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EXPLAINATION ON THE FLOW CHARTOBJECTIVE FOR PTCM Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465. PTCM marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases b...

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MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E EXPLAINATION ON THE FLOW CHART OBJECTIVE FOR PTCM  Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465. PTCM marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it , not the parties, to dictate the progress of cases at the pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused. EFFECT OF NO PTCM  Sunrise West SDN BHD & Ors V Pravin Mahtaneyramchand & Anor [2012] 1 MLJ 414 The court expressed its displeasure and disappointment with the parties stating that when basic facts are not agreed upon before commencement of trial or the dispute in relation to the agreed facts are not brought to the attention of the judge to enable the court to understand the crux issue of the case, it become difficult and challenging at trial for the matter to be resolved. ORDER 34 RULE 1 The court under Order 34 Rule 1(1) of the Rules of Court 2012 may  by its own motion direct the parties to the proceedings to appear before the court and  the court may order or give direction as it think fit so that all matters which must be or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditions and economical disposal of the case. STATEMENT OF THE AGREED FACTS  Refers to fact which are not disputed by all parties

 The statement is to be filed into the court (after the partied have exchanged the drafts between them to be perused, corrected and ultimately finalised)  Once admitted, it is not necessary for the parties to call witnesses to prove the facts stated in the statement of the agreed facts. STATEMENT OF ISSUES TO BE TRIED  Contains the main legal issues in dispute between the parties  Example 1 : whether the defendant was negligent while driving the vehicle, thus caused the accident to happen which result in the Plaintiff’s injuries? CHRONOLOGY OF THE CASE  Set out facts in chronological order  Parties should take note of the dates in the chronology to see any discrepancies (with any documents or the opponent’s version) and may be disputed. SUMMARY OF THE FACTS/CASE  Usually used in cases where chronology of the case is not required since the facts are not complex.  It assists the court by providing the court with a quick and compact overview of what had occurred between the parties. ORDER FOR MEDIATION  O34 R2(2)(a) ROC parallel with Practice Direction No 5 of 2010  Also known as 'Court Annexed Mediation' - because registrar is the mediator.  Agreement to Mediate: Form 1 Practice Direction No 5 of 2010  Period for settlement: 3 months from the date referred for mediation. PRESENCE FOR PTCM BEFORE TRIAL  Attendance at pre-trial case management (O. 34, r. 4)  The parties to the action or proceedings may be represented at the pretrial case management by their solicitor, if any, but may, if they so desire, with the leave of the Court, attend the pre-trial case management

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E personally, at the time originally appointed or as adjourned, in addition to their solicitor.  Failure to attend (O. 34, r. 6)  If, at the time appointed for the pre-trial case management, any party fails to attend, the Court may  An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just.  Without prejudice to the preceding paragraphs of this rule, where any party to the action or proceedings fails to attend the pre-trial case management, the Court may, if it thinks fit, adjourn the case management.  It means a PTCM session can be adjourned whenever necessary.  Order 34 Rule 5  a pre-trial case management “may be adjourned from time to time, either generally or to a particular date, as may be appropriate”. DUTIES OF OF THE PARTIES  Duty to give all information at pre-trial case management (O. 34, r. 8)  The parties to the action and their solicitors shall give all such information and produce all such documents as the Court may reasonably require for the purposes of enabling the Court to properly deal with the action. dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit.  Duty to make all interlocutory applications at pre-trial case management (O. 34, r. 9)  an interlocutory application in the action shall, not less than seven days before the first pre-trial case management date, serve on the other parties a notice in Form 60 specifying the orders and directions sought.  Limitation for the interlocutory application (JAWIAKLANDU V. SUNNY INSPIRATION SDN BHD) Pl file suit in 2004. Pl filed a lot of documents in the interlocutory application as the number of enclosure reached 151. Held: much judicial time has been wasted hearing non-productive applications and in order to arrest further interlocutory application and delay, she had to direct the suit to be disposed of immediately.

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E EXPLAINATION ON THE FLOW CHART BUNDLE OF PLEADINGS (see the 2nd flowchart)  Consist of the writ and all pleadings i.e SOC, SOD, CC, RTD and other subsequent pleadings if any.  O34 r 2(2)(b) & (c) AGREED BUNDLE OF DOCUMENTS (BUNDLE A) o Documents which both parties do not have dispute as to the authenticity and content of the documents. o It contains documents which are relevant as evidence in proving the issues in the caseThe document in this bundle could be admitted in evidence without the need of evidence to prove such documents as required under the law of evidence. - Parties submit the agreed bundle of documents to the court before the commencement of the trial & ask the court to admit in evidence. NON-AGREED BUNDLE OF DOCUMENTS o Documents that both plaintiff & defendant disagree to accept as evidence. o Thus they will be disputed during the trial i.e during the cross examinations. o Non-agreed bundle of documents can be divided into 2 parts : Part 1 : The authenticity is admitted but the content is disputed Part 2 : The authenticity and Content are both disputed.

Genisys Integrated Engineers Pte Ltd (suing on behalf of UEM Genisys Sdn Bhd in a representative/derivative capacity) v Pati Sdn Bhd [2012] 9 CLJ 494. o In 2005, the P was ordered to amend the writ because of the changing of the name of the party. In 2007, the P sought leave from the court to substitute UEM Genisys as the plaintiff and leave was granted by the court on 4.2.2008 but not had been done. In 2012, the P asked for extension of time to file amended writ So defendant had applied at the case management stage, to strike out the case of the plaintiff on the ground of want of prosecution. o Held it had inherent jurisdiction to strike out any cause any justifiable reasons especially when this case was tried for PTCM under order 34 requires the court to deal with such issues at case management stage itself to ensure just, economical and expeditious disposal of the case.

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E  EXPLAINATION ON THE FLOW CHART PURPOSE OF WITNESS IN TRIAL  Legal proceedings especially trials, depends on witnesses to present factual evidence to the judge  Typically each party in a dispute has its own set of witnesses to present its own version of what had happened between the parties.  All witnesses however, must submit to cross examination, which means being questioned by the opposing party.

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 TYPES OF WITNESS  Witness (in general) Person who give testimony under the oath in the court concerning what they have seen, heard or otherwise observed.  Witness (expert) A person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit By reason of education or specialised experience, he/she is allowed to testify at a trial not just about the facts of the case but also about the professional conclusions he draws from the facts. Medical, scientific and technical experts are commonly used but other types of experts can be used. METHOD OF DELIVERING TESTIMONY OF WITNESS  Method 1 (General Rule) : Examination in Open Court For case begun by writ, any fact of the trial must be proven through the evidence of a witness. And the examination of that witness must be made in open court. Order 38 Rule 1  Method 2 : Witness Statement  In a case begun by writ, the evidence-in-chief of a witness must be given by way of witness statement unless ordered otherwise (Order 38 Rule 2(1))

The witness statement must be filed in by the parties and served to the other side at least 7 days before it is to be tendered during trial (Order 38 Rule 2(4)) During trial, the lawyer will tender the witness statement and the witness will read and acknowledge it (Order 38 Rule 2(4)) The lawyer of the other party will the be given the opportunity to cross examine the witness based on the witness statement (order 38 Rule 2(1)) If the witness is absent, or refuses to come to the Court, to be cross examined, then his witness statement shall and be regarded as evidence (order 38 Rule 2(1)) After the cross examination, the lawyer will be given the opportunity to re-examine the witness.

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E iii) The praecipe should contain the name and address of the party issuing (if acting in person) or the name and address of the firm (if represented by the lawyer) - Order 38 Rule 14(3) iv) The praecipe should also contain the full name, IC and address of the witness that you intend to call to the court - Form 66 v) Subpoena is issued after it is sealed by an officer of the court, usually the Registrar. - Order 38 Rule 14(2)

EXPLAINATION ON THE FLOW CHART HOW TO SUBPOENA A WITNESS  Subpoena (Order 38 Rule 14-23) o Meaning : - Normally, people understood subpoena as a writ ordering a person to attend a court. However, subpoena could also be used to order a person to produce document or evidence to the Court. o Thus, a subpoena could be defined as a writ by a court, that has authority to compel testimony by a witness or production of documents or evidence under a penalty for failure to do so 

Purpose : o To compel an individual to appear before it at a specified time to give testimony. o This may apply to : i) Witness who is unwilling to come to court ii) Witness who is unable to come to court without a subpoena

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Effect : - An individual who receives a subpoena but fails to appear may be charged with Contempt of Court.

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Types of Subpoena (Order 38 Rule 14(1)) : i) Subpoena to attend and testify as witness (in Form 63) ii) Subpoena to produce document (in Form 64) iii) Subpoena to attend and testify as witness and also produce document ( in Form 65)

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Procedure : How to apply for a subpoena (In General) i) Choose the suitable subpoena and draft the content of the subpoena (which should include the full name, IC no and address of the witness that you intend to call for the court) ii) File in the subpoena together with the praecipe for subpoena in form 66 in the Court Registry

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Special rule for subpoena to testify (in Form 63) : o The name of 2 or more person may be included in one subpoena to testify - (Order 38 Rule 15) o Unless the court orders otherwise in PTCM

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Special rule for subpoena to produce document (in Form 64) : o A subpoena to produce document shall contain the name of one person only. - Order 38 Rule 16(1) o The document to be produced must be specified in the subpoena If the person subpoenaed, produced the documents, he has already complied with the subpoena o There is no requirement that he must be present after he produce such document - Order 38 Rule 16(2)

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Service of Subpoena  The subpoena must be served personally (unless court orders otherwise) - Order 38 Rule 18(1)  The subpoena must be served within 12 weeks of the date of issue  The life span of subpoena is 12 weeks - Order 38 Rule 18(1)  A subpoena cannot be served on any person outside the jurisdiction - Order 38 Rule 18(2)  After a subpoena has been served to the witness, an affidavit of service of the subpoena must be filed to prove the service  The affidavit must state the when (time), where (place), how and by whom (process server) the service was affected. - Order 38 Rule 23

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E 

Effect of Subpoena  A subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required ➢ Order 38 Rule 19

Issue: Can Subpoenaed Witness refuse attendance?  Generally, a witness cannot refuse after being subpoenaed by the court  However, the witness has the rights to refuse to come to the court if the expenses to attend the trial (of going, staying and returning) is not given, even though he is subpoenaed - Order 38 Rule 22  The witness subpoenaed could also make an application to the Registrar to have the subpoena revoked  The Registrar have the power to revoke a subpoena that had been issued Order 38 Rule 14(4)  Any party dissatisfied with the decision of the Registrar to revoke a subpoena, may apply to a judge to review the Registrar’s decision - Order 38 Rule 14(5)  f) He must file in NOA + AIS, within 14 days of the decision - Order 38 Rule 14(6) Issue : Can the subpoena be amended?  The subpoena can be amended, if there is a mistake as to the name or address of the witness  If the subpoena has yet to be served, it could be resealed by filing a second praecipe (in Form 66) endorsed with the word “Amended and Resealed” - Order 38 Rule 17 Issue : How to Subpoena Prisoner as witness?  Application can be made ex parte - Order 38 Rule 21(1)  The party file in NOA + AIS in form 67 - Order 38 Rule 21(1)  The court will issue an order in Form 68 for the prisoner to be brought to the court to testify - Order 38 Rule 21(3)

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E EXPLAINATION ON THE FLOW CHART How to call an expert witness Court expert Meaning  Expert means any person who has such knowledge or experience of or in connection with a question that arises in a cause of matter, that his opinion on it would be admissible in evidence. ➢ Order 40 Rule 1(5)  Court expert are expert appointed by the Court to inquire and report on any question of facts or opinion of a cause or matter, where in such situation, an expert witness is necessary. ➢ Order 40 Rule 1(1) Appointment of court expert :  A court expert can be appointed either : i) By the court in its own motion, or ii) By an application of any party - Order 40 Rule 1 (1)  The appointment could be made at any time during the proceeding  The number of Court Expert appointed is not limited to one only, but could be more than one depending in the questions arises from the cause or matter - Order 40 Rule 1(1)  If possible, the expert is mutually appointed by the parties of the case  If the parties could not come to an agreement, the court will nominate. Order 40 Rule 1(3)  The questions and instructions to the expert should be agreed upon by parties  If the parties could not come to an agreement, the court will decie - Order 40 Rule 1(4) Duty of court expert  To inquire and report to the Court on any questions and instruction given to him - Order 40 Rule 1(1) & 2(2)  To make further or supplemental report when ordered by the Court Order 40 Rule 2(2)  To conduct experiments and tests, in order to make a satisfactory report to the Court (if he thinks that it is necessary) - Order 40 Rule 3 Expert Witness (Meaning)

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Expert refers to an expert who has been instructed to give or prepare evidence for the purpose of Court proceedings - Order 40A Rule 1(2)

Procedure 1. The party will inform his intention of calling an expert witness to assist the court on issue or question within his expertise during case management 2. The court will give direction on the appointment and number of the Expert Witness to the party 3. An expert is appointed by the party 4. The expert write report on the issue or questions (based on the instruction of the party that appoints him) within his expertise. Procedure : Expert’s Report  The Expert’s report should contain Order 40A Rule 3(2)(a)-(h): a) His qualification b) Sources (literature or material) that he relied on in writing the report c) Statement of the issues that he was asked to consider and report, and the basis upon which the evidence was given d) For any experiment conducted, the name and qualification of the person who carried out the test or experiment (if not the expert himself), and whether it was conducted under his supervision e) If there are range various opinions on the issue, he must summarise all the opinions on the matter, and give reasons for his opinion f) The conclusion reached on the issue g) Statement of belief of correctness of the his opinion h) Statement affirming his overriding duty to the Court and that he had complied with it Procedure  The Expert swears in affidavit, that the report is his, and he accept full responsibility of his report  The written report is attached with the sworn affidavit as an exhibit Order 40A Rule 3(1)  The affidavit is filed into the Court and serve to the other side - Order 40A Rule 4(2)

MUHAMMAD ALIF AIMAN HAKIM BIN ALPASKHA – 2017683672 – LWH08E 

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Within 14 days of the receipt of the report, the other party could apply to the Court to put questions to the expert about his report - Order 40A Rule 4(1) & (2) The expert will prepare a written answers of the questions within specified time frame fixed by the Court. The answer will become part of the report. - Order 40A Rule 4(4). If the expert failed to answer the questions or failed to adequately answer within specified time limit, the Court can order all or any of the following : a) That the party who instructed the Expert cannot rely on the evidence or report of the Expert b) That the party who instructed the Expert cannot recover the cost of the Expert from the other party c) The Expert is to answer or provide further and better answer to the questions - Order 40A Rule 4(5)...