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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 5, 2013 at 22:53
by   Bullied
This is my order for oral submission. Need your input.
A.Read out my original WS:

The Appl failed to raise any strong justification for time ext, and was doubly careless.
1. 2nd Respondent had already rebutted Para 2,3,4&5 of the Appl afidavit whereby the delay to file Form 110 was clearly due to Appl careless n negligence. No elements of surprise nor accident here.
2. The Appl should know the correct amt for filing fees. Appl sol was careless by not checking.
3. Knowing the risk,the Appl decided to send Form 110 for filing by post. Why did they only send it 1 day before the deadline? This shows that the filing was already "out of time" even if the fees sent was correct. Again, they are careless and did not bother about the case.

The Second Respondent will be prejudiced due to inordinate delays.
4. The Consumer Tribunal Award was pronounced on 25 July, 2012. Today, more than 1 year later, the Applicant has still not filed Form 110 for Judicial Review.
The delay of almost 5 mths to file form 110 for JR from the date when Leave was first granted is incomprehensible. Why did the Appl take more than 4 mths to file Application for ext of time? Appls for ext of time should be filed asap, within 30 days of time lapse. This prolong delay has caused damages to the 2nd Respondent as she had to take time off from work resulting in loss of income. The 2nd Respondent had to spend considerable time to do legal research, study the court appls and affidavits, prepare and file affidavits and submissions and travel numerous times for case management due to this delay. Not only that, the 2nd Respondent had to suffer prolonged mental and emotional trauma due to representing herself in this cause. As such, the 2nd Respondent has a legitimate right and expectation to closure of the whole cause after 14 days had well passed pursuant to the law.

Applicant's Solicitor's Inference from 3 Case Laws Does Not Support their Application
1.
2.
3.

5. CONCLUSION
A) To recap, Order 53, Rule 4, Rules of Court 2012 provides that a person who had obtained leave to file for JR shall do so within 14 days vide Form 110. If this Honorable Court allows for ext of time, it will undermine the strict requirement on time limit prescribed by the clause which should be complied with.
B) Although leave was granted, it does not guarantee that ext of time must be granted especially as there is such a long delay. The 2nd Respondent had shown that the Applicant had not given any valid justification as to why their application for JR vide Form 110 had been delayed for almost 5 mths from the date Leave was first granted.
C) The Appl & Appl Sol also had not given any valid reasons as to why they take more than 4 mths to file Application for Ext of Time.
D) The Appl 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?
E) The Leave granted to the Appl on 7 feb 2013 is like a millstone over the 2nd Respondent's neck. The 2nd Respondent has a right to get relief from that millstone after 14 days had well past pursuant to the law, unless the Appl has acceptable justification as to why they could not comply with the time limit prescribed.
F) With this, the 2nd Respondent humbly asks that the Appl's applic for ext of time be rejected with cost of RM3500. In any event, the cost of this applc is to be borned by the Appl because they made the applc due to the delay and inconvenience and hardship caused to the 2nd Respondent.
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answered on Nov 6, 2013 at 02:31
by   notalawyer
Stop using the word "justifications" and use "reasons" instead as it is confusing people.
You cannot afford to confuse the judge in your oral submission.

For example, The Applicants did not give any reasons (not justifications) why they were inordinately late in applying for Extension of Time.

For the rest of it, your arguments are Ok.
Good Luck.
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answered on Nov 6, 2013 at 03:02
by   Bullied
So it is allowed  to counter the applicant sol case laws blatantky, ir shall I insert them here abd there in my sybmission?
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answered on Nov 6, 2013 at 11:44
by   notalawyer
You should not use any abbreviations as it may confuse people.

Also don't say Applicant and his Solicitor, just say Applicant.
Consider both of them as one entity.
If you separate them as 2 entities, then they can say that it's their lawyer's mistake not theirs.

Yes, you can counter their cited cases by showing differences as you did.
Just one or two sentence will do to kill each authority.  No need to rebut un-important authorities.
But in this case, the Applicant had not been taking prompt and active steps in 2 periods of time:- 19/2 - 17/3 and 18/3 - 2/7.

Why did they only send it 1 day before the deadline? This shows that the filing was already "out of time" even if the fees sent was correct. 
Therefore it cannot be said that it was due the wrong amount fees alone that the filing was not accepted.
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answered on Nov 6, 2013 at 12:24
by   Bullied
Thanks. So i should not mention the 2 time change sol at the last minute?
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answered on Nov 6, 2013 at 12:49
by   notalawyer
So i should not mention the 2 time change sol at the last minute?
That one should be mentioned when they were asking for postponement that day.
Since postponement already given, it is not so critical now.
However, you could submit that the change of lawyers twice at last minute has prejudiced the respondents.
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answered on Nov 6, 2013 at 15:09
by   Bullied
The judge allows the ext of 14 days as it was technicall non-compliance. But he awarded $1000 to me to be paid within 2 wks else it is off, due to they delay 2 mths from before filing for ext of time from 15 may 2013 when the Deputy Registrar return their extraction of filed form 110. The judge directs them to file notice for Form 110 again within 14 days.
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answered on Nov 6, 2013 at 15:29
by   notalawyer
Not so bad what.
Congrats.
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answered on Nov 6, 2013 at 16:29
by   Bullied
Thanks, I guess. Yeah, it was a sort of half victory.You were the first to know. I had hope that their applic would be rejected. Tech non-complian simply means order 53 rule 4 is just a guide, no need to comply also no harm. Only consolation is I think now the judge take notice abd know more about this case. After my passionate submission, he actually asked me what this consumer case was all about. He also ticked the appl sol off for suggesting it was only 2 mths delay of filing for ext and  for suggesting that I should get a lawyer to represent me.

So I want to say thank you for your help and support thus far. Without it, I couldn't have gone this far. We'll see what next!
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answered on Nov 6, 2013 at 18:26
by   notalawyer
Let's hope the applicant refuses to pay the RM1,000 on time. ( because they don't trust the lawyer )
If this happens, it is over.
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