General for Queensland [1979] AC 411, 425.
“The second defence is one of 'res judicata'. There has, of course, been no actual decision in
litigation between these parties as to the issue involved in the present case, but the appellants
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
invoke this defence in its wider sense, according to which a party may be shut out from
raising in a subsequent action an issue which he could, and should, have raised in earlier
proceedings. The classic statement of this doctrine is contained in the judgment of Wilgram V
C. in Henderson v Henderson (1843) 3 Hare 100 and its existence has been reaffirmed by this
Board in Hoystead v Commissioner of Taxation [1926] AC 155. A recent application of it is to
be found in the decision of the Board in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd
[1975] AC 581. It was, in the judgment of the Board, there described in these words:
‘... there is a wider sense in which the doctrine may be appealed to, so that it becomes an
abuse of process to raise in subsequent proceedings matters which could and therefore
should have been litigated in earlier proceedings.’ (p. 590)".
The attempt by way of the instant proceedings to relitigate and reopen the earlier action clearly
reflects the appositeness of the caption suggested for this matter in the prelude to this judgment
and would appear to us to be as clear an instance of an abuse of the process of the court as one
can find within the connotation thereof enunciated in the speech of Lord Diplock in Hunter v
Chief Constable of the West Midlands Police & Ors [1982] AC 529, 542.”
[43] So, even if res judicata is not applicable to bar Encl. 1, it still cannot stand if it is found to be an
abuse of the process. The question is it an abuse of the process?.
[44] This brings into focus again the approach on the determination of an abuse of the process
distilled from the speech by Lord Bingham in Johnson (supra), which we apply. The approach should
be:
“[a] broad, meritsbased judgment which takes account of the public and private interests
involved and also takes account of all the facts of the case, focusing attention on the crucial
question whether, in all the circumstances, a party is misusing or abusing the process of the
court by seeking to raise before it the issue which could have been raised before”
[45] The ‘merits’ in the phrase ‘broad meritsbased judgment’ were not the substantive merits or
otherwise of the actual claim, but those relevant to the question whether the claimant could or should
have brought his claim as part of the earlier proceeding [see Stuart v Goldberg Linde [2008] 1 WLR
823, at 840, per Lloyd LJ].
[46] We should also bear in mind that:
“one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard
and fast rule to determine whether, on given facts, abuse is to be found or not”.
[47] Applying the approach explained in Johnson (supra), we begin determining whether Encl. 1 in
the Originating Summons is an abuse of the process by examining the Notice of Motion filed in the
criminal proceeding. In the Notice of Motion, what the respondent wanted was to have the criminal
prosecution on the charge for an offence under section 4(1)(c) of Act 15, instituted against him be
struck out and/or set aside and/or quashed [prayer (1)]. He also wanted the Court to acquit and
discharge him of the said charge [prayer 2]. Those were the purposes. To achieve those purposes, he
prayed for an order that section 4 of Act 15 be held to be inconsistent with Article 10 of the Federal
Constitution and therefore void. The grounds supporting the respondent’s application in the Notice
of Motion are as follows:
MALAYSIAN JUDGMENTS
Page: 20 of 39
“(i) The charge against the appellant under the Sedition Act is contrary or not consistent with art
10 of the Federal Constitution read together with art 5 and art 9 of the Federal Constitution and
it is therefore void and invalid by virtue of art 4 and/or art 162 of the Federal Constitution.
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