Amendments to the Subordinate Courts Act 1948

Press Release: Proposed changes to Subordinate Courts Act are too drastic and require proper study

The Malaysian Bar is concerned that the far-reaching amendments to the Subordinate Courts Act 1948 are being tabled for adoption in Parliament without a detailed and thorough impact assessment exercise, and exhaustive consideration of the ramifications. The proposed amendments contemplate increasing the limits in monetary jurisdiction of, among others, the Sessions Court (from RM250,000 to RM1,000,000), and the Magistrates Court (from RM25,000 to RM100,000).  Such a sudden and substantial expansion, representing a four-fold increase, is too large, and immediately calls into question the ability of the current capacity of the Subordinate Courts to handle the corresponding increase in workload.  Allocation of resources is also a significant issue, as the upsurge in workload will similarly require an increase in the number of judges and court infrastructure.  No details have been provided as to how these concerns will be addressed.  Although there are inflationary-based arguments that justify a reasonable enlargement in the monetary jurisdiction of the Subordinate Courts after 16 years, an extensive study is crucial to ensure the amendments do not subject litigants in Malaysia to hardship and place undue stress and pressure on the present structure and resources of the Subordinate Courts.  A gradual and incremental increase would be a more appropriate and realistic move, which would also be less likely to adversely impact on the capacity of the Subordinate Courts to handle and dispose of such claims in an effective and efficient manner. The Malaysian Bar is also concerned about the competence and judicial experience of judicial officers of the Subordinate Courts to effectively deal with claims of such financial magnitude.  An essential consideration is whether they possess the necessary experience and qualifications to preside over such matters, and the adequacy of the training they must necessarily be given. The proposed amendments also contemplate conferring additional jurisdiction on the Sessions Court, allowing it to grant equitable remedies such as injunctions and declaratory relief, provided the claim is within its (enlarged) monetary jurisdiction.  The Malaysian Bar has reservations that the relatively short time spent as judicial officers in the Subordinate Courts and the resultant lack of experience do not adequately equip the judicial officers to deliberate upon and grant equitable remedies, which involve complex legal principles and can have harsh and serious consequences on a litigant.  Conferring such power, especially the power to grant an injunction directing a party to do, or refrain from doing, a particular act, will potentially result in adverse consequences arising from imprudent or erroneous decisions. The Malaysian Bar believes that a more appropriate and realistic boundary between the Subordinate Courts and the High Court should be based on the relative complexity of the subject matter of the claim rather than the claim amount alone, to ensure that more complex matters are heard by High Court Judges who possess greater experience and knowledge of legal principles.  We call on the Government to defer the Amendment Bill until a comprehensive study is undertaken to address the myriad issues posed by the proposed amendments, and the Bar Council is consulted and given a full opportunity to provide its views.  The Bar Council is presently working closely with the Judiciary on the formulation of the Combined Rules of Court and considerations of enlarging the jurisdiction of the Subordinate Courts ought to be discussed and dealt with comprehensively in tandem with this.  Lim Chee Wee Vice-President Malaysian Bar 2 July 2010

Civil Procedure - Summary Judgment

In the Rules of High Court 1980 and Subordinate Courts Rule 1980, one will find provisions which allow parties with claims to pursue a quick Judgment against the other side. This is referred to as Summary Judgment. You will find it in Order 14 and Order 26A, respectively.

A party with a claim would usually refer to the Plaintiff suing a Defendant, but a Defendant with a Counter Claim against the Plaintiff may also apply the same.

Basically the party seeking Summary Judgment would have to show the Judge that they have a claim so good that a Trial is not necessary. Usually Banks suing defaulting borrowers will use this procedure for a quick Judgment.

The party facing this application would need to show at least one of these in Court:-

1. that there are issues which can only be ventilated and decided in a Trial, or

2. some other reason which the Court deems fit to call for a Trial.

In DCB Bank v NS Bahtera [1999] 2 AMR 1790, the High Court held that a party seeking summary judgment has to show at least a prima facie case against the other party, before the other party is expected to show one of the 2 above rebuttals.

Injunction

Usually an Injunction is described as an Order to stop an act. There are many types of Injunction, but generally, the interim/interlocutory injunction is the usual Injunction sought in Court.

The Rules of High Court 1980 has a specific provision to guide Judges & Lawyers on the procedure to apply for an Injunction, specifically Rule 29. The most famous case quoted would be the American Cynamid case where the English Court gave a guide on when to grant an Injunction. In Malaysia, the case of Keet Gerald adopted and adapted the English legal principles from that American Cynamid case.

The most significant requirement would be the need to retain the position of the Plaintiff. The Court would have to be persuaded that failure to grant the Injunction may cause irreparable damage to the Plaintiff.

Judges in Malaysia do not grant Injunctions freely. Ask any Civil Litigation lawyer, and they will tell you that it is difficult to persuade a Judge to grant the order. Usually it would need strong evidence in support of the Plaintiff to bring the Judge to the Plaintiff's side.

A lawyer would usually file a Writ or an Originating Summon to initiate a suit against the other party. The Suit would have the usual prayers of a mandatory Injunction against the Defendant though in practise, once an interim/interlocutory Injunction is granted, that may see the conclusion of the matter.

The lawyer would also file a Summon in Chamber (SIC) to seek an ex-parte, interim/interlocutory Injunction; and that SIC would be backed up by an Affidavit explaining the reasons for the need to have an Injunction against the Defendant. A Certificate of Urgency is filed together with that SIC to seek leave from the Registrar that the Plaintiff's case be heard as soon as possible, usually on the very day the SIC is filed.

When this SIC is heard before the Judge and if an Injunction is granted; this is an ex-parte interim/interlocutory Injunctions - which is an order granted without the presence of the Defendant, and is usually granted if the circumstances warrant the Court to intervene quickly. The law demands an undertaking from the Plaintiff that should the Injunction be deemed incorrect later, the Plaintiff must compensate the Defendant.

About 21 days later, the Court will fix a new date where the Defendant now may appear in Court to contest the Injunction. Amongst lawyers, this is called the Inter-parte Injunction.

Injunction applications amongst the Civil Litigation lawyers is usually seen as tough, particularly since these kind of applications usually must be filed quickly (sometimes within hours of receiving instructions from the client) and challenging to the lawyer.

In future postings, RWL will comment on popular Injunctions like the Mareva Injunctions, the Anton Pillar Injunction & the Erinford Injunction.

S84 Courts of Judicature Act 1964

The Courts of Judicature Act 1964 is the Act related to the High Court, Court of Appeal and Federal Court. The Statute lists the jurisdictions of each of the aforementioned Courts, composition of the Court of Appeal and Federal Court etc etc.

The Perak case, was referred to the Federal Court by the High Court of Malaya at Kuala Lumpur, on the issues related to the Perak Constitution. Apparently, referring to Section 84 of the CJA, a matter can be referred directly to the Federal Court, if the matter is related to Constitutional issues.

However, the Federal Court on 23rd March 2009 referred to S84 and held that S84 can only be referred to, when dealing with Federal Constitution and not State Constitution. This would mean that the Perak case would be be heard before the High Court Judge, and if the losing party appeals, the case may go all the way back to Federal Court again, but this time as a normal case (which usually goes through the usual appeal process).

Below is S84 for your reading pleasure.

84. Reference of constitutional question by High Court.

(1) Where in any proceedings in the High Court a question arises as to the effect of any provision of Constitution the Judge hearing the proceedings may stay the same on such terms as may be just to await the decision of the question by the Federal Court.

(2) An order staying proceedings under this section may be made by the Judge of his own motion or on the application of any party and shall be made at such stage of the proceedings as the Judge may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the Federal Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings.

(3) Where an order for stay of proceedings has been made under this section the Judge shall state the question which in his opinion has arisen as to the effect of the Constitution in the form of a special case which so far as may be possible shall state the said question in a form which shall permit of an answer being given in the affirmative or the negative.

(4) Where a Judge shall have stated a special case under this section the same shall be transmitted to the Federal Court in accordance with the rules of court of the Federal Court.

Summary Judgment

In the Rules of High Court 1980 and Subordinate Courts Rule 1980, one will find provisions which allow parties with claims to pursue a quick Judgment against the other side. This is referred to as Summary Judgment. You will find it in Order 14 andOrder 26A, respectively.

A party with a claim would usually refer to the Plaintiff suing a Defendant, but a Defendant with a Counter Claim against the Plaintiff may also apply the same.

Basically the party seeking Summary Judgment would have to show the Judge that they have a claim so good that a Trial is not necessary. Usually Banks suing defaulting borrowers will use this procedure for a quick Judgment.

The party facing this application would need to show at least one of these in Court:-

1. that there are issues which can only be ventilated and decided in a Trial, or

2. some other reason which the Court deems fit to call for a Trial.

In DCB Bank v NS Bahtera [1999] 2 AMR 1790, the High Court held that a party seeking summary judgment has to show at least a prima facie case against the other party, before the other party is expected to show one of the 2 above rebuttals.