[41] For reasons which we will set out shortly, we find that the Court of Appeal erred in not holding
that Encl. 1 is an abuse of the process. Indeed, it is clear that the crucial issue as to whether Encl. 1 is
an abuse of the process was not considered at all by the Court of Appeal in its judgment. This must be
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
done by the Court of Appeal, before embarking on the consideration of the merits of the motion. If,
upon due consideration, Encl. 1 is found to be an abuse of the process, then Encl. 1 could not stand,
and the appeal must be dismissed without the need of going to the merits of the substantive motion.
The Court of Appeal had considered the issue of res judicata, but not the applicability or otherwise of
the doctrine of the abuse of the process. On the law that we have set out at some length, res judicata
[in the form of cause of action estoppel or issue estoppel], is separate and distinct from the doctrine
of abuse of the process although both rest on the same underlying public interestsnamely, that there
should be finality in litigation and that a party should not be vexed twice in the same matter [see
Johnson (supra) per Lord Bingham of Cornhill at page 31, Toronto (City) v C.U.P.E. Local 79, 2003
SCC 63]. The abuse of the process doctrine ... “is untrammelled by the technicalities of estoppel”
[see House of Spring Garden Ltd v Waite [1990] 2 All ER 990, at 1000]. In Bradford and Bingley
Building Society v Seddon [1999] 1 WLR 1482, at pages 14901491, Auld LJ said:
“In my judgment, it is important to distinguish clearly between res judicata and abuse of process
not qualifying as res judicata, a distinction delayed by the blurring of the two in the courts'
subsequent application of the above dictum [of Sir James Wigram VC in Henderson v
Henderson 3 Hare 100]. The former, in its cause of action estoppel form, is an absolute bar to
relitigation, and in its issue estoppel form also, save in 'special cases' or 'special circumstances':
see Thoday v Thoday [1964] P 181, 197198, per Diplock LJ, and Arnold v National Westminster
Bank plc [1991] 2 AC 93. The latter, which may arise where there is no cause of action or issue
estoppel, is not subject to the same test, the task of the court being to draw the balance between
the competing claims of one party to put his case before the court and of the other not to be
unjustly hounded given the earlier history of the matter... Thus, abuse of process may arise
where there has been no earlier decision capable of amounting to res judicata (either or both
because the parties or the issues are different) for example, where liability between new parties
and/or determination of new issues should have been resolved in the earlier proceedings. It may
also arise where there is such an inconsistency between the two that it would be unjust to permit
the later one to continue.”
[42] The speech by Abdoolcader SCJ in Superintendent of Pudu Prison & Ors. v Sim Kie Chon
[1986] 1 MLJ 494, at page 498499 is also instructive on the application of the doctrine of the abuse
of process:
“There is moreover the inherent jurisdiction of the court in cases where res judicata is not
strictly established, and where estoppel per rem judicatam has not been sufficiently pleaded, or
made out, but nevertheless the circumstances are such as to render any reagitation of the
questions formally adjudicated upon a scandal and an abuse, the court will not hesitate to
dismiss the action, or stay proceedings therein, or strike out the defence thereto, as the case may
require. It would suffice in this regard to refer to the judgment of the Privy Council delivered by
Lord Wilberforce in Brisbane City Council and Myer Shopping Centres Pty Ltd v Attorney
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
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
MALAYSIAN JUDGMENTS
Page: 19 of 39
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:
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات