Have you ever imagine in a breezy Monday morning while you are enjoying your big breakfast with scrambled egg, a handsome young man knocks on your door with an envelope on his hand and asks you: 'Are you Mr so and so?' After verifying your identity, the young man passed you the envelope on his hand and continue with: 'I am here to serve you this, please sign here to acknowledge receipt.' You open up the envelope and notice that it is a writ summon in the High Court of Malaysia and continue reading, you noticed that your name is stated as 'Defendant' in the summon. If you are caught in such circumstances, seeking professional legal advice is the best option you can make, but if you are short in pocket and want to try to defend yourself in the court, the rest of the article might provide a useful overview to you on how Malaysia Civil Procedure works. If you are a learned lawyer, you are most welcome to comment on the article on whether my understanding of the big picture of Malaysia Civil Procedure is accurate.
The civil procedure in Malaysia is mainly governed by the Rule of Court 2012, which govern the High Court and Subordinate Court, following by the Subordinate Court Act 1948, the Rule of the Court of Appeal 1994, and the Rule of the Federal Court 1995 depending on which court is claiming jurisdiction on your case. The whole process can be divided into five main stages.
Filing and serving a writ summon/originating summon;
Enter Appearance;
Pleading;
Pre-trial case management; and
Trial;
Filing and serving a writ summons / originating summon
Still remember the Romeo who interrupt your breakfast earlier? By verifying your identity and handling the envelope to your hand meaning the Plaintiff on the other side has successfully filed their complaint against you with the Malaysia judiciary system and has successfully served it to you or, in layman term, giving you official notice to the matter. The first thing you need to do is to verify the plaintiff has a valid cause of action, such as a breach of contract, a default in a loan or is it an injury claim. Next, the incident has to happen within the limitation period. In general, any case which is not brought before the court within six years void the entitlement of the Plaintiff to sue, so if the Plaintiff claim that you owe him a sum of money in the year of 1984, you can file in limitation defence with the court. However, the general six years period can vary depends on different action or parties.
Enter Appearance
After confirming that your opponent has a valid cause of action, the action is brought within time and the opponent has sufficient evidence to make their case, you are given 14 days to complete a process called enter appearance. This means that you will have to file a Memorandum of Appearance in the format of Form 2 in the Rule of Courts 2012 with the same court as in the writ summon served to you. If you neglected the matter or failed to enter appearance in the 14 days after the writ is served to you, the Plaintiff can apply a Judgement in Default with the court which is enforceable against you.
Pleading
Now let's say you have decided to fight till the end even when all odd is against you because you believe that you have done nothing wrong and justice need to be served, the next thing you need to do is to file in your Defendant's Statement of Defence and also the Defendant's Counterclaim (if any). This has to be done within 14 days after the entry of appearance. Again, if you failed to do so in 14 days, the Plaintiff can obtain a judgement in default against you. The ball is then passed on to the other side of the court where the Plaintiff will have to file in their Plaintiff's Reply to Defence (if any) or Plaintiff's Defence to Counterclaim (if any) within 14 days after you serve your defence. Then you have the last chance to file in your Defendant's Reply to Plaintiffs' Reply to Defence before the closing of pleading.
Pre-trial case management
Upon the closing of pleading, the parties will be summoned to the court for a PTCM. At the PTCM the parties are required to compile all the documents to be used as evidence in the trial and to identify your witness on the case. In the hearing, the court will identify the agreed facts and issue to be trial. At the end of the PTCM, the court will then give direction as to what documents needed to be filed in court together with their timelines for all the filings.
Trial
After getting a trial date from the court, this is where the real battle begins. It is at this stage that the lawyer representing the party get to examine and confront a witness face to face and how the other side lawyer throws on objections on the questions being asked to a witness just like what we see on a legal drama. The process starts with the Plaintiff calling their witness and conducting the examination in chief. You can cross-examine the witness after that to either weaken the evidence or to undermine the credibility of the witness. The Plaintiff can re-examine the witness after they are cross-examined by you.
It follows on to your turn where you can call your own witness now. The same process repeat where you will conduct the examination in chief follow by the Plaintiff cross-examining your witness and end by you re-examined your witness.
After the Judge has heard both the parties' witness and the parties have given their submission, the trial Judge may pronounce a judgement on the same day or another date given by the court. If you are a successful party to the case, you have to file a draft judgment to be sealed and serve it to your opponent and that is the end of the story.
Comments