Mode of Originating Process - Amendment of Pleadings PDF

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Mode of Originating Process O. 5 r. 1: Civil proceedings can be commenced by two modes: - Writ Originating summons Writ, O. 5 r. 2: Proceedings in which a substantial dispute of fact is likely to arise must begin by way of writ of summons. - Under the Rules of High Court 1980, what was considered a ...

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Mode of Originating Process O. 5 r. 1: Civil proceedings can be commenced by two modes: -

Writ Originating summons

Writ, O. 5 r. 2: Proceedings in which a substantial dispute of fact is likely to arise must begin by way of writ of summons. -

Under the Rules of High Court 1980, what was considered a substantial dispute of fact, was, inter alia, a claim based on an allegation of fraud. Seah Choon Chye v Saraswathy Devi: An application begun by way of originating motion which involves questions of facts in dispute and is not a matter which can be determined by affidavits, but requires parol evidence due to the allegations of fraud appearing in the applicant's affidavit, should have been commenced by way of writ.

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However, in Malaysian International Merchant Bankers v Highland Chocolate & Confectionery: If fraud is not the sole issue in the proceedings, but only raised in the affidavit as an alternative, it is not necessary for the plaintiff to proceed by way of writ. - In this case, the court allowed the plaintiff to proceed by way of an originating summons as the whole case depended on the interpretation of a debenture document with an alternative allegation of fraud.

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Where evidence is required in order for the dispute to be resolved, it would be most appropriate for the action to be begun by way of writ. - Abdul Majid v Haji Abdul Razak: The defendant executed a deed in favour of his son, the plaintiff, and his wife in consideration of his natural love and affection for them. Subsequently, the defendant refused to perform what had been agreed upon. The plaintiff applied for an order by way of originating summons. In his affidavit in support, the defendant denied that there was a valid trust and produced evidence indicating a change of heart. Held: In the circumstances of this case, it remained for the court to find what was the actual agreement reached. This meant, at the least, that evidence would have to be led, and therefore, an originating summons was not a suitable medium or process for the determination of the issues raised.

Originating summons, O. 5 r. 3: An application that is to be made to the court under any written law shall be begun by way of originating summons. -

Commencing proceedings by way of originating summons will substantially save time and cost as the matter can be efficaciously disposed of through affidavit evidence.

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O. 5 r. 4: Where the sole principal question at issue is likely to be one of the construction of any written law , instrument, deed, will, contract or document, or of any question of law, or where there is unlikely to be any substantial dispute of fact,

the most appropriate mode of commencement of proceedings is by way of originating summons. -

Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee: The applicant made a claim by way of originating summons for compensation for the removal of squatters from the respondents’ land. The respondents contended that the action should have commenced by way of writ as both, disputed questions of law and fact were involved. Held: Where the court found that the question of fact, namely how many squatter families were removed was not relevant as the compensation could be computed by way of the area of land concerned, was not crucial to the determination of the case, the applicant could proceed by way of originating summons.

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National Land Finance Cooperative Society v Sharidal Sdn Bhd: The appellants objected to the respondents commencing the proceedings by way of originating summons instead of by way of writ. The issue involved was purely a matter of construction of the sale and purchase agreement between the parties, and no other evidence was needed to determine the issue other than the correspondence that passed between the parties. Held: Where there are no issues relevant to the case which required evidence to be called at a trial, the respondents were right in having commenced the proceedings by way of originating summons.

Wrong mode of commencement: -

Re Deadman: Where a plaintiff, in the course of proceedings commenced by originating summons, seeks for leave to amend his claim to include an alternative allegation of fraud, the court may allow the amendment and order the proceedings to be continued as though they had been commenced by way of writ. Thus, failure to commence an action through the correct mode is not fatal to the continuance of the action. - The court may exercise its inherent jurisdiction under O. 2 r. 1 to not strike out a case merely on a procedural irregularity.

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O. 28 r. 8(1): An action begun by originating summons may be continued as if it had been begun by way of writ, if it appears at any stage of the proceedings that the action which should have been commenced by way of writ was begun by originating summons.

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Ting Ling Kiew v Tang Eng Iron Works Co Ltd: The appellants contended that the learned trial judge erred in law in dealing with the application summarily by an originating summons, especially in light of the plea of fraud and the conflicting affidavit evidence. In allowing the appeal and ordering the proceedings to continue as though it had begun by way of writ, the court held: - A judge is not precluded in the exercise of his discretion from making an order that the proceedings should be continued as if begun by writ under O. 28 r. 8(1).

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It is in fact within his absolute discretion and he is justified to do so, as in the circumstances of this case, in order to resolve the conflicts of affidavit evidence and reach a well-balanced decision. In this case, where fraud or intention to defraud was the central issue, particulars of fraud must be specifically pleaded and such particulars were absent in the affidavit of the respondent. Thus, there were matters which were not satisfactorily explained in the affidavits and could be resolved if the proceedings had been begun by way of writ.

Khoo Kheng Sim v Khoo Chooi Leong: Where the plaintiff's allegation of fraud was based merely on a single sentence in the most general term which did not specifically plead the particulars of fraud, the matter should have been commenced by way of writ as opposed to an originating summons. Besides the allegation of fraud, there were numerous disputes of facts which certainly called for the application of O. 28 r. 8(1) for the purpose of enabling the court to order the proceedings to continue as if the matter had begun by way of writ.

The Writ -

A formal document by which the defendant is directed to enter appearance within a specific period from the date of service of the writ.

Endorsement (O. 6 r. 2): -

O. 6 r. 2(1): Before a writ can be issued, it must be endorsed with a statement of claim or with a concise statement of the true nature of the claim made, or the relief or remedy required. - An endorsement would help inform the defendant the nature of the suit and the reasons why legal action is being taken against him.

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General endorsement: It must make it precisely clear to the defendant the claim which is made against him.

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Endorsement of a concise statement of the nature of the claim: - Where the statement of claim is not endorsed on the writ, the writ may be endorsed with a brief statement of the nature of the claim, or the relief or remedy sought. - Pontin v Wood: An application to set aside a writ which discloses no cause of action is appropriate only where the endorsement shows that the action is an abuse of the court process.

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A general endorsement or an endorsement of a concise statement which contains defects or lacks in sufficient particulars may be amended or cured by subsequent service of a full statement of claim.

Issuance of a writ (O. 6 r. 6): -

A writ must be issued according to Form 2 (application at High Court) or Form 2A (application at a Subordinate Court)

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Procedure for the issuance of a writ: - Filed with the court registry - A case reference is given to the writ - The Registrar will sign, seal and date the wr it

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A writ only takes effect from the date it is issued. - Jumatsah v Voon Kim Kuet: The effective date of the writ is the date of its filing at the relevant court Registry and upon payment of the requisite fee.

Duration and Renewal (O. 6 r. 7): -

Validity of the writ: - O. 6 r. 7(1): A writ is valid for a period of 6 months from the date of its issue and must be served within such period. - Trow v Ind Coope: For the purpose of service, the period concerned includes the day on which the writ is issued. - E.g.: A writ issued on 1st January 2015 expires on 1st July 2015. - An expired writ served upon a defendant has no validity.

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Extension: - O. 6. 7(2): A plaintiff may apply to extend the writ twice, not exceeding 6 months at any one time. -

O. 6 r. 7(2A): In order for the validity of the writ to be extended: - An application for renewal must be made before expiry of the writ. - An application for renewal must be made by way of an ex-parte summons. - The notice of application must be supported by an affidavit stating that: - Effort had been made to serve the writ within one month - Effort had been made thereafter to effect service

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The granting of an extension is within the discretion of the court. In exercising such discretion, the court will look into the reason why the plaintiff failed to serve the writ during the period of validity, and where the plaintiff has clearly not made reasonable effort to serve the writ, an extension would not be granted.

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A primary consideration of the court would be the effect of the extension on the defendant’s rights, particularly where the extension would go beyond the limitation period.

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Negligence by the plaintiff’s solicitors would not be sufficient to excuse a delay in serving the writ, unless they were reasonably made. New Ching Kee v Lim Ser Hock: In the absence of sufficient or good reason, the court will not exercise its discretion in favour of the renewal of the writ after the period allowed for service has expired, if the effect of doing so will be to deprive a defendant of the benefit of a limitation period which has accrued. - In this case the appellant’s solicitor had not acted reasonably in the matter and had been negligent in not serving the writ in time. There was also no sufficient or good reason for extending the validity of the writ and thus, the appeal was dismissed.

Personal service of the writ: -

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Once a writ is issued, it must be served upon the other party as due and fair notice of the claim made against them. O. 10 r. 1: A writ shall be personally served upon each defendant or sent to each defendant by way of registered post, and the first attempt at service must be made no later than 1 month from the date of the issue of the writ. O. 62 r. 3: A writ may be personally served by leaving a copy of it with the defendant.

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A defendant may be properly served despite him refusing to accept it. As long as he is made aware of the content of the document, the service is said to have been properly effected.

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Thompson v Pheney: Personal service can simply be the act of bringing the writ to the defendant’s attention. - Where the defendant refused to accept the writ, the conduct of the server in throwing it to the defendant with the words “I’m serving it to you”, was held to amount to good service.

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Banque Russe v Clarke: Where the server served the writ to the defendant in an envelope but did not inform him of its content, the service was held to be bad in law.

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Exceptions: - O. 10 r. 1(2): Defendant’s solicitor endorses acceptance on the writ on behalf of the defendant - O. 10 r. 1(3): Defendant enters appearance before being served - O. 10 r. 4: In an action for recovery of land, the court has made an order to affix a copy of the writ on some conspicuous part of the land - O. 11 r. 5(3): Service is effected in a foreign country in accordance with the law of that country - O. 62 r. 5: Order for substituted service has been made - O. 73 r. 3: In civil proceedings against the government

Substituted service: -

If the defendant cannot be found or is evading service, the plaintiff may seek for an order for substituted service from the court, namely to serve the writ through other means.

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O. 62 r. 5(1): The court may make an order in Form 133 for substituted service if it appears to be impractical to serve the writ on the defendant personally. O. 62 r. 5(2): An application must be made by way of ex-parte notice of application supported by an affidavit in Form 134 stating the facts and reasons. O. 62 r. 5(3): Once an order has been made, the steps provided must be followed.

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In order to be entitled to an order for substituted service, the applicant must show that it would be impractical to effect personal service. Re Nirmala Muthiah Selvarajah: - Where the whereabouts of the defendant is known, Practice Note 1 of 1968 must be complied with or else service can be rendered bad. - The basis of Practice Note No. 1 of 1968 is that a mere statement that the person to be served was evading service was not sufficient to satisfy the court the impracticability of serving the document. - The steps that must be taken are: - Two calls should be made to the defendant’s residence if known. If it relates to the defendant’s business, the call should be made to his business address. - The second call should be made by appointment through a letter sent to the defendant giving not less than two clear days’ notice. It must enclose a copy of the document to be served and offer an opportunity to make a different appointment. -

Where the whereabouts of the defendant is not known, Practice Note 1 of 1968 is not applicable.

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Once the steps have been followed, the applicant may then apply for an order for substituted service. However, a mere statement in the affidavit stating that the defendant is evading service is insufficient. The affidavit must set out: - Facts that show the application is bona fide; the explanation on circumstances that had resulted in the whereabouts of the defendant not being known - The belief and reason for such belief that the defendant is within or outside the jurisdiction of the court - The application is made with the intention that the defendant will be able to attend the proceedings.

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Malayan United Finance Bhd v Sun Chong Construction: Failure to comply with Practice Note 1 of 1968 will only render the proceeding irregular and will not nullify it.

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An order for substituted service can be granted if the court is satisfied that the defendant had left the jurisdiction in order to evade service. BBMB v Lorrain Osman: The defendant applied to have the order for substituted service on him set aside. He claimed that he left the country two months before the writ was issued. The plaintiffs did not admit that the defendant was out of the country on the date of the issue of the writ and submitted that the onus was on the defendant to prove such fact. Even if the defendant was not within the jurisdiction on the date of the issue of the writ, the plaintiff argued that the defendant was evading service. Held: The defendant failed to discharge the onus to show that he was out of Malaysia on the date of the issue of the writ. Even if the defendant had left the country and was out of jurisdiction when the writ was issued, he clearly did so in order to avoid service of the writ as he was eager to maintain the secrecy of his whereabouts, and thus, his application should be dismissed.

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Service outside of the jurisdiction (to a foreign defendant): Through the comity of nations, each country is allowed to exercise judicial power over foreign defendants, thus enabling the service of writ between countries. -

Where the foreign defendant is within the jurisdiction, the Malaysian courts shall have jurisdiction against the defendant. - Atmaram & Sons v Essa Industries: If the defendant visits the country voluntarily, the writ can be served on him personally, but if he is induced to come to the country, the courts cannot be said to have jurisdiction over him. - In this case, the plaintiffs, a Singapore firm, served a generally endorsed writ claiming damages for breach of contract against the defendants, a company incorporated in Pakistan. The writ was served on the chairman of the defendant company, at his hotel, while he was on a temporary visit to Singapore. - Watkins v North American Land & Timber Co Ltd: If a person has been induced by fraud of any kind to come within the jurisdiction for the concealed purpose of serving him with a writ in an action, the court will set aside the service as an abuse of the process of the court.

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O. 11 r. 1: Where the foreign defendant is outside the jurisdiction, service of the writ is only permissible with the leave of the court in the circumstances mentioned in limb (A) to (M). - Seasiana Sdn Bhd v Saab Scania AB: Where the writ was served outside the jurisdiction without leave of the court, the writ was set aside. - BBMB v ITC: Before granting leave for service outside jurisdiction, a plaintiff must satisfy the court that the action falls within one of the paragraphs under O. 11.

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O. 11 r. 4(2): A court will only grant leave where it is satisfied that the case is a proper one for service outside the jurisdiction. Société Générale de Paris v Dreyfus Brothers: What amounts to a ‘proper case’ can be seen where three criteria are satisfied: - Whether the claims are within the scope of one or more paragraphs of the relevant rule (O. 11 r. 1) - Whether the claim has a sufficient degree of merits which would justify allowing the service to stand - Whether the court ought to put a foreigner to the inconvenience of being brought to another country merely to contest his rights (principle of forum non conveniens)

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The Spiliada: Where leave was obtained by the shipowners, a Liberian company, to issue and serve a writ upon a Canandian firm outside the jurisdiction on the ground that the action was brought to recover damages in respect of a breach of a contract which was by its terms governed by English law, the issue was whether the most appropriate forum was an English or Canadian court. Held: An English court was the most appropriate forum. - Where there is some other appropriate forum for the trial of the action, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. - Thus, where there is another available forum to hear the case, the burden of proof is on the plaintiff to show why the trial should take place in England. Factors such as convenience, expense, availability of witnesses and where the companies do business, should all be considered by the court.

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In exercising its discretion judicially, the court must take into consideration other factors: - Whether the plaintiff can make out a cause of action in which they are likely to succeed - Whether there exists a comparative advantage in furtherance of justice to all parties - Whether the particular case falls within the spirit and the letter of the various classes of cases provided for

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Procedure (O. 11 r. 4): - An application for leave for service outside the jurisdiction mus...