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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 26, 2013 at 18:51
by   notalawyer
Your Written Submission altough very good for a layman, still needs some fine tuning to make it easier to read, more precise and more compelling.
I will try improve on it tonight.
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answered on Sep 26, 2013 at 21:01
by   Bullied
Thanks
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answered on Sep 27, 2013 at 11:33
by   notalawyer
WRITTEN SUBMISSION OF SECOND RESPONDENT
(opposing the Applicant’s application for extension of time to file and serve Form 110)

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.
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 shown why those reasons should not be accepted by the Court.

APPLICANT FAILED TO RAISE ANY STRONG JUSTIFICATION FOR TIME EXTENSION AND WAS DOUBLY CARELESS

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 of Form 110 was
clearly due to the Applicant’s own negligence and carelessness.
It should be pointed out that the court could only accept reasons that had an element of surprise or or accident, and this is clearly not the case here.

3. The applicant should know the correct amount for the filing fees.
The applicant's solicitor was careless (cuai) in not checking the correct fees before sending for filing.
Even a layman cannot claim ignorance of law or court rules and ask for preferential treatment, what more a lawyer.
It is preposterous for the applicant to suggest that the Court should accept filing without the full fees being paid.
What if the applicant also say they did not know the deadline for filing, should court also accept such a reason?
All litigants are expected to know the law and court rules.

4. The applicant decided to take the risk of sending it by post instead of the usual despatchunner or filing via e-filing kehakiman system.
The applicant must have known that delays and losses 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 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.

RESPONDENTs WILL BE PREJUDICED DUE TO INORDINATE DELAYS

5. The delay of almost 5 months to file ForM 110 for Judicial Review after leave was granted on 7 Feb 2013 is incomprehensible.
If the Applicant is sincere about pursuing this case, the should have filed an Application for Time Extension as soon as possible, ie. within 30 days
after the original deadline has passed. 

6. After the deadline had well passed without the filing and receiving of Form 110,
the Respondents had a legitimate right and expectation that the applicant had decided to abandon their pursuit of a Judicial Review.

CONCLUSION

7. 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.

8. 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.

9. The applicant had been doubly careless and does not take and active interest to pursue the case in a timely manner.
If a litigant does not bother about their own case, who else will?

10. The Applicant did not give valid justification as to why their application for Judicial Review vide Form 110
had been delayed for almost 5 months from the date leave was granted.

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

12. With this, the Second Respondent humbly asks that the Applicant’s application for extension of time be rejected with cost of RM3,000.00.

…………………….
Second Respondent

Hujahan Bertulis in diFailkan oleh Respondan



Tel:
Fax:
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answered on Sep 27, 2013 at 14:57
by   Bullied
Thanks, Notalawyer. That was short and sweet. So you think I should remove all the parts about the consumer court is to adjudicate claims of $5000 and below or small quantum without involvement of lawyers,  tribunal Award being fair, therfore should be respected . I was not sure so I put them in my afidavit because the other side also said their application for JR also got merit, therefore the court should overlook their delay.
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answered on Sep 27, 2013 at 15:07
by   Bullied
I noticed the ending format is in BM. Shall i put it in english? Why do i need to put in tel no and fax? Is the heading same as the afidavit, ie. quote the laws that this case is based on , case no, name of applicant and respondents. That is the heading I copied from the applicant's affidavit
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answered on Sep 27, 2013 at 15:44
by   notalawyer
Correction:

9. The applicant had been doubly careless and does not take an active interest to pursue the case in a timely manner. If the moving party does not bother about their own case, who else will?
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answered on Sep 27, 2013 at 15:47
by   notalawyer
So you think I should remove all the parts about the consumer court is to adjudicate claims of $5000 and below or small quantum without involvement of lawyers, tribunal Award being fair, therefore should be respected.
When you say "should be respected", are you saying that the President of the Tribunal could not be wrong?
Everybody has a right to appeal. This is why I left that part out.
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answered on Sep 27, 2013 at 15:51
by   notalawyer
I noticed the ending format is in BM. Shall i put it in english?
Either also can.

Why do i need to put in tel no and fax?
In case the court people need to call you about something not right or change of dates.

Is the heading same as the afidavit, ie. quote the laws that this case is based on , case no, name of applicant and respondents. That is the heading I copied from the applicant's affidavit.
Yes. Copy same format as Applicant's heading.

Good Luck.
Don't forget to help others.
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answered on Sep 27, 2013 at 16:13
by   Bullied
Thank you so much for your help, notalawyer. And the well wishes. Yes, i will help if others in need. I notice not many consumer cases come up for JR. In fact, can't find review cases at all.
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answered on Oct 7, 2013 at 14:49
by   Bullied
Dear NotaLawyer,
I am doing the final WS now.
Do I need to address the fact that, upon Leave granted on 7 feb 2013, the Applicant actually filed for JR 2 times: first time on 19 feb, 2nd time even after expiry of 14 days from leave? They only filed this extension of time application after being warned by Timbalan Pendaftar during case management on 15 may 2013 that their filing us OUT if time.
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