Trial Flashcards
What are the order of the speeches in trial?
Order 33 Rule 4
🔷Generally P shall begin by opening his case - Order 33 Rule 4(2)
🔷If the burden of proof on all issues lies on the D, D will begin by opening his case - Order 33 Rule 4(6)
🔷 Order 33 Rule 4(7) - fresh point of law made by party entitled to make the final speech
Whether witnesses can be recalled?
Lim Ker
⛔ After parties have closed their cases, the judge cannot call witness without the consent of the parties.
Lim Ah Yew
✅ In a running down case, the D admitted liability. After the parties have closed their cases, the P was allowed to call a witness even though the D objected as there was no surprise or prejudice to the D. The D was allowed to cross-examine that witness who was called.
Evidence of Witness - Witness Statement
Order 38
What happens where both parties fail to attend trial
Order 35 Rule 1(1)
The judge may:-
1. Dismiss the action or
2. Make any other as he thinks fit
Can the case be restored?
Can. But P must apply to restore within 14 days after the date of the judgement/order, pursuant to Order 33 Rule 2(2).
Must furnish good reason for such absence. Carelessness is not a good reason
What happen when D is absent?
1️⃣
🙅♂️❌
Hup San Timber
The P’s action or D’s Counterclaim can proceed and judgement may be given for the P.
2️⃣
🙅♂️❌👨⚖️❌
Shaharuddin
Judgement may be entered against the D.
🆘D may apply to set aside the judgment under Order 35 Rule 2, but application must be made within 14 days after the order/judgement, giving good reasons 🆘
3️⃣
🙅♂️❌👨⚖️✅
Goh Choon Lye
Trial will proceed and D’s solicitor may cross-examine P’s witnesses.
What are the considerations the Court takes into account when deciding whether to set aside the judgment given in the D’s absence?
Order 35 Rule 1(3)
What happens if the P is absent and the Defendant has a counterclaim?
Order 35 Rule 1(2)
- P’s case may be dismissed, D’s counterclaim may proceed and judgement may be given for the D.
🆘 The P may set aside the judgment for the counterclaim and reinstate his case - Order 35 Rule 2(1) and has to do so within 14 days - Order 35 Rule 2(2)
🥳Alternatively… Karam Singh👳🏿♂️
P may file a fresh action. Dismissal of the P’s case for P’s non-appearance is not res judicate and is not a bar to the action being filed afresh, provided that limitation period HAS NOT expired.
What are adjournment?
1️⃣Order 35 Rule 3
2️⃣ Practice Direction 2/2011 provides, inter alia:
🔹Courts has discretion to allow adjournment.
🔹Hearing dates fixes by the Court are prohibited from adjournment unless both parties agree.
3️⃣ Practice Direction 1/2019:-
🔹Adjournment by the Court: Judge/Sessions Court/Magistrate, Registrar or SAR should plan their vacation or attendence in a course and replacement if required. The new date should be informed to all parties in advance.
🔹Adjournment by the parties: Application for adjournment should be made early so that new dates can be agreed and decided by the parties.
🔹 If the hearing has to be adjourned due to reasons which cannot be avoided, the case should be heard by a replacement judge on the fixed date or on adjourned date by the original judge.
Must furnish good reason to obtain an adjournment
Syarikat Pasir Perdana
The reason that there was no flight to Kota Bahru on that date was not good reason as the flight could have been booked earlier.
Lee Ah Tee
The Court must see whether the reasons are genuine
Diana Choo <Where>
- P was applying for adjournment for the 4th times on the grounf that she was overseas and sick.
- Application of adjournment was not allowed as there were too many adjournment by the P.</Where>
What are the 5 principles in Maxwell v Keun on the granting of an adjournment?
1️⃣ The trial judge has the discretion and will exercise the discretion in the interest of justice;
2️⃣ Prima facie, discretion unfettered
3️⃣ Question: Whether on the facts about, there are adequate or sufficient reasons to refuse the adjournment?;
4️⃣ The Appellate Court has power to interfere with trial judge’s discretion in granting adjournment;
5️⃣ However it will be slow to interfere
Which Malaysian case adopted the principles in Maxwell v Keun
Lee Ah Tee
Can a denial of adjournment be appealed?
An appeal Court will be slow to interfere with the judge’s discretion.
1️⃣ Tan Sri Dato Vincent Tan
The Court ⛔ interfere unless it is in the interest of justice
2️⃣ Hup San Timber
🔹The Appellate Court has interfered ✅ as the D has submitted his medical certificate.
🔹Where the judge was in some doubt as to the real reason for D’s absence, the guiding principle should be that both parties ought to be given an opportunity to be heard.
What are preliminary issues?
Order 33 Rule 2; Order 33 Rule 5
Examples:-
1️⃣ Breach of Contract
Ayer Itam Height Sdn Bhd
🔹P sued D for breach of contract in a land transaction as the D did not get approval of the authorities within 6 months as agreed.
🔹The Court invoked Order 33 Rule 5 and found that the D breached the contract and disposed the case without going to full trial
2️⃣ Limitation period Expired
Kwong Yik Sdn Bhd
🔹The HC allowed the D’s application under Order 33 Rule 5 to strike out the P’s action on the ground of limitation period which has expired.
🔹COA dismissed P’s appeal and held that the HC decision was correct.
Can preliminary issues be tried? What are the considerations?
