duli yang amat mulia tunku ibrahim ismail ibni sultan iskandar al-haj tunku mahkota johor v datuk...

7/24/2019 Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamz

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Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj

Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd oor and anoth!r

app!al "##$

The respondent filed a writ of summons at the Singapore High Court ('the Singapore

writ') and simultaneously filed two other writs containing almost identical pleadings

and cause of action at the High Courts at Shah Alam ('the Shah Alam writ') and Kuala

Lumpur ('the Kuala Lumpur writ'). The Singapore writ was sered on the appellant

while the Shah Alam and Kuala Lumpur writs were not sered. !uring case

management in the Singapore action" these two other #alaysian actions were

disclosed and hence the senior assistant registrar ('SA$') directed the respondent to

withdraw the Singapore writ and to sere the Shah Alam writ within si% wee&s. The

Singapore Court of Appeal dismissed the respondent's appeal and the stay order y the

Singapore SA$ was affirmed. y then" aout * months had lapsed from the filing of

the Shah Alam action. #eanwhile" the respondent had sought and otained two e%parte orders from the High Court at Shah Alam to renew the alidity of the writ. The

Kuala Lumpur writ was also e%tended y way of two e% parte orders. oth the writs

had een renewed e% parte without any attempt haing een made to sere them on

the appellant. The two appeals here were in relation to these e% parte e%tension orders.

The following +uestions arose for the determination of the ,ederal Court- (i) whether

the re+uirement of showing such efforts that hae een made to effect serice of a

writ under * r /(0A) of the$ules of the High Court 123('$HC') is a mandatory

prere+uisite to the e%ercise of discretion under * r /(0) of the $HC4 and (ii) in the

eent of such a failure to comply with the prere+uisites of * r /(0A)" whether A

can e ino&ed in order to cure that failure.

%aki Azmi Chi!& Justi'!(

The respondent had" of course without the &nowledge of the appellant" sought and

otained orders from the SA$ of the High Court at Shah Alam to renew the alidity of

the writs of summons efore their e%piry. The SA$ of the High Court at Shah Alam

granted a renewal of the Shah Alam writ pursuant to the application filed on 03 #arch

033. Suse+uently" pursuant to another application filed on 5 Septemer 033" a

second e%tension was granted on * !ecemer 033. 6n other words" two e%tensions

were otained e% parte.

6n the meanwhile" the respondent appealed to the 7udge in chamers (in Singapore)

against the SA$'s orders and suse+uently to the Singapore Court of Appeal. The

Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal

and the stay order y the Singapore SA$ was affirmed. The decision of the Singapore

Court of Appeal was made on 1 ,eruary 0330. 6t must e noted that y the time this

order was made" aout * months had lapsed from the filing of the Shah Alam action.

As regards the writ in the High Court at Kuala Lumpur" it was filed on 8 9uly 033.

:aturally" the writ e%pired on 0 ,eruary 0330. Two applications to e%tend the writ

were made on 05 9anuary 0330 and 0* 9une 0330. The orders for e%tension were
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made on 0* #arch 0330 and 0* 9uly 0330 respectiely. 6t must e noted that the first

e%tension was only applied for after the e%piry of the Kuala Lumpur writ.

;hat is important is that the Shah Alam and the Kuala Lumpur writs had een

renewed e% parte without any attempt haing een made to sere them on the

appellant. This is not in dispute. 6n fact" the affidait in support of the applications for

renewals had clearly stated that the writs of summons were not sered pending the

outcome of the Singapore action. The respondent referred to these writs as 'protectie

writs' in order to aoid the limitation period from setting in.

A writ issued in the first instance is alid for only si% months. Thereafter" r /(0) of the

$HC confers a discretionary power on the court to e%tend the alidity of the writ and

such discretion is to e e%ercised su7ect to r /(0A) of the $HC. There are three

prere+uisites under r /(0A) of the $HC which an applicant for renewal of a writ must

proe. They are that it must-

(a) e made efore the e%piry of the writ4

() e made e% parte y summons4

(c) e supported y an affidait identifying two salient points which are-

o (i) that efforts hae een made to sere the defendant within one month

of the date of the issue of the writ4 and

o (ii) such efforts hae een made suse+uent thereto to effect serice.

6f the writ had ceased to e in force" the position is the same as if it had neer een

issued.

6t is the duty of a plaintiff who issues a writ to sere it promptly" and renewal is

certainly not to e granted as of course on an application which is necessarily made e%

parte. 6n eery case" care should e ta&en to see that the renewal will not pre7udice

any right of defence then e%isting" and in any case" it should only e granted where

the court is satisfied that good reasons appear to e%cuse the delay in serice" as

indeed" is laid down in the order.

6n my opinion the o7ect of the new * r / was to ma&e it really tight as to when a

writ can e renewed. The word 'must' appearing in * r /(0A) is not usually used in

#alaysian legislations. :ormally the word used is 'shall'. So in this case" when the

word 'must' is used" the intention is to fully ensure that it is complied with and no

discretion is to e gien as far as the compliance with the prere+uisites is concerned.

'#ust' is a ery strong word4 in my opinion it is stronger than the word 'shall'.


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The words 'Su7ect to para (0A)' in the impugned * r /(0) further strengthens the

argument that efore the court could e%ercise its discretion to renew a writ" para (0A)

must e satisfied. 6t must e further noted that in para (0A) the applicant must show"

inter alia" that efforts had een made to sere the defendant within one month of the

date of the issue of the writ. This all the more supports the argument that the applicantmust use all due diligence to effect serice at the earliest possile time.

6 strongly eliee that * r /(0A) of the $HC was introduced to preent ause y the

plaintiffs in filing writs and sleeping on them without ma&ing efforts to sere them.

This practice of inactiity is something which courts loathe. 6t is against the

administration of 7ustice. 6t creates a ac&log and results in a false numer of pending

cases. 6n my opinion" courts should ta&e serious a iew of such cases. 6f not" they will

continue to remain in the list of outstanding cases. As such" * r /(0A) of the $HC

must e strictly enforced as re+uired y the rule.

;hen the plaintiffs apply to e%tend the alidity of writs" courts should e%amine

closely the affidaits filed in support of applications for e%tensions. efore granting

an e%tension" courts must e satisfied that serious efforts had een made to sere. A

simple and plain statement that efforts had een made to sere cannot e a sufficient

ground. The affidaits must proide detailed facts as to when" where and how

attempts to sere were made. therwise * r /(0A) of the $HC will ecome a dead

letter. The o7ect of the rule will e defeated.

y sering the writ at the earliest possile time" the defendant would e gien the

earliest possile notice and opportunity to prepare his defence. 6t would e to his

disadantage if there is delay. Such delay may result in eidence in his faour getting

misplaced or destroyed. ;itnesses ecome difficult to trace and memories will lapse.

Haing said that" 6 am fully aware of the defendant who aoid serice. There must e

eidence to support this claim. 6f serious efforts are made" 6 am sure defendant is

traceale. 6n appropriate cases" sustituted serice may e ordered if they are not

traceale.

Accordingly" 6 hae no hesitation in answering the first +uestion posed in the positie"

that is to say" the re+uirements of * r /(0A) are mandatory prere+uisites. This means

that the applications for e%tension of time for serice of the writs made y the

respondents are defectie as they do not show compliance with the $HC.

The technical non=compliance of any rule may e remedied where there is an

accidental omission or oersight y a party. A general proision such as A of the

$HC is for the court or 7udge to gie heed to 7ustice oer technical non=compliance. 6t

must not supersede a mandatory re+uirement of the $ules. rder A cannot e

ino&ed when a party intentionally disregards in complying with the $ules.

therwise" parties would e encouraged to ignore the $ules. Thus in this case" A


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of the $HC does not apply as the respondents had intentionally disregarded * r

/(0A) for their own reasons.

6t is now necessary to determine the meaning of the phrase '> technical non=

compliance >' in A of the $HC as it will assist in identifying the reaches

contemplated y the rule. A technical defect in law is one which may come within the

four corners of it" ut it does not affect the merits of the case. 6t is a mista&e which

does not go to the core of the matter. 6t is the sustance that counts and must ta&e

precedence oer mere form. Some rules are ital and go to the root of the matter- they

cannot e ro&en4 others are only directory and a reach of them can e oerloo&ed

proided there is sustantial compliance with the rules read as whole and proided no

pre7udice ensues4 and when the legislature does not itself state which is which" 7udges

must determine the matter" and" e%ercising a nice discrimination" sort out one class

from the other along road ased" common sense lines.

6n the conte%t of the $ules of the High Court 123 the phrase '> technical non=

compliance >' is thus a reference to non=compliance with a rule which is not

fundamental or mandatory in nature.

6t follows that A of the $HC cannot e ino&ed to cure the failure to comply with

the prere+uisites * r /(0A) of the $HC.

As 6 had mentioned in court" if A is sought to e ino&ed wheneer a party fails to

comply with any proision of the rules" then the whole of the $ules of the High Court

123 would e rendered useless. ,or e%ample" can failure to enter appearance or file

defence within the specified period e considered as an irregularity? f course it

cannot e. A party who is late in filing the releant papers must otain an order from

the court to e%tend the time" if such e%tension is re+uired and is permitted y the

$HC. Therefore" the answer to +uestion two is in the negatie.

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