What Happens When the Other Party Fails to File Submissions on the Court-Fixed Date
Courts fix submission and hearing dates expecting both parties to comply. But what happens when the deadline arrives, one party has filed its written submissions and attended as required, and the opposing party simply does nothing? If you are the party that has complied, you are generally not left without a remedy — the usual course is to apply for the matter to proceed , meaning the court hears and determines the dispute in the absence of the defaulting party.
The Core Answer: Applying to Proceed
When the court has fixed a submission or hearing date and one party fails to file its submissions or attend, the party that has filed and appeared may inform the court of the other side's default and request that the hearing proceed . In Malaysia's , this power is grounded in of the , which empowers the Court to hear and determine a matter notwithstanding the failure of any party to submit a written statement of case or reply within the prescribed time, or the absence of any party who has been served with notice or summons to appear
Juanita a/p Alphanso Nathan vs As White Sdn. Bhd. - 2022 MarsdenLR 1165
FONG CHOON HING vs FLYGLOBAL CHARTER SDN BHD & ANOR - 2026 MarsdenLR 725
.Importantly, this power is discretionary, not automatic. The Court will typically proceed only where it is satisfied that:
- The absent party was duly served with notice of the hearing or the requirement to file submissions.
- The absent party has failed to comply without .
- The party seeking to proceed is ready to present its case.
What the Court Requires Before Proceeding
is the cornerstone. Courts have repeatedly stressed that a tribunal cannot validly proceed unless the absent party was properly notified. Where service rules are breached, an decision may be set aside as a violation of , as seen in Indian industrial tribunal jurisprudence where defective notice service invalidated an award 2018 Supreme(Online)(SC) 3086. The practical lesson is clear: before asking the court to proceed, make sure you can demonstrate proof of service on the defaulting party.
The court will also examine whether the absence was justified. is assessed flexibly — every genuine circumstance preventing a party from attending or filing in time may qualify, but mere neglect or tactical delay generally will not 2006 0 Supreme(All) 3144.
Merits Still Matter: Absence Is Not Automatic Defeat
A common misconception is that the non-appearing party automatically loses. That is not the case. In 2005 2 ILR 356, the proceeded , but it did so guided by the principle in 2004 2 ILR 687: a rule empowering a tribunal to proceed does not allow it to dispense with inquiry or pass an award straightaway. The absence of a party does not entail the consequence that an award will automatically be made against that party
Juanita a/p Alphanso Nathan vs As White Sdn. Bhd. - 2022 MarsdenLR 1165
.In other words, the Court must still hear the evidence and submissions of the attending party and make findings on the merits of the dispute. The route removes the absent party's participation, not the court's duty to evaluate the substance of the claims
FONG CHOON HING vs FLYGLOBAL CHARTER SDN BHD & ANOR - 2026 MarsdenLR 725
. Similarly, in 2020 2 LNS 1374, the court considered whether both parties had been sufficiently informed of hearing dates and whether the absent party had a valid reason for non-attendance.Parallels in General Civil Procedure
The same logic runs through civil procedure more broadly. Under of the , when a suit comes up for hearing on a date fixed after a previous adjournment and a party fails to appear, the court has discretion to proceed with the case and decide it on the merits, as if the party were present 2010 0 Supreme(UK) 414 and 2010 0 Supreme(All) 2168. Where a substantial portion of a party's evidence has already been recorded, the Rule 2 expressly permits the court to continue and determine the suit despite that party's absence
SMT RITU M PISTRITTO vs SWATANTRA KUMAR
.Courts have also shown reluctance to let procedural defaults derail proceedings entirely. In one case, a High Court matter was fixed for hearing three times — , , and finally — yet submissions were still never filed
JOSEPH ONOD & ANOR vs PP
. Repeated defaults of this kind strengthen the case for proceeding without the defaulting party rather than granting further adjournments. Conversely, courts have cautioned against where both sides have already been heard; the preferred course is to decide the matter forthwith 2005 0 Supreme(Gau) 176.Limits and Safeguards
Several safeguards temper the power:
- Discretion, not obligation — the court may refuse to proceed if for the absence is shown.
- No tactical use — proceedings cannot be exploited by a party to delay proceedings through its own non-attendance.
- Exceptional remedy — proceeding is an exception to the principle of (hear the other side) and is generally invoked sparingly
FONG CHOON HING vs FLYGLOBAL CHARTER SDN BHD & ANOR - 2026 MarsdenLR 725
. - Recall remains possible — even after an award, mechanisms may exist for the absent party to seek recall or setting aside, particularly where procedural fairness was compromised 2018 Supreme(Online)(SC) 3086 and 2018 0 Supreme(SC) 1215.
Practical Recommendations If You Are the Complying Party
- Promptly inform the court of the other party's failure to file or appear and formally request to proceed .
- Have proof of service of all notices, summonses, and hearing dates ready to place before the court.
- Demonstrate that you are fully prepared to present your case, including witnesses, documents, and submissions.
- Be ready for a full merits hearing — the court will still evaluate your evidence on its substance before making any award.
- Document any repeated defaults by the other side, as a pattern of non-compliance supports your application.
Key Takeaways
If the court has fixed a submission date and the other party does not comply, you may ask the court to proceed under of the (or equivalent procedural rules in civil courts). The court must be satisfied that the absent party was properly served and lacks for default — and even then, it must still decide the dispute on its merits rather than simply awarding you a default win. Procedural specifics vary by forum, so the information above is general in nature, and parties should consider seeking advice tailored to their particular proceedings.
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