TRIALS

1. What are the order of the sequences in trial?

o.35 r.4
(1) The judge to give directions on the order of speeches.
(2) Normally Plaintiff begins

(A) Plaintiff Begins ( O.35 r.4(2) ROC 2012)

Order Content Special scenarios
Plaintiff’s P gives evidence – CE by D – RE by P’s solicitor D adduce evidence
Case P’s witness gives evidence – CE by D – RE by P’s 4(3) - P makes last speech
solicitors 4(7) – If P raises a fresh
Close of P’s case. POL, then D has a right to
reply ONLY on that POL
(B) D’s D gives evidence – CE by P – RE by D’s solicitor
case D’s witness gives evidence – CE by P – RE by D’s D X adduce evidence
solicitors 4(3) – D makes last speech
4(7)- If D raises a fresh POL,
then P has a right to reply
ONLY on that POL
D adduce evidence D X adduce evidence
4(3) - P makes last speech 4(3) – D makes last speech
4(7) – If P raises a fresh POL, then D has a 4(7)- If D raises a fresh POL, then P has a
right to reply ONLY on that POL right to reply ONLY on that POL

(D) Judgement and Orders

(B) if Defendant starts – O.35 r.4(6) ( Swap P- D, D-P)

2. Can witness be called after close of their cases?

Not without the consent the parties – LIM KER

3. What happens where both parties fail to attend trial?

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O.35 r.1(1)- The court may dismiss the action/ make any order he thinks fit

4. Can the case be restored?

O.35 r.2(2) Make an application to reinstate action within 14 days + give good
reasons to do so
Cases: Shocked & Anor :
The court will see if the reason for absence is intentional and not accidental or
mistake. If yes, then judgment would most unlikely be set aside and would not allow
a rehearing .

5. What happens where the D is absent?

O.35 r.1(2)- proceed with the trial/any counterclaim/ give any judgement without
trial etc.
I. If D and solicitor both absent- Judgement maybe entered against D
(Shaharuddin bin Abdul Rahman)

II. If D’s solicitor is present, D absent-case go on : solicitor to cross examine the

witnesses. (C Paul D’Cruz)

6. What are the considerations the court taken into account when deciding where to
set aside the judgement given in the D’s absence?
O.35 r.2(3) – (a)- (e ) will be considered.

7. What happens if the Plaintiff is absent and the Defendant has a counterclaim?
O.35 r.1(2) – The court may dismiss the P’s case . Proceed with the D’s counterclaim
and may pass a judgement in favour of the Defendant’s counterclaim.
P reinstate – O.35 r.2(2)
if court refuses to reinstate: If Limitation still valid, P can file a fresh action ( New
India Assurance)

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8. what happens if the Plaintiff is absent and the Defendant does not have a
counterclaim?
O.35 r.1(2) – The P’s suit may be dismissed
Reinstate- O.35 r.2(2)

9. What are adjournments?

To suspend the hearing or trial to another time and date.

10. What are the 5 principles in Maxwell v Keun?

I. It is the discretion of the trial judge who will exercise it in the interest of
justice
II. Prima facie the discretion is unfettered1
III. To ask the question : whether on the facts, there are adequate/sufficient
reasons to refuse the adjournment.
IV. Appellate court has the power to interfere with the judge’s discretion in
granting adjournments.
V. However, it should be slow to interfere
11. Which cases adopted the Malaysian principles in Maxwell v Keun?
Lee Ah Tee v Ong Tiow Peng

12. Can a denial of adjournment be appealed?

Yes. But the appellate court will be slow to interfere.
Case: MGG Pillai : will interfere if it feels that the adjournment has resulted in
deprivation of essential justice.

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release from restraint or inhibition.

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13. What will the court hearing the appeal consider when deciding on whether or not
to overturn the decision of refusal of adjournment?
Practice Direction 1/2004: the court will consider the following
- Legal representation- counsel has a right
- Attending couse/seminar- counsel must inform court in due time
- Sickness – counsel to give medical certificate
- Many postponements- no further postponement be allowed ( Diana Choo)
- Involvement in another court- civil case registered earlier has priority

14. What are the preliminary issues?

O.33 r.2 - The court may order any question of fact/law/both to be
tried/determined before/at/after trial.

15. Mode of trial

O.33 r.1 – an action may be tried before a Judge/Registrar with/without the
assistance of assessors.
O.33 r.3 – action begun by writ, shall follow the order made in the pre-trial case
management

16. Can preliminary issue be tried? What are the considerations?

Yes .
SI Rajah v Dato Mak Hon Kam & Ors
1. only if it will result in substantial saving of time and expenditure which otherwise
would have to be expended should the action go on trial as a whole.
2. The preliminary question must be framed carefully and precisely to ensure the
real question is understood by the court
3. If there is a difficult question of law or fact that needs to be decided in the trial,
then an order should not be made under this rule.
17. How to make a Preliminary objection? ( raise a preliminary issue)
 O.2 r.3 : can make if there is substantial miscarriage of justice.
 Bar Council Rulings 2007 – Objection in writing , give notice of not less than 4 days
before hearing
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 To state the reason for objection, relevant authorities and proposed relief sought.
 Jasabena Sdn Bhd – Must give notice 4 days prior to the hearing to avoid any
element of surprise to the adverse party.

18. What is a submission of no case to answer?

- Ramayee a/p Gengan & Ors
 If the D feels that P has not established its case in law
 The evidence adduced by P is so unsatisfactory that the D feels that the court
should find the burden not discharged by the P.

19. When is it made?

At the end of the Plaintiff’s case

20. Who makes a submission of no case to answer?

The defendant

21. Duty of the court for a submission of no case to answer?

- The judge should not by itself rule that there is a submission of no case to
answer. They have to wait till the D elects to not call evidence.
- Must put the D on election to ask if he wishes to give evidence
- If the judge does not do so, then the D retain his rights to call evidence if his
submission fails ( Young v Rank )

22. What is the effect of a submission of no case to answer?

KSK Sawmilll Sdn Bhd v FW Solutions Sdn Bhd [2020] 2 MLJ 423, JCA Lee Swee Seng
held that in cases of NCTA, the Trial Judge’s duty is not decide whose version of
events is more probable but to determine if the Plaintiff’s version based on the
evidence tendered is “inherently incredible or excessively fanciful”, and if the
answer to that is no, then the Plaintiff’s version is to be accepted as a submission of
NCTA does not rebut it:

“Whether the plaintiff’s version is more probable or the defendant’s version is more probable, is a matter that the
trial judge would have to decide after the defendant’s witnesses have given evidence and subjected themselves to the

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plaintiff’s cross-examination through its counsel.

[62] Here whilst the High Court had the benefit of the plaintiff’s explanation which is not inherently incredible nor
excessively fanciful, the defendant by submitting a ‘no case to answer’ had not rebutted the plaintiff’s evidence at
all.“

23. Is a submission of no case to answer allowed where there is more than one D?
Ng Neoh Ha v Maniam- if not all the defendants make that submission, then the
courts should REJECT the submission.

24. Hearing Before Registrar

- O.36

25. Basic rules of evidence – O.38

r.1 GR: witness to be examined orally
r.2 Evidence by statement of witness
r.3 Evidence of Particular facts
r.14-22 Subpoena

26. Evidence of foreigners- O.39

r.1(1) Evidence by deposition
r.2 Examination of person who is out of jurisdiction

27. Evidence by Affidavit – O.41