Mode of Originating Process (Modes of Commencing Proceedings)

Definition

There used to be various modes proscribed in two pertinent sets of Rules that governed civil
procedure in Malaysia, the Rules of the High Court 1980 (“RHC”) made pursuant to the
Courts of Judicature Act 1964 and the Subordinate Courts Rules 1980 (“SCR”) made
pursuant to the Subordinate Courts Rules Act 1955. However, these have been recently
repealed in favour of a unified set of Rules governing civil procedure, the Rules of Court
2012 (“RC”) made pursuant to both the 1964 and 1955 Acts mentioned, and these new
Rules came into force on 1 August 2012. 

The Rules of Court are the main subsidiary legislation on Malaysia’s civil procedure. Under
the Rules of Court, there are two modes of commencing a civil action at a High Court and
Surbodinate Court (Order 5 r 1):

 By Writ of Summons (Generally for those actions involving hotly contested facts)
 By Originating Summons ( Generally faster and easier disposed of than writ, as no
witnesses are called. For those actions based mainly on construction of written law
and documents (such as contracts and wills))
Exception
O94 r 2 :
 O5 r1 shall not apply to the proceeding under the written law listed in the appendix
C
 In the event of any inconsistency, the rules under the written law in appendix c shall
prevail over the rules
 Any application under any written law shall be construed to be by way of OS in
accordance with these law
Feature of Writ and Originating Summons
A. Writ of Summons
Feature of Writ of Summons
I. Required pleading and involves interlocutory proceedings
II. Witnesses are called to give oral testimony
 III. Time consuming and costly compared with originating summons
IV. Parties are referred to as Plaintiff and Defendant
 Order 5 rule 2
 When there is likely to be substantial dispute of facts shall begun with writ
 Example : Tortious clam (medical negligence), fraud, claim for damages for breach of
duty, breach of promise to marriage, infringement of patent
Seah Choon Chye v Saraswathy Devi
It was held that if the action does not fall under any of the 5 situtaion under O5 r 2 (old
rules), then the plaintiff has a choice of commencing by writ or OS. If the case involves a
dispute of facts or where the plaintiff wishes to apply for a summary judgment, he must
proceed with writ.
 A writ is a document which commands the defendant to enter appearance within the
number of days stipulated in the writ failing which judgment will be entered against the
defendant.
 The plaintiff must commenced an action by way of writ, the matter would go for a trial
and witness would be called to give oral evidence.
 The writ must be accompanied by a statement of claim
V. O5 r4(1) : Proceedings may be begun by writ or originating summons
VI. Lim Cho Hock v Speaker, Perak State Legislation Assembly : The appellant had
applied by OS to determine whether rthe speaker seat had been vacated as he
had not taken an oath. The court held that an OS is used where there is a
question of construction. Here a declaration was sought by the appellant but it
did not involve point of construction. Thus, the appellant application by OS was
wrong, it must begun by writ.
VII. O5 R4 (1) : proceedings which are appropriate to be begun by a writ (a) There is
likely to be a dispute of facts (b) The plaintiff intends to apply for summary
judgment under O14 or O18
 >O6 R1 ROC 2012 - Form No.2
 Form 2
 Form 2A
Originating Summons
Feature of OS
I. Fast and Straight Forward
II. No pleadings are required
III. Both parties states their case in affidavit
IV. OS is filed with affidavit
V. No witness and testimony are required
VI. O28 R3A : Hearing is in chamber
VII. Parties are referred to as Plaintiff and Defendant
 These are matters where there are no substantial dispute of facts. Since there are no
substantial dispute of facts, there is no need for witness. The court need to just apply
the law to the facts before it, and make a decision
 An affidavit will be filed together with the OS. All facts and the evidence supporting the
facts will be stated in the OS.
 O 5 R3 : proceeding by which an application is made to the High court or judge under
any written law must be begun by OS. If the plaintiff wants to make any application
under any written law, it must be done by OS.
 Example : a mother wants to get a custody of her child under Law Reform Act 1976
which the act allows the mother to apply to the court for custody of her children. Thus,
the application for custody is made by filing an oS which will be supported with affidavit
stating the reason as to why custody of the children should be given to the mother. The
plaintiff will be specify the relief sought.
 Example : rescind a contract, claim possession of land from squatters under o89
 >O7 R 2 (1) ROC 2012 – Form No.5 & no. 6
 Form 5
 Form 6
 O5 r 4(1) : Where there is no mode is specified under any written law, proceedings may
be begun by writ or OS
: The sole question at issue is the construction of any written law or any deed,
will or contract or other docuent
 : There is unlikely to be any substantial dispute of fact
: Pesurahanjaya Ibu Kota Kuala Lumpur v Public Trustee : This was a claim by
way of OS for compensation for removal of squatters frm the respondent
land by the applicant. The respondent contended that the procedure
adopted was wrong because disputed question of law and fact were involve.
When a question of fact is at issue action is to be taken by way of writ
not OS. However, in this case, the ques of how many squatter families were
removed was not relevant and hence not a fact crucial to the determination
of the case. Thus, the applicant could proceed with OS.
: National Land Finance Co operative Society v Sharidal Sdn Bhd : NLF
contended that the agreement made between SSB and NLC become void
when the FIC refused its approval. NLC proceeded by way of OS. SSB
challenge the procedure that writ was the appropriate mode of
commencement. The issue in this case was purely a matter of construction of
te sale and purchase agreement between the parties. No other evidence is
needed to determined the issue.
 O5 r4 (1) : OS should not be used when (a) There is likely to be dispute in fact or (b)
the plaintiff intend to apply for summary judgment under O14 or O81.
Abdul Majid v Haji Abdul razak (pg 73)
It was held that the court reluctant to decide on question of fact in an OS pursuant to O5 r
4(2).
Ng Wan Siew v Teoh Sin
The appellant claimed that certain doc and oral evidemce which the trial judge admitted
should not have been admitted under Os. The court held that such objection should been
taken at the trial stage and not at the appeal.
*when there is a conflict of testimony and a necessity for taking parol evidence, it must be
commenced by writ
*a plaintiff if successful may be deprived of any additional cost caused by his having
commenced proceedings by way of OS
POSITION WHERE WRONG PROCESS IS USED TO COMMENCE PROCEEDINGS NON
COMPLIANCE OF RULES
 General Rule :if a wrong mode is used to commence an action it is considered a mere
irregularities and it is curable.
 O 2 r 1 : Where there has been a failure to comply with the requirement of the ROC,
whether in respect of time, place, manner, form or content, the failure shall be
treated as an irregularities and shall not nullify the proceedings.
 O2 R3 : The court shall not wholly set aside any proceedings or the writ or OS on the
ground that the proceedinsg were begun by a wrong mode of originating process.
The court can order to rectified the matter.
 O1A
Re CHS (pg 87 yellow book)
The court held that every omission or mistake in practice or procedure may be regarded as
an irregularities which the court can and should rectify so long as it can do so without
injustice
Shanmugan Munusamy v Pappah Chinniah
Failure to comply with the requirements of any rules in beginning proceedings should be
treated a s mere regularities which does not nullify the proceedings.
Mohamed Ismail V Tan Sri Hj Osman Saat
An objection should be dismissed as it was commenced by way of writ. The court held that
the procedure adopted by the applicant merely rendered the proceedings irregular but by
no means void. The irregularities will not lead to injustice to any party proceed to hear and
determine the case.
 O28 r 8 : The court may order that the action begun by OS be contimued as if begun by
writ, if it appears at any stage of the proceeding that the action which should have been
commenced by writ was begun by OS.
Ting Ling Kiew v Tan Eng Iron
The plaintiff commenced proceedings by OS was allow under O88 r 3. The defendant argue
that it should begun by writ as there were allegation of fraud. The HC held that O28 r8 allow
the court to convert OS to writ.
 If a matter begun by OS and the court thinks that there are several triable issues, then
the court has discretion to convert OS to Writ and the affidavit into pleadings. (o89)
Cheow Chew Koon v Abdul Johari Abdul Rahman
In a summary proceeding, for vacant possession of land under O89, it is specifically written
that OS must be used.
Issue; Whether OS can convert into a writ in applying O28 r 8?
The court held that in O89 proceeding, the OS cannot be converted into writ. The court
must dismissed the action and leave it to the plaintiff to commence ac action by writ. This
case is exception and only applicable to O89.
When there are a group of people illegally occupying a piece of land that does not belong to
them, the owner can apply for vacant possession under O89 for an order to remove them.
This proceedings must be bought using OS and no other mode is allow.

Which mode to be used when the parties are not able to reach a consensus?
 O5 r 4 (1) : allows for OS to be used where the principal question at issue is the
construction of a written document.
 R4(1) (b) : when there are no substantial dispute of fact, the matter must be begun by
OS
Pesurahanjaya Ibu Kota Kuala Lumpyr v Public trustee Summons
The court disagree and held that an OS is the proper mode of commencement because the
method of computation is no longer by determining the number of squatters families
removed but by the square area.
National Land Finance Cooperative Society v Sharidal Sdn Bhd
This case was purely a matter of construction of SPA between parties. No other evidence is
needed to determine the issue. The matter was correctly begun by using OS.
*must first determine in O5 r4(1) (a) and (b)= it fall within this, need to commenced by OS.

WHEN CERTAIN MODES ARE MANDATORY. WHEN CERTAIN MODES ARE OPTIONAL AND
APPROPRIATE.
Re National Union of Commercial Workers (Pg 208 Janab)
The court held that the case involved the determination of serious question of facts and
ythe action should not have been commenced by OS and dismissed the action.
Arab Malaysian Finance Berhad v Serajudin bin Mohd Ismail & Anor
The affidavit in support of the OS was affirmed a week before the OS was filed. The court
held that it was nullity as it supported a non existent cause or matter (must file tgt with OS)
HongKong Bank Malaysia Bhd v Nor Harizan binti Mohd Ali (pg208 janab)
The court held that swearing of an affidavit that bear no registration number has not begun
does not violate any provision of the law as it stand. To hold otherwise would undoubtedly
result in grave and hardship to the parties concerned.
When there is strict interpretation, the judge can use their good sense to remedy it by
reading so as to do what parliament would have done had they the situation in mind.
*it must be noted that court should refrain from making decision against any entranced
principle, practice or procedure.
Tan Jiak CHye v Tan Toh Hua
The court refuse to accept affidavit that was filed without prior leave of court after the
hearing had commenced.
Intitulement
 It is mandatory for the oS to be entitle or intituled with relevant act tgt with relevant
Section and with the matter in which the application arises
 O7 R2(1A)
Cheow Chew Khoo @ Teoh Chew Khoon V Abdul Johari b Abdul Rahman
Whether it is mandatory for OS to be intituled
The court held that an OS require an intitulement must state sufficient particularity, either
in heading or in its body, the statue or rule of court under which the court is being moved.
Otherwise it would be an embarrassing pleading and may be liable to be struck out unless
sooner amend.
Originating Motion
This is a specific mode of Originating process which may be applicable under any written law
(appendix c) but nit under the ROC
When originating motion must be used to commence proceedings
 Originating motion can only be used if written law allow it. However there were
certain restriction :
- R27 Rule of CA 1994
- O69 r 2RHC
 - O87 r 2 RHC
- O87 r3 RHC
- O88 r 4
Lee Phet Boon V Hock Tai Finance Corp Bhd
The plaintiff had charge his land to the defendant and defaulted in payment. The plaintiff
then applied by way of notice of originating motion under O8 r 3 RHC to set aside the order.
The defendant then stated that it should be OS. It was held that under O5 r5, the originating
motion is to be used only if provided for under the RHC or other written law. Here, there
was no provision for the plaintiff to use Originating motion to set aside the order for the
defendant to auction the land. Thus, the plaintiff used the wrong mode. Dismiss the plaintiff
action.
Seah Choon Chye v Saraswathy Devi
It was held that originating motion should not be used where there are disputed question of
facts or there are allegation of fraud. Thus, the application should have been commenced by
writ.