2025 MarsdenLR 6968

COURT OF APPEAL (PUTRAJAYA)
ABDUL KADIR SULAIMAN, ABDUL AZIZ MOHAMAD JJCA AND JAMES FOONG J
CIVIL APPEAL NO T–04–118 OF 2002
5 April 2004



Civil Procedure — Judgment — Setting aside — Application for — Judgment in default of appearance — No notice given to defendants prior to entry of judgment in default — Whether non-compliance with Legal Profession (Practice and Etiquette) Rules 1978 made judgment irregular — Legal Profession (Practice and Etiquette) Rules 1978 r 56
Civil Procedure — Subordinate court — Default judgment — Absence of defendant and his counsel — Judgment in default of attendance on a ‘mention’ date — Whether judgment in default validly entered — Subordinate Courts Rules 1980 O 28 r 6
Civil Procedure — Subordinate court — Default judgment — Counsel requested another date to file their defence — Court did not specifically order defence to be entered — Whether there must be express order — Subordinate Courts Rules 1980 O 14 r 5(3)
On 1 November 1999, the sessions court gave judgment in default for the plaintiffs. The judgment was one in default of attendance and also in default of defence. By a notice of application the defendants sought to have the judgment in default set aside. The sessions court dismissed the defendants’ application. The High Court dismissed the defendants’ appeal. The first point raised by the defendant was that no notice was given to the defendants prior to the entry of the judgment in default, and that was said to be a breach of r 56 of the Legal Profession (Practice and Etiquette) Rules 1978 (‘the professional rules’). The second point of law raised by the defendants’ counsel was that the sessions court had jurisdiction to give judgment for a plaintiff under O 28 r 6(1) of the Subordinate Courts Rules 1980 (‘the SCR’) by reason of the defendant's absence if the defendant's absence was on a date for hearing, but not if it was on a date for ‘mention’, as the date 1 November 1999 was in this case. The third point of law raised by the defendants’ counsel was that judgment ought not to have ordered to be entered for the plaintiffs for the defendants’ failure to serve a defence because the court had not made an order under para (2) of O 14 r 5 of the SCR for the defendants to serve a defence.
Held, dismissing the appeal:
(1)(per Abdul Aziz Mohamad JCA) The failure of the plaintiffs’ solicitors to give the required notice did not have the effect of making the judgment in default an irregular judgment. The rules of court are the rules that govern litigants in the field of litigation. And it is litigants (plaintiff, defendant, and so on) who are mentioned in the rules of court. They do not govern a litigant's attorney. A litigant cannot be made to suffer the consequences of his attorney's failure to observe the professional rules because the rules do not govern the litigant (see para 5).
(2)(per Abdul Aziz Mohamad JCA) Although the definition of ‘hearing’ does not expressly include a ‘mention’, it is included by the words ‘any proceedings’, so that when O 28 r 6 of the SCR speaks of an action being ‘called on for hearing’ it means that the action is called on for the conduct of any proceedings related to the action, and in that context ‘proceedings’ can only mean any business that needs to be conducted (see para 15).
(3)(per Abdul Aziz Mohamad JCA) An order under O 14 r 5(3) of the SCR for entry of judgment can only be made if a defendant fails to comply with an order made under para (2) that the defendant serve a defence within a specified time. There would be no failure to comply if there has been no order, and if there has been no failure to comply, entry of judgment cannot be made under para (3). The court granted the request by the defendants to serve a defence but did not order it. There must have been an express order. The judgment was given on two grounds and even though not valid on one ground, nevertheless remained good and regular on the ground that was valid (see paras 17–19).
(4)(per James Foong J) The Legal Profession (Practice and Etiquette) Rules is, as declared in s 77(1) of the Legal Profession Act 1976, only for the purpose of regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors. It is an in house regulation of members of the Bar. And any breach thereof, an advocate and solicitor is liable to be disciplined under the said rules. The rules made thereunder had no force of law to override or govern the procedure of the courts (see para 56).
(5)(per James Foong J) When defence was not filed at the request of the defendant, the learned sessions court judge granted indulgence. The reason he ordered another mention date to be fixed must be implied to mean that defence ought to be filed by the defendant before 1 November 1999. There could be no other inference to be drawn except compliance of this order by the next mention date. The demand for the learned sessions court judge to specifically spell out a particular date to file defence was unnecessary in the circumstances of this case (see para 64).