UUUK 4053 (Civil Procedure I)

Preliminary
Issues: Before
Filing a Case
Hizri Hasshan

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Preliminary Issues
As litigation lawyer, you should verify the following
preliminary issues before filing a lawsuit:

(a) Cause of action;

(b) Res judicata;
(c) Locus Standi;
(d) Time limitation;
(e) Existence of any Arbitration Clause; and
(f) Court’s Jurisdiction.

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Reasonable Cause of Action
In Credit Corp. (M) Bhd v. Fong Tak Sin [1991] 1 CLJ (Rep) 69 at 72, the Supreme
Court held:
"[72] In Cooke v. Gill [1873] LR 8 CP 107 Brett J defined "a cause of action" to
mean "every fact which is material to be proved to entitle the plaintiff to succeed."
This definition was subsequently approved by the Court of Appeal in Read v.
Brown [1888] 22 QBD 128. After reviewing the authorities Yong J in Lim Kean v.
Choo Koon [1969] 1 LNS 94; [1970] 1 MLJ 158 came the conclusion that the
period of limitation does not begin to run "until there is a complete cause of
action...

From established authorities we can now accept that the cause of action normally
accrues when there is in existence a person who can sue and another who can
be sued, and when all the facts have happened which are material to be proved
to entitle the plaintiff to succeed."

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Reasonable Cause of Action
In Nasri v. Mesah [1971] 1 MLJ 32, the Federal Court per Gill FJ, as he then was,
depicted 'a cause of action' as follows:

A 'cause of action' is the entire set of facts that gives rise to an

enforceable claim; the phrase comprises every fact which, if traversed,
the plaintiff must prove in order to obtain judgment (per Lord Esher
MR in Read v. Brown [1888] - 22 QBD 128 at p 131).

In Letang v. Cooper [1965] 1 QB 232, at pp 242-243, Lord Diplock defined a

'cause of action' as 'a factual situation the existence of which entitled one person
to obtain from the court a remedy against another',

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Reasonable Cause of Action
In the case of Taib bin Awang v. Mohamad bin Abdullah & Ors. [1984] 2 CLJ 501 /
[1983] 2 MLJ 483, the learned Judge stated:
In an action for malicious prosecution, the plaintiff must prove that:

(a) the defendants prosecuted him;

(b) the prosecution ended in the plaintiff's favour;
(c) that the prosecution lacked reasonable and probable cause; and
(d) that the defendant acted maliciously.

The statement of claim does not disclose that the prosecution of plaintiff ended in his favour. Indeed
the plaintiff's Counsel admitted that it ended in plaintiff's conviction and sentence. His conviction is
still under appeal.

In Everett v. Ribbandsand Another [1952] 2 QB 198, it was held that in an action for malicious
prosecution it is essential for the plaintiff to aver and prove that the proceeding complained of
terminated in his favour.

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Res Judicata
The Supreme Court in the case of Asia Commercial Finance (M) Bhd v. Kawal Teliti
Sdh Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189 stated:
[1] The significance of res judicata lies in its effect of creating an estoppel per rem judicatum, which
may take the form of either cause of action estoppel or issue estoppel. The cause of action estoppel
arises when rights or liabilities involving a particular right to take a particular action in Court for a
particular remedy are determined in a final judgment and such right of action, that is the cause of
action, merges into the said final judgment. The issue estoppel, on the other hand, means simply an
issue which a party is estopped from raising in a subsequent proceeding.

[2] The doctrine of res judicata is not confined to causes of action or issues which the Court is actually
asked to decide or has already decided. It covers also causes of action or issues or facts which, though
not already decided as a result of the same not being brought forward due to negligence, inadvertence
or deliberately, are so clearly part of the subject matter of the litigation and so clearly could have been
raised, that it would be an abuse of the process of the Court to allow a new proceeding to be started in
respect of them.

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Res Judicata
The Court of Appeal in a case of Hartecon JV Sdn Bhd v. Hartela Contractors Ltd [1997] 2 CLJ
104, stated that res judicata may apply as between 2 stages in same litigation proceedings:
It cannot be over-emphasised that once a Judge makes a ruling, substantive or procedural, final or
interlocutory, it must be adhered to and may not be re-opened willy-nilly. Certainty and finality are the
two pillars on which the judicial process rests.

The principle of res judicata is based on the need of giving a finality to judicial decisions; when a
matter, whether on a question of fact or law, has been decided between two parties in one suit or
proceeding and the decision is final, neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again. This principle of res judicata applies also as
between two stages in the same litigation to the extent that a Court, whether the trial Court or a higher
Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the
matter again at a subsequent stage of the same proceedings. A decision given by a Court at one stage
on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit.
The parties cannot raise a second time in the same suit an issue that has already been determined
either expressly or by necessary implication. A failure to adhere to these principles may lead to chaos
in the conduct of civil proceedings.

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Res Judicata
Gopal Sri Ram JCA in the case of The Pacific Bank Sdn Bhd v. Chan Peng Leong
[1998] 2 CLJ 440; [1998] 2 MLJ 613 also explained:
[1] It is of the essence, in cases of this nature, when the plea of res judicata is taken, to identify
with precision the issue that was decided in the earlier proceedings, which it is contended
operates as a bar to relitigation. The earlier judgment must necessarily and with precision
determine the point in issue.

[2] In this case, the point in issue in the first action that was determined necessarily and with
precision was that the demand upon which that action was based was invalid. There was in other
words no demand, and the first action, therefore, had been commenced prematurely.
Accordingly, the bank was at liberty to issue a proper demand and to institute proceedings to
enforce the guarantee based upon demand. Hence, neither res judicata, nor issue estoppel, nor
cause of action estoppel operated to bar the second action.

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Locus standi
Government of Malaysia v. Lim Kit Siang, United Engineers (M) Berhad v. Lim Kit Siang [1988]
1 CLJ Rep 63 – Supreme Court
The respondent who is the Leader of Opposition is seeking the aid of the Court to Interfere in the affairs of a
proposed privatisation contract for the construction of North and South Highway due to be signed between the
United Engineers (M) Bhd. (UEM), (appellant in appeal No. 456/1987) and the Government of Malaysia,
(appellant in appeal No. 434/1987) by asking for a declaration that the letter of intent issued by the Government
to UEM in respect of the North and South Highway (NSH) contract is invalid and based on the premise he also
prays for a permanent injunction to restrain UEM from signing it with the Government.

On 18 August 1987 he filed a suit to that effect at Penang High Court and on the same day applied by way of an
ex parte Summons-in-Chambers for an interim injunction against UEM to restrain it from signing the NSH
contract. The application was heard by Edgar Joseph Jr. J. He refused the application but on appeal to the
Supreme Court (Tan Sri Lee Hun Hoe CJ Borneo, Wan Suleiman and Wan Hamzah) the Court ordered the interim
injunction to be issued " with liberty to apply " and at the same time directed an early trial of the suits.

Soon after this UEM and the Government applied to the High Court to have the interim injunction set aside and
the suits struck out on the ground that they disclosed no reasonable cause of action and also for lack of locus
standi,
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Locus standi
Government of Malaysia v. Lim Kit Siang, United Engineers (M) Berhad v. Lim Kit Siang [1988]
1 CLJ Rep 63 – Supreme Court
Every legal system has a built-in mechanism to protect its judicial process from abuse by busy-bodies, cranks and
other mischief-makers by insisting that a plaintiff should have special interest in the proceedings which he institutes.
This special interest is a nexus between him and the party against who he brings his complaints to Court and is
known as locus standi.

In a public law litigation the rule is that the Attorney-General is the guardian of public interest. It is he who will
enforce the performance of public duty and the compliance of public law. Thus when he sues he is not required to
show locus standi. On the other hand any other person, however public spirited he may be, will not be able to
commence such litigation, unless he has a locus standi, or in the absence of it, he has obtained the aid or consent
of the Attorney-General. If such consent is obtained the suit is called a relator action in which the Attorney-General
becomes the plaintiff whilst the private citizen his relator. I will deal with this aspect in the later part of this judgment.
In the instant appeal since this is not a relator action the respondent must show that he has the necessary locus
standi to commence and maintain the suit.

Hence I fail to see how the respondent, whether as a politician, a road and highway user or a taxpayer could have
locus standi.
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Locus standi (Adversely Affected Test)
The “adversely affected" test was propounded by the Federal Court in the case of
Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor
[2014] 2 CLJ 525 where Hasan Lah FCJ has stated:

In our view for an Appellant to pass the "adversely affected"

test, the Appellant has to at least show he has a real and
genuine interest in the subject matter. It is not necessary for
the Appellant to establish infringement of a private right or
the suffering of special damage.”

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Locus standi (Private Law)
Individuals/
Sole Proprietor
Federal / State Companies
Government

Who can sue? Who

Local has locus standi? Partnership
Government

Statutory Co-operative
Bodies Societies
Registered
Societies

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Limitation Law
The Federal Court in the case of Credit Corp. (M) Bhd v. Fong Tak Sin [1991] 2 CLJ 871
has held:

“[7] The limitation law is promulgated for the primary object of discouraging
plaintiffs from sleeping on their actions and more importantly, to have a definite
end to litigation.

The limitation law is promulgated for the primary object of discouraging

plaintiffs from sleeping on their actions and more importantly, to have a definite
end to litigation. This is in accord with the maxim interest reipublicae ut sit finis
litium that in the interest of the State there must be an end to litigation. The
rationale of the limitation law should be appreciated and enforced by the
Courts.”

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Limitation Law
The Court of Appeal in Lembaga Penggalakan Pelancongan Malaysia v One Big Option
Sdn Bhd [2018] 1 MLJ 465 also explained:

“[45] It is trite that limitation accrues from the earliest time when there is a
complete cause of action. In Nadefinco Ltd v Kevin Corporation Sdn Bhd [1978]
2 MLJ 59; [1978] 1 LNS 127, the Federal Court was of the view that the cause of
action in that case accrued the instant the mining company failed to pay the first
instalment due and therefore the action was barred by limitation, the action was
commenced more than six years after the cause of action arose.”

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Plea of Limitation must be pleaded in Defence
The Federal Court in Tasja Sdn Bhd v. Golden Approach Sdn Bhd [2011] 3 CLJ
751 has expressly laid down:

In an application for striking out under O. 18 r. 19(1) RHC on the ground

of limitation to bring an action, a distinction must be made as to which
provision of the law is used to ground such application. If it is based on s.
2(a) of Public Authority Protection Act 1948 or s. 7(5) of the Civil Law Act,
where the period of limitation is absolute then in a clear and obvious case
such application should be granted without having to plead such a
defence. However, in a situation where limitation is not absolute, like in a
case under the Act, such application for striking out should not be allowed
until and unless limitation is pleaded as required under s. 4 of the Act.
The 1st question was thus answered in the positive.

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Arbitration Clause
Section 8 Arbitration Act 2005
No court shall intervene in matters governed by this Act, except where so provided in
this Act.

Section 4 Arbitration Act 2005 (Arbitrability of subject matter)

(1)Any dispute which the parties have agreed to submit to arbitration under an
arbitration agreement may be determined by arbitration unless the arbitration
agreement is contrary to public policy.

(2)The fact that any written law confers jurisdiction in respect of any matter on any
court of law but does not refer to the determination of that matter by arbitration
shall not, by itself, indicate that a dispute about that matter is not capable of
determination by arbitration.
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Arbitration Clause
The Federal Court in Press Metal Sarawak v. Etiqa Takaful [2016] 9 CLJ 1 stated:

An arbitration agreement or clause is a written submission, agreed to by

the parties, and like other written submissions, must be construed
according to its language and in light of the circumstances in which it is
made. Whether a dispute falls within an arbitration clause must depend
on (i) what is the dispute or difference between the parties; and (ii) what
disputes the arbitration clause covers. An applicant for a stay under s.
10(1) of the 2005 Act must therefore establish that the matters in
question are within the scope of the arbitration submission.

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“Q&A”

Thank you
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