“Knowing Your Starting Point” – Originating Procedures for Civil Proceedings

1. What are the modes to commence a legal action in Malaysia? 

The mode to commence legal action would depend on the nature, type and laws governing the subject matter of the action. Generally, under the Rules of Court 2012 (“ROC”), civil proceedings in Malaysia can be commenced either by way of a Writ of Summons or an Originating Summons, depending on the nature of the dispute.

However, there are certain laws which are exempt from the application of the ROC where these laws have separate provisions governing the modes of commencement of legal action, generally as follows:

Subject Matter	Governing Legislation	Mode of Commencement
Proceedings relating to the winding up of companies	Companies Act 2016	Winding-Up Petition
Proceedings relating to capital reduction	Companies Act 2016	Originating Petition
Bankruptcy proceedings	Insolvency Act 1967	Bankruptcy Notice and Creditor’s Petition
Matrimonial proceedings	Law Reform (Marriage and Divorce) Act 1976	Divorce Petition

2.  When is it appropriate to commence an action by way of a Writ of Summons or an Originating Summons?

A Writ of Summons is used for disputes involving substantial factual disputes and requires a full trial with witness testimonies. For example, actions founded on contentious disputes of facts which may include breach of contract, negligence claims, fraud and defamation.

An Originating Summons on the other hand, is used when the dispute involves only legal questions or is based on documentary evidence, requiring only affidavits for full determination instead of a full trial by way of witness testimonies. For example, actions founded on shareholder oppression, contractual interpretation and summary possession of land will generally be commenced by way of Originating Summons unless there are substantial disputes of facts between parties.

3. What are the procedural differences or similarities between commencing a legal action by way of a Writ of Summons and an Originating Summons?

	Writ of Summons	Originating Summons
Validity of Originating Process	Six months from the date it is issued.
Timeline for Service	So far as is practicable, first attempt at service must be made within one month from the issuance of the Writ of Summons or Originating Summons.
Mode of Service	Personal service or AR Registered Post to the defendant’s last known address.
Default of Appearance	Final judgment may be entered if the claim is for liquidated demand only.	The Court may proceed to hear the matter without the presence of the defendant.
Parties’ Positions	These are done by way of pleadings, namely the statement of claim, defence (and counterclaim) and the reply to defence (if necessary). Pleadings subsequent to a reply or a defence to a counterclaim shall not be served except with leave of the Court.	These are done by way of affidavits between the parties.
Necessity for Trial	Yes, unless the action is disposed summarily by the Court’s decision to award a summary judgment or to strike out an action.	No necessity for trial.

4. What if a defendant in an Originating Summons has a counterclaim?

If a defendant in an Originating Summons action has a counterclaim based on the subject matter of such proceedings, he may make such counterclaim within the same action instead of bringing a separate action. The defendant shall, at the first or any resumed hearing of the Originating Summons but in any case, at as early a stage in the proceedings as practicable, inform the Court of the nature of such counterclaim and the counterclaim shall be made in such manner as the Court directs. 

If, on an application by the plaintiff, it appears that the subject matter of the counterclaim ought to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately.

5. Can a deponent to affidavits filed in an Originating Summons be cross-examined?

Yes. While evidence shall be given on affidavits in an Originating Summons action, the Court may order the attendance of a deponent to such affidavits for the purpose of cross-examination upon the application of any party.

6. What if an action commenced by Originating Summons reveals disputes of fact requiring a full trial?

The Court may order, at any stage, for the proceedings to be continued as if it had begun by Writ of Summons where the matter will be determined through full trial and examination of witnesses.

7. What happens if the exchange of pleadings between parties for a Writ of Summons reveals no or insubstantial disputes of fact?

Parties to the Writ of Summons action may file applications as set out below for a summary disposal of the action:

 

(a) Summary Judgment – If the defence fails to raise any triable issues, the plaintiff may apply for summary judgment to be granted against the defendant without the need for a full trial.

(b) Striking Out Application – If any pleading filed discloses no reasonable cause of action or defence (as the case may be), is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of Court process, such pleading may be struck out by the Court and the Court may order for the action to be stayed or dismissed or for judgment to be entered accordingly.

8. When can amendments be performed by parties in proceedings commenced by way of a Writ of Summons or an Originating Summons?

Types of Amendments	Particulars
Amendment without leave of Court	A Writ of Summons or pleadings filed by parties may be amended ONCE without leave of Court before pleadings are deemed closed (i.e. at the expiration of 14 days from service of the last filed pleading). Any party dissatisfied with the amendments made, may apply to the Court to disallow such amendments.
Amendment with leave of Court	An application to amend a Writ of Summons or any pleading may be made at any stage of the proceedings.
Amendment of certain other documents	The Court may at any stage of the proceedings, either on its own motion or on an application of any party, order any document in the proceedings to be amended for the purpose of determining the real question in controversy in the proceedings or to correct any defect or error in any proceedings.
Amendment of pleadings by agreement	Any pleading may be amended by written agreement of all parties before commencement of the trial.

9. Can proceedings commenced by way of a Writ of Summons or an Originating Summons be withdrawn by a plaintiff?

	Writ of Summons	Originating Summons
With leave of Court	Yes.
Without leave of Court	Yes, if:   the Writ action is withdrawn no later than 14 days after the service of the defence; or   at any time before trial, the signed written consent of all parties to the action is produced before the Court.	No.

10. What are important considerations in choosing a suitable originating process?

            

• Understanding the nature of dispute – Where certain disputes are governed by legislation, there are procedural frameworks in place which may speak to the originating process to be adopted.

• Recognising the complexity of the claim – The complexity of a claim and disputes on documentary evidence will address the necessity of initiating a claim through an Originating Summons or a Writ of Summons.

• Urgency of reliefs – If there is urgency in obtaining certain reliefs and there are insubstantial disputes of facts contemplated, the Originating Summons procedures are generally quicker as they do not involve full trial. However, if there are likely to be substantial disputes of fact on a claim, a Writ of Summons procedure will have to be initiated with the accompaniment of relevant interlocutory applications to obtain orders to preserve rights and remedies pending the disposal of the action.

• Avoiding costs and delays – Unsuitable originating processes may give rise to procedural objections and risks of claims being struck out, where unnecessary costs and time will be incurred in addressing such matters, or to convert or reinitiate claims under the appropriate originating process.

 

Conclusion

Adopting a suitable mode of originating process ensures a smoother, faster, and more cost-effective resolution of legal proceedings where legal advice may be sought to make an informed decision.