Court Rules and Transitions

Warning: This is a boring article. Only read it if you are interested in the arcane details of the procedure used by lawyers in civil court cases.

UPDATED: Today (2nd August 2012), I received an email saying the Rules of Court 2012 that came into force yesterday have already been amended with effect from yesterday. I have therefore corrected this article to reflect the amendment to O 94 r 3(2). Deletions are struck through and insertions underlined. Some corrections have also been made.

The new Rules of Court 2012 (the 2012 Rules) came into force today, 1^st August 2012. This is the first time Court procedures have been comprehensively reviewed since 1980. On the whole, the new Rules are an improvement on the previous Rules and should make the life of civil litigators slightly easier.

The Problem

But there have been some queries amongst lawyers on whether these new Rules will apply to cases already pending in Court. In 1980, when the Rules were amended to introduce the Rules of the High Court 1980 (RHC) and the Subordinate Courts Rules 1980 (SCR), the transitional provision was very clear.

Order 1 r 2(1) of the RHC provided that the Rules would apply immediately to all cases, whether or not the case had already been filed. It read:

“Subject to the following provisions of this rule, these rules shall have effect in relation to all proceedings in the [High or Subordinate] Court, including any pending proceedings therein.”

(The proviso related to those cases which are subject to rules made under other laws, such as the winding up of companies and divorce.)

A similar rule applied to cases in the subordinate courts. Order 1 r 2(1) of the SCR provided that the SCR would apply to pending proceedings “unless the court otherwise orders”.

This merely put into the rules what is already a presumption in the law that amendments to procedural provisions are presumed to apply to pending proceedings. As Bennion on Statutory Interpretation (5th ed) puts it, at section 98 (page 320):

“Because a change made by the legislator in procedural provisions is expected to be for the general benefit of litigants and others, it is presumed that it applies to pending as well as future proceedings.”

(I will call this “the Presumption”)

But the section then goes on to say:

“The presumption does not operate where, on the facts of the instant case, to apply it would contravene the principle that persons should not be penalised under a doubtful enactment”

(I will call this the “Proviso”)

This transitional scheme may be also what was intended by the Rules Committee in the new Rules but the wording in the 2012 Rules (or perhaps the lack of the clear wording from before) has perhaps led to some confusion. Order 94 rule 2 3(2)of the 2012 Rules provides as follows in the authoritative national language version of the text:

“Mana-mana tindakan dan permohonan yang dimulakan dengan petisyen, usul atau usul pemula yang belum selesai sebelum tarikh permulaan kuatkuasa Kaedah-Kaedah ini tidaklah terjejas oleh Kaedah-Kaedah ini dan hendaklah diteruskan seolah-olah Kaedah-Kaedah ini tidak diperbuat hendaklah dari tarikh kuat kuasa Kaedah-Kaedah ini, diteruskan mengikut peruntukan Kaedah-Kaedah ini.”

In English, the rule reads as follows:

“Any pending action or application that was commenced by way of petition, motion or originating motion before the date of coming into operation of these Rules shall not be affected by these Rules and shall continue as if these Rules had not been enacted , from the date of coming into operation of these Rules, proceed in accordance with these Rules.”

Now, this wording is problematic.

For one, the BM and English version are different in that one uses the word “dan” and the other the word “or”. But that difference does not really seem material since it seems clear in the English that the word “or” is not used to be disjunctive but conjunctive.

The 1st Interpretation

The real mystery is why the word “application” or “permohonan” is used.

At first sight, it seems to be read as dealing with two situations:-

(1)    Any pending action, or

(2)    Any pending application that was commenced by way of petition, motion or origination motion

If that is the case, why the 2^nd category is included is a mystery to me since an “action” is defined in the Courts of Judicature Act 1964, s. 3 as “a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court, but does not include a criminal proceeding”. The note in the Annotated Statutes of Malaysia for this definition explains that the other manner contemplates beginning proceedings by originating summons, originating motion or petition.

Why “motion” is included is also a mystery to me. A “motion”, as distinct from an “originating motion” (and totally distinct from what one passes in the toilet) is a method of making an application within an action. So if you file a case against someone, and they commit a contempt of court, you apply to the Court within that case to cite that person for contempt by way of a motion.

In any case, my understanding of this rule read as dealing with the above two categories is that so long as even though a case has already been filed before 1^st August 2012 when the 2012 rules come into force, then the provisions of the RHC or the SCR would apply the provisions of the 2012 Rules would apply to such actions and applications.

The 2nd Interpretation

However, the rule could also be read as dealing with only one scenario, namely that it only deals with

1) actions which had been begun by way of petition or originating motion, OR

2) applications begun by motion.

Petitions, Originating Motions and Motions are modes of commencement which no longer exist under the 2012 Rules.

So under this 2nd interpretation, what the rule provides is that the previous Rules apply if such an action by petition or originating motion or an application by motion has already been commenced. If a case has been begun by writ or originating summons, then the new Rules apply.

It seems that at least one well respected lawyer has commented on a lawyers’ e-group that this second reading should apply. In other words, the transitional provision means any interim applications filed in such matters should follow the 2012 Rules. Others have also commented that this seems to be the understanding of many Judges.

This 2nd interpretation may be more in accordance with the Presumption.

However, with the amendment to the Rules now, it would appear that the Rule now enacts the Presumption only for actions begun by petition and originating motion, and applicatins by motion. So does that mean the Presumption is not intended to apply to other sorts of actions or applications?

But what of the Proviso?

What if new Rules affect a “substantive right”

Some of the changes in the 2012 Rules amend time deadlines (though generally extending those deadlines). For example, an application for judicial review now must be filed within 3 months instead of the previous 40 days. The most common example of judicial review in Malaysia are reviews of Industrial Court awards. Under this second interpretation, a person who may have been out of time under the previous Rules could well file a judicial review now and a disgruntled Respondent may argue the Proviso applies as it affects his or her substantive rights.

(When there was a rule change directing Judges to hear summary judgment or striking out applications, at least one Judge at that time – now in the Court of Appeal – was of the view that this effective amounted to the removal of a right of appeal, and thus affected a substantive right and therefore could not apply to applications already filed.)

Since there is no comprehensive transitional provision, there will undoubtedly be some disputes in some of these cases which will require a Judge to rule on this issue.

There may have been some merit in utilizing the transitional formula of the RHC and SCR, and make it crystal clear that all cases after 1^st August 2012 would utilize the 2012 Rules to avoid any confusion. Now that the Rules are already in force, we shall see if anyone can be bothered to take  this point up and make a court case out of it.