The plaintiff filed a suit (2006 suit) against the defendant that was struck out for failing to comply with a discovery order. The plaintiff then filed a new but similar suit (2010 suit) based on the same facts. The Court of Appeal decided the 2010 suit could proceed despite the dismissal of the 2006 suit. However, the Federal Court ruled the Court of Appeal was wrong. The Federal Court held that allowing the second suit to proceed after dismissing the first for delays in prosecution would constitute an abuse of the court's process, based on precedents from other cases. The 2010 suit was therefore an abuse of process and liable to be dismissed.
The plaintiff filed a suit (2006 suit) against the defendant that was struck out for failing to comply with a discovery order. The plaintiff then filed a new but similar suit (2010 suit) based on the same facts. The Court of Appeal decided the 2010 suit could proceed despite the dismissal of the 2006 suit. However, the Federal Court ruled the Court of Appeal was wrong. The Federal Court held that allowing the second suit to proceed after dismissing the first for delays in prosecution would constitute an abuse of the court's process, based on precedents from other cases. The 2010 suit was therefore an abuse of process and liable to be dismissed.
The plaintiff filed a suit (2006 suit) against the defendant that was struck out for failing to comply with a discovery order. The plaintiff then filed a new but similar suit (2010 suit) based on the same facts. The Court of Appeal decided the 2010 suit could proceed despite the dismissal of the 2006 suit. However, the Federal Court ruled the Court of Appeal was wrong. The Federal Court held that allowing the second suit to proceed after dismissing the first for delays in prosecution would constitute an abuse of the court's process, based on precedents from other cases. The 2010 suit was therefore an abuse of process and liable to be dismissed.
SYED OMAR SYED MOHAMED V PERBADANAN NASIONAL BHD [2012] 9 CLJ 557
FEDERAL COURT (PUTRAJAYA)
ZULKEFLI MAKINUDIN CJ (MALAYA), HASHIM YUSOFF FCJ, ABDUL HAMID EMBONG FCJ, AHMAD MAAROF FCJ, ZAINUN ALI FCJ Summary of Facts 1. Respondent (plaintiff) had filed an action against the appellant (defendant) in the High Court under the 2006 suit. 2. An order was issued against the P to file an affidavit to disclose all documents in its possession within a stipulated time. 3. The Deputy Registrar strike out the 2006 suit holding that the Ps delay in proceeding was intentional. 4. P did not file any appeal against the decision but chose to file the 2010 suit based on the same facts. 5. COA decided that the default on the Ps part in not complying with the discovery order within the specific time bore no relationship to the default on the Ps part to comply with O.34 r.2(1) RHC. 6. D appealed. Issue: 1. Whether the 2010 suit was an abuse of the process of the court Defendants Arguments 1. The D filed an application for the writ and statement of claim of the P to be struck out with costs. Plaintiffs Arguments 1. As no statutory limitation had set in, they were entitled to bring this fresh proceeding against the D. Courts decision and reasoning 1. COA was wrong in holding that the P could refile and maintain the second suit in spite of holding that the first suit was rightfully dismissed for delay in failing to progress the case. 2. In the case of Brikett v James, a second suit filed after the first suit was dismissed for breach of a peremptory order would be an abuse of the courts process and liable to be dismissed. 3. English Court of Appeal in Janov v Morris also held that the court had a discretion RSC O.18 r.19(1) to strike out the second action on the ground that it was an abuse of the courts process.