 1: failure to deliver a Statement of Claim;
- Order 24 rule 16: failure to make a discovery of documents;
- Order 26 rule 7: failure to answer interrogatories from the Defendant; or
- Order 34 rule 7: failure to set down the action for trial.
2) Dismissal under O.34, r.7 - Syed Omar Syed Mohamad v Perbadanan Nasional Bhd:

  • filing the second suit after it is being dismissed would be construed as an attempt to circumvent the appeal procedure.
  • therefore, when a suit is dismissed under O.34, r.7, proper recourse is to appeal; not to re-filing the suit.
31
Q

DISMISSAL FOR WANT OF PROSECUTION

Dismissal under inherent jurisdiction - test to invoke

A

Toh Hock Thye & Ors v Toh Chwee Biow:

  • Under inherent jurisdiction of the court, the plaintiff’s action is liable to be dismissed for want of prosecution when the court is satisfied that:
    (1) the plaintiff’s default has been intentional and contumelious; or
    (2) the plaintiff or his lawyer is guilty of such inordinate and inexcusable delay that the defendant has been prejudiced by it.
  • On the facts of this case, the action was dismissed based on court’s inherent powers by the reason that P was guilty of inordinate & inexcusable delay that prejudiced the D.
32
Q

DISMISSAL FOR WANT OF PROSECUTION

Dismissal under inherent jurisdiction - example

A

Vasudevan Vazphulli Raman v T Damodaran P V Raman (FC):

  • Inordinate delay is inexcusable warranting a dismissal for want of prosecution until a credible excuse is made out;
  • The question to be asked is whether the delay gives rise to a substantial risk that a fair trial would not be possible or is such as is likely to cause or to have caused serious prejudice to the defendants;
  • As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial;
  • OTF, FC held that the trial court is correct in dismissal the action when the plaintiffs took out a writ in December 1973 some ten (10) years after the accrual of the action & after a lapse of 3 years and 3 months the appellant gave notice of his intention to proceed in the action but did nothing further & no steps whatsoever were taken to set the action down for trial.

Civil Procedure (43 decks)

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