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
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
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
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
proceedings to set up the same case again.”
[32] In deciding the case on the basis of the abuse of the process, the House of Lords declined to
endorse Lord Denning’s attempt in the Court of Appeal to extend issue estoppel to cover the
particular instance of the abuse of the process presented by the case before the Court. This is what
Lord Diplock said at page 732:
“Lord Denning MR and Sir George Baker were also in favour of extending the description 'issue
estoppel' to cover the particular example of abuse of process of the court presented by the
instant case, a question to which much of the judgment of Lord Denning MR is addressed. Goff
LJ, on the other hand, expressed his own view, which had been shared by Cantley J, that such
extension would involve a misuse of that expression. But if what Hunter is seeking to do in
initiating this civil action is an abuse of the process of the court, as I understand all your
Lordships are satisfied that it is, the question whether it also qualifies to bear the label 'issue
estoppel' is a matter not of substance but of semantics. Counsel for Hunter was therefore invited
to address this House first on the broader question of abuse of process and to deal in particular
with the reasoning contained in the judgment of Goff LJ who dealt with the matter more closely
than the other members of the court and based his decision solely on that ground. In the result,
counsel for Hunter, who argued the case with their accustomed ability and diligence, were quite
unable to persuade any of us that there was any error in the reasoning of Goff LJ in what proved
to be the last judgment that he prepared before his much lamented and untimely death. In the
result it became unnecessary to call on counsel for the police. So the debate on semantics did not
take place. It could not possibly affect the outcome of the appeal or justify the public expense
that would have been involved in prolonging the hearing any further.”
[33] Further Lord Diplock said at page 733, that in order to avoid confusion, it would be best “if the
use of the description ‘issue estoppel’ in English law .... were restricted to that species of estoppel
per rem judicatam that may arise in civil actions between the same parties or their privies.”
[34] The doctrine of the abuse of the process was restated by the House of Lords in Johnson v Gore
Wood & Co (a firm) [2002] 2 AC 1. In his leading judgment Lord Bingham of Cornhill said:
“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
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
MALAYSIAN JUDGMENTS
Page: 15 of 39
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
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