The proposal in the statement had been rejected ten years before in Re Arnold D. Palmer, in the following passage at page 686 which contains the words that the Court of Appeal cited:
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. 02(f)-2-2008 (W)
ANTARA
MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN
[ DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02-205-2005
ANTARA MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN ]
DAN
DAN
[ Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Usul Pemula No. D3-25-7-2003
ANTARA MCLAREN INTERNATIONAL LIMITED ... PEMOHON
DAN LIM YAT MEEN ... RESPONDEN ]
Coram: RICHARD MALANJUM, CJSS ABDUL AZIZ MOHAMAD, FCJ
HASHIM YUSOFF, FCJ
2
JUDGMENT OF THE COURT
1. The respondent has been the registered proprietor of the trade mark “McLaren” (Trade Mark No. 9202266) since 11 April 1992, when he applied for registration of the trade mark. The approval of the registration had retrospective effect from that date. The registration is in respect of “articles of clothing, including boots, shoes and slippers” in Class 25.
2. Over seven years later, on 11 August 1999, the appellant company, claiming to be the bona fide proprietor of the trade mark “McLaren”, filed application No. 9907641 for registration of the trade mark in respect of “articles of clothing, footwear and headgear” in Class 25.
3. On 16 February 2001, the Registrar of Trade Marks informed the appellants that their application contravened section 19(1) of the Trade Marks Act 1976 (“the Act”) in that the trade mark whose registration the appellants sought was identical with the respondent’s registered trade mark or so nearly resembled the respondent’s registered trade mark as was likely to deceive or cause confusion. Section 19(1) prohibits the registration of such a trade mark in respect of any goods or description of goods.
4. On 3 March 2003, the appellants, by notice of originating motion, applied for an order expunging totally the entry of the respondent’s Trade Mark No. 9202266 from the Register of Trade Marks. For this relief the appellants cited sections 14, 25, 45 and 46(1) of the Act. Alternatively, relying on section 46(1) only, the appellants sought an order varying the entry by the deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates.
3
5. It is useful to state what the sections on which the appellants’ application relied are about. By section 45 the High Court, on the application of any “person aggrieved” by, inter alia, “any entry made in the Register without sufficient cause or . . . any entry wrongfully remaining in the Register”, is empowered to “make such order for . . . expunging or varying such entry as it thinks fit”. This is provided in paragraph (a) of section 45(1). It is about expunging or varying an entry that is shown, after the entry was made, to be an entry that, for some reason or other, was a wrongful entry.
6.
Section 46(1) provides as follows:
“(1) Subject to this section and to section 57, the Court may, on application by a person aggrieved, order a trade mark to be removed from the Register in respect of any of the goods or services in respect of which it is registered on the ground –
(a) that the trade mark was registered without an intention in good faith, on the part of the applicant for registration or, if it was registered under subsection (1) of section 26, on the part of the body corporate or registered user concerned, to use the trade mark in relation to those goods or services and that there has in fact been no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being up to the date one month before the date of the application; or
(b) that up to one month before the date of the application a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being.”
4
It empowers the Court, that is the High Court, on the application of a “person aggrieved” to order a trade mark to be removed from the Register for reason of non-use. The grounds in paragraphs (a) and (b) are independent alternative grounds that are not related to one another.
7. The essential difference between section 45(1)(a) and section 46(1) is that in an application under section 45(1)(a) some legally-recognized fault has to be shown to have been made in respect of the entry whereas in an application under section 46(1) no such fault has to be shown. What has to be shown is non-use of a trade mark that may have been properly and faultlessly registered.
8. Section 14 prohibits the registration of a mark or part of a mark as a trade mark in several circumstances, one of which is “if the use of [it] is likely to deceive or cause confusion to the public”. It is relevant to an application under section 45(1)(a) because if a mark has been registered in contravention of section 14, it may be argued, for an application under section 45(1)(a), that the entry was made without sufficient cause or that it is an entry wrongfully remaining in the Register.
9. Section 25 is about the procedure for the registration of a trade mark. By its subsection (1), an applicant for the registration of a trade mark must be a person claiming to be its proprietor. Since the appellants claimed that the respondent was not the lawful proprietor of the trade mark “McLaren” and therefore his application of 11 April 1992 did not deserve to be allowed, the appellants must have relied on section 25 as also relevant to section 45(1)(a).
5
10. Essentially, therefore, the appellants’ application was under sections 45(1)(a) and 46(1). To succeed under either provision, they had to show that they were a person aggrieved and that they had a case under either section; that is to say, they had both to establish locus standi and to show merit.
11. The appellants failed in the High Court and the Court of Appeal. At the High Court the learned judge found that the appellants were not a person aggrieved but it seems to us, from the way the judgment is written, that that finding as to the appellants’ locus standi was made upon a finding that the appellants failed to make out a case on the merits. As to the merits, the matters that the learned judge found were mostly relevant to section 45(1)(a), including the finding that section 37 applied to render the registration of the respondent’s trade mark conclusive after seven years. And it should be mentioned that the respondent’s counsel did admit to us that section 37 was urged only in relation to section 45(1)(a) and not in relation to section 46(1). The learned judge’s findings that were relevant to section 46(1) were only the finding that the trade mark was used by the respondent on men’s executive shoes – a finding made on the basis of sales of the shoes by Stonefly Enterprise and United Summary Sdn Bhd – and that it was not necessary for those two entities to be registered as registered users under section 48. That section, to the extent only of subsections (1) and (2), provides as follows:
“48. (1) Subject to the provisions of this section, where the registered proprietor of a trade mark grants, by lawful contract, a right to any person to use the trade mark for all or any of the goods or services in respect of which the trade mark is registered, that person may be entered on the Register as a registered user of the said trade mark whether with or without any conditions or restrictions, provided that it shall be a condition of any such
(a) (b) (c)
the representation of the registered trade mark;
the names, addresses, and addresses for service of the parties;
the goods or services in respect of which the registration is proposed;
6
registration that the registered proprietor shall retain and exercise control over the use of the trade mark and over the quality of the goods or services provided by the registered user in connection with that trade mark.
(2) Where it is proposed that a person shall be registered as a registered user of a trade mark, the registered proprietor shall submit an application to the Registrar for the registration of that person as a registered user of the trade mark and such application shall be accompanied by the prescribed fee and the following information:
(d) any conditions or restrictions proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use or to any other matter; and
(e) whether the permitted use is to be for a period or without limit of period, and if for a period, the duration of that period.”
12. The learned judge made no mention of the appellants’ alternative prayer.
13. The Court of Appeal’s judgment is reported as McLaren International Ltd v Lim Yat Meen [2008] 1 CLJ 613. In paragraphs [11], [12] and [13], the Court of Appeal mentioned three cases on when a person can be said to be a “person aggrieved” for the purposes of sections 45(1)(a) and 46(1). The first is Fazaruddin bin Ibrahim v Parkson Corp Sdn Bhd [1997] 2 CLJ 863,
7
but we will refer to the report in [1977] 4 MLJ 360. In that case Abdul Malik Ishak J said, at page 369: “The phrase ‘person aggrieved’ in s 45(1)(a) of the Act should be construed liberally. In my judgment, it includes any person whose own application for registration is obstructed by the opposing party in the suit . . .” The second is Service Master (M) Sdn Bhd v MHL ServiceMaster Sdn Bhd [1998] 1 CLJ 459, a decision of Kamalanathan Ratnam JC which the Court of Appeal saw as being in conflict with the approach in Fazaruddin. The third is a Singapore case of a date earlier than the other two, Re Arnold D. Palmer [1987] 2 MLJ 681, from which the Court of Appeal quoted the following words of Chan Sek Keong JC: “ . . . it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings”.
14. After touching on those three cases the Court of Appeal proceeded to what appears to us to be a consideration of the merits of the appellants’ application under section 45(1)(a), in the course of which the Court of Appeal made what amounted to a finding that there was no fault in the registration of the respondent’s trade mark and referred to the protection of section 37 in favour of the respondent, and then came to the following conclusion in paragraph [21]:
“[21] From the above prognosis, surely the best approach to arrive at a correct decision whether an applicant is an aggrieved person is by bringing all the available evidence to bear before the judge, rather than debating whether the terminology of “an aggrieved person” should be given a wide or restricted interpretation. By this method, irrespective of the scope of the two words, the learned judge will be able to arrive at a more meaningful decision. Despite the valiant attempt by the appellant, regretfully after having weighed all the agreed facts and evidence, we decided that it did not qualify as an aggrieved person
8
and hence had no locus standi to initiate the action, be it pursuant to ss. 45 or 46 of the Trade Marks Act 1976.”
15. It appears to us that the Court of Appeal was influenced by the lack of merit in the appellants’ case under section 45(1)(a) to arrive at the conclusion that they were not an aggrieved person.
16. The only manner in which the Court of Appeal dealt with the appellants’ application under section 46(1) was by making a finding in paragraph [28] that section 48 did not make it mandatory for Stonefly Enterprise and United Summary Sdn Bhd to be registered as registered users.
17. The Court of Appeal made no mention of the appellants’ alternative prayer.
18. Leave was granted to the appellants to appeal to this court on the following two questions:
“(a) Is a party whose application for registration of a trade mark obstructed under section 19 of the Trade Marks Act 1976 by the prior registration of an identical or similar mark on the Register of Trademarks an “aggrieved person” with the appropriate locus standi within the meaning of that term in sections 45 and 46 of the Trade Marks Act 1976.
(b) Whether in the face of uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods, such only of the goods may be rectified by their removal or expunged pursuant the entitlements in law under sections 45 and 46 of the Trade Marks Act 1976.”
The appellants have decided not to rely on their application under section
9
45. Therefore the references to that section in the two questions are to be disregarded. The appellants rely only on their application under section 46(1), and they rely only on paragraph (b) of the section. Paragraph (a) is therefore not involved in this appeal. Only paragraph (b) is involved in this appeal.
Question (a)
19. It goes without saying that the appellants’ purpose behind Question (a) is to get this court to answer, contrary to the Court of Appeal’s finding, that the appellants were a person aggrieved. But the appellants’ counsel did not place his hopes entirely on an answer to Question (a) in the affirmative. While contending, in reliance on what Abdul Malik Ishak J said in Fazaruddin, that the appellants should be accepted as a person aggrieved by reason solely that their application for registration of the “McLaren” trade mark encountered, on 16 February 2001, the obstruction of section 19(1), and while urging this court, “in the national interest”, to endorse the “liberal approach” in Fazaruddin, the appellants’ counsel also submitted that on the facts the appellants qualified as a person aggrieved according to the test in Re Arnold D. Palmer. It was rather on those facts that the appellants themselves in their affidavit claimed to be a person aggrieved and not on the mere fact of their application being obstructed under section 19(1).
20. Indeed, in our judgment, Question (a) cannot be answered in the affirmative. A person whose application for registration of his trade mark is jeopardized by section 19(1) cannot, without more, qualify as a person aggrieved, because he could be a mere busybody. An answer in the affirmative that the appellants want to Question (a) would uphold Abdul Malik Ishak J’s statement in Fazaruddin, which was made without any
10
supporting authority. The proposal in the statement had been rejected ten years before in Re Arnold D. Palmer, in the following passage at page 686 which contains the words that the Court of Appeal cited:
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
21. relied on by the respondent to deny that the appellants are a person aggrieved. In that case the applicant sought the removal from the Register of a trade mark on the ground of non-user. On whether the applicant was a person aggrieved, Chan Sek Keong JC, after considering the speeches of Lord Herschell and Lord Watson in the House of Lords in Powell’s Trade Mark (1894) 11 R.P.C. 7; [1984] A.C. 8, and the manner in which subsequent judges reacted to the opinions of the said Law Lords in Lever Bros. v Sunniwite Products (1949) 66 R.P.C. 84, Consort Trade Mark [1980] R.P.C. 160, and Wells Fargo Trade Mark [1977] R.P.C. 503, concluded as follows:
“ On the basis of these decisions, it is plain that the applicant will fail in this appeal unless he can show that he has used his trade mark in the course of a trade which is the same as or similar to that of the respondents or that he has a genuine and present intention to use the mark as a trade mark. But the evidence shows none of these things, as the Registrar has found. . . . “
Re Arnold D. Palmer is an authority (out of several) that is heavily
11
22. We understand that passage as laying down the principle that a person aggrieved is a person who has used his mark as a trade mark – or who has a genuine and present intention to use his mark as a trade mark – in the course of a trade which is the same as or similar to the trade of the owner of the registered trade mark that the person wants to have removed from the Register.
23. The appellants’ counsel submitted that on the facts adduced in the affidavit in support of the appellants’ notice of originating motion, which facts counsel said were undisputed, the appellants satisfied the above test of a person aggrieved as expounded in Re Arnold D. Palmer. The facts, in the words of the appellants’ company secretary who made the affidavit, are as follows:
“The Applicant is a company organised and existing under the laws of England . . . The Applicant is the proprietor of the mark “McLaren” and has filed for a trade mark application under no. 99/07641 on 11th August 1999 in relation to “articles of clothing, footwear and headgear.” The mark “McLaren” has long been associated with the Formula 1 race of which the McLaren team is well-known worldwide, including Malaysia. I verily believe that the “McLaren” mark is known to the Malaysian public long before the Sepang F1 circuit was established by virtue of the various sports programmes and telecast of the races on Malaysian television. The McLaren team has been participating in the Formula 1 race for 37 years and I verily believe that there are many supporters of the McLaren team in Malaysia. (Broadcasting statistics for 1993-2000 are exhibited) . . . Pursuant to the popularity of the McLaren team, merchandise bearing the “McLaren” mark have been offered for sale by the Applicants for over 10 years. Customers buying the products will immediately identify and associate such merchandise with the Applicants and equate the same with products endorsed by the McLaren team. (A recent catalogue of merchandise offered under
12
the “McLaren” mark is exhibited). These products are made available by mail order to any person anywhere in the world. There is also a membership programme for Team McLaren which is open to anyone from around the world. Membership benefits include discounted prices on McLaren merchandise and free subscription to the McLaren magazines. (A copy of the McLaren magazine entitled “Racing Line” is exhibited). The “McLaren” mark has also been extensively promoted both internationally and in Malaysia. Other than in “Racing Line” magazine, promotion of the “McLaren” mark is conducted via the website www.mclaren.com as well as on-site promotion such as at the Sepang F1 circuit. The “McLaren” mark is also promoted via the website of the Sepang F1 circuit, http://www.f1-malaysia.com. (Printouts from those websites are exhibited). By virtue of the foregoing, I verily believe that the “McLaren” mark is well-known in Malaysia and the Applicant enjoys considerable reputation and goodwill amongst the Malaysian public in respect of the “McLaren” mark not only as the Formula 1 team but also for the merchandise associated therewith, particularly, clothing. . . . The Applicant’s trade mark application has been objected to by the Registrar of Trade Marks on the basis of the Respondent’s said mark. As both marks are similar, the Applicant’s application will not be able to proceed to registration in light of the earlier registration by the Respondent unless the said trade mark registration is expunged. By virtue of the Applicant’s reputation and goodwill subsisting in the “McLaren” mark, and use thereof in Malaysia, the Respondent’s continued registration of the said mark will seriously jeopardize the Applicant’s right and interests in the exploitation of its “McLaren” mark. I verily believe and am advised by the Applicant’s solicitors that the Applicant is therefore aggrieved by the registration of the said mark by the Respondent and has locus standi to apply to the Honourable Court to rectify the Register.”
24. pass the test of a person aggrieved as laid down in Re Arnold D. Palmer is outside the scope of this appeal. It is a question of fact, and, contrary to the
In our judgment the question whether, on the facts, the appellants
13
claim of the appellants’ counsel, some of the facts are, moreover, judging by the respondent’s affidavit in reply, hotly in dispute. To top it all, there is no leave-question to cater for the appellants’ alternative stand. The only leave- question on which the appellants can rely for a finding that they are an aggrieved person is Question (a), if answered in the affirmative. We have already opined that it cannot be answered in the affirmative.
25. As the appellants fail in this appeal on the question of locus standi, this appeal ought to be dismissed without any need to answer Question (b), which is the question as to the merits of the appellants’ application. We will nonetheless deal with that question.
Question (b)
26. As we said, in this appeal the appellants rely only on paragraph (b) of section 46(1). According to section 46(1)(b), applying it to the present case, the court may order the respondent’s “McLaren” trade mark to be removed from the Register in respect of any of the following goods, namely, articles of clothing, boots, shoes and slippers, if, for a certain period, there was no use in good faith of that trade mark in relation to those goods by the respondent (as the registered proprietor of the trade mark) or by the registered user of the trade mark. The period is a continuous period of three years until 3 February 2003, which was one month before the date of the appellants’ application, 3 March 2003. In other words, the period is a continuous period of non-use from 3 February 2000 until 3 February 2003.
27. It is an admitted fact that the respondent’s trade mark, since it was registered on 11 April 1992, had been used only in respect of executive men’s shoes. The respondent claimed in paragraphs 5 and 6 of his affidavit dated 23 November 2004: “. . . all the men’s executive shoes bearing the
14
mark MCLAREN that were contract-manufactured by Stonefly Enterprise and United Summary Sdn Bhd were done pursuant to the ongoing contractual relationships between me and Stonefly Enterprise and United Summary Sdn Bhd respectively. Both [those entities] were acting as my agents to use the mark MCLAREN for the purpose of dealing with men’s executive shoes bearing the MCLAREN trade mark in Kelantan since May 1999 and in Kuala Lumpur since early 2000”.
28. There are two facets to the application of section 46(1)(b) to the facts of this case. The first facet concerns the fact that in any event, let alone during the said period of three years, there was no use of the respondent’s registered trade mark in relation to some of the goods in respect of which the trade mark is registered, that is to say, in relation to articles of clothing other than footwear. The court is therefore empowered to order the respondent’s trade mark to be removed from the Register in respect of such articles of clothing, or, in other words, to grant the appellants’ alternative prayer for an order of deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates. The respondent’s only answer to the alternative prayer, which does not avail with us, is to ask the court, in exercising its discretionary power under section 46(1)(b), to take into consideration matters “such as questions of good faith and public interest”, as the respondent, so he claims, had the necessary intention to use the trade mark in relation to all the goods in respect of which it is registered.
29. The second facet concerns the fact that during the relevant three years the respondent’s trade mark was used in relation to executive men’s shoes, which constitute some of the goods in respect of which the trade mark is registered. So that the ground for removal of the trade mark under
15
section 46(1)(b) in respect of those goods may be avoided or prevented from arising, the use must be use by the respondent himself as the registered proprietor or by the registered user of the trade mark, besides the use having to be in good faith. A registered user is a person registered as such under section 48. Stonefly and United Summary were never registered under section 48 as registered users of the respondent’s trade mark. Although, as the Court of Appeal said, section 48 did not make it mandatory for them to be registered as such, their not being so registered has the consequence that for the purposes of section 46(1)(b) the use of the respondent’s trade mark by them was not use by a registered user. That leaves the question whether the use of the trade mark on executive men’s shoes by those entities was use as agent for the respondent and therefore was use by the respondent as the registered proprietor. That was one of the arguments of the respondent in the High Court, against which the appellants presented strong arguments in submission, and in the present appeal we do not see the respondent repeating the argument at all or with any degree of enthusiasm.
30. But Question (b) is not concerned with the second facet. It is concerned only with the first facet. It is predicated on “uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods”, which can only be non-use in relation to articles of clothing other than footwear. Question (b) is clearly a question that is looking at the appellants’ alternative prayer. An affirmative answer to Question (b), which is the answer that the appellants want, can only sensibly and logically result in the granting of the alternative prayer. Therefore, were the appellants to succeed in this appeal on the question of locus standi, we would allow the appeal but only to the extent of granting the alternative prayer. But since the appellants fail on the question of locus
16
standi, we dismiss the appeal with costs and order that the deposit be paid to the respondent to account of his taxed costs.
Dated: 8 June 2009
DATO’ ABDUL AZIZ BIN MOHAMAD
Judge Federal Court, Malaysia
Tuesday, March 29, 2011
Failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC. 50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless.
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 43 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
LAWAN DATUK CAPTAIN HAMZAH BIN MOHD NOOR ... RESPONDEN
DIDENGAR BERSAMA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 42 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
ANDRE RAVINDRAN S. ARUL ... RESPONDEN
CORAM: ZAKI TUN AZMI, CJ ARIFIN ZAKARIA, CJM AUGUSTINE PAUL, FCJ
INTRODUCTION
JUDGMENT OF ZAKI TUN AZMI, CJ
1. These appeals concern the interpretation and application of Order 6 Rule 7(2) and 7(2A) of the Rules of the High Court 1980 (“RHC”). Related to that is the manner in which Order 1A RHC is to be applied.
2. The two appeals before us relating to the said issues are Rayuan Sivil No. 02 – 42 – 2008 (W) (hereinafter referred to as Appeal A) and Rayuan Sivil No. 02 – 43 – 2008 (W) (hereinafter referred to as Appeal B). The parties rely on submissions and bundle of authorities submitted in regard to Appeal A. The issues in both appeals arose because both writs from which the appeals originated were extended even though no attempts were made to serve either of them on the Appellant. The validity and effect of these renewals are what is ought to be impugned.
3. The following question was therefore posed to us:
“Whether the requirement of showing such efforts that have been made to effect service of a writ under Order 6 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
4. During the course of the hearing, we allowed a consequential question to be posed and it is as follows:
FACTS
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
5. The facts are as follows:
6. The Respondent filed a writ of summons at the Singapore High Court (“the Singapore writ / action”) on 29.09.2000. Simultaneously with that, on the same date, the Respondent also filed another writ containing almost identical pleadings and cause of action at the High Court at Shah Alam (“the Shah Alam writ / action”). A third writ was filed not much later i.e. on 13.07.2001 at the High Court in Kuala Lumpur (“the Kuala Lumpur writ / action”), again, containing similar pleadings and cause of action. The Singapore writ was served on the Appellant on 22.02.2001. On the other hand, the Shah Alam and the Kuala Lumpur writs were kept away from the knowledge of the Appellant. The Appellant was totally unaware of these two other actions.
7. The Singapore action proceeded with the hearing before the High Court Judge who referred it to his Senior Assistant Registrar for case management. It was only before the Senior Assistant Registrar that the Respondent, in answer to a query raised by the Senior Assistant Registrar, disclosed that the Respondent had filed two other actions in Malaysia. The Singapore Senior Assistant Registrar directed the Respondent to withdraw the Singapore writ and to serve the Shah Alam writ within six weeks of that direction which was made on 15.05.2001.
8. The Respondent had, of course without the knowledge of the Appellant, sought and obtained orders from the Senior Assistant Registrar of the High Court at Shah Alam to renew the validity of the writs of summons before their expiry. The Senior Assistant Registrar of the High Court at Shah Alam granted a renewal of the Shah Alam writ pursuant to the application filed on 20.03.2001. Subsequently, pursuant to another application filed on 04.09.2001, a second extension was granted on 06.12.2001. In other words, two extensions were obtained ex parte.
9. In the meanwhile, the Respondent appealed to the Judge in Chambers (in Singapore) against the Senior Assistant Registrar’s orders and subsequently to the Singapore Court of Appeal. The Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal and the stay order by the Singapore Senior Assistant Registrar was affirmed. The decision of the Singapore Court of Appeal was made on 19.02.2002. It must be noted that by the time this order was made, about 16 months had lapsed from the filing of the Shah Alam action.
10. The Shah Alam writ was only served on the Appellant’s solicitors on 27.03.2002, although the solicitors had undertaken to accept service of the writ immediately after the Singapore Court of Appeal had ordered service of the writ on the Appellant on 15.05.2001. According to the Appellant’s solicitors, the Respondent’s solicitors had informed them that they did not have instructions to serve the Shah Alam writ. The Respondent’s Singapore solicitors had also replied that there was no necessity to
serve the Malaysian writ on the Appellant as yet. This was notwithstanding the Appellant’s Singapore solicitors having given notice that failure to serve the Malaysian High Court writ would prejudice the Appellant.
11. As regards the writ in the High Court at Kuala Lumpur, it was filed on 13.07.2001. Naturally, the writ expired on 12.02.2002. Two applications to extend the writ were made on 24.1.2002 and 26.6.2002. The orders for extension were made on 26.3.2002 and 26.7.2002 respectively. It must be noted that the first extension was only applied for after the expiry of the Kuala Lumpur writ.
12. I cite these facts in some detail to show the machiavellian attitude of the Respondent. For the purpose of this case, what is important is that the Shah Alam and the Kuala Lumpur writs had been renewed ex parte without any attempt having been made to serve them on the Appellant. This is not in dispute. In fact, the affidavit in support of the applications for renewals had clearly stated that the writs of summons were not served pending the outcome of the Singapore action. The Respondent referred to these writs as “protective writs” in order to avoid the limitation period from setting in.
13. I will now consider the two questions posed.
QUESTION NO.1:
“Whether the requirement of showing such efforts that
have been made to effect service of a writ under Order 6 5 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
ORDER 6 RULE 7 (1), (2) AND (2A) RHC
14. Now, let us look at the law on the effect of not complying with the requirements of O. 6 r. 7 (1), (2) and (2A) RHC. These rules read as follows:
Order 6: Writs of Summons: General Provisions Rule 7: Duration and renewal of writ (O. 6 r. 7)
(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 6 months, beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
(2) Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the Court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times) , not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.
(2A) An application for renewal must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.
(Emphasis mine)
15. Thereafter, r. 7 (2) RHC confers a discretionary power on the Court to extend the validity of the writ and such discretion is to be exercised subject to r. 7 (2A) RHC. There are three prerequisites under r. 7 (2A) RHC which an applicant for renewal of a writ must prove. They are that it must:
a) be made before the expiry of the writ; b) be made ex parte by summons; c) be supported by an affidavit identifying two salient
points which are: I. that efforts have been made to serve the
defendant within one month of the date of the
issue of the writ; and II. such efforts have been made subsequent
thereto to effect service.
A writ issued in the first instance is valid for only six months.
16. wording of O. 6 r. 7 (2) and r. 7 (2A) RHC do not detract from the Court in exercising its inherent jurisdiction to grant an extension of
time if there is a good reason for non-service as the rules are to be
The majority judgment of the Court of Appeal held that the
interpreted to ensure justice. The majority ruled that the words “must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service” in r. 7 (2A) were surplusage. In so doing, it relied on the decision of Megaw J in Heaven v. Road and Rail Wagon Ltd [1965] 2 All ER 409. In that case, Megaw J dealt with the pre 1964 Rules of the Supreme Court (“RSC”) O. 8 r. 1 and the post 1964 RSC O. 6 r.8 (2) of England. The earlier RSC contained the words “if satisfied that reasonable effort has been made to serve such defendant, or for other good reasons”. In the new RSC, the underlined words were removed from the provision. Megaw J read back into the new RSC O. 6 r. 8 (2) the words “or for other good reasons”. He said:
“I think that the omission was probably because the words omitted added nothing and subtracted nothing. They were surplusage.”
17. The learned Court of Appeal Judges in the majority judgment said:
“To allude to the words of Megaw J, the words, “if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons before an application of extension is filed”, are a surplusage. By that same token and reasoning, the need to show efforts having been made to serve the
writ on the Defendant (the Appellant here) in O. 6 r. 7 (2A) when read together with O. 1A of the RHC, must be surplusage.”
18. They concluded that filing the two writs (the Shah Alam writ and the Kuala Lumpur writ) as “protective writs” is a good reason for extension of the writ even though there were no attempts of serving the writs.
19. I do not agree with such a conclusion. The writ could have been served and a stay sought pending disposal of the Singapore writ. But, that is only one of the reasons why I do not agree with the conclusion of the majority judgment at the Court of Appeal.
20. I would rather follow the conclusions of the English Court of Appeal in Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 at 391 as well as in Vinos v. Marks & Spencer plc [2001] 3 All ER 784.
21. In Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387, Lord Goddard held that the issue of a writ becomes a nullity by reason of non-service within the prescribed time. At page 389 F, he said:
“If the writ had ceased to be in force, the position is the same as if it had never been issued.”
22. I therefore agree with the views of Skinner J in Mayban Finance Bhd v. Umas Sdn Bhd [2002] 4 MLJ 276 (see page 287-288) in following Battersby & Ors v Anglo-American Oil Co Ltd & Ors [1945] 1 KB 23 at page 32, where he cited what Lord Goddard had to say on the matter of the renewal of a writ :
“We conclude by saying that, even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case, care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case, it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as indeed, is laid down in the order.”
Note that these views were based on the provisions existing then.
23. In the subsequent decision of the Court of Appeal in Vinos v. Marks & Spencer plc [2001] 3 All ER 784, May LJ, in discussing the new Civil Procedure Rules (“CPR”) r. 7.51 and r. 7.6(3)2 (a two member panel, the other being Peter Gibson LJ) said:
“The meaning of r. 7.6 (3) is plain. The Court has power to extend the time for serving the claim form after the period for its service has run out only if the
1 Rule 7.5 provides that subject to exception, a claim form must be served within 4 months after the date of issue.
2 Rule7.6: Extension of time for serving a claim form – r.7.6 (3) “If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if – (a) the Court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in neither case, the claimant has acted promptly in making the application”. stipulated conditions are fulfilled. That means that the Court does not have power to do so otherwise. The discretionary power in the rules to extend time periods – r. 3.1(2)(a)3 – does not apply because of the introductory words. The general words of r. 3.104 cannot extend to enable the Court to do what r. 7.6 (3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
... Interpretation to achieve the overriding objective does not enable the Court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr. Vinos’ case is a deserving case, the rules must be interpreted to accommodate his particular case. ... Rule 3.105 concerns correcting errors which parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, 3 Rule 3.1: The Court’s General Powers Of Management – r.3.1 (2) “Except where these Rules provide otherwise, the Court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”4 Ibid, para. 37 5 Ibid, para. 37
one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. ...
If you do, it is my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits.”
24. Peter GibsonLJ had this to say:
“The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR, unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use on r 1.1 (2)6 of the word “seek” acknowledges that the Court can only do what is possible. The language of rule to be interpreted may be so clear and jussive that the Court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context
6 Rule 1.1: The overriding objective - r. 1.1 (2) “Dealing with a case justly includes, so far as is practicable –(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate –(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays justice to the Defendant and to the interests of other litigants may require that a claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.”
25. Both judges in Vinos v. Marks & Spencer plc held that unless the condition set out in r. 7.6(3) had been complied with, the Court has no discretion to extend the validity of the claim. Rule 7.6 (3) of the English CPR uses the words “only if”, whilst our O.6 r.7 (2) and (2A) uses the word “must”.
26. Historically, the relevant provisions of our Rules of the High Court and the English Rules of the Supreme Court were identical. Let us examine them.
27. In order to understand the rationale behind the wording of O. 6 r. 7(2) and (2A), it will be useful to look at the same rule prior to the amendment introduced in 2000. It was O.8 r.1 of the then Rules of the Supreme Court 1957. This rule is the predecessor of the present O. 6 r. 7 and it expressly provides for certain prerequisites to be satisfied before a writ can be renewed. It is that the Court must be “satisfied that reasonable efforts had been made to serve such dependant, or for other good reasons”.
28. In 1980, the Rules of the Supreme Court was renamed as the Rules of the High Court 1980 and O. 8 r.1 was numbered as O. 6 r. 7(2). This rule did not state the prerequisites that must be satisfied before a writ could be renewed. This O. 6 r. 7(2) would appear to give a totally wide discretion to the Court in the renewal of a writ.
29. These two provisions were correspondingly identical to the English 1957 RSC and the 1964 RSC. It is in respect of these two provisions that Megaw J held in Heaven v. Road and Rail Wagon Ltd that the words “for good reasons” must be read back into the 1964 RSC although those words had been omitted. This is a sensible interpretation as the Court cannot be obliged to renew a writ automatically without any good reason. As was said by Lord Goddard, care should be taken to ensure that the renewal will not prejudice any right of defence that may be available to the defendant. Clearly, the withholding of proceedings while some other case is being tried or to await the result of a future development cannot constitute a good reason.
30. Our Rules Committee took into consideration the abuse of filing a writ by a Plaintiff and not doing anything about it. Hence, a new and improved O. 6 r. 7 was introduced. This is consistent with the new CPR in England.
31. In my opinion the object of the new O.6 r. 7 was to make it really tight as to when a writ can be renewed. The word “must” appearing in O.6 r.7 (2A) is not usually used in Malaysian legislations. Normally the word used is “shall”. So in this case, when the word “must” is used, the intention is to fully ensure that it is complied with and no discretion is to be given as far as the compliance with the prerequisites is concerned. “Must” is a very strong word; in my opinion it is stronger than the word “shall”.
32. In Ting Hwa Yiew v. Ace Commercial Enterprise Sdn Bhd [1996] 2 MLJ, Abdul Kadir Sulaiman J (as he then was) considered the word “must” in the context of O.32 r.13 (2) which states inter alia:
“(2) Save as otherwise provided in these rules –
An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application...”.
33. In his judgment he stated:
“O. 32 r.13 (2) (a) use an imperative word “must”. In its ordinary meaning it is a word of absolute obligation. Therefore for the failure of the Plaintiff to have the affidavit in support served upon the Defendant within the time limit allowed by the rule, I would agree with the submission of the learned counsel for the Defendant that it renders the said affidavit inadmissible. O.2 r.1 of the RHC would not be of any help to the Plaintiff as no reason was put forward by the Plaintiff for the delay in the service of the said affidavit.”
34. (See also Shell Chemicals UK Ltd & Another v. Vinamul Ltd (formerly Vinyl Products Ltd) The Times 7 March 1991, 135 SJ 412 (Transcript Association) and Mayhew v. The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon [1991] 2 EGLR 89. Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 was followed by Chan Min Tat FJ in Llyod Triestino Societa v. Chocolate Products (M) Sdn Bhd [1978] 2 MLJ 27.)
35. Even if the word “must” is to be construed as having the same effect as “shall”, nevertheless it still make compliance with the prerequisites mandatory.
36. The words “Subject to paragraph (2A)” in the impugned O. 6 r. 7(2) further strengthens the argument that before the Court could exercise its discretion to renew a writ, paragraph (2A) must be satisfied. It must be further noted that in paragraph (2A) the applicant must show inter alia, that efforts had been made to serve the defendant within one month of the date of the issue of the writ. This all the more supports the argument that the applicant must use all due diligence to effect service at the earliest possible time.
37. The argument by the claimant in Vinos v. Marks & Spencer plc was that the Court had power to grant an extension of time to serve the writ under CPR 3.10(a). CPR 3.10 (a) reads as follows:
Rule 3.10: General power of the court to rectify matters where there has been an error of procedure-
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”
38. error of procedure, such as failure to comply with the rules, the Court could make an order to remedy the error. It was contended that CPR 3.10 contained a general power to rectify matters where there had been an error of procedure. CPR 3.10 (a) seems to be similar to our O.1A RHC, which will be discussed later.
39. I strongly believe that O.6 r.7 (2A) RHC was introduced to prevent abuse by plaintiffs in filing writs and sleeping on them without making efforts to serve them. This practice of inactivity is something which Courts loathe. It is against the administration of justice. It creates a backlog and results in a false number of pending cases. In my opinion, Courts should take serious a view of such cases. If not, they will continue to remain in the list of outstanding cases. As such, O.6 r. 7 (2A) RHC must be strictly enforced as required by the rule.
40. When Plaintiffs apply to extend the validity of writs, Courts
should examine closely the affidavits filed in support of
applications for extensions. Before granting an extension, Courts
CPR 3.10(a) which provides that where there had been an
must be satisfied that serious efforts had been made to serve. A simple and plain statement that efforts had been made to serve cannot be a sufficient ground. The affidavits must provide detailed facts as to when, where and how attempts to serve were made. Otherwise O.6 r.7 (2A) RHC will become a dead letter. The object of the rule will be defeated.
41. By serving the writ at the earliest possible time, the defendant would be given the earliest possible notice and opportunity to prepare his defence. It would be to his disadvantage if there is delay. Such delay may result in evidence in his favour getting misplaced or destroyed. Witnesses become difficult to trace and memories will lapse.
42. Having said that, I am fully aware of Defendants who avoid service. There must be evidence to support this claim. If serious efforts are made, I am sure Defendants are traceable. In appropriate cases, substituted service may be ordered if they are not traceable.
43. Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of O. 6 r. 7 (2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the Respondents are defective as they do not show compliance with the RHC.
QUESTION NO. 2:
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
44. Now to O. 1A RHC. This Order relates to the administering of Rules of the High Court 1980. In order to invoke O. 1A RHC, parties must apply the object of the Rules first. O. 1A RHC reads as follows:
Order 1A: Court or Judge shall have regard to justice
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
That order came into force on 17th May 2002 vide P.U.(A)
45. 197/2002, well after the first renewal of both the Shah Alam and Kuala Lumpur writs.
46. The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the Court or Judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the Respondents had intentionally disregarded O.6 r. 7 (2A) RHC for their own reasons.
47. It is now necessary to determine the meaning of the phrase “... technical non-compliance ... “ in Order 1A RHC as it will assist in identifying the breaches contemplated by the rule. Useful guidance is provided by the meaning of the phrase “technical defect” considered in Gangadhar Dandawate v Premechand Kashyap7 where AH Khan J said at p 184,
“It is not always easy to define what the expression ‘technical defect’ means. A technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v Shrikrishna Gupta, AIR 1956 SC 140 (C), have observed:
“that the tendency of the Courts towards technicality is to be deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along
7 AIR 1958 MP 182
broad based, common sense lines. This principle was enunciated by Viscound Maugham in Punjab Co- operative Bank Ltd., Amritsar v Income-tax Officer, Lahore, AIR 1940 PC 230 (D).”
48. In the context of the Rules of the High Court 1980 the phrase “... technical non-compliance...” is thus a reference to non- compliance with a rule which is not fundamental or mandatory in nature.
49. The Malaysian Court Practice 2007 Desk Edition lists at page 9, a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC.
50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the Court to extend the time, if such extension is required and is permitted by the Rules. Therefore, the answer to question two is in the negative.
51. On the issue of conditional appearance, I am satisfied that the Appellant has not submitted himself to the jurisdiction of the court or waived his right to conditional appearance merely because he had filed the application to strike out the writ and had applied to have his case transferred to the High Court at Johor Bharu. This the Appellant did in accordance with the terms allowed by the Court when he sought and obtained the order to enter conditional appearance. I need not say more on this issue.
52. These appeals are thus allowed with costs. Deposit to be refunded to the appellant.
53. My learned brothers Arifin Zakaria, CJM and Augustine Paul, FCJ have seen this judgment in draft. I have incorporated their comments for which I am grateful. They have expressed their concurrences to the final draft.
Dated : 18 June 2009
ZAKI TUN AZMI
Chief Justice Malaysia
RAYUAN SIVIL NO. 02 – 43 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
LAWAN DATUK CAPTAIN HAMZAH BIN MOHD NOOR ... RESPONDEN
DIDENGAR BERSAMA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 42 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
ANDRE RAVINDRAN S. ARUL ... RESPONDEN
CORAM: ZAKI TUN AZMI, CJ ARIFIN ZAKARIA, CJM AUGUSTINE PAUL, FCJ
INTRODUCTION
JUDGMENT OF ZAKI TUN AZMI, CJ
1. These appeals concern the interpretation and application of Order 6 Rule 7(2) and 7(2A) of the Rules of the High Court 1980 (“RHC”). Related to that is the manner in which Order 1A RHC is to be applied.
2. The two appeals before us relating to the said issues are Rayuan Sivil No. 02 – 42 – 2008 (W) (hereinafter referred to as Appeal A) and Rayuan Sivil No. 02 – 43 – 2008 (W) (hereinafter referred to as Appeal B). The parties rely on submissions and bundle of authorities submitted in regard to Appeal A. The issues in both appeals arose because both writs from which the appeals originated were extended even though no attempts were made to serve either of them on the Appellant. The validity and effect of these renewals are what is ought to be impugned.
3. The following question was therefore posed to us:
“Whether the requirement of showing such efforts that have been made to effect service of a writ under Order 6 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
4. During the course of the hearing, we allowed a consequential question to be posed and it is as follows:
FACTS
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
5. The facts are as follows:
6. The Respondent filed a writ of summons at the Singapore High Court (“the Singapore writ / action”) on 29.09.2000. Simultaneously with that, on the same date, the Respondent also filed another writ containing almost identical pleadings and cause of action at the High Court at Shah Alam (“the Shah Alam writ / action”). A third writ was filed not much later i.e. on 13.07.2001 at the High Court in Kuala Lumpur (“the Kuala Lumpur writ / action”), again, containing similar pleadings and cause of action. The Singapore writ was served on the Appellant on 22.02.2001. On the other hand, the Shah Alam and the Kuala Lumpur writs were kept away from the knowledge of the Appellant. The Appellant was totally unaware of these two other actions.
7. The Singapore action proceeded with the hearing before the High Court Judge who referred it to his Senior Assistant Registrar for case management. It was only before the Senior Assistant Registrar that the Respondent, in answer to a query raised by the Senior Assistant Registrar, disclosed that the Respondent had filed two other actions in Malaysia. The Singapore Senior Assistant Registrar directed the Respondent to withdraw the Singapore writ and to serve the Shah Alam writ within six weeks of that direction which was made on 15.05.2001.
8. The Respondent had, of course without the knowledge of the Appellant, sought and obtained orders from the Senior Assistant Registrar of the High Court at Shah Alam to renew the validity of the writs of summons before their expiry. The Senior Assistant Registrar of the High Court at Shah Alam granted a renewal of the Shah Alam writ pursuant to the application filed on 20.03.2001. Subsequently, pursuant to another application filed on 04.09.2001, a second extension was granted on 06.12.2001. In other words, two extensions were obtained ex parte.
9. In the meanwhile, the Respondent appealed to the Judge in Chambers (in Singapore) against the Senior Assistant Registrar’s orders and subsequently to the Singapore Court of Appeal. The Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal and the stay order by the Singapore Senior Assistant Registrar was affirmed. The decision of the Singapore Court of Appeal was made on 19.02.2002. It must be noted that by the time this order was made, about 16 months had lapsed from the filing of the Shah Alam action.
10. The Shah Alam writ was only served on the Appellant’s solicitors on 27.03.2002, although the solicitors had undertaken to accept service of the writ immediately after the Singapore Court of Appeal had ordered service of the writ on the Appellant on 15.05.2001. According to the Appellant’s solicitors, the Respondent’s solicitors had informed them that they did not have instructions to serve the Shah Alam writ. The Respondent’s Singapore solicitors had also replied that there was no necessity to
serve the Malaysian writ on the Appellant as yet. This was notwithstanding the Appellant’s Singapore solicitors having given notice that failure to serve the Malaysian High Court writ would prejudice the Appellant.
11. As regards the writ in the High Court at Kuala Lumpur, it was filed on 13.07.2001. Naturally, the writ expired on 12.02.2002. Two applications to extend the writ were made on 24.1.2002 and 26.6.2002. The orders for extension were made on 26.3.2002 and 26.7.2002 respectively. It must be noted that the first extension was only applied for after the expiry of the Kuala Lumpur writ.
12. I cite these facts in some detail to show the machiavellian attitude of the Respondent. For the purpose of this case, what is important is that the Shah Alam and the Kuala Lumpur writs had been renewed ex parte without any attempt having been made to serve them on the Appellant. This is not in dispute. In fact, the affidavit in support of the applications for renewals had clearly stated that the writs of summons were not served pending the outcome of the Singapore action. The Respondent referred to these writs as “protective writs” in order to avoid the limitation period from setting in.
13. I will now consider the two questions posed.
QUESTION NO.1:
“Whether the requirement of showing such efforts that
have been made to effect service of a writ under Order 6 5 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
ORDER 6 RULE 7 (1), (2) AND (2A) RHC
14. Now, let us look at the law on the effect of not complying with the requirements of O. 6 r. 7 (1), (2) and (2A) RHC. These rules read as follows:
Order 6: Writs of Summons: General Provisions Rule 7: Duration and renewal of writ (O. 6 r. 7)
(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 6 months, beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
(2) Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the Court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times) , not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.
(2A) An application for renewal must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.
(Emphasis mine)
15. Thereafter, r. 7 (2) RHC confers a discretionary power on the Court to extend the validity of the writ and such discretion is to be exercised subject to r. 7 (2A) RHC. There are three prerequisites under r. 7 (2A) RHC which an applicant for renewal of a writ must prove. They are that it must:
a) be made before the expiry of the writ; b) be made ex parte by summons; c) be supported by an affidavit identifying two salient
points which are: I. that efforts have been made to serve the
defendant within one month of the date of the
issue of the writ; and II. such efforts have been made subsequent
thereto to effect service.
A writ issued in the first instance is valid for only six months.
16. wording of O. 6 r. 7 (2) and r. 7 (2A) RHC do not detract from the Court in exercising its inherent jurisdiction to grant an extension of
time if there is a good reason for non-service as the rules are to be
The majority judgment of the Court of Appeal held that the
interpreted to ensure justice. The majority ruled that the words “must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service” in r. 7 (2A) were surplusage. In so doing, it relied on the decision of Megaw J in Heaven v. Road and Rail Wagon Ltd [1965] 2 All ER 409. In that case, Megaw J dealt with the pre 1964 Rules of the Supreme Court (“RSC”) O. 8 r. 1 and the post 1964 RSC O. 6 r.8 (2) of England. The earlier RSC contained the words “if satisfied that reasonable effort has been made to serve such defendant, or for other good reasons”. In the new RSC, the underlined words were removed from the provision. Megaw J read back into the new RSC O. 6 r. 8 (2) the words “or for other good reasons”. He said:
“I think that the omission was probably because the words omitted added nothing and subtracted nothing. They were surplusage.”
17. The learned Court of Appeal Judges in the majority judgment said:
“To allude to the words of Megaw J, the words, “if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons before an application of extension is filed”, are a surplusage. By that same token and reasoning, the need to show efforts having been made to serve the
writ on the Defendant (the Appellant here) in O. 6 r. 7 (2A) when read together with O. 1A of the RHC, must be surplusage.”
18. They concluded that filing the two writs (the Shah Alam writ and the Kuala Lumpur writ) as “protective writs” is a good reason for extension of the writ even though there were no attempts of serving the writs.
19. I do not agree with such a conclusion. The writ could have been served and a stay sought pending disposal of the Singapore writ. But, that is only one of the reasons why I do not agree with the conclusion of the majority judgment at the Court of Appeal.
20. I would rather follow the conclusions of the English Court of Appeal in Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 at 391 as well as in Vinos v. Marks & Spencer plc [2001] 3 All ER 784.
21. In Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387, Lord Goddard held that the issue of a writ becomes a nullity by reason of non-service within the prescribed time. At page 389 F, he said:
“If the writ had ceased to be in force, the position is the same as if it had never been issued.”
22. I therefore agree with the views of Skinner J in Mayban Finance Bhd v. Umas Sdn Bhd [2002] 4 MLJ 276 (see page 287-288) in following Battersby & Ors v Anglo-American Oil Co Ltd & Ors [1945] 1 KB 23 at page 32, where he cited what Lord Goddard had to say on the matter of the renewal of a writ :
“We conclude by saying that, even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case, care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case, it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as indeed, is laid down in the order.”
Note that these views were based on the provisions existing then.
23. In the subsequent decision of the Court of Appeal in Vinos v. Marks & Spencer plc [2001] 3 All ER 784, May LJ, in discussing the new Civil Procedure Rules (“CPR”) r. 7.51 and r. 7.6(3)2 (a two member panel, the other being Peter Gibson LJ) said:
“The meaning of r. 7.6 (3) is plain. The Court has power to extend the time for serving the claim form after the period for its service has run out only if the
1 Rule 7.5 provides that subject to exception, a claim form must be served within 4 months after the date of issue.
2 Rule7.6: Extension of time for serving a claim form – r.7.6 (3) “If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if – (a) the Court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in neither case, the claimant has acted promptly in making the application”. stipulated conditions are fulfilled. That means that the Court does not have power to do so otherwise. The discretionary power in the rules to extend time periods – r. 3.1(2)(a)3 – does not apply because of the introductory words. The general words of r. 3.104 cannot extend to enable the Court to do what r. 7.6 (3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
... Interpretation to achieve the overriding objective does not enable the Court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr. Vinos’ case is a deserving case, the rules must be interpreted to accommodate his particular case. ... Rule 3.105 concerns correcting errors which parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, 3 Rule 3.1: The Court’s General Powers Of Management – r.3.1 (2) “Except where these Rules provide otherwise, the Court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”4 Ibid, para. 37 5 Ibid, para. 37
one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. ...
If you do, it is my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits.”
24. Peter GibsonLJ had this to say:
“The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR, unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use on r 1.1 (2)6 of the word “seek” acknowledges that the Court can only do what is possible. The language of rule to be interpreted may be so clear and jussive that the Court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context
6 Rule 1.1: The overriding objective - r. 1.1 (2) “Dealing with a case justly includes, so far as is practicable –(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate –(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays justice to the Defendant and to the interests of other litigants may require that a claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.”
25. Both judges in Vinos v. Marks & Spencer plc held that unless the condition set out in r. 7.6(3) had been complied with, the Court has no discretion to extend the validity of the claim. Rule 7.6 (3) of the English CPR uses the words “only if”, whilst our O.6 r.7 (2) and (2A) uses the word “must”.
26. Historically, the relevant provisions of our Rules of the High Court and the English Rules of the Supreme Court were identical. Let us examine them.
27. In order to understand the rationale behind the wording of O. 6 r. 7(2) and (2A), it will be useful to look at the same rule prior to the amendment introduced in 2000. It was O.8 r.1 of the then Rules of the Supreme Court 1957. This rule is the predecessor of the present O. 6 r. 7 and it expressly provides for certain prerequisites to be satisfied before a writ can be renewed. It is that the Court must be “satisfied that reasonable efforts had been made to serve such dependant, or for other good reasons”.
28. In 1980, the Rules of the Supreme Court was renamed as the Rules of the High Court 1980 and O. 8 r.1 was numbered as O. 6 r. 7(2). This rule did not state the prerequisites that must be satisfied before a writ could be renewed. This O. 6 r. 7(2) would appear to give a totally wide discretion to the Court in the renewal of a writ.
29. These two provisions were correspondingly identical to the English 1957 RSC and the 1964 RSC. It is in respect of these two provisions that Megaw J held in Heaven v. Road and Rail Wagon Ltd that the words “for good reasons” must be read back into the 1964 RSC although those words had been omitted. This is a sensible interpretation as the Court cannot be obliged to renew a writ automatically without any good reason. As was said by Lord Goddard, care should be taken to ensure that the renewal will not prejudice any right of defence that may be available to the defendant. Clearly, the withholding of proceedings while some other case is being tried or to await the result of a future development cannot constitute a good reason.
30. Our Rules Committee took into consideration the abuse of filing a writ by a Plaintiff and not doing anything about it. Hence, a new and improved O. 6 r. 7 was introduced. This is consistent with the new CPR in England.
31. In my opinion the object of the new O.6 r. 7 was to make it really tight as to when a writ can be renewed. The word “must” appearing in O.6 r.7 (2A) is not usually used in Malaysian legislations. Normally the word used is “shall”. So in this case, when the word “must” is used, the intention is to fully ensure that it is complied with and no discretion is to be given as far as the compliance with the prerequisites is concerned. “Must” is a very strong word; in my opinion it is stronger than the word “shall”.
32. In Ting Hwa Yiew v. Ace Commercial Enterprise Sdn Bhd [1996] 2 MLJ, Abdul Kadir Sulaiman J (as he then was) considered the word “must” in the context of O.32 r.13 (2) which states inter alia:
“(2) Save as otherwise provided in these rules –
An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application...”.
33. In his judgment he stated:
“O. 32 r.13 (2) (a) use an imperative word “must”. In its ordinary meaning it is a word of absolute obligation. Therefore for the failure of the Plaintiff to have the affidavit in support served upon the Defendant within the time limit allowed by the rule, I would agree with the submission of the learned counsel for the Defendant that it renders the said affidavit inadmissible. O.2 r.1 of the RHC would not be of any help to the Plaintiff as no reason was put forward by the Plaintiff for the delay in the service of the said affidavit.”
34. (See also Shell Chemicals UK Ltd & Another v. Vinamul Ltd (formerly Vinyl Products Ltd) The Times 7 March 1991, 135 SJ 412 (Transcript Association) and Mayhew v. The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon [1991] 2 EGLR 89. Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 was followed by Chan Min Tat FJ in Llyod Triestino Societa v. Chocolate Products (M) Sdn Bhd [1978] 2 MLJ 27.)
35. Even if the word “must” is to be construed as having the same effect as “shall”, nevertheless it still make compliance with the prerequisites mandatory.
36. The words “Subject to paragraph (2A)” in the impugned O. 6 r. 7(2) further strengthens the argument that before the Court could exercise its discretion to renew a writ, paragraph (2A) must be satisfied. It must be further noted that in paragraph (2A) the applicant must show inter alia, that efforts had been made to serve the defendant within one month of the date of the issue of the writ. This all the more supports the argument that the applicant must use all due diligence to effect service at the earliest possible time.
37. The argument by the claimant in Vinos v. Marks & Spencer plc was that the Court had power to grant an extension of time to serve the writ under CPR 3.10(a). CPR 3.10 (a) reads as follows:
Rule 3.10: General power of the court to rectify matters where there has been an error of procedure-
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”
38. error of procedure, such as failure to comply with the rules, the Court could make an order to remedy the error. It was contended that CPR 3.10 contained a general power to rectify matters where there had been an error of procedure. CPR 3.10 (a) seems to be similar to our O.1A RHC, which will be discussed later.
39. I strongly believe that O.6 r.7 (2A) RHC was introduced to prevent abuse by plaintiffs in filing writs and sleeping on them without making efforts to serve them. This practice of inactivity is something which Courts loathe. It is against the administration of justice. It creates a backlog and results in a false number of pending cases. In my opinion, Courts should take serious a view of such cases. If not, they will continue to remain in the list of outstanding cases. As such, O.6 r. 7 (2A) RHC must be strictly enforced as required by the rule.
40. When Plaintiffs apply to extend the validity of writs, Courts
should examine closely the affidavits filed in support of
applications for extensions. Before granting an extension, Courts
CPR 3.10(a) which provides that where there had been an
must be satisfied that serious efforts had been made to serve. A simple and plain statement that efforts had been made to serve cannot be a sufficient ground. The affidavits must provide detailed facts as to when, where and how attempts to serve were made. Otherwise O.6 r.7 (2A) RHC will become a dead letter. The object of the rule will be defeated.
41. By serving the writ at the earliest possible time, the defendant would be given the earliest possible notice and opportunity to prepare his defence. It would be to his disadvantage if there is delay. Such delay may result in evidence in his favour getting misplaced or destroyed. Witnesses become difficult to trace and memories will lapse.
42. Having said that, I am fully aware of Defendants who avoid service. There must be evidence to support this claim. If serious efforts are made, I am sure Defendants are traceable. In appropriate cases, substituted service may be ordered if they are not traceable.
43. Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of O. 6 r. 7 (2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the Respondents are defective as they do not show compliance with the RHC.
QUESTION NO. 2:
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
44. Now to O. 1A RHC. This Order relates to the administering of Rules of the High Court 1980. In order to invoke O. 1A RHC, parties must apply the object of the Rules first. O. 1A RHC reads as follows:
Order 1A: Court or Judge shall have regard to justice
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
That order came into force on 17th May 2002 vide P.U.(A)
45. 197/2002, well after the first renewal of both the Shah Alam and Kuala Lumpur writs.
46. The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the Court or Judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the Respondents had intentionally disregarded O.6 r. 7 (2A) RHC for their own reasons.
47. It is now necessary to determine the meaning of the phrase “... technical non-compliance ... “ in Order 1A RHC as it will assist in identifying the breaches contemplated by the rule. Useful guidance is provided by the meaning of the phrase “technical defect” considered in Gangadhar Dandawate v Premechand Kashyap7 where AH Khan J said at p 184,
“It is not always easy to define what the expression ‘technical defect’ means. A technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v Shrikrishna Gupta, AIR 1956 SC 140 (C), have observed:
“that the tendency of the Courts towards technicality is to be deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along
7 AIR 1958 MP 182
broad based, common sense lines. This principle was enunciated by Viscound Maugham in Punjab Co- operative Bank Ltd., Amritsar v Income-tax Officer, Lahore, AIR 1940 PC 230 (D).”
48. In the context of the Rules of the High Court 1980 the phrase “... technical non-compliance...” is thus a reference to non- compliance with a rule which is not fundamental or mandatory in nature.
49. The Malaysian Court Practice 2007 Desk Edition lists at page 9, a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC.
50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the Court to extend the time, if such extension is required and is permitted by the Rules. Therefore, the answer to question two is in the negative.
51. On the issue of conditional appearance, I am satisfied that the Appellant has not submitted himself to the jurisdiction of the court or waived his right to conditional appearance merely because he had filed the application to strike out the writ and had applied to have his case transferred to the High Court at Johor Bharu. This the Appellant did in accordance with the terms allowed by the Court when he sought and obtained the order to enter conditional appearance. I need not say more on this issue.
52. These appeals are thus allowed with costs. Deposit to be refunded to the appellant.
53. My learned brothers Arifin Zakaria, CJM and Augustine Paul, FCJ have seen this judgment in draft. I have incorporated their comments for which I am grateful. They have expressed their concurrences to the final draft.
Dated : 18 June 2009
ZAKI TUN AZMI
Chief Justice Malaysia
Friday, March 18, 2011
Tuesday, March 15, 2011
Even if your neighbour's network has a password, it's still not illegal to hack into it in order to obtain free internet. After all, you're only hacking into the router, not into your neighbour's actual computer, and hacking into a router is not illegal under art. 138a of the Dutch Penal Code. And therefore, concludes the Court of Appeals in The Hague, while such "borrowing" may be socially undesirable, it is not currently made punishable by any provision in the Penal Code. (Though it may be an unlawful act under art. 6:162 Civil Code.)
1. De verdachte heeft een dreigende posting op een voor ieder toegankelijke website geplaatst. De posting betrof het aankondigen van een schietpartij op het Maerlant College in Den Haag. De verdachte deed dit terwijl in het recente verleden zich dramatische schietpartijen op scholen elders in de wereld hadden voorgedaan waaraan door de media veel aandacht was besteed en zulks twee dagen nadat daadwerkelijk een zogeheten schoolshooting had plaatsgevonden in Duitsland. De posting van de verdachte werd door meerdere mensen gelezen en als bedreigend ervaren, zoals blijkt de aangifte van de rector van het Maerlant College en uit een van de reacties op de website. Straf: 120 uur werkstraf. 2. De verdachte wordt vrijgesproken van computervredebreuk. Het hof stelt vast dat de verdachte weliswaar zich toegang heeft verschaft tot de router van [X], maar daardoor enkel gebruik kon maken van de draadloze internetverbinding van die [X]. De verdachte heeft zich geen toegang verschaft tot beveiligde gegevens in de computer van die [X], zijnde die computer een geautomatiseerd werk als bedoeld in artikel 80sexies van het Wetboek van Strafrecht. De gedraging is daarmee van een heel andere orde dan die is strafbaar gesteld in artikel 138a van het Wetboek van Strafrecht. Gelet hierop is het hof van oordeel dat bij het gebruik maken van een (al dan niet beveiligde) internetverbinding van een ander, waar het aan de verdachte verweten handelen op neerkomt, die persoon niet in enig door artikel 138a, eerste lid, van het Wetboek van Strafrecht beschermd belang wordt geschaad. Dit gedrag moge maatschappelijk ongewenst zijn in zoverre dat derden gratis ‘meeliften’ op een gewoonlijk door de rechtmatige gebruiker betaalde internetverbinding die daarmee als regel aan bandbreedte verliest, strafrechtelijk relevant is het niet.
Tuesday, March 1, 2011
Twitter Postings - Columnist Nadeswaran sued by Datuk Salim Fateh Din for RM15Million
KUALA LUMPUR (March 1, 2011)
In the first of such cases, Developer Datuk Salim Fateh Din, CEO and chairman of Gapurna Sdn Bhd, has filed a RM15 million defamation suit against the Sun columnist R. Nadeswaran for alleged defamatory statements on Twitter. Nadeswaran, who writes the Citizen Nades column, is the Sun's UK correspondent.
In his statement of claim, Salim alleges that postings were made in relation to a land matter which allegedly casted aspersions on Salim's bumiputra status. An Injunctive order to stop Nadeswaran from repeating the statements was also prayed for.
Judge Lee Swee Seng fixed March 28 for case management.
In the first of such cases, Developer Datuk Salim Fateh Din, CEO and chairman of Gapurna Sdn Bhd, has filed a RM15 million defamation suit against the Sun columnist R. Nadeswaran for alleged defamatory statements on Twitter. Nadeswaran, who writes the Citizen Nades column, is the Sun's UK correspondent.
In his statement of claim, Salim alleges that postings were made in relation to a land matter which allegedly casted aspersions on Salim's bumiputra status. An Injunctive order to stop Nadeswaran from repeating the statements was also prayed for.
Judge Lee Swee Seng fixed March 28 for case management.
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