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.