INTRODUCTION
1. The implementation of the electronic filing system commenced in Kuala Lumpur courts on 1 March 2011 and has been extended gradually to courts in Penang, Shah Alam, Putrajaya and Johor Bahru 3 months thereafter.2. The Bar Council and the respective State Bar Committees have worked together and are continuing to work together with the Judiciary and the Service Provider to ensure that the electronic filing system is efficient and effective.3. We set out below some of the issues and problems that still remain outstanding in respect of the implementation of the system with the objective that this Memorandum will lead to further discussions between the parties as to how best to resolve the said issues and concerns.
A. Delays and congestion at the Service Bureau
4. At the Service Bureau, there still exists a significant waiting period for the filing of a document from the time of submission of the document to the time it is ready for payment.5. Under the manual filing system, the filing of a document was done in one single transaction, i.e. at the point of submission of the document, payment is enclosed and the court will then process the same almost immediately and issue a receipt for the same.6. Under the electronic filing system at the Service Bureau, the document must first be submitted and then it is checked and scanned into the system. Only after this has been completed will a payment voucher be issued to the filer to make payment. These steps take time and the filer is expected to wait until all these steps are completed before he or she can make payment and consider the document to be filed in Court.7. The said waiting time can sometimes be between 2 to 6 hours. In some cases in the past, it has taken more than 3 – 7 days.8. Recommendation: A system should be put in place that does not require the filer to endure this waiting period. The filer is prepared to submit the document together with payment for the same. But the filer is expected to wait at the Service Bureau until all the steps are completed on the court filing side before he is able to make payment.A system should be put in place that permits the filer to submit the document and make payment simultaneously (as was available under the old manual filing system) and thereafter be notified later by email of the confirmation of the status of the filing of the document. This will eliminate altogether the waiting time at the filing registry to have the document filed.9. There were previously complaints by members of the Bar that the queue numbering and allocation system was not functioning properly as certain people were taking more than one queue number when the counters opened thus causing a longer waiting period for those that took later numbers. But we have been informed by the Registrars that this is no longer the case because the first step in the filing process is now for the payment of the Service Bureau charges and this eliminates the taking of more than one queue number as you must be physically there to make payment of the charges before the document moves to the next step.10. Recommendation: There should also be separate counters for bulk filing and single filing. It has often been the case that lawyers with only one filing have to endure a long waiting period because of the bulk filing of other law firms which take up a long period of time.
B. Timing issues – disconnect between date of submission and date of filing
11. An issue related to Issue A above is the consequence of the delays in the filing of a document.12. Many documents filed in Court are time specific, i.e. the filing must be filed within a period of time (the filing of pleadings and affidavits, the filing of notices of appeal and records of appeal, etc) or must be filed on a particular date (the filing of affidavits for foreclosure matters, bankruptcy notices, affidavits verifying petitions, etc). More importantly, proceedings must be commenced within the specified period of limitation.13. The Courts regard the date of filing to be the date payment is processed rather than the date the document is submitted to the Service Bureau.14. Serious issues and problems arise when the document is submitted to the Service Bureau on a particular date or within the time period but is only processed and ready for payment on a date after the expiry of the time period. This is especially the case when the claim is deemed to have been filed after the expiry of the limitation period, even though the document was submitted to the Service Bureau within the limitation period. This is because the Court cannot extend or abridge time when it relates to the limitation period.15. Recommendation: For the purposes of filings at the Service Bureau where the processing of the document is out of the hands of the filer, the date of filing of a document must (upon payment of the relevant filing fee) relate back to the date of submission of the document to the Service Bureau. This would eliminate the timing issues which are out of the control of the filer and which have caused numerous problems. This would also eliminate the necessity for the filing of applications to extend time and applications to amend the date of the writ of summons due to the filing of documents out of time.16. Recommendation: Another safeguard that must be put in place is the power of the Court (in deserving circumstances) to rectify or alter the date of filing to an earlier date. A provision should be inserted in the Rules of Court to provide for this:If the Registrar is satisfied for any reason that a specified document should be treated as having been filed with the Registrar, or issued, at some earlier date and time, than the date and time of the payment referred to in paragraph (1) or (2) or (4), he may cause the electronic filing service to reflect such earlier date and time, and that earlier date and time shall be deemed for all purposes to be the date and time on and at which the document was filed.OrIf, upon application by any party, the Court is satisfied for any reason that a specified document should be treated as having been filed, or issued, at some earlier date and time, than the date and time of the payment referred to in paragraph (1) or (2) or (4), the Court may amend the date and time of the document to reflect such earlier date and time, and that earlier date and time shall be deemed for all purposes to be the date and time on and at which the document was filed.17. This would permit the Court to rectify any delay in the processing of the filing that had led to the document being filed out of time through no fault of the filer.18. Recommendation: Measures must also be put in place in the form of notices and signs at the Service Bureau to inform the public and members of the Bar of the fact that the effective date of filing is the date payment is processed. These signs must also notify the public and members of the Bar to alert the Registrar in charge of the urgency of any particular filing that is time specific, especially those relating to the limitation period.
C. Online Payment mechanism
19. There have been many issues and problems faced by law firms who have commenced electronic filing of documents online from their offices. A large number of these problems stem from the online payment mechanism.20. Many complaints have been received in relation to the delays and lag time between the uploading of the document and the payment of the filing fees online. Most of the time it relates to the varying reliability of the online payment mechanism using the MEPS system, regardless of whether it is done through a personal account or a corporate account.21. Recommendation: Measures should be put in place to introduce the payment of filing fees via a running pre–paid deposit account with the Courts or e–purse, similar to that conducted by MyEG Services Sdn Bhd and other private sector bodies. This would eliminate the problems now being faced by many law firms with the online payment mechanism available through MEPS.
D. Issue of large size document filing
22. There have been numerous complaints from law firms conducting online electronic filing that documents of a certain size (300 pages or more) or exceeding a particular resolution are incapable of being filed online from their offices. They have to resort to sending these documents to the Service Bureau for filing.23. This issue relates to the size of the document and the bandwidth presently available. This must be looked into.24. Recommendation: Interim measures should be put in place to permit the filing of such documents in separate volumes to work around the size issue. Presently this is not permissible as the filing system does not recognise the filing of documents in separate volumes without the payment of separate filing charges for each volume.
E. Transfer praecipe issues
25. Many issues have arisen as a result of inadvertent errors or mistakes being made during the online e–filing process. Documents are being rejected and payments made for filing fees are being forfeited. Members of the Bar are being requested to make payment again for subsequent filings.26. During the initial period of implementation of the new electronic filing system, it is only to be expected that errors and mistakes would be made as members of the Bar grapple to understand and familiarise themselves as to how to proceed with the filing of certain documents, etc.27. Recommendation: Measures should be put in place to ensure that payments already made for filings that have been rejected due to minor and inadvertent errors can be channeled to the subsequent filing of the same document without the earlier payment being forfeited.
F. Charges imposed for use of the Service Bureau
28. The charges imposed for use of the Service Bureau took effect from 1 January 2012.29. The charges are imposed based on a pricing model which maintains the same price for the filing of documents up to a certain number. For example, the charges for filing (without CD) is RM50 for originating process for up to 10 documents (i.e. 5 originating process – summons and statement of claim). The charges for filing (with CD) is RM10, similarly for 10 documents. The price is the same even if you only wish to file one document.30. There is no separate pricing model for the filing of one document.31. Although this pricing model suits law firms who do bulk filing, it does not take into account that most law firms would not be filing in bulk and would nevertheless be charged the same amount for much less work by the Service Bureau.32. Recommendation: Measures have to be looked into to come up with a pricing model for individual filings.
CONCLUSION
33. It is hoped that the aforesaid issues and problems could be examined and discussions could be initiated to arrive at workable solutions that are mutually acceptable to the Bar and Bench.
Bar Council Malaysia
Dated 10 Feb 2012
__________________
Please click here to download the memorandum (including cover letter to the Chief Justice).