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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 Nov 4, 2013 at 17:15
by   Bullied
1. This is the Applicant’s written submissions in support of its
Application for an extension of time to file and serve the Notice in
accordance with Form 110 to the Respondents. These submissions
are further supported by the Applicant’s Bundle of Authorities
(“ABOA”).
2. The relevant cause papers are as follows:-
a) Notice of Application dated 02.07.2013;
b) Applicant’s Affidavit In Support affirmed by Teoh Cxxx Exx dated
09.06.2013 (“AAIS”);
c) 2nd Respondent’s Affidavit in Reply affirmed by Ko Cxxx Fxxx
dated 09.09.2013 (“RAIR”).
THE FACTS
3. On 07.02.2013, the Applicant had obtained this Honourable Court’s
leave to apply for a judicial review (“said Leave”) against a
Consumer’s Tribunal Award dated 25.07.2012 (“said Tribunal
Award”).
4. The said Tribunal Award is for a purely monetary sum of
RM1,892.00.
5. After obtaining the said Leave, the Applicant then attempted to file
the requisite Notice in accordance with Form 110 Rules of Court
2012 (“110 Notice”) by way of post on 19.02.2013.
6. However, the attempted filing was returned on 17.03.2013 on the
basis that the filing fees were insufficient due to the revised fees
commencing from 01.03.2013.
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7. The 110 Notice was subsequently refiled on 18.03.2013 and was
sealed on 27.03.2013.
THE LAW
8. The Applicant’s do not dispute that pursuant to Order 53 Rule 4
Rules of Court 2012 [TAB 1, ABOA], upon the obtaining of the
said Leave, the 110 Notice is to be filed within fourteen days from
the date such leave was granted. Consequently, the sealed 110
Notice is to be served within fourteen days from the date of its
extraction.
9. In relation to the law pertaining to an application of extension of
time, Order 3 Rule 5 Rules of Court 2012 [TAB 1, ABOA]
expressly empowers this Honourable Court to grant any extension
of time as it sees fit. In any event, it is always the inherent
jurisdiction of this Honourable Court to grant an extension of time
as well.
10. In considering an extension of time, it is trite law that this
Honourable Court has unfettered discretion. The usual factors that
are often considered are as follows:-
a) Reasons for the delay;
b) Length of the delay;
c) Degree of prejudice to the respondent, if any; and/or
d) If necessary, the merit of the appeal. It is however humbly
submitted that the merits of an appeal would not be applicable
since the current proceedings are in fact pertaining to a judicial
review.
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answered on Nov 4, 2013 at 17:16
by   Bullied
(See the hallmark case of Scott & English (M) Sdn Bhd v.
Leikie Refrigeration & Stainless Steel Industries Sdn Bhd &
Ors [1994] 3 CLJ 114 [TAB 2, ABOA]).
11. It is also pertinent to note that in Scott & English (M) Sdn Bhd
v. Leikie Refrigeration & Stainless Steel Industries Sdn Bhd
& Ors [1994] 3 CLJ 114 [TAB 2, ABOA], His Lordship Chong
Siew Fai (as he then was, subsequently former Chief Judge of
Sabah & Sarawak), His Lordship had explained that the above
factors are merely a framework or guide and is not designed to
be rigid mandatory requirements. Furthermore, His Lordship had
also explained that it is not necessary for all the above factors to
be satisfied.
(See headnotes at paragraphs 1 and 2, page 114).
In Scott & English (M) Sdn Bhd v. Leikie Refrigeration &
Stainless Steel Industries Sdn Bhd & Ors [1994] 3 CLJ 114
[TAB 2, ABOA], an extension of time to file a Notice of
Appeal had been granted for a lapse of time of
approximately 18 months.
12. It has also been accepted that even the mistakes of the solicitor
should be considered in an application for extension of time. This
was so accepted in Beauford Baru Sdn Bhd v. Gopala Krishnan
VK Gopalan [2002] 3 CLJ 686 [TAB 3, ABOA] wherein His
Lordship Low Hop Bing (now CJA) had held that an application for
extension of time founded upon a solicitor’s mistake should not be
dismissed outright and should be considered (see headnotes at
paragraph 1, page 687).
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13. Additionally, in the case of Sinnathamby Klonda Koundan &
Anor v. Lee Chooi Ying & Another case [1987] CLJ (Rep)
336 [TAB 4, ABOA], the Supreme Court had dealt with a situation
whereby the applicant therein had already obtained leave to
appeal, but had subsequently filed the notice of appeal out of time.
It was held that where leave to appeal has been granted, the
extension of time to file the notice of appeal should be
granted as a matter of course.
(see headnotes at paragraph 7, page 337).
14. Drawing some analogy with the above case of Sinnathamby
Klonda Koundan & Anor v. Lee Chooi Ying & Another case
[1987] CLJ (Rep) 336 [TAB 4, ABOA], in the current
proceedings, the Applicant has already obtained leave to initiate a
judicial review and the delay is solely pertaining to the 110
Notice which for all intents and purposes acts as a notice of
the hearing date.
THE APPLICATION
15. Premised on all of the above principles, it is humbly submitted that
the Applicant has established an appropriate case for an extension
of time as follows:-
16. Reasons for the delay:-
a) The delay pertaining to the 110 Notice was sparked when the
attempted filing on 19.02.2013 was first rejected by the Shah
Alam High Court Registry on the basis on the increase in fees;
b) However, in all fairness, the increase in fees would only take
place on 01.03.2013. Should Exhibit “TCE-1”, AAIS be
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examined, the Registry had accepted receipt of the relevant
documents within the month of February, i.e, prior to the
increase in fees;
c) The Applicant’s previous solicitors, Messrs Ariyani & Marhaini,
had only been informed of the said rejection on 17.03.2013
whereby they had then immediately on 18.03.2013 refiled the
said 110 Notice together with the increased fees. Hence,
prompt and proactive steps had been taken to rectify
any delay;
d) Furthermore, since the said Leave had already been obtained,
and the delay is purely in relation to the 110 Notice, this
Honourable Court’s discretion should be exercised in favour of
the Applicant.
e) It is further humbly submitted that as the previous solicitors are
based in Kelantan, and the current proceedings are in Shah
Alam, it is reasonable and acceptable for filing to be conducted
by way of post.
17. Length of delay:-
a) As leave to initiate judicial review was granted on 07.02.2013,
the fourteen days time period to file the 110 Notice would
expire on 21.02.2013. The previous solicitors had taken prompt
steps in attempting to file the 110 Notice on 19.02.2013 (by
way of post).
b) The 110 Notice was finally entered into the e-filing system on
27.03.2013. Even if this date is taken as the conclusive filing
date, the delay would only approximately one month. As
referred to above in the case of Scott & English (M) Sdn Bhd
v. Leikie Refrigeration & Stainless Steel Industries Sdn
Bhd & Ors [1994] 3 CLJ 114, even a delay of eighteen
months has been deemed to be acceptable.
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c) The Applicant further wishes to humbly reiterate that as the
previous solicitors are based in Kelantan, filing by way of post is
indeed a reasonable and acceptable practice.
18. No prejudice to the Respondents:-
a) The Applicant humbly submits that no prejudice is occasioned to
the Respondents as the delay is purely in relation to the 110
Notice which is solely to inform the Respondents of the
hearing date. Any such delay can be easily rectified by further
directions from this Honourable Court for the fixing of
alternative hearing dates in order to enable the Respondents all
necessary time for the preparation of such hearing; and
b) Furthermore, the said Tribunal Award is purely monetary in
nature and in the nominal sum of RM1,892.00. No irreparable
prejudice nor damage can result to the Respondents.
19. In light of all the above, it is humbly submitted that an extension of
time should be granted in favour of the Applicant. The Applicant
humbly prays for order in terms.
Dated this 4th day of November, 2013.
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answered on Nov 5, 2013 at 01:37
by   notalawyer
What is your opinion on the arguments the lawyer presented?
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answered on Nov 5, 2013 at 03:49
by   Bullied
Well, he has resources to search for case laws from Cjlaw.com which I don't. I'm sure there must be also cases whereby Leave was granted but application for extension if time to file was rejected. But I can't find them. But I did file a supplementary submission this afternoon. The gist of my submission is  briefly:
1. Applicant change lawyer last minute prolonged delay
2. Applicant did not give sufficient justification to warrant extension based on reason for delay, lenthh of delay and prejudice to 2nd defendent. I will pose my supp submission here. No chance to serve on Applicant lawyer yet. Will have to serve it to him in court on wed morning.
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answered on Nov 5, 2013 at 04:02
by   Bullied
Here's my supplementary submission:-

SUPPLEMENTARY 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 19 Feb 2013, Applicant filed Notice of Change of Solicitor.
d) On 2 July 2013, Applicant filed Notice of Application for extension of time to file and serve Form 110 for Judicial Review, with costs.
e) Second Respondent filed Opposing Affidavit on 11 Sep, 2013.
f) On 29 Oct 2013, Applicant again filed Notice of Change of Solicitor.

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 REPEATEDLY FILED FOR CHANGE OF SOLICITORS AT THE LAST DAY OF DEADLINE CAUSED PROLONGED DELAY
2. Leave was granted on 7 Feb 2013. On 19 Feb 2013, the Applicant filed Notice for Change of Solicitor ONE DAY before their deadline to file Form 110 for Judicial Review. Fast forward to today. The Hearing date for the Applicant’s Application for Extension of Time to file Form 110 was set on 30 Oct 2013 and date for filing of Written Submission was set for 11 Oct 2013. The Second Respondent had filed the Written Submission on 9 Oct 2013 before the deadline. In fact, not only did the Applicant IGNORE THE DEADLINE to file their Written Submission, they AGAIN, filed Notice for Change of Solicitors at the eleventh hour on 29 Oct 2013, ONE DAY before the hearing and only serve it to the Second Respondent on the Hearing date in this Court. These Applicant’s actions caused repeated and prolonged delay to the proceeding of this case and is prejudicial to the rights of the Second Respondent.

THE APPLICATION
3. It is humbly submitted that the Applicant has not establish any case for extension of time as follows:-
a) Reason of Delay:-
Appointing a Kelantan-based solicitor is not a good justification to file the application by post as e-filing is now also available in Kelantan. E-filing is introduced by the Judiciary to speed up the courts processes. The fact is the Applicant’s previous solicitor, Messr Ariyani and Marhaini had chosen to file Form 110 by post ONE DAY before the deadline even though they know very well that delay is very possible. Furthermore, the solicitor had not taken prompt nor proactive steps to check that their filing of Form 110 was indeed successful until it was returned by the Court Registry ONE MONTH later. Had they done so, they would have been able to refile the Form 110 much earlier.
b) Length of Delay:-
The Applicant had subsequently filed Form 110 on 18 Mar 2013 but had not bother to check the extraction of documents for this filing, hence again causing delay to the application. In both cases, there were no elements of surprise or accident that this is justifiable for this Honorable Court to exercise discretion.
c) Prejudice to the Respondent:-
The inordinate delays caused by the Applicant’s filing Notice of Change of Solicitors two times at the eleventh hour and delay in filing Form 110 has caused physical and mental hardship to the Second Respondent. The Consumer Tribunal Award was dated 25 July 2012, and more than one year ago, today, there is still no closure. The Second Respondent has to take time off from work and expenses to do legal research, study and prepare affidavits and submissions, not to mention endure the mental and emotional trauma of representing herself in this cause. The Second Respondent has a legitimate right and expectation to closure of the whole cause 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.

CONCLUSION
4. 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.

5.   Although Leave has been granted, it does not guarantee that extension of time must
      be granted especially if there is such a long delay. The Applicant and / or Applicant’s  
      Solicitors 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
    first granted.  If the other party does not comply with the deadline set, then what is the
    point for the Court to set the deadline? 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 circumstances that resulted in failure to file
    the application within the time limit (i) were within the control of the Applicant and (ii)
    could reasonably have been anticipated by the Applicant, ie. file vide e-filing, and not
    to change solicitor at the eleventh hour.

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

6. The Applicant had willfully caused delay to the proceedings of the case by repeatedly filed Notice for Change of Solicitors, deliberately at the last day of deadline set and did not bother to file their Written Submission as per the deadline set during case management. This is prejudicial to the rights of the Second Respondent.

7. 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.

8. With this, the Second Respondent humbly asks that the Applicant’s application for extension of time be rejected with cost of RM3,500.00. In any event, the cost of this application is to be borned by the Applicant because they made the application due to the delay and inconvenience and hardship caused to the Second Respondent.
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answered on Nov 5, 2013 at 12:33
by   notalawyer
Instead of submitting a second Written Submission, maybe it would be better if you just use the points in your Oral Submission.  Having 2 written submissions with 60% of the arguments repeated makes reading boring and tedious.
You may surprised but about 50% of judges don't even read the Written Submissions but depend on the oral submissions. So why file so many written submissions?

Some additional points to put forward in your oral submission.

1. Why did the applicant choose a lawyer based in Kelantan to handle a KL matter?
2. Why did the Kelantan lawyer only send Form 110 for filing one working day before the deadline?
This shows that the filing was already "out of time" even if the fee amount sent was correct.
3. Why did the applicant take more than 4 months to file Application for Extension of Time?
Applications for Extension of Time should be filed as soon as possible, within 30 days of time lapse.
This is strongest point that you have, which they don't have an answer. Press on this 3rd point.

Your chance on winning this hearing rests on your public speaking skills.
If you can talk clearly, loudly and fluently without reading from the WS, you can win.
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answered on Nov 5, 2013 at 14:38
by   Bullied
Do you mean that instead of presenting from the 2 written submissions, I should just present these 3 points?

What about my point on filing for change of lawyers one day before deadline, ie 19 feb 2013 and 30 oct 2013?

What about their presentation about the factors for the court to allow extension, ie 1. reason for delay, 2. length of delay (they claim they refiled on 18 mar, so only 1 mth late whereas in one of the case laws quoted, extension was allowed for a delay of 18 mths. 3. Prejudice to me- trubunal award only cash, so no damages to me even with extension - my argument on this is time off work, mental & emotional trauma of representing myself, longer delay means no closure.

What about their justification that it is acceptable practice for Kelantan lawyer to file by post? My argument is the circumstances was within the Applicant's control- no element of accident nor surprise as they should not change lawyer last minute (filed for form 110 together with notice of change lawyer on 19 feb) and they should do e-filing (internet base so available anywhere).

Lastly, how do I structure my oral submission? I mean in what order? The judge usually will ask the Applicant lawyer to present first, right? When come my turn, what will be my order of presentation? In order of priority, which fact first? I should not read from my written subs, so could you help me to organize my points chronology, pls?

Also I m not sure whether to highlight on the 2 changes of lawyers point. Pls help. Thanks
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answered on Nov 5, 2013 at 15:26
by   Bullied
Anticipated answer fm Applicant sol:
Why choose kelantan lawyers- his client is from kelantan
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answered on Nov 5, 2013 at 15:34
by   Bullied
The Leave application and Leave granted was never serve on me as 2nd Respondent. Should they have served it on me?
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answered on Nov 5, 2013 at 19:12
by   Bullied
I have studied the lawyer's "4 bundle of authorities" - the 3 case laws & Rules of Court 2012. Can I counter or rebut the lawyer's inference from these case laws?

1. Scott & English v Leikie Refrig & Stainless
Refer Tab 1 page 115 :-
Ext of time was granted based on different circumstances. There was no lull of 18 mths as claimed by App Sol. The Plaintiff had been taking prompt and active steps with the Court Deputy Registrar all the way up till their filing for ext of time on 23 july 1993 following the judge's decision on 22 july 1993.

But in this case, the Applicant & Sol had not been taking prompt and active steps in 2 periods of time:- 19/2 - 17/3 and 18/3 - 2/7.

2. Beauford Baru v Gopala Refer tab 3 page 687
Ext of time was granted because the mistake was a mere technicality of interpreting & subsequently counting the no of days from the pronounce decision date instead of the decision perfected date.

But in this case the Applicant's mistake is not a mere technicality- they are doubly careless and negligent.

3. Sinnathamby Klonda Refer Tab 4 page 344
Delay was only 4 days and due to difficulty in interpreting the law R56(a).

But in this case delay was clear and no ambiguity. And App file for ext of time after more than 4 mths' lapse
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