Circular No. 82/13: Update on Court Issues

The Bar Council had a meeting with the Chief Justice of Malaysia, Tun Dato’ Seri Arifin bin Zakaria on 6th January 2014, which was also attended by the Chief Judge of Malaya Tan Sri Dato’ Zulkefli bin Ahmad Makinudin and other Senior Judges and Judicial Officers, including the Chief Registrar of the Federal Court, primarily to discuss certain pressing issues and problems faced by members in court.

I am pleased to give you an update on the said meeting. I had planned to issue this circular much earlier but had to hold back pending the confirmation of the minutes of the said meeting by the office of the Chief Justice, but since to date the minutes have not been finalized, the Committee has decided to keep our members informed, based upon the minutes prepared by the Bar Council.

Issues raised:

1. Some courts are rushing through cases in a mechanical way just to complete and dispose off the matters quickly.

2. Hearing dates are being fixed within two weeks of case-management, thus giving lawyers insufficient time to prepare, exchange documents, etc.

3. Cases were being fixed for hearing on dates not suitable to counsel.

4. Hearing dates for cases already fixed are brought forward by the courts, without consulting the lawyers and/or taking their free dates into consideration.

5. Cases are being transferred from one court to another, often at the last minute and without prior notice to counsel, the new court maintains the same date, insists on proceeding with the matter and refuses to grant an adjournment if the counsel is engaged in some other matter(s) in the original court.

6. When subpoenaed witnesses are not present, the Court instead of adjourning the matter, insists upon the counsel to proceed and to close their case.

7. The courts after 2 PTCMs, will refer the matter to the Judge, even when there are pending

interlocutory applications.

8. Some courts were issuing Writs with an Endorsement requiring the Plaintiff to serve the Writ

within one month, failing which, to apply for substituted service, contrary to the Rules of

Court 2012.

9. The court(s) while conducting mediation in accident cases do not follow the time-frame(s) and the flow-chart agreed to between the Bench and the Bar for doing things and contrary to the Rules of Court 2012.

10. A certain Registrar of the Subordinate Courts disallows costs/ disbursements agreed upon by the parties.

11. Some Sessions Court Judges and Magistrates were seeing DPPs in Chambers without counsel, either before the court sits or during trials.

12. Judicial Officers who were rude or lacking in judicial temperament.

13. The change of weekend in Johor w.e.f. 1/1/2014, making Sunday a working day would make it difficult for accident cases to be settled because insurance companies nation-wide do not work on Sundays, and hence it is impossible to get mandates for settlement.

The Chief Justice’s Response

The learned Chief Justice listened to the complaints with concern and agreed to look into and resolve the same as soon as possible. His Lordship also responded to some issues immediately, of which, I wish to highlight the following.

1. The issues that commonly arise in courts, such as the fixing of cases for hearing, rescheduling of cases, adjournments, etc. are dealt with in the Chief Judge of Malaya’s Practice Directions No. 1 and No. 2 of 2011. All parties, including the courts must comply. Members of the Bar should carry the PDs with them to court and when encountering a situation caused by non-compliance with the PDs, counsel should draw the attention of the Court to the relevant part of the PD. Further, members of the Bar may alert the Registrar of the Subordinate Courts by letter or email, and that for the convenience of members of the Bar, the contact would be put up on the Website. Judges and Judicial Officers would also be reminded of the PDs.

2. There have been complaints about different ways of handling cases by different judges and that the Judiciary would soon be coming up with a standard practice for case-management and fixing of hearing dates for all courts.

3. When conducting mediation, the time-frame for doing things as provided under the Rules of Court 2012 must be followed and requested the Johore Bar for the flow-chart that had been agreed upon by the Bench and the Bar.

4. There is no need for the endorsement for service in the Writ, if that is not in compliance with the Rules of Court 2012.

5. The CR is aware of the temperament and behavior of certain judicial officers and that action would be taken.

6. Regarding the working day on Sunday in Johor, the courts may adopt the approach in Kelantan and Kedah where if there is a good possibility of the matter that is fixed for hearing on Sunday being settled, it can be adjourned for 3 days or so.

Post-Meeting Development

We understand that since the meeting with the Chief Justice, the Courts have, in compliance with the Rules of Court 2012, removed the endorsement regarding service from the Writ. However, in the process they have also removed the date for case-management from the Writ, which is causing problems for our members.

Following complaints received from members regarding this issue over the last few days, on 19th February 2014 the Committee met the Senior Judge of the Johor Bahru High Court Dato’ Mohd Sofian bin Tan Sri Abd Razak and explained to him that the Bar’s objection was regarding the endorsement for service and not the date for case-management and requested him to restore the previous practice of fixing a date for case-management when issuing the Writ. His Lordship agreed to look into it. We hope that the problem will be resolved soon.

Just in case, please feel free to contact the Committee.



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