LAW 4220

CIVIL PROCEDURE : CASE REVIEW

SECTION 5

NAURAN BINTI ABDUL MAJID & ANOR V JABATAN

PERKHIDMATAN PEMBENTUNGAN MALAYSIA & ORES
[2019] MLJU 882

GROUP MEMBERS :

No. NAME MATRIX NUMBER

1.
ADNAN BIN YAAKOB 1534349

2. NUR AMIN BIN NOR AZMI 1717351

3. NURUL FATIN BINTI MD ZAN 1718390

4. RAATHIYA RASHEED 1726748

 CASE REVIEW
[NAURAN BINTI ABDUL MAJID & ANOR V JABATAN PERKHIDMATAN
PEMBENTUNGAN MALAYSIA & ORS [2019] MLJU 882]
[HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH JC]
[HIGH COURT OF SHAH ALAM]

1.0 – Introduction

The case of Nauran binti Abdul Majid & Anor v Jabatan Perkhidmatan Pembentungan
Malaysia & Ors [2019] MLJU 882 delved in the matter of Negligence under Tort whereby the
Plaintiff, Nauran binti Abdul Majid & Anor had brought a civil claim against the Defendants,
Jabatan Perkhidmatan Pembentungan Malaysia & Ors in the High Court of Shah Alam. In this
case, it dives deeply on the application of a striking out order to the Court against the Plaintiffs’
Writ of Summon and Statement of Claim as prior to this civil suit the Plaintiffs had filed a
similar claim which was heard in Seremban Sessions Court. This is governed by Order 18 Rule
19(1)(a) or (b) of the Rules of Court 2012. The Court had consider relevant legal provisions
and several decided cases before finally dismissing the action of the Plaintiffs by ruling in
favour of First Defendant, Second Defendant and Third Defendant respectively.

2.0 – Summary of Facts

The Plaintiffs own a parcel of land known as GM 552, Lot 862, Mukim Repah, Daerah Tampin,
Negeri Sembilan Darul Khusus which is utilized as an orchard. The First Defendant, Jabatan
Perkhidmatan Pembentungan is a department under a Government Ministry was awarded a
project and contracted the Second Defendant as the main contractor for the works and Third
Defendant as a consultant to oversee the said project. In March 2015, the Second Defendant
had sought for consent to enter and rent a portion of the Plaintiffs land to carry out the works
in which the Plaintiffs agreed upon. Later in January 2016, the Plaintiffs found that the land
was damaged caused by the works of the Second Defendant and had sought out the Second
Defendant via a letter dated 2nd February 2016 in seeking remedy within 14 days to which the
Second Defendant declined to comply. After several failed attempts of negotiating a remedy
for the damage upon the land and following the refusal from the Second Defendant to comply
with the Plaintiffs demands, the Plaintiffs then filed a civil suit against the Defendants.
3.0 – Discussion of issues raised in the case.

The issues that had been brought to the attention of the Court were on the part of whether a
cause of action will stand against the Third Defendant under the Tort of Negligence and
whether the Court has a discretion to strike out the claims as similar suit had been filed and
heard in Seremban Session Court. The last issue to be noted is whether the Principle of Res
Judicata can be applied for the action that has been brought from another court.

4.0 – Judgement

Dealing with the first issue Hj. Mohamad Shariff JC had extensively clarified that it was to be
dismissed for reasons that the Statement of Claim revealed no cause of action against the Third
Defendant in reference to Statement of Claim, the allegations of negligence only involved the
Second Defendant and following the elements of negligence under tort it could not possibly be
establish a duty of care owed by the Third Defendant towards the Plaintiffs as the relationship
between the parties are too remote thus failing to satisfy the elements of negligence. In deriving
to the judgment, Hj. Mohamad Shariff JC had referred the issue on towards the case of Rosita
binti Baharom & Anor. v. Sabedin bin Salleh (1993) 2 CLJ 300 on part of the pleadings by the
Plaintiffs and Yeng Heng Enterprise Sdn. Bhd. v. Liow Su Fah (1979) MLJ 24 on part of the
remoteness of negligence in which the case outlines a party that is not privy to an agreement
does not bear the duty of care nor the responsibility carried by parties who are aware of such
contract. Canvassing the current case, the Third Defendant was not made privy to the
arrangements made between the Plaintiffs and Second Defendant consequently the claim was
struck out with cost of RM 5000-00..
In lieu of the civil action in Seremban Session Court, the Judicial Commissioner viewed that
the Plaintiffs were merely abusing the judicial process of the court by filing afresh a similar
civil claim that had been dealt with in the Session Court. The Judicial Commissioner corrected
the Plaintiffs action that the Plaintiffs should have appealed against the decision of the Session
Court. He had then dismissed the claim in which he relied on the case of Syed Omar bin Syed
Mohamed v. Perbadanan Nasional Bhd. (2013) 1MLJ 461, where the second suit was filed
within the limitation period after the prior suit was dismissed for breach of peremptory order
which led to the dismissal of the new suit via RSC O 18 r 19(1)(d) on the basis that it was an
abuse of the court’s process.
The Judicial Commissioner clarifies that the current suit is a mere mirror of the prior which by
principle of Res Judicata the action must not be permitted as it would be an abuse of the process
of the Court to allow a new proceeding to be started in respect of them as highlighted in the
case of Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. (1995) 3 CLJ 783. He
had opined that the current suit is purely an action of manipulation and prejudice towards the
Defendants. In following Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn. v. ASM
Development Sdn. Bhd. (2003) 4 MLJ 633, provides that on the grounds of an abuse of process
a suit may be struck out yet what amounts to an abuse should be determined from the facts of
the case itself.
Comment and Analysis

Reviewing the judgement for the first issue, the judge decided that, The Third Defendant has
no connection, nexus or privy at any material time in the Agreement between the Plaintiff and
the Second Defendant. It has nothing to do with the Third Defendant. The decision given here
shows that the proximity between the plaintiff and the third defendant was too remote where
the third defendant who is the consultant of the project was just too remote to be guilty.

Referring to the case of Bourhill v Young [1943] AC 92, where in this case, Mr Young had
been negligently riding his motorcycle and was responsible for a collision with a car in which
he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process
of leaving a tram about 50 feet away. Claimant heard the crash and, after Mr Young’s body
had been removed from the scene, she approached and witnessed the immediate aftermath.
Claimant was 8 months pregnant at the time of the incident and later gave birth to a stillborn
child. Claimant subsequently brought an action against Mr Young’s estate, claiming she had
suffered nervous shock, stress and sustained loss due to the negligence of Defendant.

The principal issue on appeal to the House of Lords was whether Defendant owed a duty of
care to Claimant. In order for such a duty to be found it had to be said that that Claimant was
both sufficiently proximate to the incident itself and, if so, that Defendant ought reasonably to
have foreseen that, in driving negligently, he might cause psychiatric damage to a person
hearing the crash from Claimant’s position. The court held that Defendant was not liable for
any psychiatric harm that Claimant might have suffered as a result of the accident. It was not
foreseeable that Claimant would suffer psychiatric harm because of Defendant negligently
causing a loud traffic accident, nor was Claimant sufficiently proximate to the scene of the
crash itself. Defendant, therefore, could owe no duty of care to the Claimant.

In reviewing the judgement given in the case of Nauran binti Abdul Majid & Anor v Jabatan
Perkhidmatan Pembentungan Malaysia & Ores [2019] MLJU 882, it shows that JC had
decided the best decision as the relationship between the Plaintiff and the Third was too remote
and this resulted in the third defendant escaping from the liability for the negligence made.

Reviewing the case through the issues, it was identified that Hj Mohamad Shariff JC in
ascertaining the Notice of Application had focused on reviewing the Order 18 Rule 19(1)(a),
(b) or (d) Rules of Court 2012. Whereby striking out pleadings and endorsement in any stage
of the proceedings must disclose that there are no reasonable cause of action or defence or it is
scandalous, frivolous or vexatious. It could also be in respect that it may prejudice, embarrass
or delay the fair trial of the action or it is otherwise an abuse of the process of the Court. It is
also to observe the general rule of the provision above is in line with the principle of Res
Judicata where the principle disallows a cause of action to be filed afresh once it has been
decided on its merits. We are of the opinion that this case has been decided with great care with
absolute correctness in terms of protecting the judicial rights of the Court and its process.
Although as stated in Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn. v. ASM Development
Sdn. Bhd. (2003) 4 MLJ 633, what amounts to an abuse should be determined from the facts of
the case itself. Therefore, the Court must determine the intricate facts prior invoking or
applying the principle of Res Judicata and striking of an action via Order 18 Rule 19(1)(a), (b)
or (d) Rules of Court 2012.

5.0 - Conclusion

It is submitted that the case showed that there was a degree of unfairness suffered by the
Plaintiffs because of the construction of the project. This could be the result of a not well-
planned Statement of Claim filed in the Sessions Court in the first place. The Learned Judicial
Commissioner made a fair and just ruling based on the evidence laid before him and subject to
the Rules of the Court, 2012 and Doctrine of Res Judicata. Concluding our views upon the
matter, this case may serve as an example of precedent in protecting the sanctity of the judicial
process from being abused or manipulate the Court where solutions of the initial issue are
provided via other avenues.