“The rule of law depends upon the existence and availability of courts and tribunals to which
citizens may resort for the determination of differences between them which they cannot
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to
be denied the right to bring a genuine subject of litigation before the court: Yat Tung Investment
Co Ltd v Dao Heng Bank Ltd [1975] AC 581, 590 per Lord Kilbrandon, giving the advice of the
Judicial Committee; Brisbane City Council v Attorney General for Queensland [1979] AC 411,
425 per Lord Wilberforce, giving the advice of the Judicial Committee). This does not however
mean that the court must hear in full and rule on the merits of any claim or defence which a
party to litigation may choose to put forward. For there is, as Lord Diplock said at the outset of
his speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, an
"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. ...”
[35] Lord Bingham referred to Hunter, and several authorities which explored the forms of the abuse
of the process doctrine which had its root in Henderson v Henderson to demonstrate the
development of the doctrine in recent years, at the end of which His Lordship made the following
crucial speech on the issue at page 31 which contained instructive approach in considering whether
there is an abuse of the process:
“But Henderson v Henderson abuse of process, as now understood, although separate and
distinct from cause of action estoppel and issue estoppel, has much in common with them. The
underlying public interest is the same: that there should be finality in litigation and that a party
should not be twice vexed in the same matter. This public interest is reinforced by the current
emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties
and the public as a whole. The bringing of a claim or the raising of a defence in later
proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the
party alleging abuse) that the claim or defence should have been raised in the earlier
proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may
be found, to identify any additional element such as a collateral attack on a previous decision
or some dishonesty, but where those elements are present the later proceedings will be much
more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding
involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that
because a matter could have been raised in earlier proceedings it should have been, so as to
render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an
approach to what should in my opinion 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. As 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. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in
earlier proceedings an issue which could and should have been raised then, I would not regard it
MALAYSIAN JUDGMENTS
Page: 16 of 39
as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the
party against whom it is sought to claim. While the result may often be the same, it is in my view
preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask
whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified
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