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Judicial Review of Consumer

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asked on Sep 19, 2013 at 18:54
by   Bullied
Hi Notalawyer,
I am impressed with how you help Bert. I need your help. I obtained an Award from Consumer Tribunal against a Maid Agency for a small sum, less than RM2000. But the Maid Agency bring this to the High Court and put me as 2nd Respondent. They also filed for cost if they win this Judicial Review. They have obtained Leave to file but were late to file. So now, they have filed an application for extension of time to file the Form 110 for Judicial Review and  serve to the respondents, Tribunal and Me. The application is due for hearing at High Court end of next month but I have to file written submission latest by 11 Oct 2013. Pls help
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answered on Sep 24, 2013 at 14:59
by   notalawyer
You seem to be doing quite well.
Maybe you don't need my help after all.
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answered on Sep 24, 2013 at 19:01
by   Bullied
So do you think I could get their application strike off if I translate the afidavit to English and submit it as my written submission? The TP has directed to file the submission in English. Shall i ask for cost to be borne by them? Do I wait and call their lawyer just before the 11 oct deadline to find out if they intend to answer my afidavit with an afidavit? In that case my written submission filing will be delayed, right?
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answered on Sep 24, 2013 at 21:46
by   notalawyer
What is your opinion on the "reasons they gave" in requesting for time extension?
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answered on Sep 25, 2013 at 03:31
by   notalawyer
Do you think those are good reasons?
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answered on Sep 25, 2013 at 16:28
by   Bullied
I think their reasons given showed the lawyer is "seemingly" not familiar with e-filling and court fees revision. Would the judge decide this shortcomings as bearable? I have no idea as I have no experience with the court nor this judge- YA Vernon Ong. What do you think?
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answered on Sep 25, 2013 at 16:50
by   notalawyer
The reasons they gave is un-acceptable.

1. Firstly they should know the correct amount for the filing fees as it is listed in the Court Rules 2012. ( Kaedah-kaedah Mahkamah 2012 ).
Even a layman cannot claim ignorance of law or court rules and ask for preferential treatment, what more a lawyer.  The lawyer was careless (cuai) in not checking the fees before sending for filing. This is their own doing and nobody's fault except their own.
Surely the Court cannot accept filing without the full fees being paid.
So if the lawyer says they did not know the deadline date for filing, the court should also accept this reason? All litigants are expected to know the law and court rules.

2. Secondly they took the risk of sending it by post instead of the usual despatch or runner.
The lawyer must have known that delays are possible when sending documents by post.
Knowing this fact, they should have checked with the court or checked with the e-filing system to confirm that the filing was successful a few days before the deadline, but yet again they did not do so. If they had done this, they would have been able to quickly re-file before the deadline.
Again they were careless (cuai) and did not bother about the case.

Based on the 2 points above, the applicant's lawyer is doubly careless and therefore the application for time extension must be rejected as allowing it would prejudice the rights of the respondents.

Now, use the points and summary above to complete your written submission and post it here.
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answered on Sep 25, 2013 at 18:53
by   Bullied
Thanks, Notalawyer, for your input. I shall draft it and post here. Thanks again.
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answered on Sep 26, 2013 at 15:58
by   Bullied
Here is my WS. Need your help to tweak it to be more effective. Thank you so much for being here and being supportive.

WRITTEN SUBMISSION OF SECOND RESPONDENT
(opposing the Applicant’s application for extension of time to file and serve Form 110 with costs)
With your permission, Your Honour,

DOCUMENTS REFERRED
a) Notice of Application
b) Applicant’s Supporting Affidavit
c) Second Respondent’s Opposing Affidavit

CHRONOLOGY AND FACTS OF THE CASE
a) Second Respondent obtained Award from Consumer Tribunal on 25 July 2012.
b) Applicant obtained Leave from the Court on 7 Feb 2013 to file a Judicial Review of the Award.
c) On 2 July 2013, Applicant filed Notice of Application for extension of time to file and serve Form 110 for Judicial Review, with costs.
d) Second Respondent filed Opposing Affidavit on 11 Sep, 2013.

SUBMISSION
1. With reference to the Second Respondent’s Opposing Affidavit, the Second Respondent had successfully addressed all the justifications put forward by the Applicant and has clearly argued why those reasons should not be accepted by the court.

APPLICANT FAILED TO RAISE ANY STRONG JUSTIFICATION FOR THEIR SHORTCOMINGS

2. With reference to paragraph 2 and 3 of the Second Respondent’s Opposing Affidavit, the Second Respondent had already rebutted paragraph 2, 3, 4 and 5 of the Applicant’s Supporting Affidavit whereby the delay in filing and subsequent serving of the Form 110 was clearly due to the Applicant and / or Applicant’s Solicitors’ shortcomings. It should be pointed out that the court could only accept reasons that had the element of surprise and accident, and this is clearly not the case here. The filing of Form 110 by A.R. Registered and subsequent return by the High Court Registry marked “TCE-1” by the Applicant was clearly a case of negligence on the part of the Applicant and / or Applicant’s Solicitors.  It is also frivolous and hard to believe that the Learned Applicant’s Solicitors were not aware of the revision of the filing cost effective 1st Mar 2013, especially so since this revision was deemed to have come into operation on 1st Aug 2012 (Order 91 Appendix B1 Rules of Court (Amended) 2012.

3. The Applicant and Applicant’s solicitor’s should not justify their application for extension of time to file Form 110 by blaming this Honorable Court for rejecting and returning their application as there are rules and procedures to be followed concerning court fees. Surely the Court cannot accept filing without the full fees being paid. It is also frivolous to blame the 2 months delay in extracting filed documents marked “TCE-2” on this Honorable Court to justify the delay in serving their filed Form 110 on all respondents. The Applicant's Solicitor must have known that delays are possible when when sending documents by post, yet they took the risk instead of the usual despatch or runner. Knowing this fact,  it is the prerogative of the Applicant’s Solicitors to follow up with this Honorable Court on the status of their filings before the deadline, yet again they did not do so. If theey had done this, they would have been able to quickly refile before the deadline. The Applicant’s Solicitors could have filed Form 110 through “e-filing kehakiman”, a procedure which was implemented across this court for all new cases after 23rd May 2011, and which provide ample time to file from the date leave was granted on 7th Feb 2013. In this event, the justification of delay does not arise at all.

THE RESPONDENT WILL BE INCONVENIENCED AND PREJUDICED IF THIS APPLICATION IS ALLOWED

4. The repeated delay of almost 5 months to file for Judicial Review under Form 110 upon leave granted on 7 Feb 2013 had inconvenienced the Second Respondent. The Second Respondent had to take time off from work resulting in loss of income to spend considerable time to do legal research, study the court applications and affidavits, file affidavit and travel numerous times for case management due to the delay caused by the Applicant and / or Applicant’s Solicitors.  If the Applicant’s application is allowed, it will undermine the time limit prescribed by Order 53 Rule 4 (1) of the Rules of Court 2012. The clause clearly stipulates that “Where leave has been granted under this rule, the applicant shall within fourteen days after the grant of such leave, file a notice in Form 110.” As a result of the failure of the Applicant and / or Applicant’s Solicitors to comply with this 14 days requirement, thereby causing further delay to the proceedings, the rights of the Second Respondent have been prejudiced.

THE SECOND RESPONDENT IS DOUBTUL OF THE SINCERITY OF THE APPLICANT

5. With reference to paragraph 4 of the Second Respondent’s Opposing Affidavit, the Second Respondent is doubtful of the sincerity and intention of the Applicant and / or Applicant’s Solicitor to continue with the hearing of the Judicial Review. This is because the Applicant and / or Applicant’s Solicitor had repeatedly delayed in filing and serving the application under Form 110.

6. The Second Respondent has reason to believe that the Applicant had tried to delay in complying with the Consumer Tribunal Award which was handed down on 25th July 2012. The Second Respondent also believes that the Applicant can afford to pay according to the award because the Applicant can afford to appoint a solicitor whereas the Award is only RM 1,892.00.

THE CONSUMER TRIBUNAL AWARD IS FAIR AND THEREFORE SHOULD NOT BE QUASHED

7. The Second Respondent believes that the Consumer Tribunal Award is fair and based on facts presented by both sides during the Tribunal Hearing. As such, it should be upheld based on Consumer Protection Act 1999 as the Malaysia Consumer Claims Tribunal had been given the authority under the law to make judgment in matters that concern small consumer claims to ensure that ordinary consumers are not bullied and that their rights are protected. Moreover, the Consumer Claims Tribunal had been set up for the specific reason to adjudicate on consumer disputes without involving the courts and engaging lawyers which would incur substantial legal expense. The Applicant should therefore respect and accept the Award made by the Honorable President of the Malaysia Consumer Claims Tribunal.

CONCLUSION

8. Order 53 Rule 4 of the Rules of Court 2012 provides that a person who had obtained leave to file for Judicial Review shall do so within 14 days vide Form 110. If the Honorable Court allows for extension of time, it will undermine the strict requirement on time limit prescribed by the clause which should be complied with.

9. The Second Respondent had shown that the Applicant had not given any valid reason or justification for extension of time that can be accepted by this Honorable Court. The Applicant and / or Applicant’s Solicitors also did not give valid justification as to why their application for Judicial Review vide Form 110 had been delayed for close to 5 months from the date leave was first granted.

10. The Leave granted to the Applicant on 7 Feb 2013 was like a millstone over the Second Respondent’s neck. The Second Respondent has a right to get relief from that millstone after 14 days pursuant to the law, unless the Applicant has acceptable justification as to why they could not comply with the time limit prescribed.

11. With this, the Second Respondent humbly asks that the Applicant’s application for extension of time be struck off with cost of RM3,000.00. In any event, the cost of this application is to be borne by the Applicant because they made the application due to the delay and inconvenience and hardship caused to the Second Respondent.

…………………….
Second Respondent
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answered on Sep 26, 2013 at 16:53
by   notalawyer
You seem quite well versed with the law.
Were you a lawyer in your previous life?
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answered on Sep 26, 2013 at 17:32
by   Bullied
Nope. Just spent lots of time doing legal research due to this nagging issue. You on the other is very experienced. So hope you can share your experience in this WS. Hopefully we  can arrest this JR. Do you go to court a lot?
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