I.

INTRODUCTION

From the given scenario, the plaintiff, Pak Chee Kayo had commenced an action
against the defendant, Fulus Sdn Bhd (the “FSB”) for non-payment of an outstanding
sum of RM200, 000.00. This pointed to a claimed breach of a provision of their
agreement for FSB’s installation of a sewage system for building. As a result, the
company is facing the suit whose aim is to entitle Pak Chee Kayo a recovery of RM 350,
000.00 being the total amount for the installation. This leads to a crucial issue as stated
below;-
Whether FSB can raise a preliminary issue on irregularity to challenge the
cause of action for the amount claimed by invoking the inherent power of
the court.
II. THE LAW

To begin, as the company's challenge at present is made against Pak Chee

Kayo’s cause of action, one material question which must be entertained is as follow;-
Does the inherent power of the court is exerciseable in favour of FSB?

Based on the case of ​Pacific Centre Sdn. Bhd. v United Engineers (M'sia)
(1984) 2 MLJ 143​, ​basically, inherent powers are powers reasonably necessary for the
administration of justice. They are powers considered essential to the existence and
proper functioning of the courts. The purpose is to avoid abuse of procedures by party
who have an extra advantage over the others. Rules of court should be utilised to
facilitate the administration of justice, and not to make it difficult for genuine grievances
to be heard. Inherent power of the court is exercisable as part of the process of the
administration of justice. It is procedural in nature and it is applicable to both civil and
criminal. The key feature of this power is that it can be exercised in summary process,
which basically means ANYTIME.

These principles are embedded in ​ROC 2012 in Order 92 rule 4​. As much as
inherent power is acknowledged, it comes within a limited scope to the extent allowed
by rules and regulations. Thus, it may be restricted with a provision of a written law.
Written law clearly defines the substantive right of parties. In relation, non-compliance to
the Rules may be pointed as a ground to invoke this inherent power of the court in
challenging the cause of action of the plaintiff.

In regards to the effects non-compliance with the rules, it is undeniable that

sometimes, the litigants do fail to comply with the rules. Some of this non-compliance
was done unintentionally and for genuine reasons like filing out of time or failure to
notify the other party of service of documents etc. The question is how the court will
treat such non-compliance? Would it strike off the case and order for re-trial? Or would
it ignore and allow the case to proceed as if nothing has happened? In ​Cropper v
Smith,​ generally the court will take the approach such as follows:-

“I know of no kind of error or mistake which, if not fraudulent or intended to

overreach, the court ought not to correct, if it can be done without injustice to the
other party”.

Closer to our home, our ​ROC 2012 ​has emphasised on the flexibility of the court
to exercise the inherent power to avoid miscarriage of justice due to technicalities or to
prevent abuse of power by certain parties. Litigants as Pak Chee Kayo may found
themselves in troubles if they did not comply with the rules strictly. Cases were struck
off because of non-compliance to the rules which usually minor in nature. i.e. failure to
file certain documents with the court within stipulated period. However, this is not the
case anymore. The rules have given much flexibility for the court to exercise its inherent
jurisdiction to ‘ignore’ technicalities as a ground to strike off a case.

As time passes by, the public detested the court’s strict approach in treating
non-compliance. Not only it caused inconvenience, it also deterred the parties from
accessing the legal system in fair manner. It means that the court ought to consider the
overriding interest of justice and not only on the technical non-compliance of the rules.
As such, new provisions were inserted in the old RHC 1980 ; ​Order 1A and Order 2
rule 1 vide amendment [PU(A)197/2002].

Under ​Order 1A ROC 2012​, ​the courts possess some discretion to ensure that a
civil litigation is not prevented or hindered by mere non-compliance with procedural
rules. Such order is to provide certainty over procedural issues, to minimize quarrels, to
reduce delays and to expedite the process of appeal for the benefit of the all parties.
However, this discretion must not be abused. The court will not lend assistance under
this Order if the parties intentionally disregard compliance with rules of court.
 For example , in the case of ​Duli Yang Amat Mulia Tunku Ibrahim v Datuk
Captain Hamzah b Mohd Noor [2009] 4 MLJ 149​, the Federal Court ​held that ​Order
1A of the then RHC 1980​, was not applicable because the respondents had
intentionally disregarded ​Order 6 rule 7 (2A) ​for their own reasons. As such, ​Order 1A
cannot be invoked to cure failure to comply with the pre-requisites of ​Order 6 rule 7(2A)
therein. In ​Megnaway Enteprise Sdn Bhd v Soon Lian Hock [2002] MLJU 433,​ the
court held that where technicalities raised are strictly in relation to non-compliance,
disregarding them would not occasion any miscarriage of justice.

1) Order 2 Rule 1 ROC 2012

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 non-compliance with the requirement of these Rules, the
non-compliance 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”

Under ​Order 2 Rule 1 ROC 2012​, It is to be noted that no irregularity or defect

may automatically renders the proceedings a nullity. The court is entitled to consider
each case according to the circumstances and make decision it seem just. This can be
seen in ​Metroinvest Ansalt v Commercial Union [1985] 1 WLR 153 where the court
notes that

“I would say that in most cases the way in which the court exercises its powers
under ​Ord 2, r 1(2) ​is likely to depend on whether it appears that the opposite
 party has suffered prejudice as a direct consequence of the particular irregularity,
that is to say the particular failure to comply with the rules.

But I would construe ​Ord 2, r 1(2) as being so framed as to give the court the
widest possible power in order to do justice. If that construction of the rule is
right, then it cannot be gainsaid that there was material before the deputy official
referee entitling him to hold that the circumstances of the case would make it
quite unjust for him to order payment out to the plaintiffs of the money in court.”

The effect of this Order is that all non-compliance to the rules will be treated as
an irregularity and thus will not nullify the proceedings. This order is derived from the
decision in ​Re Pritchard, Pritchard v Deacon [​ 1963] Ch 502​. ​Nevertheless, although
irregularity may be cured, the court still retain a discretion when rectifying irregularities.
The court has a wide discretion to determine whether non-compliance to the Rules is
pardonable or correctable without the need to strike out or set aside.

III. THE APPLICATION

With the set of facts in this present case, it may be submitted here that there is
irregularity to the Rules where the writ served by Pak Chee Kayo had not complied with
the requirements under the Rules. In basic, the laws on civil procedure over contractual
disputes will require him to show a good cause of action which begins on the date of the
breach of a contractual duty as ruled in ​Gibbs v Guild.​ One fact disclosed here has
shown that Pak Chee Kayo has failed to show a good cause of action in the first place
to sue FSB as he had sued for the outstanding sum of RM 200, 000.00 instead of RM
350, 000.00.
 Where there is no cause of action in his suit, it is safe to say that the court may
be convinced that it is rightful to exercise its inherent power to prevent injustice to FSB
for this particular irregularity is fundamental and not merely a technical issue. An
authority to support this argument comes from the ruling of the case of ​EON Bank Bhd
Gandarama Sdn Bhd [2007] 4 MLJ 247​, that an abuse of the process of the court with
by committing a fundamental irregularity is a justified ground for the court to strike out
the action of PaK Chee Kayo.

IV. THE CONCLUSION

To summarise, it can said that FSB is likely to succeed in ​raising the preliminary
issue on irregularity to challenge the cause of action of Pak Chee Kayo for the good
potential of invoking the court’s inherent power in reference to the abovementioned line
of authorities. Basically, the facts and circumstances of the present case could have
attracted the application of ​Order 92 rule 4 of ROC​. that could entitle the court an
inherent power to strike out Pak Chee Kayo’s civil action against FSB.