Lim [1973] 2 MLJ 74, the wider rule of res judicata as expanded in Henderson which sometimes is
referred to constructive res judicata, was succintly explained by Sharma J at page 76 in the following
manner:
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
“The rule is that a matter which might and ought to have been made a ground of attack or
defence becomes a matter which was constructively in issue. A matter which might and ought to
have been made a ground of attack or defence in the former application but which was not
alleged as such a ground of attack or defence is for the purposes of the plea of res judicata
deemed to have been a matter directly and substantially in issue in the former application, that is
to say, though it may not have been actually directly and substantially in issue it is still regarded
as, having been constructively, directly and substantially in issue. There can be no distinction
between a claim that was actually made and a claim which might and ought to have been made.
The plea of res judicata applies, except in special cases, not only to points on which the court
was actually required by the parties to form an opinion and to pronounce its judgment thereupon
but to every point which properly belonged to the subject of litigation and which the parties
exercising reasonable diligence might have brought forward at the time. It is only where the plea
which is sought to be raised in the subsequent proceedings was not available to the party at the
time of the previous proceedings that the decision cannot be constructively res judicata. The
rule of constructive res judicata is really a rule of estoppel.”
[30] The application of the doctrine of the abuse of the process and its apparent relationship with res
judicata can be seen in Hunter v Chief Constable of West Midlands and Another (supra). The
appellant was one of the six persons accused of bombing of two public houses in Birmingham. In the
criminal trial, the appellant and the other accused alleged that they had been beaten up by the police
to make them confess and that therefore their confessions which were heavily relied upon by the
Crown was inadmissible. The trial judge and the jury found the confessions to be voluntary, and the
appellant and the other accused were convicted. Later, the appellant brought civil action against the
police for damages for assaults causing physical injuries on him which had been inflicted while he was
in police custody. The House of Lords held that it was an abuse of the process of the court to attempt
to relitigate the same issue, and the civil action was struck out. Lord Diplock stated at pages 729,
733734:
“... this is a case about abuse of the process of the High Court. It concerns the inherent power
which any court of justice must possess to prevent misuse of its procedure in a way which,
although not inconsistent with the literal application of its procedural rules, would nevertheless
be manifestly unfair to a party to litigation before it, or would otherwise bring the
administration of justice into disrepute among rightthinking people. The circumstances in which
abuse of process can arise are very varied; those which give rise to the instant appeal must
surely be unique. It would, in my view, be most unwise if this House were to use this occasion to
say anything that might be taken as limiting to fixed categories the kinds of circumstances in
which the court has a duty (I disavow the word discretion) to exercise this salutary power. …
... The abuse of process which the instant case exemplifies is the initiation of proceedings in a
court of justice for the purpose of mounting a collateral attack on a final decision against the
intending plaintiff which has been made by another court of competent jurisdiction in previous
proceedings in which the intending plaintiff had a full opportunity of contesting the decision in
the court by which it was made. ...
... collateral attack on a final decision of a court of competent jurisdiction may take a variety of
forms.”
[31] In this regard, Lord Diplock also referred to the following statement in the speech of Lord
MALAYSIAN JUDGMENTS
Page: 14 of 39
Halsbury L.C. in Reichel v Magrath (supra):
“... I think it would be a scandal to the administration of justice if, the same question having been
disposed of by one case, the litigant were to be permitted by changing the form of the
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