Melbourne Law School - Theses
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ItemSummary disposition in the new procedural landscape: proposals for reform in Malaysia( 2002)This dissertation supports the new procedural philosophy that strives for legal disputes to be brought to an early end. The primary goal is for disputes to be resolved without adjudication. Alternatively, where adjudication becomes unavoidable, the goal is to ensure that disputes are resolved in an expeditious and cost effective manner. Case management and summary disposition are the means to achieve these overriding objectives of the civil justice system. Unlike alternative dispute resolution (“ADR”) processes that can only further the primary objective of this new procedural philosophy, case management and summary disposition support the attainment of both alternative goals. While the merits and demerits of modern case management practices have been keenly debated and made the subject of research, the same cannot be said of summary disposition. This is because modern case management practices are a relatively new phenomenon while the traditional summary disposition procedures have existed in rules of court for a long time. This dissertation examines the relationship between case management and summary disposition and the impact and implications of the former on the latter. It seeks to identify the principles and tensions underlying both case management and summary disposition and to ascertain how they manifest themselves in the civil litigation process. A major object of the dissertation is to develop law reform proposals in respect of case management and to make recommendations for changes to the traditional summary disposition procedures in Malaysia. The dissertation investigates the likelihood of the successful implementation of such reform proposals in the light of the extent to which lawyers and judges in Malaysia understand and appreciate the paradigm shift that has taken place in other jurisdictions. While this dissertation supports the articulation of the overriding objectives of rules of court in express terms, it opposes the usage of terms such as "fair disposal" or "ends of justice". These terms, when used, will allow judges to apply their own notion of justice when they exercise their discretionary powers. The dissertation also argues that the concept of "justice between the parties" or "interests of the parties" cannot be pursued without restriction. The concept of "perfect justice" in procedural law is a fallacy. Parties to a dispute do not have the untrammelled right to pursue litigation and ignore the impact of their actions on the system as a whole or on other litigants in the process. State interests and those of other third parties must be factored into the equation. The need to "ration justice" is a necessary evil.