[1] Introduction to Civil Procedure

CHAPTER 1
Introduction to Civil Procedure

A. Sources of Civil Procedure

B. Preliminary Objections
B1 Jurisdictional Objections
B2 Technical Objections

C. Practice Directions

D. Time
D1 Comptation
D2 Extension of Time

_________________________________________________________________________

[1.01] Procedural rules set-out the process by which substantive rights and obligations are
prosecuted or defended in court. In Boustead Trading Sdn Bhd v Arab Malaysia
Merchant Bank Bhd1, the Federal Court explained that:

“... justice of the case should be the overriding consideration is axiomatic. After all, courts exist to
do justice according to the law as applied to substantive merits of a particular case. And the rules
of court and practice are created to facilitate the attainment of justice, not its obstruction.”
2
(emphasis added).

A. Sources of Civil Procedure

[1.02] The primary source of procedural rules are found in the rules of the respective courts.

Subordinate Courts3 Rules of the Court 2012 (RC)

High Court Rules of the Court 2012 (RC)
Court of Appeal Rules of the Court of Appeal 1994 (RCA)
Federal Court Rules of the Federal Court 1995 (FCR)

The provisions of the RC are divided according to individual subject matters which are
referred to as Orders and each Order in turn is divided into rules and sub-rules. The RCA
1994 and FCR 1995 do not have individual Orders. All of its provisions are referred to as
Rules.

1
[1995] 3 MLJ 331
2
In Henry JB Kendall v Peter Hamilton (1878 – 79) 4 App Cas 504, Lord Penzance said: “Procedure is but the
machinery of the law after all – the channel and means whereby law is administered and justice reached. Its
strangely departs from it proper office when, in place of facilitating, it is permitted to obstruct, and even
extinguish, legal rights, and is thus made to govern where it ought to subserve.”
3
This refers to the Magistrate and Sessions Courts

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B. Preliminary Objections

[1.03] Preliminary Objections (PO), as the phrase suggests, are objections raised by a party
before the merits of the case or an application is heard. These objections relate to the non-
compliance or breach of the rules by a party. They generally take one of two forms –
jurisdictional or technical objections.

B1 Jurisdictional Objections

[1.04] An irregularity which affects the jurisdiction of the court cannot be waived. This is
because the issue of jurisdiction effects the legality of any order or judgment pronounced by
the court.4
The point was explained by Gopal Sri Ram JCA in Lee Teng Siong v Lee Kheng Lian &
Ors5:

“ .. what we have here is a jurisdictional point: not a mere technical non-compliance of the rules of
court. And, it is settled law that neither consent nor waiver may confer jurisdiction on a court that
6
has none .. An irregularity may be waived by the court; a want of jurisdiction cannot ..” (emphasis
added)

B2 Technical Objections

[1.05] A technical objection based on non-compliance with or breach of the Rules is

something else - it seeks to defeat the opponent purely on a technicality and prevent the
court from determining the issue on its substantive merits. It is often said that a party raises
such an objection for precisely that reason – he has no substantive merits in his favour!

[1.06] For a long time in the late 1990s, our judges, very unfortunately, gave credence to
such technical objections. They became slaves to the rules, treating it as an end by itself.
Something had to be done and the Court of Appeal showed the way. In UMBC Bhd v
Ernest Cheong Yong Yin7 an objection was taken by the respondent that the notice of
appeal was filed out of time. Ahmad Fairuz JCA (as he then was), in dismissing the
objection, said that procedural technical objections should not “be allowed to obstruct the
process of giving justice to the deserving by going into the substantive issues of the matters
before the court.”

4
In Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 7 Gopal Sri Ram JCA (as
he then was), in delivering the judgment of the Federal Court, said: “I take it to be well settled that even courts of
unlimited jurisdiction have no authority to act in contravention of written law .. where an order of such a court is
made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in
proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown,
to grant a declaration to the effect that the order is invalid and to have it set aside.”
5
[2006] 4 CLJ 443
6
In Essex County Council v Essex Incorporated Congregational Church Union [1963] 1 All ER 326, Lord
Reid said: “.. it is a fundamental principle that no consent can confer on a court .. any power to act beyond that
jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted
without jurisdiction.” The Federal Court, in 2 recent decisions, reiterated the principles that “jurisdiction does not
originate in consent or acquiescence of the parties and cannot be established, where it is absent, by such
consent, acquiescence or waiver of rights” – see Datuk Seri Anwar Ibrahim v Government of Malaysia [2020]
3 CLJ 593 and Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia [2020] 3 CLJ 153.
7
[2001] 1 MLJ 561

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The Court referred to Tan Chwee Geok & Anor v Khaw Ten-Yen & Anor8 where the
Federal Court said:

“The Rules of the Supreme Court are intended to facilitate, not impede, the administration of civil
justice. In the bad old days in England from where we took our Rules, if you put a comma wrong
you were thrown out of court, so strict were they about technicalities.

But over the years this strictness gave way to common sense, and every time the Rules were
amended it was with the object of removing fussy technicalities, and making it easier for parties to
get justice. This changed attitude was reflected in the remarks of Lord Collins MR about 70 years
9
ago in Re Coles and Ravenshear :

‘Although a court cannot conduct its business without a code of procedure, the relation of the
rules of practice to the work of justice is intended to be that of handmaid rather than mistress;
and the court ought not to be so far bound and tied by rules, which are after all only intended as
general rules of procedure, as to be compelled to do what will cause injustice in the particular
10
case.’” (emphasis added)

Subsequently in Mokhtar v Mohd Mokhtar11, Gopal Sri Ram JCA (as he then was) held that
“non-compliance with procedural requirements should not be treated as invalidating any
action or other proceeding or step taken therein unless it occasions a substantial miscarriage
of justice”. The Federal Court agreed. In Megat Najmuddin v BBMB12 Mokhtar Abdullah
FCJ said:

“Rules are rules! They must be obeyed .. However, a judge should not be so besotted by the rules
that his sense of justice and fairness becomes impaired because of his blinkered fixation on
technicalities of the rules and the cold letter of the law.”

[1.07] The Rules Committee followed suit. The RHC 1980 was amended. A new O1A and
O2 r3 were inserted with effect from 16.5.200313. The intent behind O1A was explained by
Gopal Sri Ram JCA (as he then was) in Lee Teng Siong:

“Now, O. 1A (of which I must confess to be the draftsman) speaks of the "technical non-
compliance of any of the rules". A good example of a technical point is the very recent case of
Alliance Bank Malaysia Bhd v. Mukhriz Mahathir [2006] 2 CLJ 723. In that case objection was
taken to the admissibility of an affidavit on the ground that the affidavit did not carry a complete
jurat. Ramly Ali J treated the omission as a pure technicality and excused it.”

8
[1975] 2 MLJ 188
9
[1907] 1 KB 1
10
In Cropper v Smith (1884) 26 ChD 700 Bowen LJ said: “... Now, I think it is a well established principle that
the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the
conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, I know of
no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct, if it can
be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of
deciding matters in controversy..”
11
[2001] 4 MLJ 329
12
[2002] 1 MLJ 385
13
These two provisions, which closely reflect the Court of Appeal’s decision in Mokhtar, have been maintained in
the RC 2012. The RCA 1994 was also amended to include a new R3A.

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The effects of the amendment were explained in Beauford Baru Sdn Bhd v Gopala
Krishnan14 where Low Hop Bing J (as he then was) said:

“As we move towards the era of facilitating the process of litigation, the raising of preliminary
objection on technical grounds would certainly and clearly be a thing of the past .. [The
amendments] clearly indicates the intention and wisdom of the Rules Committee to provide for
smooth administration of the due process of litigation and the administration of justice by way of
substantial merits of the case and not on merely procedural technical objection .. the advent of
these amendment would mark the beginning of the end of learned counsel’s urge to raise
objections merely on strictly technical grounds and it is my fervent hope that learned counsel’s
15
preliminary procedural technical objections would henceforth be consigned to oblivion for good.”
(emphasis added)

[1.08] In Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang-

Undang, Malaysia16 P’s application to the Qualifying Board to be declared a “qualified
person” within the meaning of the Legal Profession Act 1976 was rejected. She then
commenced judicial review proceedings by way of an Originating Summons. The High Court
dismissed the case on the sole ground that she ought to have used Form 111A as provided
in O53 to commence the proceedings.17 The Court of Appeal allowed her appeal. Ramly Ali J
(as he then was), after referring to Megat Najmuddin and Beauford Baru, said:

“To this court, justice of the case should prevail. A person or litigant should not be deprived of
his/her day in a court of law just on technical procedural grounds like in the present case. Even if
the appellant had commenced the application by way of originating summons (not by way of Form
111A as required under O. 53), all the relevant facts and evidence for consideration had been
forwarded to the court. No prejudice was ever occasioned to any party in the proceedings,
including the court. To strike out the appellant's application at this stage of the proceedings
(without hearing the merits) is obviously unfair to the appellant who came to court to seek justice
and a fair hearing.

The above finding is in line with the provision of O. 1A .. Such procedural technical objections (as
in the present case) should not be allowed to obstruct the process of justice to the deserving. As
we move towards the era of facilitating the process of litigation, the raising of objection on
technical grounds would certainly and clearly be a thing of the past. It is clearly the intention and
wisdom of the Rules Committee to provide for the smooth administration of the due process and
administration of justice by way of substantial merits of the case and not merely on procedural
technical defaults.”

14
[2002] 3 CLJ 686
15
A similar approach was taken in Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103 and
Terrence Simon Marbeck v Kerajaan Malaysia [2003] 6 CLJ 120.
16
[2010] 6 CLJ 593
17
Form 109 under the RC 2012.

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[1.09] The Federal Court took a somewhat retrogressive approach to O1A. In Duli Yang
Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah
Mohd Noor18 Zaki Tun Azmi CJ said:

“The technical non-compliance of any rule may be remedied where there is an accidental
omission or oversight by a party. A general provision such as O1A is for the court or judge to give
heed to justice over technical non-compliance. It must not supersede a mandatory requirement of
the Rules. O1A cannot be invoked when a party intentionally disregards in complying with the
Rules. Otherwise, parties would be encouraged to ignore the Rules .. It is now necessary to
determine the meaning of the phrase "technical non-compliance" in O1A as it will assist in
identifying the breaches contemplated by the rule .. In the context of the RHC 1980 the phrase
"technical non-compliance" is .. a reference to non-compliance with a rule which is not
fundamental or mandatory in nature .. As I had mentioned in court, if O1A is sought to be invoked
whenever a party fails to comply with any provision of the rules, then the whole of the RHC 1980
would be rendered useless. For example, can failure to enter appearance or file defence within
the specified period be considered as an irregularity? Of course it cannot be. A party who is late in
filing the relevant papers must obtain an order from the court to extend the time, if such extension
is required and is permitted by the Rules.” (emphasis added)

[1.10] There are 4 points that may be made about this approach. First, there is a distinction
between fundamental and mandatory. Take for example the provisions governing a
summary judgment application – O14 r2(1) and O14 r2A (which cross-refers to O32
r13(2)(b)). They both use the mandatory phrase “must”. But their purpose is different. The
requirements of r2(1) are fundamental as it is only by compliance with its provisions that the
court is seised of jurisdiction to deal with a matter under O14.19 But that cannot be said of
r2A. It is only procedural in that it regulates the timely exchange of affidavits between the
parties. If the provision is breached and an objection is taken, then that is when O1A ought
to kick in. But it is open to argument that the Federal Court decision prevents the application
of O1 in such a circumstance. Second, the focus appears to be on the intention behind the
breach. That in itself is troublesome test. Nowhere does the Court deal with the effect of the
breach, i.e how and to what extent is the objecting party prejudiced. Such an approach flies
in the face of the plain language in O1A and O2 r3. Third, the Court appears to read into
O1A that the breach referred to therein relates only to breaches that are not “fundamental or
mandatory in nature”.

[1.11] Disquiet over the approach in Captain Hamzah was obvious in Perbadanan
Nasional Berhad v Syed Omar Syed Mohamed20 where the issue was whether an
extension of time should be allowed for the filing of an affidavit-in-reply transgressing the
strict time deadline set in O32 r13(2)(6), where Varghese George JC (as he then was) said:

“The Federal Court's decision in Captain Hamzah's case does not .. restrict this court from further
examining whether the non-compliance complained of was of such a vital and fundamental
procedural rule and whether the saving effect of Order 1A RHC 1980 can be extended to the
Plaintiff, as in this case. In my view, since time could be extended by consent of parties or on
application of a defaulting party .. the requirement of Order 32 r. 13(2)(b) did not amount to a
stipulation so 'vital as to go to the root of the matter' or was of such a 'fundamental' nature,
although 'must' was the term used in the relevant rule to specify the requirement. When faced with
an issue of whether to override a procedural non-compliance .. the court has to also balance
justice as between the parties .. with particular regard being given to the question whether any
serious miscarriage of justice would be occasioned ..”

18
[2009] 4 CLJ 329
19
Tan Tik Sing v Gomez Development Co Sdn Bhd [1979] 2 MLJ 78
20
[2011] 1 LNS 96

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[1.11A] In Jyothy Laboratories Limited V. Perusahaan Bumi Tulin Sdn Bhd21 Wong Kian
Kheong JC (as he then was) provided an interesting anaylsis of the different provisions in
the ROC dealing with technical breaches.

“I am of the following view regarding any non-compliance with RC (Non-Compliance):

(1) pursuant to O. 2 r. 3 RC, the court shall not allow any preliminary objection (PO) on the
ground of a Non-Compliance unless the Non-Compliance has caused a substantial miscarriage of
justice or prejudice that cannot be cured by (a) an amendment; and/or (b) an appropriate order for
costs;

(2) according to O. 2 r. 1(1) RC, the court "shall" treat the Non-Compliance "as an irregularity and
shall not nullify the proceedings, any step taken in the proceedings";

(3) the court has a discretion under O. 2 r. 1(3) RC to cure the irregularity (caused by a Non-
Compliance) by allowing any amendment or by making any order on terms regarding "costs or
otherwise". The exercise of this discretion is subject to the overriding objective of RC of enabling
the court to deal with cases justly as provided in O. 2 r. 1(2) RC. In fact, according to O. 1A RC, in
administering all the provisions in RC, including O. 2 rr. 1 and 3 RC, the court "shall have regard to
the overriding interest of justice". It is to be noted that O. 1A employs the mandatory term "shall";

(4) the following questions depend on the particular facts of each case: (a) whether a Non-
Compliance has caused a substantial miscarriage of justice or prejudice that cannot be cured by
an amendment; and (b) whether a Non-Compliance has caused a substantial miscarriage of justice
or prejudice that cannot be cured by an order for costs.

In view of the factual nature of a Non-Compliance and its effect (as explained above), cases on the
exercise or non-exercise of the court's discretion to cure the Non-Compliance under O. 2 rr.
1(3) and 3 RC, cannot constitute binding legal precedents from the view point of the stare decisis
doctrine”

C. Practice Directions

[1.12] In Megat Najmuddin the Federal Court had to resolve the conflict between Practice
Direction No 1 of 1995 and R18(7) RCA 1994. Steve Shim CJ (Sabah & Sarawak) had this to
say:

“In Ooi Bee Tat v Tan Ah Chim [1995] 3 MLJ 465, it was held that practice directions were
effected for administrative purposes. I accept that as a correct statement of law. Undoubtedly,
they provide guidelines for a more effective implementation of the rules of court. They seek to
clarify or highlight such rules. They may even, to some extent, modify them, but certainly they are
not meant to supercede or deviate from court rules which have been statutorily laid down. In my
view, to the extent that such practice directions are in conflict, in the sense of superceding or
22
deviating substantially from statutory rules of court, they are of no legal effect whatsoever.”

21
[2018] 1 LNS 272
22
Mokhtar Abdullah FCJ said: “.. practice directions are directions for administrative purposes and have no
statutory authority .. It is clear that practice directions, with no statutory authority, cannot supercede the relevant
court rules or the relevant Act of Parliament.”

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D. Time

[1.12] You will find various reference to periods of time which the Rules require compliance
with. As you have seen, this is usually a fertile ground for a party to complain about
procedural non-compliance. Two issues arise in respect of the periods of time referred to in
the Rules: (i) how do you compute time and (2) can time be extended?

D1 Computation

[1.13] O3 r2 and s 54(1)(a) of the Interpretation Acts 1948 and 1967 provide the method by
which time may be computed. Here are 2 examples of how the definition was applied.

(i) Setali Development Sdn Bhd & Anor v Lim You Keng23 concerned the (previous)
R56 FCR 1980 which provided that no appeal shall be brought “after the expiration of one
month .. from the date on which the judgment or order appealed against was pronounced.”
The Federal Court held that since the order appealed against was made on 28.2.1982, the
period of one month24 ran from 1.3.1982.”

(ii) The computation of the 21 day period in O29 r1(2B) was explained in RIH Services
(M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd25 where Court of Appeal held an ex parte
injunction granted on 6.12.2001 would expire on 27.12.2001.

(iii) Sivakadatcham v CIMB Bank Bhd26 concerned O83. The originating summons and
the affidavit were posted on 25.8.2017. Both documents were received by D on 5.9.2017, the
day of the hearing of the originating summons. On that same date, the Order for Sale was
granted.

D contended that, pursuant to O3 rr 2(4) and (5), the following days had to be discounted in
the computation of the “four clear days” requirement in O83 r2(2):

• 25.8 - day of posting

• 26.8 - Saturday
• 27.8 - Sunday
• 31.8 - National Day
• 1.9 - Hari Raya Haji
• 2.9 - Saturday
• 3.9 - Sunday
• 4.9 - public holiday (SEA Games)
• 5.9 - day of hearing

23
[1984] 1 MLJ 26
24
The phrase "calendar month" was interpreted in Migotti v Colvill (1879) 4 CPD 233 to mean a month which
ended on the same date as it commenced on the previous month." Brett LJ said: “.. the term a calendar month
[means] that, in computing time by calendar months, the time must be reckoned by looking at the calendar and
not by counting days.” See O3 r1.
25
[2002] 3 MLJ 1
26
[2019] 6 MLJ 816

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Does Saturday qualify as a “weekly holiday”? The Court of Appeal held that effective from
1.7.2005, a 5 working-day policy or rule was implemented vide Pekeliling Perkhidmatan
Bilangan 13 Tahun 2005.27 This meant that weekly holidays were now both Saturdays and
Sundays. It therefore followed that the Order of Sale had been irregularly obtained and D
was entitled to have it set aside ex debitio justitiae.

D2 Extension of Time

[1.14] The time periods provided for in the Rules may be extended by consent28 or by an
order of court.29 In Pearson v Chen Chien Wen Edwin30 the court explained that the factors
to be taken into account in deciding whether to grant an extension of time are:

(i) the length of the delay;31

(ii) the reasons for the delay;32
(iii) the chances of the appeal succeeding33 if time for appealing is extended; and
(iv) the degree of prejudice to the opposing party if the application is granted.

Ravindran Shanmuganathan ∗

27
“Bagi negeri di mana Ahad merupakan Hari Rehat Minguan, dengan pelaksanaan Lima Hari Bekerja Seminggu
maka Hari Rehat Mingguan bagi negeri berkenaan adalah hari Sabtu dan hari Ahad. Manakala bagi negeri di
mana hari Jumaat merupakan Hari Rehat Mingguan, dengan pelaksanaan Lima Hari Bekerja Seminggu, Hari
Rehat Mingguan bagi negeri berkenaan adalah pada hari Jumaat dan Sabtu.”
28
O3 r5(3)
29
O3 r5(1)
30
[1991] 3 MLJ 208
31
Where the delay is very short and there is an acceptable excuse for it, the court will not as a general rule
deprive the appellant of his right of appeal, and in such a case, it will not be necessary for the court to consider
the merits of the appeal. In Palata Investments Ltd v Burt & Sinfield Ltd [citation] Ackner LJ (as he then was)
said: “I have already referred to the shortness of the period involved: three days .. and in that situation there was
.. absolutely no need to go into the complex and time consuming question whether or not there was a good
arguable case on the appeal.”
32
Soh Keng Hian v American International Assurance Co Ltd [1996] 1 MLJ 191, Gopal Sri Ram JCA (as he
then was) said: “.. there is not a word in the appellant’s affidavit explaining the delay in filing its application for an
extension of time .. It is axiomatic that this court is seized of a wide discretion to extend time in proper and
deserving cases. But it is not an unprincipled discretion. There must be some relevant evidential material made
available to us before we may exercise discretion.”
33
In Palata Investments (supra), Ackner LJ said: “No doubt in some cases .. it may be wrong .. to extend .. time
for appealing .. to enable him to pursue a hopeless appeal.”
∗
The views expressed herein are my own, as are all the mistakes. I welcome feedback and may be contacted at
ravindranpsnathan@[Link]

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