This document summarizes the different modes of originating process in the Malaysian High Court under the Rules of Court 2012, including writs of summons and originating summonses. It outlines when each process is appropriate based on whether substantial disputes of fact are likely to arise. It also discusses cases that demonstrate when certain claims must be commenced by writ, can be determined summarily by originating summons, or are inappropriate for a given mode of process. The document concludes by examining the effects of using the wrong originating process and circumstances where proceedings will continue instead of being set aside.

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As per O.5, r. 1 of Rules of Court 2012
(to be referred as ROC)
“Subject to O. 94, r. 2, proceedings
shall be commenced either by OS or by
writ.”
MODES OF ORIGINATING PROCESS
Introduction:
Previously, under Rules of the High Court 1980, there were four modes of originating process in the High Court, viz:
i) Originating Summons (OS);
ii) Writs of Summons (Writ);
iii) Originating Motion (OM); and
iv) Petition
WRIT OF SUMMONS ORIGINATING SUMMONS
Intro
Document instituting legal proceeding.
O.5, r. 2
“Proceedings in which a substantial dispute of fact is
likely to arise shall be begun by writ.”
If the plf’s claim involves substantial dispute as to fact it
must be commenced by way of writ
Legal document served on the Respondent by Applicant.
O.5, r. 3
“Proceedings by which an application is to be made to the
Court or a Judge thereof under any written law shall be
begun by originating summons.”
Any proceeding before the Ct under any written law must
be commenced by OS unless alternative mode is
specifically required by any written law.
Features
i. Requires pleadings
a. Statement of claim
b. Statement of Defence/Statement
of counter-claim
c. Reply to Defence/Defence to
counter-claim
d. Rejoinder
e. Surrejoinder
f. Rebutter
i. Cheaper, faster & less complicated
ii. No pleadings are required
iii. Both parties state their cases in affidavits
iv. OS is filed with an affidavit
v. No oral testimony is required/no witness is
called
v. Hearing held in chamber or open court.
Now only these 2 modes of originating process are applicable in High Court
or subordinates court unless other provisions say otherwise.

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g. Surrebutter
ii. Many Interlocutory Proceedings
iii. Time consuming & costly
iv. Witnesses called to give oral testimony.
Appropriate
proceedings
O. 5, r. 4 – substantial dispute of fact
Case: Seah Choon Chye v Saraswathy Devi1
Held: Since in this case there were disputed
questions of facts and allegations of fraud
and misconduct, the application should be
commenced by writ.
Case: Lim Cho Hock v Speaker, Perak
Legislative Assembly2
Fact: OS challenging the appointment of the
assemblyman for Balanja constituency as
Speaker of the Perak Legislative
Assembly. Resp applied to strike out the
OS.
Held: The Resp's application allowed.
O. 5, r. 4
i. sole/principal question at issue on
construction
a. of any written law;
b. of any instrument made under any
written law;
c. of any deed, will, contract or other
document; or
d. some other question of law.
Case: National Land Finance Corporative
Society Ltd v Sharidal Sdn Bhd3
Fact: by SPA, Appt & Resp had agreed to
purchase certain immovable property
subject to approval of FIC. But FIC
refused to the transaction. Resp contended
that SPA was void. Appt objected to resp
taking the proceedings by OS instead of
Writ.
Held: The issue involved in this case is purely a
matter of construction of the SPA between
the parties. No other evidence is needed to
determine the issue than the massive
1
[1971] 1 MLJ 112
2
[1979] 2 MLJ 85
3
[1983] 2 MLJ 220

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correspondence that passed between them
and their solicitors.
ii. NO substantial dispute of fact.
Case: Pesuruhjaya Ibu Kota Kuala Lumpur v
Public Trustee4
Fact: Appt claiming compensation for removal
of squatters from the Resp’s land by way
of OS. Resp said it was wrong process
because disputed question of law & fact
were involved.
Held: When a question of fact is at issue action
is to be by way of writ and not by OS. This
is because the facts have to be established
by exam and cross-exam of witnesses.
Inappropriate
proceedings
I. Question of existence of trust where evidence
would have to be led
Case: Abdul Majid v Haji Abdul Razak5
Held: The Ct will refuse to decide question of
facts on an OS. Where evidence need to be
led, then the OS was not a suitable process
for the determination.
II. Question of status of a person.
Case: Ng Wan Siew v Teoh Sin6
Fact: Appt said he was natural son of deceased.
4
[1971] 2 MLJ 30
5
[1971] 2 MLJ 228

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However, the mother (administratrix) said
that he was an adopted son.
Held: when it is known there is going to be
conflict of testimony and a necessity for
taking parol evidence the proceedings
should be commenced by writ.
Exclusive proceedings
O.5, r.2 - Must by writ unless otherwise provided by
written law:
1. Claim for relief/remedy for any tort, other than
trespass to land;
2. Claim based on an allegation of fraud;
3. Claim for damages for breach of duty in
contract/written law in respect of death, personal
injuries & damage to property;
4. Claim damages for breach of promise of marriage;
or
5. Claim for infringement of a patent.
Determine summarily the questions on:
1. property between husband & wife;
2. right to custody of children;
3. actions for administration of trusts;
4. action for the administration of estates of
deceased;
5. action for foreclosure of mortgages/charge; or
6. questions of title
6
[1963] MLJ 103
What is the effect of wrong process?
Nullity?
means whole action is
void
resulted in the setting aside
Irregularity?
means proceeding is not
void
proceeding was allowed to
resume

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O. 2, r. 1(1)
Where…any proceedings, there has,…been a failure to comply with
the requirements of these rules,…the failure shall be treated as an
irregularity and shall not nullify the proceeding"
O. 2, r. 1(3)
"The Court shall not wholly set aside any proceedings or the writ or
other originating process by which they were begun on the ground
that the proceedings were required by any of these rules to be begun
by an originating process other than the one employed."
O. 2, r. 1(3)
A court NOT ALLOW preliminary objection ONLY on ground of
NON-Compliance UNLESS the court of OPINION the non-
compliance occasioned a substantial MISCARRIAGE OF JUSTICE.
If an action commenced by OS though it should be commenced by
way of writ, the proceedings to be continued as if the cause or matter
had been begun by writ – as per O.28, r. 8(1). And in such
circumstances the court may order that the affidavits filed to stand as
pleadings or other directions – as per Ting Ling Kiew v Tan Eng
Iron Works Co Ltd.7
7
[1992] 2 MLJ 217
REFERENCES:
1. Hamid Sultan bin Abu Backer (21st
June 2012). Janab’s key
to civil procedure 5th
ed. Janab (M) Sdn Bhd: Kuala Lumpur.
2. Ravi Nekoo (2006). Civil Procedure 2nd
ed. CLP Series.
Lexis Nexis: Petaling Jaya, Selangor.