Chapter 37 - Judgment & Orders Flashcards
JUDGMENT & ORDERS
Overview
1) General principles
2) Contents of judgment
3) Settling a judgment
4) Reviewing a perfected judgment or order
5) Setting-aside a judgment or order
6) Other issues on judgments or order
7) Committal proceedings
GENERAL PRINCIPLES ON JUDGMENT
Overview
1) Meaning of judgment & order
2) Inspection of judgment
3) Form of judgment
GENERAL PRINCIPLES ON JUDGMENT
Meaning of judgment & order
1) Janab’s Key Civil
Procedure:
- Where a decision brings finality to an action, it is termed as judgment (e.g. Default Judgment, Summary Judgment).
- Where the decision of the court in only interlocutory in nature, it is an order (e.g. Order for discovery, Order to amend pleadings etc).
2) Onslow v Commisioners of Inland Revenue:
- A judgment is a decision obtained in an action;
any other decision is an order.
GENERAL PRINCIPLES ON JUDGMENT
Inspection of judgment
1) Proceedings in camera - O.42, r.1A:
- Judgment delivered in respect of proceedings in camera are not available for public inspection except with the permission of the Court.
2) Open court proceedings - O.42, r.2A:
- Any member of the public is entitled to a copy of judgment delivered in open Court upon payment of prescribed fee.
GENERAL PRINCIPLES ON JUDGMENT
Form of judgment
O.42, r.5:
- Where an order provides that Form 75 prescribes the form for a particular judgment, then the judgment must be in that form.
- Order shall be marked with the name of the Judge, Magistrate or Registrar by whom it was made.
CONTENTS OF JUDGMENT
Overview
1) Time for doing it
2) Service of judgment
3) Date of judgment takes effect
CONTENTS OF JUDGMENT
Time for doing it
1) O.42, r.6:
- a judgment or order which requires a person to do an act must specify the time after the service, or some other time within which the act is to be done.
2) Effect of omission - Re Wilde:
- an omission to do so may be cured by a subsequent order.
3) Effect of failure to cure omission - Hitachi Sales (UK) v Mitsui Osk Lines:
- Failure to cure such omission may render the judgment or order invalid and the person affected by the judgment or order may apply to have it set aside as of right.
CONTENTS OF JUDGMENT
Service of judgment
Requirement of service of judgment - Re Seal:
- Where a judgment or order specifies a time for doing an act, it must be served personally within the time limited for doing the act.
CONTENTS OF JUDGMENT
Date of judgment takes effect
1) General - O.42, r.7:
- A judgment or order of the court takes effect from the day of its date.
- Such judgment or order delivered shall be dated as of the day on which it is pronounced;
- This rule applies to all judgments and order whether it is made in open court or chambers or by a Judge or Registrar.
2) Exception - O.42, r.7(2):
- The Court orders it to be dated as of some other earlier or later day.
3) Exercise of power - Yeo Kim Yuan v Hamid:
- Power should only be exercised on good grounds.
SETTLING A JUDGMENT OR ORDER
Overview
1) Procedures
2) Disputes over the judgment
3) Examples of disputes
SETTLING A JUDGMENT OR ORDER
Procedures
O.42, r.8:
How: By whom: Approval: By whom: Next step: Registrar: Dispute:
SETTLING A JUDGMENT OR ORDER
Disputes over the judgment
1) The law - O.42, r.8(3):
- Obtain appointment before the Registrar.
2) Scope - Sang Lee Company Sdn Bhd v Munusamy Karuppiah (FC, 2010):
- Under O. 42 r. 8, if there was a dispute on the matter, any party may seek an appointment with the Registrar to settle the terms;
- If the matter was heard by the judge the dispute may be determined by the judge.
- This was to safeguard the sanctity and authenticity of the final perfected sealed order and the court records.
- It was also to ensure that it accurately captured the very essence and terms of the order pronounced by the High Court.
- In law, the court can always amend an order which does not reflect what was actually pronounced.
- In such a situation, the court was not functus officio.
SETTLING A JUDGMENT OR ORDER
Examples of disputes
Parasuraman Kuppan v Sazali Bin Md Akhir & Anor (1999, CA):
- The solicitors should have sought an appointment with the Registrar for the dispute to be determined;
- In this case, the solicitors of the appellant should have taken the initiative as they were aware of the disagreement in respect the draft order they had drawn up.
- It was not for the Registrar to resolve the dispute in their absence.
REVIEWING A PERFECTED JUDGMENT OR ORDER
Overview
1) General rule
2) Exception - general principles
3) Exception - The Slip Rule
4) Exception - The Badiaddin Principle
REVIEWING A PERFECTED JUDGMENT OR ORDER
General rule
1) Before judgment is perfected - Chee Kuan Cheng:
- Before the judgment is perfected, the court has a wide discretion to review the judgment.
2) Before judgment is perfected - Syarikat Marak Jaya Sdn Bhd v Syarikat Masianda Sdn Bhd:
- before any order has been perfected, the court has inherent jurisdiction to review the matter;
- when an order is extracted or perfected, the court can still review the same but only with the consent of both parties or as expressly provided by the Rules.
- Examples:
O.13, r.19: setting aside JID in appearance;
O.19, r.9: setting aside JID in pleadings;
O.14, r.11: setting aside judgment in default of appearance at the hearing of summary judgment;
O.20, r.11: order does not correctly set out the manifest intention of the court, i.e. slip rule.
3) Judgment has been perfected - The Estate of Embi bin Haji Abdullah:
- The Court has no power to amend or alter a judgment or order which has been duly passed and entered;
Except:
(i) where there has been an accidental slip in the wording or;
(ii) where the judgment or order does not express the manifest intention of the Court.
4) Judgment has been perfected - Tan See Siong & Anor v Herman Ando:
- It is a well established law that a judge is functus officio once he has delivered his judgment.
- A party who is dissatisfied with this judgment can appeal against it.
- The said judge cannot vary his own judgment except under the ‘slip rule’ (O. 42 r. 5 of the Rules of the High Court) or within the exceptions expressed in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd;
- OTF, none of the case applies.
5) cf. Hock Hua Bank Bhd v Sahari bin Murid:
- One High Court cannot set aside a final order of another High Court, let alone its own final order.
High Court, having rightly or wrongly given the order, is functus officio, and it cannot set its own order aside; - Therefore, the order cannot be altered varied or set aside by the same court, nor does it come under the provision of O.20, r.11;
- The only recourse is to appeal to a higher court which has jurisdiction to pronounce the validity or otherwise of the order.
6) Ex parte orders - Lai Cheng Ooi v Lim San Peen:
- The principle that a judge has no power or jurisdiction to set aside an order of another judge of concurrent jurisdiction does not apply to ex parte orders.
- Therefore, an order which is made ex parte is liable to be set aside by the court of concurrent jurisdiction.
REVIEWING A PERFECTED JUDGMENT OR ORDER
Exceptions - overview
1) General principles
2) The Slip Rule
3) The Badiaddin Principle
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
Functus officio
Subramaniam a/l P Govindasamy v Susila a/p Sankaran:
- The doctrine of functus officio does not apply to cases where amendment of order is sought.
- The Court has power to amend its order, depending on the facts and justice of the case.
See: Sang Lee Company below.
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
New proof supplementing original order
Ford-Hunt v Singh:
- There is jurisdiction to make upon proof of new facts an order supplemental to an original order.
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
No substantial alteration
Tay Ek Seng Company Sdn Bhd & Ors v Tay Cho Koh & Ors:
- The Court has power to vary an earlier order so that the whole purpose of the earlier order would not be defeated, as long as the order has not been substantially altered as to make it an entirely new order.
