This article was written for the benefit of Malaysian law students, litigation paralegals, fellow pupils and the likes of 1st year litigation associates.
You’re asked to draft a writ and statement of claim for the first time in respect of an action for a breach of contract. The first thing you write in your draft is the court in which the action is filed in.
Now, what happens if you file a claim in the wrong court? Just to name a few:-
- The court may not be able to grant the reliefs you sought for;
- Your client may incur unnecessary additional cost;
- Your action is liable to being transferred to a more appropriate court; and
- Your action is liable to a viable striking out application or a preliminary objection being raised.
So as you can see, not filing your claim into the appropriate court can truly back-fire if you don’t take some caution beforehand. As illustrated in the title, there are three types of jurisdiction – Monetary Jurisdiction, Subject-Matter Jurisdiction and Territorial Jurisdiction.
Territorial Jurisdiction dictates the location of the courts with requisite jurisdiction over your case, whereas Monetary Jurisdiction and Subject-Matter Jurisdiction dictates which court on the hierarchy of courts has the necessary authority to hear your case and grant the reliefs you seek.
Before going further, I must note that Malaysia has 5 primary courts (excluding the special courts, tribunals, etc) that consist of the Magistrates’ Court, Sessions Court, High Court, Court of Appeal and the Federal Court.
Ordinarily, the Magistrates’ Court, Sessions Court and High Court are known as courts of first instances which means that they are the courts that any proceedings are initiated in. The Court of Appeal and Federal Court are strictly appellate courts (note that the High Court also has appellate jurisdiction). Since there is only one Court of Appeal and one Federal Court in Malaysia, this article is confined to the courts of first instances.
Monetary Jurisdiction
To summarize the Monetary Jurisdiction of the courts which are provided under the Subordinate Courts Act 1948 and Courts Judicature Act 1964 respectively:-
No. | Monetary Jurisdiction Limit (RM) | Court |
1 | 100,000.00 | Magistrates Court |
2 | 1,000,000.00 | Sessions Court |
3 | Any sum above 1,000,000.00 | High Court |
Now, it is important to note that there is no minimum sums expressly fixed in the above mentioned Acts. So what is the issue with filing an action to claim the sum of RM50,000.00 in the High Court when the Magistrates Court has jurisdiction to grant such sum?
COST.
Your client will unnecessarily incur more litigation cost than they have to. For example, the cost to file a writ in the High Court is RM400 whereas it costs RM100 to file it in the Magistrates’ Court. As an advocate and solicitor, it is your duty to to uphold your client’s interest and this would include not unnecessarily incurring cost.
On the other hand, if you mistakenly file a claim for RM1,000,100 in the Sessions Court, the court can only grant you RM1,000,000 and your client will be forced to relinquish any excess sum including any interest which would accrue upon judgment being given.
Subject-Matter Jurisdiction
The Subject-Matter Jurisdiction of a court relates to what kind of claims the court can hear and what kind of reliefs it can grant. Section 69 of the Subordinate Courts Act 1948 expressly states what the Sessions Court does not have jurisdiction over –
So by implication, the above list is within the exclusive jurisdiction of the High Court. The High Court also has specific jurisdiction provided under Section 24 of the Court Judicature Act 1964 –
As you can see, the High Court has wide jurisdiction and authority over various matters.
The Sessions Court on the other hand, has jurisdiction to try the following:-
- Unlimited jurisdiction above all civil actions in respect of motor vehicle accidents, landlord and tenant disputes and distress; and
- All civil actions for specific performance, rescission of contracts or cancellation or rectification of instruments within its jurisdiction.
Apart from the above mentioned, the Sessions Court may also grant injunctions, make declarations, issue writs or warrants of distress regardless of any other remedy claimed.
Lastly, Section 93 of the Subordinate Courts Act 1948 provides that Section 65(3), 65(4), 66-70 and 72-74 of the Subordinate Courts Act 1948 apply mutually to the Magistrates’ Courts. The Magistrates’ Court does not have jurisdiction to order injunctions and make declarations, however it can hear and determine actions for the recovery of immovable property unless there is a bona fide issue in respect of the property title involved. The exception to such a case would be where the parties to the action consent to the court having such jurisdiction.
Hence, it is important to ensure that the court you are filing your action into has the requisite authority to determine such issues and has the authority to order the reliefs prayed for.
Territorial Jurisdiction
To determine the locality of the court you should file your claim in, one would need to look at the factors which would give a court territorial jurisdiction. Before getting into specifics, it is pertinent to note that according to the Article 121 Federal Constitution, there are only two High Courts in Malaysia – the High Court in Malaya and the High Court in Sabah and Sarawak.
The term “local jurisdiction” is defined under Section 3 of the Courts Judicature Act 1964 to mean (a) in respect of the High Court in Malaya, all territory in the Peninsular (West Malaysia), whereas (b) the High Court in Sabah and Sarawak covers all of the territory in East Malaysia.
Here’s the technical bit. The Johor Bahru High Court has coordinate jurisdiction with the Shah Alam High Court despite being very far apart. However, High Courts in the Peninsular do not have coordinate jurisdiction with the High Courts in Sabah and Sarawak. This is due to the different Acts and Ordinances which apply to the respective locations
Despite having coordinate jurisdiction, the principle of forum non conveniens determines ‘which of the branch of the High Court in Malaya would be the most suitable and appropriate forum to adjudicate a dispute that lies within the jurisdiction of the High Court’ as stated by Vazeer Alam Mydin Meera J (as His Lordship was then) in Amalan Lengkap Sdn Bhd v SKS Coachbuilders Sdn Bhd [2016] MLJU 513.
So how does one determine which court is the most appropriate and suitable forum? One can make reference to Section 23 (1) of the Courts Judicature Act 1964 which states that the High Court shall have jurisdiction to try all civil proceedings where:-
- the cause of action arose;
- the defendant or one of several defendants resides or has his place of business;
- the facts on which the proceedings are based exist or are alleged to have occurred; or
- any land the ownership of which is disputed is situated.
The principle of forum non conveniens is further embodied in Order 57 rule 1 and rule 4 of the Rules of Court 2012 which summarily provides that where a judge is satisfied that proceedings can be more fairly tried in some other court of coordinate jurisdiction, they may order a transfer of proceedings, having regard to the place where (a) the cause of action arose; (b) the defendant(s) reside or has his place of business; (c) the facts which the proceedings are based upon exist; (d) the land the ownership of which is disputed is situated; or (e) for other reasons, it is desirable in the interests of justice o have the proceedings transferred.
Therefore, so long as you can justify filing an action into a court where any one of the above provisions apply, you should not face any issues. Notwithstanding this, there are many instances where multiple courts arguably have justification over a case. In such a situation, disputes may arise as to which court should the matter be determined in.
For example, in Amalan Lengkap Sdn Bhd (supra), the Defendant filed an application to transfer its counter-claim from the Melaka High Court to the Shah Alam High Court, hence the Defendant bore the burden of proving why the Shah Alam High Court was the most appropriate forum. The learned judge here dismissed the transfer application, holding that there was no valid reason why the its counterclaim should be tried in the Shah Alam High Court.
In Yee Teck Fah t/a Yee Teck Fah & Co v Lim Soo Chooi [2011] 9 MLJ 305, the Defendant obtained an order to transfer a suit from the Shah Alam Sessions Court to the Butterworth Sessions Court. The order was reversed on appeal and High Court found that even though the Butterworth Sessions Court had territorial jurisdiction to hear and determine the claim, the Defendant had failed to satisfy the court that Shah Alam was the more appropriate forum.
Conclusion
Understanding basic jurisdiction of the courts is important in upholding your client’s interests. I was involved in a matter where we successfully procured an order to transfer proceedings from the Johor Bahru Magistrates Court to the Kuala Lumpur Sessions Court. This was important for our clients as they were based in Kuala Lumpur, hence they were incurring more travel cost even though all of the facts which the proceedings was based upon occurred in Kuala Lumpur.
Besides that, such understanding may be useful where your opposing party makes a mistake in respect of the court’s jurisdiction. The legal point that a court has no jurisdiction to hear a matter or grant the reliefs claim is one that goes to the root of the matter and can severely damage one’s case.
This article was written for the benefit of Malaysian law students, litigation paralegals, fellow pupils and the likes of 1st year litigation associates.
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