PROFESSIONAL

PRACTICE

glup 4113

group a

modes of

commencement

Prepared for:

mr. mohd zakhiri bin md. Nor

prepared by: group 7

athina klawya sim 200336

aziemah bte azman 200352

mohamad hafizuddin 200380

siti aisyah binti abdul wahab 200396

nor nazihah bte hamzah 200437

INTRODUCTION

2 modes commencing an action in

the High Court under O.5 r.1 RHC:

writ of summons, originating

summons.

Before this, 4 modes to include

originating motion and lastly

petition but the order had been

deleted.

When to proceeds?

• When there is a substantial dispute of fact that arise and this had been stipulated under Order 5, rule 2 of the Rules of Court 2012.

• The writ of summons shall be commenced by the plaintiff for any relief or remedy in tort except trespass to land.

• to the case where an allegation of fraud has established.

When to proceeds?

• case where there is breach of contractual or statutory duty where the damages claimed consist of or include damages for personal injuries or to property or in respect of the death any person.

• to the damages for breach of promise to marry

• The infringement of a patent.

Who shall the writ be commence?

• Natural person

• Firms

• Corporations and societies

• Government bodies

• Joint parties

1) NATURAL PERSON

Two Types of Services

Postal Service

Personal

Service

Once the writ has been issued, it is the

plaintiff‘s task to effect service. This is

because service is not effected by the

court.

Postal Service

• Postal service is effected by sending a sealed copy of the writ by ordinary first-class post to the defendant at his usual or last known address.

Personal Service

is used where for one reason or another postal service is not

appropriate.

For instance, in urgent cases where the plaintiff intends to apply on

notice for an injunction and does not wish to wait for seven days

before service is deemed to be effective.

Personal service can be effected on natural

person, firms, companies, bodies corporate, and minors

Personal Service• According to Oxford Dictionary of Law, natural person is human

being or individuals.

• Natural person also means an actual person, as opposed to one created by a legal fiction (such as a corporation).

• When personal service is effected upon individuals, this implies that the server satisfies himself that the person to be served is the defendant and gives him a sealed copy of the writ.

• If the defendant refuses to accept the copy of the writ, it is sufficient to tell him the nature of the document and leave it as nearly in his possession or control as possible.

However…

• Health v White,

• it was held that it is not sufficient to give the writ to the defendant’s wife or servant or to hand it to him in a sealed envelope without telling him what the envelope contains.

1) FIRMSOther than to be effected upon

individuals, personal service also can be effected

on firms.

• firms or law firms can be defined as an association of two or more lawyers practicing law together, including;

• (i) an association whose activities constitute the practice of law consisting of two or more lawyers who share profits, expenses and liabilities, including a partnership, corporation and limited liability partnership or company,

• (ii) a sole proprietorship or professional corporation whose activities constitute the practice of law that employs more than one lawyer,

• (iii) a division, department, office, or group within a business or governmental entity whose activities constitute the practice of law that consists of more than one lawyer, and

• (iv) a publicly funded entity whose activities constitute the practice of law that consists of more than one lawyer.

However…

• Where a partnership is sued as a firm, service is effected either by personal service on one partner or by leaving the writ at the principal place of business of the partnership within the jurisdiction on any person having at the time of service the control or management of the partnership business there.

• Besides, a writ also may be served by post on a partnership by sending it to the firm at the principal place of business of the partnership within the jurisdiction

There is a need for a new law!!!!

Ministry of Human Resources hadsuccessfully launched the

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (The Code)

The Code is not law. The adopting of the Code is only voluntary for employers !!

March 2001:

only 1.12% of companies in Malaysia had adopted it..

How about Malaysian Penal

Code??

• Did not provide any exact definition of “sexual harassment !!!!!”

the victim who seeks recourse under this Code has to establish prima facie evidence that harasser has done something which illegal.

for example

under Section 351 of assault or Section 350 of criminal force

How to Recognize Sexual Harrasmentin the workplace???

CONCLUSION!

• We have to do something!!!

strengthen the punishment of sexual harassment !!

make new law to deal with this offence !!

Don’t Touch ME!!!

• Every seconds, women entered

many fields of job!!

• Sexual harasser can be anybody

in the workplace. It may be your

boss, your co-workers or even

your good friend in your office!!

• Most of the harassers are in fact

known by the victims!!

Wow..….

stand up !! be strong

and without fear fight

for prevention of

sexual harassment in

workplace!!!

Say no for

sexual

harassment in

workplace!!!!!