Civil assignment
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Ramadhan is seeking to invoke Order 1A of the Rules of Court 2012 to remedy irregularities in his application against Syawal. Order 1A allows courts to consider justice over technical non-compliance. However, the document analyzes several cases that have found Order 1A cannot be used to override mandatory rules or cure intentional non-compliance. As Ramadhan failed to comply with the mandatory prerequisites in Order 6 Rule 7(2A) for renewing his writ, it is unlikely the court would allow him to invoke Order 1A in this case.
![Question
a) Whether Ramadhan may invoke O1A ROC 2012 for the application.
Under the Rules of Court 2012, Order 1A states about the regard to the overriding interest
of justice and not only to the technical non-compliance with these Rules. In the literal meaning
of this Rule, if there are non-compliances of the application of the parties involved, it will not
bring the application to be fatal. It is under the discretion of the Court to protect the justice of the
parties. The facts show that Ramadhan is trying to invoke O1A of the ROC 2012 for the
irregularities of his Writ and Statement of Claim to Syawal.
On the first issue, the meaning of substituted service under the ROC 2012 Order 62 R5
states that “any document in accordance with these Rules is required to be served personally on
any person it appears to the Court that it is impracticable for any reason to serve that document
personally on that person, the Court may make an order in Form 133 for substituted service of
that document.” In other words, the Rule shows that the Court may order for substituted service
if it is impractical to serve the writ personally. Substituted service may be apply where such
instances where the whereabouts the Defendant is unknown and also whereabouts is known but
is not present to accept the service of writ. In the case of 1Re Nirmala (s) a/p Muthiah
Selvarajah, the issue in the case was whether the whereabouts of the person to served was
unknown. The court then held that that the compliance in the Practice Note 1/68 shall not be
applicable where the Defendant whereabouts is unknown. Practice Notes recommends certain
steps to be taken before the application of substituted service shall be made. In the case of2
Leow Boke Chooi v Asia Motor Co. Ltd, the court held that Plaintff’s judgment was irregular
as the order of substituted service had not been complied as any copies of summons, SOC, and
the order was posted on the notice board of the courthouse in Kuala Lumpur.
1 [1988] 2 MLJ 616
2 [1967] 2 MLJ 109](https://image.slidesharecdn.com/civilassignment-150912061342-lva1-app6892/85/Civil-assignment-1-320.jpg)
![In the case of 3Development and Commercial Bank v Aspatra Corp Sdn Bhd where
the court held that the order of substituted service of court must be obeyed and can only be
challenged as regard to its validity. In relating to the facts, Ramadhan substituted service shall be
deemed fatal if he failed to comply with the court’s direction.
The second issue that was the order renewing the writ for six months from 13 August
2015 was invalid. Under Order 6 Rule 7 of the ROC 2012 where it deals with the duration
renewal of the writ. A writ shall be valid for six months in its first instance of its application
from the date it was issue. The renewal of the writ shall be renewed before the expiration of the
writ, hence the renewal shall be deemed as valid where this principle has applied in the case
4Trow v Ind Coope. Before a renewal of writ can be granted, the applicant has the obligatory to
produce evidence to the court that he had made a sufficient effort to serve within one month from
the date of the issue of the writ. In the case of Straits Motor Garage v Sauer Bach5, where the
court held “the writ cannot extended as of right. It is entirely at the discretion of the court to
extent the validity of the writ from time to time, upon being satisfied that there are sufficient or
good reason for the failure to serve within the validity period”. In the case of 6Kleinworth
Benson Ltd v Barbrak Ltd, the judge held that giving a good reason was sufficient to renew.
Applying to the facts, assuming that Ramadhan has a sufficient and good reason on why he did
renewed the writ within the time given, the court shall deemed his application to be a good
service. Contrary if Ramadhan did not provide any good reason, the court shall refused to accept
it as sufficient service.
The third issue is about the order for renewing writ was a non-compliance under O6 R7
(2) and R7 (2A) of the Rules of Court 2012, the order of renewal was invalid and further the
service of the writ and statement of claim was irregular and the writ and statement of claim
further to be set aside. Under O6 R7 (2) states that “subject to paragraph (2A), where efforts of
serve a writ on a defendant have been unsuccessfully, the court may by order extent the validity
of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times), not exceeding 6
months at any one time, bringing with the day next following that which it would otherwise
3 [1995] 3 MLJ 472
4 [1967] 2 Q.B.899
5 [1932] SSLR 98
6 [1987] 2 All ER 289](https://image.slidesharecdn.com/civilassignment-150912061342-lva1-app6892/85/Civil-assignment-2-320.jpg)
![expire, as may be specified in the order. While in O6 R7 (2A) states that “an application of
renewal of writ must be made before the expiry the writ, ex parte by notice of application
supported by affidavit showing that efforts has been made to serve the defendant within one
month from the date of the issue of the writ and that efforts have been made subsequently thereto
to effect service”. According to the case 7Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni
Sultan Iskandar Al-Haj v Datuk Captain Hamzah bin Mohd Noor, the issue arose was
whether the question arising for determination were :
i. Whether the requirement of showing such efforts that have been made to eefect service
of writ under O6 R7 (2A) ROC is mandatory perquisite to the exercise of discretion
under O6 R7 (2) and;
ii. In the event of failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A
ROC can be invoked to cure that failure.
Per Zaki Tun Azmi , CJ in his delivering the judgment in court , before the court consider to
exercise its discretion to renew writ, O.6 r.7 (2A) must satisfied that the applicant had the
obligatory to show inter alia , that efforts had been made to serve the defendant within one
month of the date of the issue of the writ. Applicant must use all due diligence to effect service at
the earliest possible time. This can be said that the O.6 R7 (2A) must be strictly enforced as
required by the rule. The effort must be serious efforts. When there is only a simple and plain
effort it cannot be serve as sufficient ground. It must be in detailed as to when, where and how to
attempts to serve were made.
Ramadhan brought up the issue that he wanted to invoke O1A ROC in order to cover the
irregularities of his application. In the case of 8Mohd Azlan Hj Zainal Abidin & Ors v
Pegawai Penerima Syarikat Cosmopro & Ors, where the court in delivering the judgment also
make a reference to the case of Duli Yang Amat Mulia Tunku Ibrahim Ibni Sultan Iskandar
Al-Haj v Datuk Captain Hamzah bin Mohd Noor & Another Appeal, Zaki Tun Azmi, CJ,
delivering the decision of the Court at paras 4, 43, 44, 46 and 50 said this:
7 [2009] 4 CLJ 329
8 [2014] MLJU 1564](https://image.slidesharecdn.com/civilassignment-150912061342-lva1-app6892/85/Civil-assignment-3-320.jpg)
![[4] A general provision such as) 1A RHC must not supersede a mandatory requirement of the
Rules. Order 1A RHC cannot be invoked when a party intentionally disregards in complying
with the rules.
[43] Accordingly, I have no hesitation in answering the first question posed in the positive, that
is to say, the requirements of 0.6 r 7(2A) are mandatory prerequisites. This means that the
applications for extension of time for service of the writs made by the respondents are defective
as they do not show compliance with the RHC.
[44] Now to O 1A RHC. This order relates to the administering of Rules to the High Court1980.
In order to invoke O 1A RHC, parties must apply the object of the Rules first. Order 1A RHC
reads as follows.
Order 1 A: Court or judge shall have regard to justice.
In administering any of the rules herein the court or a judge shall have regard to the justice of
the particular case and not only to the technical con-compliance of any of the rules herein.' [46]
The technical non-compliance of any rules may be remedied where there is an accidental
omission or oversight by a party. A general provision such as O 1A RHC 1980 is for the court or
judge to give heed to justice over technical con-compliance. It must not supersede a mandatory
requirement of the Rules. 0.1A RHC cannot be invoked when a party intentionally disregards in
complying with the rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in
this case, O 1A RHC does not apply as the respondents had intentionally disregarded O 6 r 7
(2A) RHC for their own reasons.
[50] As I had mentioned in court, if O 1A is sought to be invoked whenever a party fails to
comply with any provision of the rules, then the whole of the Rules of the High Court 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 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. Therefore, the answer to question two is in the negative.
In this case, the respondent’s application for extension of time for service of the writ was
defective as they did not proof the compliance of the rule. As for that, O. 1A must not be invoked](https://image.slidesharecdn.com/civilassignment-150912061342-lva1-app6892/85/Civil-assignment-4-320.jpg)
![as the respondent of the party intentionally disregard in complying with O.6 R.7 (2A) for their
own reasons. As stated in the Rules of High Court , the term “technical non-compliance “ may
refers to the meaning of non-compliance with a rule which if not fundamental or mandatory as
for that the O.1A cannot be supply to cure the failure to comply with the prerequisites of O.6
R.7 (2A).
In the case of 9Tan Ka Hong v Mao Sheng Marketing (M) & Ors, where the issue was
whether the non-compliance can be cured. The court held that If the court exercised its
discretionary power under O. 1A, O. 2 r. 1(1), (2) and (3) of the RC to cure the applicant's non-
compliance, it would cause an injustice to the third to fifth defendants.
In a reasonable presumption it can be said that based on Ramadhan trying to get remedy
by invoking Order 1A ROC to regard shall be to justice, it can be concluded that Ramadhan may
not successful in invoking the Rule. The court shall critically analyze the reasons behind
Ramadhan’s irregularity of the application to Syawal. Based on the precedents, it can be assumed
that the discretion is on the judge to decide on whether Ramadhan can raise the O1A of ROC.
9 [2015] 4 CLJ 113](https://image.slidesharecdn.com/civilassignment-150912061342-lva1-app6892/85/Civil-assignment-5-320.jpg)
Civil assignment
- 1. Question a) Whether Ramadhan may invoke O1A ROC 2012 for the application. Under the Rules of Court 2012, Order 1A states about the regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. In the literal meaning of this Rule, if there are non-compliances of the application of the parties involved, it will not bring the application to be fatal. It is under the discretion of the Court to protect the justice of the parties. The facts show that Ramadhan is trying to invoke O1A of the ROC 2012 for the irregularities of his Writ and Statement of Claim to Syawal. On the first issue, the meaning of substituted service under the ROC 2012 Order 62 R5 states that “any document in accordance with these Rules is required to be served personally on any person it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 133 for substituted service of that document.” In other words, the Rule shows that the Court may order for substituted service if it is impractical to serve the writ personally. Substituted service may be apply where such instances where the whereabouts the Defendant is unknown and also whereabouts is known but is not present to accept the service of writ. In the case of 1Re Nirmala (s) a/p Muthiah Selvarajah, the issue in the case was whether the whereabouts of the person to served was unknown. The court then held that that the compliance in the Practice Note 1/68 shall not be applicable where the Defendant whereabouts is unknown. Practice Notes recommends certain steps to be taken before the application of substituted service shall be made. In the case of2 Leow Boke Chooi v Asia Motor Co. Ltd, the court held that Plaintff’s judgment was irregular as the order of substituted service had not been complied as any copies of summons, SOC, and the order was posted on the notice board of the courthouse in Kuala Lumpur. 1 [1988] 2 MLJ 616 2 [1967] 2 MLJ 109
- 2. In the case of 3Development and Commercial Bank v Aspatra Corp Sdn Bhd where the court held that the order of substituted service of court must be obeyed and can only be challenged as regard to its validity. In relating to the facts, Ramadhan substituted service shall be deemed fatal if he failed to comply with the court’s direction. The second issue that was the order renewing the writ for six months from 13 August 2015 was invalid. Under Order 6 Rule 7 of the ROC 2012 where it deals with the duration renewal of the writ. A writ shall be valid for six months in its first instance of its application from the date it was issue. The renewal of the writ shall be renewed before the expiration of the writ, hence the renewal shall be deemed as valid where this principle has applied in the case 4Trow v Ind Coope. Before a renewal of writ can be granted, the applicant has the obligatory to produce evidence to the court that he had made a sufficient effort to serve within one month from the date of the issue of the writ. In the case of Straits Motor Garage v Sauer Bach5, where the court held “the writ cannot extended as of right. It is entirely at the discretion of the court to extent the validity of the writ from time to time, upon being satisfied that there are sufficient or good reason for the failure to serve within the validity period”. In the case of 6Kleinworth Benson Ltd v Barbrak Ltd, the judge held that giving a good reason was sufficient to renew. Applying to the facts, assuming that Ramadhan has a sufficient and good reason on why he did renewed the writ within the time given, the court shall deemed his application to be a good service. Contrary if Ramadhan did not provide any good reason, the court shall refused to accept it as sufficient service. The third issue is about the order for renewing writ was a non-compliance under O6 R7 (2) and R7 (2A) of the Rules of Court 2012, the order of renewal was invalid and further the service of the writ and statement of claim was irregular and the writ and statement of claim further to be set aside. Under O6 R7 (2) states that “subject to paragraph (2A), where efforts of serve a writ on a defendant have been unsuccessfully, the court may by order extent the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times), not exceeding 6 months at any one time, bringing with the day next following that which it would otherwise 3 [1995] 3 MLJ 472 4 [1967] 2 Q.B.899 5 [1932] SSLR 98 6 [1987] 2 All ER 289
- 3. expire, as may be specified in the order. While in O6 R7 (2A) states that “an application of renewal of writ must be made before the expiry the writ, ex parte by notice of application supported by affidavit showing that efforts has been made to serve the defendant within one month from the date of the issue of the writ and that efforts have been made subsequently thereto to effect service”. According to the case 7Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah bin Mohd Noor, the issue arose was whether the question arising for determination were : i. Whether the requirement of showing such efforts that have been made to eefect service of writ under O6 R7 (2A) ROC is mandatory perquisite to the exercise of discretion under O6 R7 (2) and; ii. In the event of failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A ROC can be invoked to cure that failure. Per Zaki Tun Azmi , CJ in his delivering the judgment in court , before the court consider to exercise its discretion to renew writ, O.6 r.7 (2A) must satisfied that the applicant had the obligatory to show inter alia , that efforts had been made to serve the defendant within one month of the date of the issue of the writ. Applicant must use all due diligence to effect service at the earliest possible time. This can be said that the O.6 R7 (2A) must be strictly enforced as required by the rule. The effort must be serious efforts. When there is only a simple and plain effort it cannot be serve as sufficient ground. It must be in detailed as to when, where and how to attempts to serve were made. Ramadhan brought up the issue that he wanted to invoke O1A ROC in order to cover the irregularities of his application. In the case of 8Mohd Azlan Hj Zainal Abidin & Ors v Pegawai Penerima Syarikat Cosmopro & Ors, where the court in delivering the judgment also make a reference to the case of Duli Yang Amat Mulia Tunku Ibrahim Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah bin Mohd Noor & Another Appeal, Zaki Tun Azmi, CJ, delivering the decision of the Court at paras 4, 43, 44, 46 and 50 said this: 7 [2009] 4 CLJ 329 8 [2014] MLJU 1564
- 4. [4] A general provision such as) 1A RHC must not supersede a mandatory requirement of the Rules. Order 1A RHC cannot be invoked when a party intentionally disregards in complying with the rules. [43] Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of 0.6 r 7(2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the respondents are defective as they do not show compliance with the RHC. [44] Now to O 1A RHC. This order relates to the administering of Rules to the High Court1980. In order to invoke O 1A RHC, parties must apply the object of the Rules first. Order 1A RHC reads as follows. Order 1 A: Court or judge shall have regard to justice. In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical con-compliance of any of the rules herein.' [46] The technical non-compliance of any rules may be remedied where there is an accidental omission or oversight by a party. A general provision such as O 1A RHC 1980 is for the court or judge to give heed to justice over technical con-compliance. It must not supersede a mandatory requirement of the Rules. 0.1A RHC cannot be invoked when a party intentionally disregards in complying with the rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O 1A RHC does not apply as the respondents had intentionally disregarded O 6 r 7 (2A) RHC for their own reasons. [50] As I had mentioned in court, if O 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 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 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. Therefore, the answer to question two is in the negative. In this case, the respondent’s application for extension of time for service of the writ was defective as they did not proof the compliance of the rule. As for that, O. 1A must not be invoked
- 5. as the respondent of the party intentionally disregard in complying with O.6 R.7 (2A) for their own reasons. As stated in the Rules of High Court , the term “technical non-compliance “ may refers to the meaning of non-compliance with a rule which if not fundamental or mandatory as for that the O.1A cannot be supply to cure the failure to comply with the prerequisites of O.6 R.7 (2A). In the case of 9Tan Ka Hong v Mao Sheng Marketing (M) & Ors, where the issue was whether the non-compliance can be cured. The court held that If the court exercised its discretionary power under O. 1A, O. 2 r. 1(1), (2) and (3) of the RC to cure the applicant's non- compliance, it would cause an injustice to the third to fifth defendants. In a reasonable presumption it can be said that based on Ramadhan trying to get remedy by invoking Order 1A ROC to regard shall be to justice, it can be concluded that Ramadhan may not successful in invoking the Rule. The court shall critically analyze the reasons behind Ramadhan’s irregularity of the application to Syawal. Based on the precedents, it can be assumed that the discretion is on the judge to decide on whether Ramadhan can raise the O1A of ROC. 9 [2015] 4 CLJ 113