Chapter 31 - PTCM

Question 1

PTCM

Overview

Answer 1

1) General principles on PTCM
2) Overview process in PTCM
3) Scope of PTCM
4) Failure of parties & non-compliance
5) Duty of parties at PTCM
6) Power of court at PTCM
7) Dismissal of the action
8) Dismissal for want of prosecution

Question 2

GENERAL PRINCIPLES ON PTCM

Overview

Answer 2

1) Power to direct PTCM
2) Power of judge
3) Duty of counsel
4) Effect of not having PTCM

Question 3

GENERAL PRINCIPLES ON PTCM

Power to direct PTCM

Answer 3

1) The law:

O.34, r.1

2) Scope - Tan Geok Lan v La Kuan:
- The court controls the progress of cases by the exercise of its powers given to dictate the progress of cases at the pre-trial stage.

Question 4

GENERAL PRINCIPLES ON PTCM

Power of judge

Answer 4

Tan Geok Lan v La Kuan:

• The power of court includes ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused.

Question 5

GENERAL PRINCIPLES ON PTCM

Duty of counsel

Answer 5

Sunrise West Sdn Bhd & Ors v Pravin Mahtaney Ramchand & Anor:

• To present to the court in a clear & unequivocal manner the agreed facts & issues to be tried;
• To attend case management with appropriate focus to facts, issues & documents.

Question 6

GENERAL PRINCIPLES ON PTCM

Effect of not having PTCM

Answer 6

Sunrise West Sdn Bhd & Ors v Pravin Mahtaney Ramchand & Anor:

• Court expressed its displeasure & disappointment when the basic facts & dispute in relation to the agreed facts are not brought upon the court by the party.
• It is then becomes difficult and challenging at trial for the matter to be resolved.

Question 7

OVERVIEW PROCESS IN PTCM

Overview

Answer 7

1) Notification

2) Case management at court

Question 8

OVERVIEW PROCESS IN PTCM

Notification

Answer 8

1) Notification of PTCM - O.34, r.3:

Mode:
Form:

2) In practice:

• Via e-filing login in account or portal;
• For courts without without e-filing, by official letter from the court.

Question 9

OVERVIEW PROCESS IN PTCM

Case management at court

Answer 9

1) Matters to be discussed:

• Mediation;
• Bundle of pleadings & documents;
• Statement of agreed facts & issues to be tried;
  Statement of witness.

2) Fix date for trial.

Question 10

SCOPE OF PTCM

Overview

Answer 10

1) Notification
2) Attendance of parties
3) Mediation
4) Trial documents

Question 11

SCOPE OF PTCM

Notification

Answer 11

1) O.34, r.2(1):
- Court may direct parties to attend PTCM relating to the matters arising in the action.
2) O.34, r.3:
- Notification in notice in Form 59.

Question 12

SCOPE OF PTCM

Attendance of parties

Answer 12

O.34, r.4:

• By solicitor; or
• Personally with the leave of court.

Question 13

SCOPE OF PTCM

Mediation

Answer 13

O.34, r.2(2)(a):

1) Scope:
- Possibility of settlement & mediation, in accordance with PD 5/2010.
2) Benefits:

• Explore all options available;
• Identify underlying issues & common grounds;
• No delay in court hearings.

3) Type of cases, inter alia:

• Claims for personal injuries;
• Defamation & matrimonial disputes;
• Commercial & contractual disputes; and IP cases.

4) Agreement: Form 1 PD 5/2010
5) Settlement: 3 months from the date of reference to mediation.

Question 14

SCOPE OF PTCM

Trial documents

Answer 14

O.34, r.2(2)(b) - (t):

1) Trial documents:

• Bundle of pleadings;
• Bundle of documents (Part A, B & C);
• Statement of agreed facts;
• Statement of issues to be tried;
• Summary of P’s & D’s case;
• List of witnesses & witness statements.

2) Issue on agreed bundle - Yeo Ing King v Melawangi Sdn Bhd:

• Part A: contents & truths are not disputed;
• When a document is placed in Part A, it is deemed to be proved without any qualification.
• Part B & C: content and/or truth is disputed.

Question 15

FAILURE OF PARTIES & NON-COMPLIANCE

Overview

Answer 15

1) Failure to attend
2) Adjournment
3) Effect of failure to comply
4) Issuance of peremptory order

Question 16

FAILURE OF PARTIES & NON-COMPLIANCE

Failure to attend

Answer 16

O.34, r.6

Question 17

FAILURE OF PARTIES & NON-COMPLIANCE

Adjournment

Answer 17

O.34, r.5

Question 18

FAILURE OF PARTIES & NON-COMPLIANCE

Effect of failure to comply

Answer 18

1) O.34, r.1(3):

• Dismiss the action;
• Strike out the defence or counterclaim;
• Make any other orders.

2) O.34, r.2(3):

• Dismiss the action;
• Strike out the defence or counterclaim;
• Enter judgment;
• Make any other orders.

3) Application - Zainal Effendi Mohd Daud v Suruhanjaya Perkhidmatan Awam:

• The plaintiff’s frequent failure to comply with the directions of the judge given during pre-trial case management without a satisfactory explanation was a very serious matter & could not be condoned by the court.
• Consequently, although not canvassed for by the defendants, the plaintiff’s action should be dismissed.

Question 19

FAILURE OF PARTIES & NON-COMPLIANCE

Issuance of peremptory order

Answer 19

Md Amin bin Md Yusof v CityVilla Sdn Bhd:

• a peremptory or an unless order should not be made unless there is a history of failure to comply with other orders as it is an order of last resort;
• All the circumstances of the case, inclusive of whether the failure to comply with the peremptory or unless order was indeed intentional and contumelious, should be taken into account before penalizing the defaulting party.

Question 20

DUTY OF PARTIES AT CASE MANAGEMENT

Overview

Answer 20

1) Disclose all information

2) Make all interlocutory applications

Question 21

DUTY OF PARTIES AT CASE MANAGEMENT

Disclose all information

Answer 21

O.34, r.8:

• Parties shall give all such information & produce all documents required.

Question 22

DUTY OF PARTIES AT CASE MANAGEMENT

Make all interlocutory applications

Answer 22

O.34, r.9:

• 7 days before the date of case management;
  service in Form 60 specifying orders & directions.

Question 23

POWER OF COURT AT PTCM

Overview

Answer 23

1) To issue any orders or directions
2) To order for settlement
3) To deal with non-compliance
4) To make peremptory order

Question 24

POWER OF COURT AT PTCM

To issue any orders or directions

Answer 24

O.34, r.1:

• Issue any orders or directions that will ensure just, expeditious & economical disposal of the proceedings.

Question 25

POWER OF COURT AT PTCM To order for settlement

Answer 25

O.34, r.2(2): - Power to explore possibility & issue order of settlement & mediation, in accordance with PD 5/2010.

Question 26

POWER OF COURT AT PTCM To deal with non-compliance

Answer 26

O.34, r.1(3) & r.2(3): 1) O.34, r.1(3): - Dismiss the action; - Strike out the defence or counterclaim; - Make any other orders. 2) O.34, r.2(3): - Dismiss the action; - Strike out the defence or counterclaim; - Enter judgment; Make any other orders.

Question 27

POWER OF COURT AT PTCM To make peremptory order

Answer 27

Md. Amin b. Md Yusoff & Anor v Cityvilla Sdn Bhd: - Failure to comply with peremptory order emanating from PTCM conference is fatal.

Question 28

DISMISSAL FOR WANT OF PROSECUTION Overview

Answer 28

1) Distinction with dismissal for disobedience 2) Dismissal under ROC 3) Dismissal under inherent jurisdiction

Question 29

DISMISSAL FOR WANT OF PROSECUTION General principles

Answer 29

1) Dismissal for disobedience of peremptory order - Bailey v Bailey: - When a suit is dismissed for disobedience of peremptory order; - Filing afresh of the suit will constitute an abuse of process. 2) Remedy for dismissal for disobedience of peremptory order - Janov v Morris: - For dismissal for disobedience of peremptory order (i.e. under O.34 ROC), the filing of a fresh action may constitute an abuse of process. - Instead, he may appeal against that order seeking, if necessary, an extension of time within which to do so. 3) Dismissal for want of prosecution - Birkett v James: - Where an action was dismissed for want of prosecution before the limitation period had expired, the court would have no power to prevent the plaintiff from starting a fresh action; - i.e. filing afresh of the suit will NOT constitute an abuse of process. - Therefore, an action should not be struck out or dismissed for want of prosecution during the limitation period because P would be able to issue a writ the following day in accordance with the law. 4) Position in Malaysia - Syed Omar Syed Mohamed: - Both cases are referred to in Syed Omar Syed Mohamed v Perbadanan Nasional Bhd. - Held: The principle in Birkett v. James had no application for O. 34 of the RHC purposes on pre-trial case management; - Under O.34, the court no longer left it to the parties to move the litigation at their own pace but assumed the role of setting the time table for progress of the case. - Issuance of peremptory order & failure to comply with such order that lead to dismissal of the suit will BAR the party from filing afresh; - Filing of the second suit may amount to an abuse of process; - Instead, he may appeal against the decision.

Question 30

DISMISSAL FOR WANT OF PROSECUTION Dismissal under ROC

Answer 30

1) Rules: - Order 19 rule 1: failure to deliver a Statement of Claim; - Order 24 rule 16: failure to make a discovery of documents; - Order 26 rule 7: failure to answer interrogatories from the Defendant; or - Order 34 rule 7: failure to set down the action for trial. 2) Dismissal under O.34, r.7 - Syed Omar Syed Mohamad v Perbadanan Nasional Bhd: - filing the second suit after it is being dismissed would be construed as an attempt to circumvent the appeal procedure. - therefore, when a suit is dismissed under O.34, r.7, proper recourse is to appeal; not to re-filing the suit.

Question 31

DISMISSAL FOR WANT OF PROSECUTION Dismissal under inherent jurisdiction - test to invoke

Answer 31

Toh Hock Thye & Ors v Toh Chwee Biow: - Under inherent jurisdiction of the court, the plaintiff's action is liable to be dismissed for want of prosecution when the court is satisfied that: (1) the plaintiff's default has been intentional and contumelious; or (2) the plaintiff or his lawyer is guilty of such inordinate and inexcusable delay that the defendant has been prejudiced by it. - On the facts of this case, the action was dismissed based on court’s inherent powers by the reason that P was guilty of inordinate & inexcusable delay that prejudiced the D.

Question 32

DISMISSAL FOR WANT OF PROSECUTION Dismissal under inherent jurisdiction - example

Answer 32

Vasudevan Vazphulli Raman v T Damodaran P V Raman (FC): - Inordinate delay is inexcusable warranting a dismissal for want of prosecution until a credible excuse is made out; - The question to be asked is whether the delay gives rise to a substantial risk that a fair trial would not be possible or is such as is likely to cause or to have caused serious prejudice to the defendants; - As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial; - OTF, FC held that the trial court is correct in dismissal the action when the plaintiffs took out a writ in December 1973 some ten (10) years after the accrual of the action & after a lapse of 3 years and 3 months the appellant gave notice of his intention to proceed in the action but did nothing further & no steps whatsoever were taken to set the action down for trial.