To Members and Pupils in Chambers,

 
RE: COURTESY CALL ON THE IPOH HIGH COURT JUDGES, JUDICIAL COMMISSIONER AND JUDICIAL OFFICERS TO DISCUSS ISSUES RAISED BY THE LAWYERS IN RESPECT OF CIVIL LAW PRACTICE
 
We refer to the above matter.
 
The Perak Bar Committee’s courtesy call with the Ipoh High Court Judges, Judicial Commissioner and the Judicial Officers was held on 15.5.2024. In the said meeting both sides raised issues of common interest to ensure that the proceedings in the Ipoh High Courts proceeded smoothly and in compliance with the law. Herein below, we set out the issues raised by both sides and the consensus reached. As some matters bordered on judicial discretion during trial or hearing, we could only highlight the issues raised and requested that some flexibility be exercised.
 
1. Issue pertaining to Application for Letters of Administration
 
The issue was that whether the Originating Summons requesting for Letters of Administration (the “OS”) and the Application to Dispense with the Sureties (“the Application”) can be filed and heard simultaneously or the OS to be heard first and upon the order granted the Application is filed and heard. This issue arose because some Learned Registrars have heard the OS and the Application simultaneously whereas other Learned Registrars heard the OS first and on a later date the Application.
 
Kindly take note that henceforth the OS will be heard first and upon the order granted the Application to be filed and heard.  
 
2. Fixing of dates for Mediation
 
The issue is delay in fixing the date for mediation based on the current practice whereby the lawyers furnish their dates and then the appointed mediator fixes the mediation date. In the meantime, the lawyers are finding it difficult to hold on to the free dates given. The request was to find a more efficient mechanism to fix the date for mediation quickly.
 
As regards to this we were informed that the Mediation Center does not fall under the jurisdiction of the High Court and it is a stand-alone entity headed by the Sessions Court Judge Paun Hilmiah binti Yusof. Consequently, we were advised to take up this matter with the Lower Court Judge in charge of Pusat Mediasi Negeri Perak and as such the matter will be taken up during our meeting with the Pengarah of the Lower Court soon.
 
3. Applications under Section 105 of the Bankruptcy Act
 
The issue raised was as regards the correct documentation to be filed to seek rescission / annulment of the Adjudication Order (AO)/ Receiving Order (RO) respectively, that is, is it by way of a Summons in Chambers (SIC) or a Notice of Application to Annul the Bankruptcy Order (Permohonan Membatalkan Penghukuman) under section 105 of the Insolvency Act 1967?
 
We were informed that the issue is not so much as the type of documentation format that is used which results in dismissal of the SIC or the PMP. In fact, under Rule 17 of the Insolvency Rules 2017 states all applications relating to bankruptcy matters must be filed by way of SIC unless it is specifically stated otherwise.
 
The reason for dismissal of the SIC or PMP is because when it is filed via E-filing System (EFS) the correct documentation type stated in the EFS is not selected. For example, if applying for annulment of AO or Rescission of the RO then in the EFS it must be filed under “Application for Annulment of AO or RO on the ground the debt have been paid in full” and the payment is RM20.00. If applying to cancel the Bankruptcy Order then it must be filed under “Permohonan membatalkan Perintah Kebankrapan dibawah Seksyen 105” for which a payment of RM40.00 must be paid. Similarly for Discharge from Bankruptcy it has its own documentation type in the EFS system. Therefore, the SIC in the EFS used for other applications cannot be used when filing bankruptcy matters.
 
Also, as regards Application to stay for automatic discharge under section 33C we were informed that there is a failure to comply with the documentation type found in the EFS. The correct documentation type in the EFS when filing for a stay is “Permohonan Untuk Suatu Perintah Untuk Menangguhkan Perlepasan di bawah Seksyen 33C”. Also, the court requested that the Ketua Pengarah Insolvensi must be cited as one of the Respondents as “Jabatan Insolvensi Malaysia.” Further, under the caption in “Law Firm / Agency” in the EFS must be stated “Jabatan Insolvensi Malaysia Cawangan Ipoh (GOV10110)” if filed in Ipoh High Court and “Jabatan Insolvensi Malaysia Cawangan Taiping (GOV10111) if filed in Taiping High Court so that it does not end up in Jabatan Insolvensi Malaysia.
 
The advice from the Learned Registrars is that in the event lawyers are unsure as to the document type in the EFS to file under, the lawyers are advised to call up the bankruptcy division in the Ipoh High Court for guidance.
 
4. Parking Bays in Ipoh High Court
 
Please take note that there are 4 parking bays reserved for lawyers in Ipoh High Court near the entrance on the left. We raised the issue where, recently a lawyer was not allowed by the security guard to park her car in other empty bays (as the four reserved were taken) in the afternoon. The Deputy Registrar informed that they have notified the security guards that in the afternoon, if there are empty bays, other than the 4 reserved, to allow lawyers who have matters in court to park their cars in other bays.
 
5. Statement of Agreed Facts and Agreed Issues to be Tried
 
There are lawyers who have been filing Statement of Agreed Facts and Statement of Agreed Issues to be Tried (Plaintiff’s or Defendant’s Version) and some Presiding Officers have accepted such documents filed. As lawyers, we must be aware that the fact that it is an agreed document means it must contain only facts or issues to be tried which have been agreed to by all parties and as such it must be in a format where it is signed by lawyers of all parties and only one such document should be filed. The High Court Judge had directed the Deputy Registrar to issue an internal memorandum to all Presiding Officers to ensure that only one Statement of Agreed Facts and one Statement of Agreed Issues to be Tried be accepted. As such we request that all lawyers abide by filing only one Statement of Agreed Facts and one Statement of Agreed Issues to be Tried.
 
6. Usage of Lift in Ipoh High Court
 
As regards the above, we raised the concern of some lawyers that they are unable to climb  the stairs in the Ipoh High Court (new building) for hearing of their matters. It was agreed that the lawyers whom due to age, infirmity or disability or other medical or non- medical reasons find it difficult to negotiate the stairs can use the lift situated at the back portion of the building after informing the receptionist at the counter. The above applies equally to clients  who are unable to climb the stairs. Take note that there is no need to send a prior letter seeking consent to use the lift.
 
7. Limiting the Issues to be tried
 
We raised this issue of lawyers being compelled to narrow down the number of issues to be tried and the potential risk to lawyers being sued for not having ventilated all of them before the court. The Judges maintained that they have a right to request parties to narrow down the issues to be tried. For instance, one of the Judge’s highlighted that a lawyer had raised 25 issues to be tried in a matter. However, we requested that flexibility be exercised in allowing issues to be tried and, on that score, we suggest that counsels frame their issues to be tried broadly so as not to run afoul of too many issues being raised.
 
8. Inconsistency as regards tendering of Witness Statements during trial
 
As regards this even the Rules of Court are silent. Although the norm is, if the witness confirms the contents of the Witness Statement it is marked and automatically deemed to be the witness’s evidence. However, there have arisen instances, where the Presiding Officers have insisted, for example, where the Witness Statement is in Bahasa Malaysia but the witness wants to give evidence in the Tamil Language or Chinese dialects, for the Witness Statement to be read and translated by the interpreter and at times oral answers are elicited from the witness such that it results in the existence of two sets of answers.
 
All the Ipoh High Court Judges confirmed that they follow the norm unless there is there is any opposition to it and were, in fact, perplexed that such a thing happens. We will be taking up this matter in the meeting with the Pengarah of the Lower Court also.
 
9.  Joint Petition for Divorce
 
In a hearing of a Joint Petition for dissolution of marriage the Courts in some cases have enquired the reason for the breakdown of the marriage. Some lawyers are of the view that such enquiries should not be done. We conveyed the sentiments of the lawyer that it is not a requirement under Order 52 of the Law Reform (Marriage and Divorce) Act 1976 but the Judges beg to differ that in certain cases and as provided for under Act they must be satisfied that the parties consent freely and that adequate maintenance provisions are made.
 
10. Highlighting of authorities submitted
 
Some lawyers are filing bundle of authorities without making specific reference to the pages in the authorities in their written submission and not highlighting them. This results in the Judges having to plod through an entire authority which results in a waste of time. Therefore, kindly make reference to the pages of the authorities in the submission with the relevant parts being highlighted.
 
11. Physical hearing or via Zoom
 
His Lordship in Ipoh High Court 1 has asked us to inform that all hearings in His Lordship’s Court will be via Zoom unless a request is made for physical hearing or unless His Lordship on his own volition deems that a physical hearing is appropriate.
 
12. Use of PDF pagination in court documents and submissions
 
Kindly take note that their Lordships in High Court 1 and 2 require physical copies of court documents including submissions / authorities to be sent 2 weeks in advance before the hearing and as such reference to pages in the physical copies will be sufficient when conducting the hearing. However, in High Court 3, which is a technology court, where documents are referred to via computer reference must be made to the PDF paginations as they appear in the system at trials as well as in submissions.
 
13. Zoom hearings
 
Lawyers are reminded to insert their name, case number and the party they are representing in zoom hearings which will ease the identification process of the counsel appearing.
 
14. Zoom link
 
There are lawyers who are calling up the interpreters on the day of the hearing to get the zoom link. Take note that zoom link is only sent to the email address of the firm as given to the court and not to the individual lawyers who might be handling the matter. Therefore, check in advance with the court if the zoom link is not received by the firm.
 
Kindly take note.
 
Regards.
 
 
S.V.NAMASOO
 Chairman
Courts Liaison & Civil Practice Subcommittee