Topic 4 Modes of Originating Process

Subordinate courts
(All provisions referred under this heading are on the SCR.)

O4r1 Mode of beginning civil proceedings. Subject to the provisions of any written law and of these rules, civil
proceedings in a Court may be begun by summons, originating application or petition.

Generally, there 3 modes of origination process or action in the subordinates courts

a) Summons
O4r2 Proceedings which must be begun by summons. Subject to any provision of any written law or of these
rules. by virtue of which any proceedings are expressly required to be begun by begun otherwise than by
summons, all contentious civil proceedings must, notwithstanding anything in rule 4, be begun by summons.
For all contentious civil proceedings

Generally, O5 is concern about procedures, form and format of how summons should be initiated,
proceed & served.
O5r1 – summons must be in Form 1
O5r2 – summons must append with notice of appearance in Form 2 or 3 except the original and the
sealed copy
O5r3 – statement of claim must be indorsed and comply with O14
O5r4 – representative capacity must be stated in title of summons and statement of claim in Form 14
O5r7 – suing through solicitor must indorse with P’s address, solicitor’s name or firm & business
address
– suing in person must indorse with personal address of residence and occupation

b) Originating Application
O4r3 Proceedings which must be begun by origination application. Proceedings by which an application is to be
made to a Court or a Judge thereof under any written law must be begun by originating application except
where by these rules or by or under any written law the application in question is expressly required or
authorized to be made by some other means. This rule does not apply to an application made in pending
proceedings.

GR: Application is to be made to a Court or a judge under any written law

Example: seeking determination, declaration, direction or order of the court

Exceptions:
i) if there is any other rules or written law which requires otherwise
ii) the application made in pending proceedings
Example: P has already commenced an action, but however, wishes to include extra claims which
were omitted. Originating application is not the appropriate method to include the extra
claims. It has to be field by way of notice to court.

O6 states about the procedures.

c) Petition
O4r5 – Restricted only to cases under SCR or any written law
O4r5 Proceedings may be begun by originating application or petition if, but only if, by these rules or by or
under any written law the proceedings in question are required or authorised to be so begun.
Appropriate Originating Process
O4r4 Proceedings which may be begun by summons or originating application.
(1) Except in the case of proceedings which by these rules or by or under any written law are required to be begun
by summons or originating application or are required or authorized to be begun by petition, proceedings may
be begun either by summons or by originating application as the plaintiff considers appropriate.
(2) Proceedings-
(a) in which the sole or principal question at issue is or is likely to be one of the construction of any written law
or of any instrument made under any written law, or of any deed, will, contract or other document, or some
other question of law; or
(b) in which there is unlikely to be any substantial dispute of fact,
are appropriate to be begun by originating application unless the plaintiff for any reason considers the
proceedings more appropriate to be begun by summons.

O4r4(1) – Unless specifically required by SCR or any written law, all claims should be made by either by
summons or originating application
O4r4(2) – Appropriate to be begun by originating application if
(a) principal question regarding construction of legal matter or on questions of law
(b) unlikely to be any substantial dispute of fact

O4r5 – By originating application or petition if expressly provided

In short:
Summons – contentions issues
Originating application – construction of legal matters or questions of law / specifically provided
Petition – specifically provided

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High Court
(All provisions referred under this heading are on the RHC.)

O5 r1 Mode of beginning civil proceedings. Subject to the provisions of any written law and of these rules, civil
proceedings in the High Court may be begun by writ, originating summons, originating motion or petition.

Generally, there 4 modes of origination process or action in the high courts

a) Writ of Summons
Features:
- Time consuming and costly compared with OS
- Requires pleadings and involves interlocutory proceedings
- Witnesses are called to give oral testimony

O5r2 Proceedigns which must be begun by writ. Subject to any provision of any written law or of these rules, by
virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following
proceedings must, withstanding anything in rule 4, be begun by writ, that is to say, proceedings-
(a) in which a claim is made by the plaintiff for any relief or remedy for any tort, other than trespass to land;
(b) in which a claim made by the plaintiff is based on an allegation of fraud;
(c) in which a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of
a contract or of a provision made by or under any written law or independently of any such provision),
where the damages claimed consist of or include damages in respect of death of any person or in respect
of personal injuries to any person or in respect of damage to any property;
(d) in which a claim is made by the plaintiff for damages for breach of promise of marriage;
(e) in which a claim is made by the plaintiff in respect of the infringement of a patent.
In this rule "personal injuries" includes any disease and any impairment of a person's physical or mental
condition.

Criteria
1. in any of the 5 categories in O5r2
2. under any provision in any written law

▪ Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ112

This was an application by way of OM for an order that a date be fixed by the court within which an
undertaking given by RP, a solicitor, to APP, can be completed.
Issue: Whether application by way of OM is proper or whether it should be made by way of writ?
Held: As there were disputed questions of facts and allegations of fraud and misconduct, the
application should be commenced by writ.

b) Originating Summons (OS)

Features:
- Fast, cheap & simple
- No pleadings required
- Both parties state their case in affidavits
- OS is filed together with affidavit in support of the applicant/ Plaintiff
- No witnesses & oral testimonies are required
- Hearing is in chambers

O5r3 Proceedings which must be begun by originating summons. Proceedings by which an application is to be
made to the High Court or a Judge thereof under any written law must be begun by originating summons
except where by these rules or by or under any written law the application in question is expressly required or
authorised to be made by some other means. This rule does not apply to an application made in pending
proceedings.

GR: Application is to be made to a HC or Judge under any written law in Form 6 – 8

Exceptions:
i) if there is any other rules or written law which requires otherwise
ii) the application made in pending proceedings

Example: proceedings to claim possession of land

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Appropriate Originating Process
 Whether proceedings should be commenced by Writ or OS
O5r4 Proceedings which may be begun by writ or originating summons.
(1) Except in the case of proceedings which by these rules or by or under any written law are required to be begun
by writ or originating summons or are required or authorized to be begun by originating motion or petition,
proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.
(2) Proceedings-
(a) in which the sole or principal question at issue is or is likely to be, one of the construction of any written law
or of any instrument made under any written law, or of any deed, will, contract or other document, or some
other question of law; or
(b) in which there is unlikely to be any substantial dispute of fact,
are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply
for judgment under Order 14 or Order 81 or for any other reason consider the proceedings more appropriate to
be begun by writ.

General rule: O5r4(1) – If no mode is specified, proceedings may be begun either by Writ or OS

Appropriate to be begun by
i) Writ
- there is possible dispute of fact
- where P intends to apply for summary judgement under O14 or O81

▪ Ng Wan Siew v Teoh Sin [1963] 1 MLJ 103

There was a dispute as to whether AP he was the natural or the adopted son of an intestate.
Proceedings were commenced by OS.
Held: These proceedings should have been started by writ and not by OS. Theoretically they could
have been started either by writ or by OS but it has been said again and again that when it is known
there is going to be conflict of testimony and a necessity for taking parol evidence the proceedings
should be commenced by writ.

▪ Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979]

APP applied by OS for the determination of the question whether the seat of a member of the
Legislative Assembly, who was also the Speaker, had been vacated as he had not taken the oath
required of a member. RP applied to set aside OS on the grounds inter alia, that
1. the application was not maintainable in law and procedure and
2. the court had no jurisdiction to entertain the application as the reliefs sought were exclusively
within the jurisdiction of the Legislative Assembly of the State of Perak.
Held: The proceedings by OS were incompetent as they do not come within the requirements of
O54Ar1A Rules of the Supreme Court. The Legislative Assembly is the final arbiter in any question
arising as to whether a member of the Legislative Assembly has become disqualified for
membership. The matters raised were for the Legislative Assembly to decide and within its
exclusive jurisdiction and not for the courts to determine.

▪ Re National Union of Commercial Workers [1974] 1 MLJ 172

This was an action for a declaration by certain members of a union that RP (National Executive
Council of the union) acted ultra vires the rules and constitution of the union. At the commencement
of the trial certain preliminary points were raised,
1. APP should have exhausted all domestic remedies as provided in the Union’s Constitution
before taking the dispute to court;
2. APP should have commenced their action by writ and not by means of an OS; and
3. the union should have been joined as a party.
Held: Application dismissed with cost.
1. The dispute in this case should have been referred to arbitration in accordance with the Rules
and Constitution of the union before it was brought to court.
2. As the present case involved the determination of serious questions of fact, it did not come
within the ambit of O55r3 Rules of the Supreme Court 1957 i.e. the action should not have been
commenced by means of an OS.
3. Failure to join the union as a party was not fatal to the present application.

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 ▪ Abdulmajid v Har Abdulrazak [1971] 2 MLJ 228
D executed a deed in favour of his son P and wife in consideration of his natural love and affection
for them. P applied by way of OS to the court to enforce the trust deed. D applied to set aside the
proceedings on 2 grounds:
1. there was no valid trust as there was a subsequent change of heart
2. since there were disputes arising as to the facts, the action should have been commenced by
writ.
Held: In this case, D’s subsequent change of heart may have led to another consensual variation. If
so, then it remained for the court to find what the actual agreement was. If it did not, then the
question remained whether D had so bound himself contractually that he must be made to perform
specifically any contract entered into validly by him and as varied consensually. This meant, at the
least, that evidence would have to be led, and therefore an OS was not a suitable medium or process
for the determination of the issues raised.

ii) OS
O5r4(2) provides for situations in which proceedings are appropriate to be begun by OS where
- involves construction of law
- no dispute of facts
- no summary judgement involved

▪ Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee [1971] 2 MLJ 30

APP made a claim by OS for costs and compensation for removal of squatters from RP’s land. Re
contended that the procedure adopted by APP was wrong in law because the matter involved
disputed questions of law and facts.
Held: When a question of fact is at issue, the action is to be by way of writ and not by OS. In this
case the disputed question of fact would be as to the number of squatter families removed from the
land. But with the amendment, the method of computing was by way of area. Therefore the question
of how many squatter families were removed was not relevant and hence not a fact crucial to the
determination of the case. Therefore the procedure adopted by APP, i.e. OS, was in order.

▪ NLFCS Ltd v Sharidal [1983] 2 MLJ 211, FC

RP (S) had agreed to sell to AP (N) certain immoveable property subject to the approval of the
Foreign Investment Committee (FIC). The FIC refused its approval but suggested that the property
be transferred to a joint venture company of which at least 30% of its equity is held by Bumiputras.
RP contended that the agreement became void when FIC refused approval. AP initiated OS for
declaration that the agreement did not become void but still subsisted because there was a
conditional approval. RP raised a preliminary objection that the actions should be commenced by
way of writ and not OS, as there are matters of credibility of witnesses and issues of facts which
could only be decided by oral evidence instead of by sworn affidavits
Held: The issue involved in this case is purely a matter of construction of the SPA between the
parties. No other evidence is needed to determine the issue than the massive correspondence that
passed between them and their solicitors. The issue can be decided on the basis of the documents
exhibited in court together with the undisputed facts disclosed and that there are no issues relevant
to the case which require evidence to be called at a trial. OS appropriate mode for initiating this
action.

▪ Yeow Ho Bun v Tee Beng Gak [2003] 6 MLJ 681, HC Melaka

State land administrator paid half the sum of compensation due to APP while other half was paid
into court as there is a dispute between APP and RP on the construction of the trust deed. RP
initiated proceedings via OS, however, APP objected claiming that the proceedings should have
been initiation by writ as there was a contentious matter involved which required affidavit in
support.
Held: According to O5r4(2)(a), the present appeal concerns a matter of construction of the trust deed
which plainly and obviously requires no viva voce evidence. Therefore, APP submission that the
issue of the existence of the trust deed could not be resolved by reference to affidavits in support of
the OS was untenable. OS appropriate mode for initiating this action.

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 O5r5 Proceedings to be begun by motion or petition. Proceedings may be begun by originating motion or
petition if, but only if, by these rules or by or under any written law the proceedings in question are required or
authorised to be so begun.

c) Originating Motion (OM)

Features
i) Similarities with OS ii) Differences from OS
- cheap & fast - place of hearing (OM in open court while
- no pleadings are required OS is in chambers)
- No oral evidence required
- evidence by affidavits

Criteria (similar with petition)

1. only if required by the rules or written law to be so begun
2. very restrictive
Example: application for prerogative writs, arbitration, application under Companies Act 1965, etc

▪ Lee Phet Boon v Hock Thai Finance Corp Bhd [1994] 2 MLJ 448
D obtained order to auction off P’s land according to a charge. At first auction there were no
bidders. D then applied by summons-in-chambers to auctioned at a reduce reserve price. Judge made
relevant orders. On a summons for directions, SAR made a 2 nd order indicating the date of auction. P
was absent at the making of both orders although the notice of proceedings were duly served on
him.
P applied by way of a notice of OM pursuant O8s3 to set aside both orders and alternately, for
declaration that the orders were ultra vires and null and void. D raised the preliminary objections
that P’s application should have been made by way of OS.
Held: According to O5r5, it is clear that an OM is only to be used when required or authorized by
the RHC or by or under any written law, in this case, the NLC. There is no specific rule or section in
the RHC or NLC which requires or authorizes P to begin this nature of proceedings by OM.
Accordingly, P had adopted the wrong procedure to bring his grievances before the court and the
preliminary objection raised by D was allowed. P’s application dismissed.

d) Petition
Features – a petition is an original process in the form of a pleading

Criteria (similar with OM)

1. only if required by the rules or written law to be so begun
2. very restrictive
Example: O71, O88, Election Offences Act 1954, Bankruptcy Act 1967, divorce matters

▪ Gula Perak Bhd v AGri Projects (M) S/B [1989] 1 MLJ 422
Petitioner had filed his petition pursuant to s176 Companies Act 1965 to seek sanction of court in
respect of a scheme of arrangement.

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Wrong Mode of Originating Process

Situation before the 2002 amendment

Parties must strictly comply with the riles of the court
O2r1 Non-compliance with rules.
(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection
with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the
requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect,
the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the
proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in
paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the
proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or
order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to
make such order (if any) dealing with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were
begun on the ground that the proceedings were required by any of these rules to be begun by an originating
process other than the one employed.

O2r1(1) – an irregularity and shall not nullify the proceedings (at any stage of the proceedings)
O2r1(2) – the court may set aside either wholly or in part of the proceedings
O2r1(3) – the court shall not wholly set aside the proceedings (specifically for dealing with wrong mode of
originating process)

What if the parties fail to adhere to rule in initiating the action in the appropriate originating processes?
- court tend to entertain preliminary objections base on grounds of technical failure
- in delivering judgement or decisions, will state whether the technical failure is
i) an irregularity – failure is curable and court can order accordingly to fit the situation
ii) nullity – whole proceedings will be nullified
Hence, hearings can be dismissed base solely on preliminary objections without actually hearing the subject
matter of the case, i.e. the case is dismissed without basing on its merits.

However, there were also cases where the court did not dismiss proceedings which were filed in the wrong
originating process. In short, the courts had discretion to decide whether or not to listen to a suit which had
erred in technicalities O2r1(2).

After the 2002 amendment

GR: shall not allow any preliminary objection only on the ground of non compliance of any of these rules
Exception: unless judge or court is of the opinion that such non compliance caused substantial injustice
O2r3 Preliminary objection for non-compliance of rules not allowed. A court or judge shall not allow any preliminary
objection by any party to any cause or matter or proceedings only on the ground of noncompliance of any of these
Rules unless the court or judge is of the opinion that such non-compliance has occasioned a substantial miscarriage
of justice.

The court must regard to the justice and not only technical non compliance of the rules in administering the
same, i.e. justice overrides technical non-compliance
O1A 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 non-compliance of any of the rules herein.

▪ John Denis de Silva v Crescent Court Management Corp [2006] 3 MLJ 631
There was a delay in the service of the ex parte injunction order, which was not on P fault, but due
to the Deepavali and the Hari Raya Puasa breaks of 2004. Many court officials were on leave and
thus the ex parte injunction order was extracted late.
Held: O1A must be read with O2r1(1) as well as with O2r3 and, when so read, the preliminary
objection advanced by D would come to naught. Of pertinence would be the need to have regard to
the justice of the particular case and not to be shackled by any technical non-compliance of any of
the rules of the RHC. D’s preliminary objection dismissed.

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 ▪ Malayan Banking Bhd v Marilyn Ho Siok Lin [2006] MLJU 283, HC
One of D’s contentions was of P’s non-compliance of O83r3 RHC by P.
Held: O1A and O2r3 provides that the court shall have regard to the justice of the case rather than
non-compliance of the rules. Also, in this case it cannot be argued that D was prejudiced by the non-
compliance because if one looks at the OS objectively, one would know what the application about.

Procedure for dealing with wrong mode of originating process

O28r8(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any
stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had
been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may,
in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add
thereto or to apply for particulars thereof.

Where OS  Writ
i) affidavits will be rendered as pleadings.
ii) Matter will be disposed of in open court

▪ Ting Ling Kiew v Tang Eng Iron Works [1992] 2 MLJ 217, SC
Application was filed by OS, but through out the case there was need for oral evidence.
Held: There were inconsistencies and matters which had not been satisfactorily explained in the
affidavits. The conflicts in the evidence can only be resolved if oral evidence was adduced and
witnesses cross-examined on their evidence. However, this was not possible in proceedings begun
by OS.
In this case, fraud or intention to defraud was the central issue, particulars of fraud must be
specifically pleaded and it was obvious that such particulars were absent in the affidavit of the
manager of RP’s company. Also, the matter was dealt with in a very unsatisfactory and summary
manner, thereby causing grave injustice to AP. Base on the carious fact in these case, and pursuant
to O28r8(1) order the proceedings to continue as if begun by writ, and the parties to deliver their
pleadings in accordance with O18.

Where an order for conversion is made under O28r8(1), the provisions of O18 are not automatically
attracted. The judge must give specific directions about the future conduct of the action.
▪ Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457
The matter was begun by OS under O89.
Held: When a judge directs conversion under O28r8(1), he is required to give specific directions as
to pleadings and the conduct of the proceedings from then on. Since the judge did not give such
directions to the defence, AP’s failure to file the defence did not entitle RP to take advantage of the
provisions of O19. Furthermore, as RP had defaulted by filing his statement of claim 16 days later
and not within 14 days as directed, he should not be allowed to take advantage of AP’s default, if
any.