LETTER | There are two modes by which civil actions may be commenced in the courts - writ of summons and originating summons.

A civil action in which a substantial dispute of facts is likely to arise must be begun by writ.

On the other hand, if a civil action is an application made to the court or a judge under any written law, it must begin with originating summons.

The choice of the mode of commencement is generally guided by the following considerations:

• where the sole or principal question at issue is, or is likely to be, the construction of any written law, or any instrument made under any written law or any deed, will, contract or other document or some other question of law, the more appropriate mode is originating summons and not by writ.

• where there is unlikely to be any substantial dispute as to the facts, originating summons is also the more appropriate mode.

• where the precise formulation of the plaintiff’s claim is a matter of difficulty which ought to be resolved by precise and accurate pleadings (statements of the plaintiff’s claim and defendant’s defence), the action should begin with a writ and not originating summons.

The use of a wrong mode to commence a civil action is not necessarily fatal to the action.

The court may order that an action begun by originating summons shall continue as if the action had been begun by writ, if it appears to the court that the action should, for any reason, be continued as if begun by writ.

If such an order is made, the court may order that any affidavits, which are filed to support or resist the originating summons, stand as pleadings, with or without liberty to the parties to add to the pleadings.

This is what happened when High Court Judge Wan Ahmad Farid Wan Salleh ordered that former attorney-general Tommy Thomas’ civil action against the federal government by way of originating summons be “converted” into a writ and be heard as a defamation action.

A defamation action involves a substantial dispute of facts and must be begun by writ.

In his originating summons, Thomas claims that the eight-man task force set up by the government to investigate statements made in his book “My Story: Justice in the Wilderness” was illegal as members of the task force were not appointed under the authority of any written law.

He is also seeking a declaration that the publication of the report by the government violated his right to his reputation as protected by Articles 5(1) and 13(1) of the Federal Constitution.

The learned judge noted that the affidavits filed in support of Thomas’s originating summons reveal many disputed facts.

“A claim of such nature cannot be resolved through affidavit evidence,” the judge reportedly said.

As such, Thomas’ lawsuit should be heard and disposed of in a full trial.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.