Commencing an action in a Malaysian court

Since we have already discussed what elements are needed to sue and the time limitations thereof, it is high time we also focus on the modes of commencing a process of suing before the Malaysian courts. There used to be various modes proscribed in two pertinent sets of Rules that governed civil procedure in Malaysia, the Rules of the High Court 1980 (“RHC”) made pursuant to the Courts of Judicature Act 1964 and the Subordinate Courts Rules 1980 (“SCR”) made pursuant to the Subordinate Courts Rules Act 1955. However, these have been recently repealed in favour of a unified set of Rules governing civil procedure, the Rules of Court 2012 (“RC”) made pursuant to both the 1964 and 1955 Acts mentioned, and these new Rules came into force on 1 August 2012. There are of course, other Rules governing civil procedure in other courts such as the Court of Appeal and Federal Court, but these need not concern us here for actions are not commenced at first instance within those courts.

By virtue of Order 5 rule 1 of the RC, there are 2 proscribed modes of commencing an action in the High Court, namely;

1. Writ (of Summons) – Generally for those actions involving hotly contested facts; and

2. Originating Summons – Generally faster and easier disposed of than writ, as no witnesses are called. For those actions based mainly on construction of written law and documents (such as contracts and wills).

Two former modes of commencing actions, namely the Originating Motion and the Petition, have been abolished with the aim of simplifying civil procedure by reducing the number of modes in which an action is commenced at the courts and are only retained for specific laws which are set out in Appendix C to the RC, such as proceedings for divorce under the Law Reform (Marriage and Divorce) Act 1976 and for admission as an advocate and solicitor under the Legal Profession Act 1976.

In respect of the Subordinate Courts, before, under Order 4 of the recently repealed SCR, there were 3 modes of commencing an action in the subordinate courts, namely by way of summons, originating application and petition respectively.  However these three have given way to the two remaining modes described above as well.

An originating summons (“OS”) is a Court document served by the plaintiff (or applicant if on appeal) on the defendant (respondant). It is indeed a convinient mode of starting an action, for evidence is usually given on affidavit without the need for witnesses and thus can be summararily disposed of in chambers as opposed to in an open court. It is also much cheaper compared to a writ.

It is mandatory, by virtue of Order 5 rule 3, to begin an action by way of OS where it relates to written law unless otherwise required by statute. Order 5 rule  4(2) states that is is “appropriate” to begin the action by OS when the proceedings concern issues likely to turn on the construction of any written law or any instrument made under any written law, or of any contract or document and there is unlikely to be any substantial dispute of fact. Every OS must include a statement on the questions on which the party commencing the action seeks the determination or the direction of the court or a concise statement of the relief or remedy claimed in the proceedings.

For those actions involving substantial disputes of fact, the correct mode of starting an application would be via the writ. According to Order 5 rule 2, certain actions are to be begun by writ. They are namely those concerning relief for torts committed other than trespass to land, those alleging dealings of fraud, those of breach of any duty, those of breach of promise to marry, and those where patents have been infringed. The writ is preferred here because substantial disputes of fact are likely to occur in cases of these nature, and thus witnesses would need to be called to establish or disprove such facts.

At this point perhaps it would be appropriate to consider cases where the wrong mode of commencing an action was chosen and the reaction of the Malaysian courts to such errors on the part of the plaintiff. In the case of Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors [1971] 2 MLJ 30, the claim was for the cost of removing squatters occupying a certain plot of land, and the action was commenced by OS. The opposing party claimed that the mode was wrong as substantial disputes of fact were involved. Eventually it was decided by Raja Azlan Shah J that the dispute of fact (that is the number of squatters removed) was not material for the courts determination, as the amount disputed varied according to area, not the number of squatters involved, and so therefore allowed the mode of commencement via OS to stand.

In the case of National Land Finance Co-Operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211 a plot of land was considered conditionally sold upon the appropriate authority’s approval. That authority in fact did not approve of the sale, and the plaintiff contended that the sale had become void and proceeded by OS for a declaration to that effect. The court held that this was the right mode of action as the matter concerned the pure construction of the agreement reached between the parties privy to the sale.

The case of Ng Wan Siew v Teoh Sin [1963] MLJ 103 concerned one of which substantial disputes of fact turned, and Thompson J therefore said that this case ought not to have been commenced by OS but by writ.

According to Order 2 rule 1 of the RC, the court is not to nullify any proceedings based solely upon the ground that the wrong mode of commencing an action had been taken, but to take such steps as are necessary to rectify the damage done. Such actions would include, for example, ordering that affidavits filed are to stand as pleadings (when actions begun by way of OS ought to have been begun by writ) for example, and vice versa. The power to do this is conferred by Order 28 rule 8. This power was exercised in the case of Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 where proceedings begun by OS were converted and deemed as if begun by writ so as to allow taking in oral evidence by witnesses. Unfortunately, in spite of the clear position of statute law on this issue, decisions of the court have been shown that it is quite willing to dismiss an action solely on the ground of wrong mode of commencement, such as it was in the case of Lee Phet Boon v Hock Thai Finance Corp Bhd [1994] 2 MLJ 448.

Last updated: 1 December 2012.


Limitation of civil actions

To sue or not to sue. This was the opening line of a recent post detailing what a cause of action is and when it accrues. However it is equally relevant to this post for, should one choose to dwell on the question for too long, one might find it too late to even sue anymore!

This is because of the existence of what is called limitation period in law, that is, there is a definate time frame for one to commence legal action, and to wait beyond such a frame would render the cause defeated for being time barred, or more accurately, statute barred. The reason why the term statute barred is more accurate is because usually such periods are never proscribed in common law but imposed by statute, because the state considers it good that there should be a definate end to litigation after a while, tho the doctrine of laches under equity could have played a contributory role as well.

By the way, while this issue was discussed a little in the first mentioned post above, the purpose of this article is to expand and elaborate just a little bit more on what limitations of civil actions actually are.

In Malaysia, the principal statute of limitation is the Limitation Act 1953, which was first enacted as the Limitation Ordinance 1953 (F.M. Ordinance No. 4 of 1953) on 9 February 1953 and is based on the English Limitation Act 1939 which has since been replaced in Britain by the Limitation Act 1980. Section 4 of the Act cautions that nothing therein shall operate as a bar to any action or proceeding unless expressly pleaded.

The Act proscribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6. The effect could be potentially unjust, as can be gleamed from the case of Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280. In that case, a house was delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late delivery and filed his or her action on 9 September 1982. The defendant contended that the action should be considered time barred. The apex court agreed with the defendant.

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff  is under disability until the expiry of such a disability under section 24 of the Act.

It should be noted that generally courts do not have power to enlarge the limitation period when asked (See Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1) but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act. Section 27 further qualifies this however, by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out as held in the case of Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13.

Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be 12 years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land. In Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477 the plaintiff purchased land from an administrator of an estate and entered into possession more than 40 years before the filing of the action by the plaintiff. The plaintiff was never given title to the land despite several requests. Hence, the court opined that the delay was justified and ordered specific performance. In Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of Johor & Anor it was held that where property was wrongly acquired, time remained at large and the law of limitation would be inapplicable.

Section 20 of the Act bars action in respect of recovery of rent arrears after the expiry of six years on which they become due.

Although the Limitation Act 1953 is the principal statute of limitations within Malaysia, it is indeed not the only statute of limitation in force. Section 3 of the Act provides that the Act is inapplicable where the Government is involved and indeed the Government protects itself by virtue of section 2 of the Public Authorities Protection Act 1948 which reads;

Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect.

a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty six months next after the ceasing thereof…

This provision was tested in the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 where the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made persuant to a public duty and this the plaintiff’s claim was statuted barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non payment of monies owed was not in persuance of a public duty and accordingly allowed the claim.

Elements of a valid cause of action

Jim Carey as a lawyer in the 1997 film Liar Liar. The truth is few things give us lawyers a high more then a successful day in court.

Jim Carey as a lawyer in the 1997 film Liar Liar. The truth is few things give us lawyers a high more then a successful day in court.

To sue, or not to sue. That is a question that ponders the mind of the practising lawyer day by day. But, the truth really is, that few things delight lawyers more than having the opportunity to sue. Litigating, besides being part of the lawyer’s source of bread and butter, also gives the opportunity for the lawyer to hone his literary and oratory skills, and nothing gives a better high then a successful day in court.

But before one can even sue, one needs to bear in mind the procedures involved. And none is a procedure more important then having a valid cause of action.

A cause of action has been defined in various cases from being “every fact which is material to be proved to entitle the plaintiff to succeed” in Cooke v Gill (1873) LR 8 CP 107 to “every fact which it would be necessary to support his right to the judgment of the court” in the case of Read v Brown (1888) 22 QBD 128.

Some instances of questionable causes of action might make the subject matter clearer in the following cases. In Taib bin Awang b Mohamad bin Abdullah [1983] 2 MLJ for example, the plaintiff was convicted in the Kadi’s court and he appealed. But before his appeal could be heard he commenced an action for malicious prosecution and it was so held that since the appeal has yet to be heard, and the issue had yet to be disposed of, how could malicious prosecution be established? The cause of action was therefore premature. In the case of Sio Koon Lin v SB Mehra [1981] 1 MLJ 225 the plaintiff commenced an action for recovery of arrears that where in fact not yet due at the time of the claim. Needless to say the claim was thrown out. A similar situation occurred in Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd [1992] 1 MLJ 11.

A valid cause of action also depends on other factors, such as whether the claim would be made within the proscribed time. Malaysia’s general statute of limitations is the Limitation Act 1953. Section 6(1) of the Act says that action for breach of contract or a tort are six years from the date on which they accrue.

The case of Sivapira v Lim Yoke Kong [1992] 2 MLJ 381 illustrates the principle that a limitation period may not be used to aid fraud, or the enforcement of the equitable maxim that equity will not allow a statute to be used as an instrument of fraud. In this case the plaintiff was knocked down by the defendant on a motorcycle on the 1st day of April 1977, and then the plaintiff’s solicitors sought to identify the defendant’s insurers but to no avail until the 28th day of March 1984, that is, when the six year limitation period had passed. The defendant predictably alleged that the claim was time barred. The High Court held that the defendants had wilfully concealed themselves from the knowledge of the plaintiff and thus the case came under fraud as defined in section 29 of the Act. The plaintiff’s claim therefore, was not time barred after all. It must be noted at this point that failure to add a party to the action does not come within section 29 of the Act as illustrated in the English case of RB Policies v Butler (1950) 1 KB 76 where the theif of a car stolen in 1940 was only identified that year and so the claim was time barred.

There are limitation periods proscribed by other Acts of Parliament as well. Section 7(5) of the Civil Law Act 1956 for example states that in a dependency claim where the negligent act had caused the death of a person, the period of limitation shall be three years (a bit harsh and unfair, isn’t it?) and section 2 of the Public Authorities Protection Act 1948 provides that where public authorities act in the persuance of any public duty, the period of limitation where any action accrues shall be limited to 36 months. In the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 the non-payment of monies due under a series of building contracts entered into between the appellant and the Government of Malaysia was not in persuance of any public duty and therefore the relevant provision of the Act did not apply. In the Railways Act 1991 (which has ceased to apply to Peninsular Malaysia following the passage of the Land Public Transport Act 2010) it is proscribed that any suit involving the railway authorities shall be limited to three years.

Lastly one must consider whether one has an interest in the subject matter one sues in. The judge in the case of Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 219 said that every legal system has a built in mechanism to protect its judicial process from abuse by busy bodies, cranks and other mischief makers by insisting that a plaintiff should have a special interest in the proceedings he institutes. This takes the form of a nexus between himself and the other party and is known as a locus standi. This is demonstrated clearly in the case of Atip Bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82 where one woman filed a suit against a former chief minister of a certain state in Malaysia for breach of promise to marry and later discontinued the suit. The members of the political party of that former chief oddly believed that she was insulting their honour, and sued for defamation. Luckily defamation was held to be personal to the ex-minister involved, and not to the members.