Cheng Hin Teng v Dr Anuar Bin MD Yasin (J-02(IM)-858-05/2022)

PUSAT PAKAR KLUANG UTAMA SDN BHD … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi di Muar Dalam Negeri Johor, Darul Takzim, Malaysia Guaman No. 23NCVC-4-03/2016 Antara Cheng Hin Teng (Mendakwa sebagai wakil diri Selaku suami dan benifisiari yang sah kepada Wan Mei Lee, Si Mati dan Estetnya) … Plaintif

Dan

Dr. Anuar Bin Md Yasin Pusat Pakar Kluang Utama Sdn Bhd … Defendan-Defendan] CORAM: S. NANTHA BALAN, JCA, MOHD NAZLAN BIN MOHD GHAZALI, JCA, AZMAN BIN ABDULLAH, JCA. S/N nd6oq8B3sEyZ4s4xbFUJRg 2 | P a g e JUDGMENT [1] This is an appeal by the Plaintiff against the decision of the Learned Judicial Commissioner of High Court dated 7 April 2022, in allowing the Defendants’ application (Enclosure 29) and striking out the Suit No.: 23 NCVC-4-03/2016. (“the 2nd Suit”). The decision of the Learned Judicial Commissioner is reported as Cheng Hin Teng v. Dr. Anuar Md Yasin & Anor [2022] 1 LNS 917 (HC). The Defendants’ application to strike out was based, inter alia, on a plea of res judicata. The Learned Judicial Commissioner agreed with the Defendants that the 2nd Suit was an abuse of process as it was precluded by the plea of res judicata. [2] The Plaintiff’s late wife Mdm. Wan Mei Lee (“Deceased”) was admitted as a patient at the 2nd Defendant (“the Hospital”) on 26 May 2001 around 7.30pm. She was taken to the Hospital with complaints of severe headache etc. She was seen by the 1st Defendant (“D1”). She was subsequently seen by one Dr. How Lay Guan. By 9.00pm her condition had deteriorated and she went into a coma. She was then taken to the Johor Specialist Centre. She died on 4 June 2001. The cause of death was massive subarachnoid haemorrhage with intra-ventricular extension. [3] On or about 18 May 2004, the Plaintiff filed an action in medical negligence against D1 and the Hospital via Batu Pahat Sessions Court Suit No. 53-186- 2004 (“1st Suit”). The 1st Suit proceeded to full trial. D1 testified in the 1st Suit. The 1st Suit was dismissed on 28 December 2009. The Plaintiff appealed to the High Court but later withdrew the appeal. S/N nd6oq8B3sEyZ4s4xbFUJRg 3 | P a g e [4] The Plaintiff subsequently obtained D1’s handwritten notes through the intervention or assistance of the Ministry of Health on 14 November 2012. The Plaintiff filed the 2nd Suit on 27 March 2016. The Plaintiff initially based his claim in medical negligence and later amended the 2nd Suit to add a cause of action in fraud so as to impeach the judgment given in the 1st Suit. [5] The claim based on “fraud” may be gathered from the following paragraphs of the Amended Statement of Claim in the 2nd Suit.

Plantif telah menerima surat daripada Kementerian Kesihatan Malaysia bertarikh 14hb. November 2012 memaklumkan bahawa Defendan Kedua telah mengemukakan sesalinan "doctors notes" yang bertarikh 26hb. Mei 2001 yang bertulisan tangan Defendan Pertama yang telah diiakuisah "Certified True Copy" pada 22hb. Disember 2012 dan membekalkan nota tersebut kepada Plantif dan dengan adanya nota bertaip yang diakuisah oleh Defendan Pertama pada 6-10-2011.

Plantif tidak puas hati dan mengatakan adanya percangahan ataupun percubaan untuk menyembunyikan fakta-fakta yang amat penting disisi undang-undang oleh Defendan Pertama dan/atau Kedua daripada Plantif dan juga terdapat percanggahan maklumat dan/atau keterangan yang diberikan oleh Defendan Pertama dimana beliau telah menyembunyikan maklumat yang sebenar dan/atau mengubahkan maklumat yang sebenar, yang kesemuanya dilakukan untuk menipu atau secara memfrodkan bagi mengelakkan keterangan sebenar untuk timbul yang dapat menyokong kes kecuaian di pihak Defendan-Defendan yang telah berlaku dalam merawat simati tersebut.

Defendan Pertama telah memberikan kenyataan yang palsu dalam keterangan angkat sumpahnya didalam kes Mahkamah Sesyen Batu Pahat dalam Saman No. 53-186- 2004 dengan menyatakan bahawa simati telah mempunyai BP 140/80 dan pulse 90/min, yang sebenarnya adalah satu penipuan sebab yang sama tidak tercatat didalam nota doktor yang ditulis dengan tangan oleh Defendan Pertama. S/N nd6oq8B3sEyZ4s4xbFUJRg 4 | P a g e

Defendan Pertama telah membuat kenyataan palsu tersebut untuk dengan sengajanya demi mengelakkan liabiliti dimana pada masa kehadiran simati sudah terdapat tanda-tanda yang menyokong bahawa simati mempunyai keadaan ruptured aneurysm yang amat ketara terbukti atas adanya kenaikan BP pada paras yang tinggi ke 160/96 yang wujud dengan keadaan kesakitan kepala, kelemahan, numbness dan keadaan kemuntahan yang tanda-tanda yang menunjukkan sudah berlakunya ruptured aneurysm pada simati pada waktu itu.

Maka, tindakan ini difailkan disini berdasarkan frod tersebut dan atas gantirugi tambahan yang dituntut disini dan dimana kesemua gantirugi adalah setakat tidak melebihi RM10 juta. Berikutan itu, keputusan yang diberikan pada 28-12-2009 dalam tindakan Saman No. 53-186-2004 telah diperolehi secara frod yang menyebabkannya sebagai yang tidak sah dan/atau merupakan suatu pembatalan (nullity) dan dengan itu, tindakan ini adalah tidak dihalang disisi undang dan juga prinsip res judicata tidak terpakai.

Plantif atas tidak berpuas hati dengan keadaan kelengkapan fakta-fakta dan keterangan yang dikemukakan dalam tindakan Saman No. 53-186-2004, ada pilihan untuk menarikbalik rayuannya pada 15-10- 2010 terhadap keputusan bertarikh 28-12-2009 tersebut dan untuk mengambil langkah untuk mendapat keterangan yang sebenar yang baru diterima melalui nota perubatan tulisan tangan Defendan Pertama atas lapuran perubatan bertarikh 26hb Mei 2001 yang hanya timbul pada tahun 2012 melalui surat Kementerian Kesihatan Malaysia bertarikh 14hb. November 2012, yang membuktikan unsur frod tersebut dan bagi yang mana kausa tindakan ini telah berbangkit sejak pada November 2012, dan dengan itu, ia tidak dihalang oleh peruntukan undang had masa.

Plaintif menegaskan dan akan menegaskan bahawa berdasarkan kepada saksi-saksi dan dokumen-dokumen yang akan dirujuk, isteri Plaintif (simati) telah meninggal dunia akibat kecuaian dan/atau pemecahan kewajipan kontraktual Defendan Pertama dan/atau Defendan Kedua. [6] The reliefs sought in the 2nd Suit are as follows;

Oleh itu, Plaintif menuntut dari Defendan-Defendan secara asingan dan/atau bersama dan bagi gantirugi yang berjumlah yangtidak melebihi RM10 juta: -

Keputusan bertarikh 28-12-2009 dalam tindakan Saman No. 53- 186-2004 diumumkan sebagai tidak sah dan tidak terikat atas pihak-pihak dalam tindakan ini dan/atau diketepikan. S/N nd6oq8B3sEyZ4s4xbFUJRg 5 | P a g e (aa) Ganti rugi am akibat kecuaian dan pemecahan kewajipan kontraktual dalam rawatan yang diberikan kepada simati untuk yang ditaksirkan oleh Mahkamah ini dan dibayar kepada Plaintif.

Ganti rugi am akibat tekanan mental yang dialami oleh Plaintif yang kini terpaksa menyara hidup keluarga beliau tanpa simati untuk ditaksirkan oleh Mahkamah ini dan dibayar kepada Plaintif. (bb) Ganti rugi am bagi kehilangan nyawa simati untuk yang ditaksirkan olch Mahkamah ini dan dibayar kepada Plaintif.

Ganti rugi keterlaluan dan/atau teladan Contoh (Exemplary-Damages) untuk ditaksirkan oleh Mahkamah ini dan dibayar kepada Plaintif.

Faedah pada kadar 8% setahun atau sebagaimana yang boleh diberikan dan bagi tempoh untuk ditaksirkan atas gantirugi-gantirugi tersebut untuk dibayar kepada Plaintif dari tarikh tindakan ini difailkan sehingga penyelesaian penuh.

Kos tindakan dibayar kepada Plaintif atas dasar indemniti termasuk kos hangusnya bagi tindakan Saman No. 53-186-2004.

Lain-lain relif yang dianggap sesuai diberikan oleh Mahkamah Yang Mulia ini. Bertarikh pada 27 haribulan Mac 2016. High Court [7] The High Court’s reasons for upholding the plea of res judicata and in striking the 2nd Suit may be gathered from the following paragraphs of the Grounds of Judgment: Whether the Doctrine of Res Judicata has set in. [75] It is in evidence that Cheng Hin Teng's "the Plaintiff") wife passed away in 2001. The Plaintiff first brought an action for medical negligence (in his capacity as the husband and legal beneficiary of his deceased wife) against Dr. Anuar Bin Md Yasin and the Hospital, Pusat Pakar Kluang Utama "Defendants") in 2004 in the Sessions Court in Batu Pahat "the 1st Suit"). [See: Enclosure 83 Exhibit A-1 pages 1 to 10.] [76] The 1st Suit was dismissed after a full trial in 2009. The Plaintiff appealed to the High Court against decision of the Sessions Court but subsequently withdrew the said appeal. S/N nd6oq8B3sEyZ4s4xbFUJRg 6 | P a g e [77] The Plaintiff then filed the 2nd Suit in this Honourable Court in 2016 "this Suit") against the same Defendants premised on the same set of facts. However, the Plaintiff alleged that he had discovered a "new" medical report that favours him. [78] The Plaintiff is bringing in this case on the ground that there are new evidence against the evidence of the 1st Defendant which makes it open to new trial. [79] It was submitted by the Learned Counsel for the Plaintiff that-a. There was no averment made in the affidavits of the Defendants relating to Enclosure 29 to the effect that the filing of the Re-amended Writ and the Amended SOC could not be sustained for being scandalous or frivolous or being abuse of process or for breaching the Limitation Act. b. In the absence of such an averment, the striking out application in Enclosure 29 could not be sustained or Enclosure 29 has been rendered incompetent, redundant or ineffective for all legal intents and purposes. c. For the above reasons, Enclosure 29 should be struck off or dismissed with costs. d. In filing Enclosure 29 and the supporting affidavit thereto of the solicitor of 3-7-2017 and of the defendants 16-8-2017, there have been no reasons explaining or no condescending of particulars given to explain how is it that the filing of this action is scandalous or frivolous or being an abuse of process or having breached the Limitation Act. In the absence of such explanation or particulars, the application in Enclosure 29 cannot be sustained. e. The Plaintiff had filed his first affidavit in objection of 10-8-2017 to Enclosure 29 and specifically stated in paragraphs 6.1 thereof that the documents referred to in the supporting affidavit to Enclosure 29 were not produced at the trial of the first action. At paragraph 6.2 of the Plaintiff's first affidavit, he had also specifically stated that after discovery of those documents made by him on 22-12-2012 he found them to be in contradiction to the evidence given in the first case and this involved concealment of material facts and evidence, wherein the difference in the reading of the high blood pressure were revealed from the documents and this was the element of fraud that had come to light to the Plaintiff. At paragraph 6.3 of the Plaintiff's first affidavit, he had further specifically stated that the question of limitation did not arise and that he had the right to proceed with this action on the facts and evidence discovered since 22-12-2012 to support the cause of action to file this action. S/N nd6oq8B3sEyZ4s4xbFUJRg 7 | P a g e f. Though referring to the Plaintiff's first affidavit of 10-8-2017, by the Defendants in their affidavit of 16-8-2017, there was no specific denial or answering to the Plaintiff's contentions or averments as found in the Plaintiff's first affidavit of 10-8-2017. g. On the authority of the Federal Court in SUNRISE SDN BHD V. FIRST PROFILE (M) SDN BHD [1997] 1 CLJ 529;[1996] 3 MLJ 533 (see page 3 of PBA) and the case of the Court of Appeal in NG HEE THOONG V. PUBLIC BANK BHD [1995] 1 CLJ 609; [1995] 1 MLJ 281 (see page 16 of PBA), it is submitted that the averments not answered or disputed or contradicted by the Defendants must be taken to have been admitted. h. For the above reasons, the striking out application in Enclosure 29 cannot be sustained because the Defendants are taken to have admitted to the matters about the discovery of the documents in 22-12-2012 not being produced in the earlier action and about which the element of fraud existed in the contradiction found in the evidence concerning the reading of the high blood pressure of the Plaintiff's deceased wife who was under the medical care and attention of the Defendants. i. The discovery of the documents obtained by the Plaintiff from 22-12- 2012 that came after 3 years from the dismissal of the first action on 28- 12-2009, for instance, referring to the hand written notes of the 1st Defendant certified as true by him on 22-12-2012, had revealed the BP readings of 160/96, 150/80 and 150/90 "the said BP readings") during the observation of the deceased wife of the Plaintiff (see the certified document of 22-12-2012 appended as Appendix A hereto being the handwritten notes of the 1st Defendant on the prescribed medical sheets of the 2nd Defendant). j. The discovery about the said BP readings is evidence of the concealment of fraud that led to the filing of this action. This is because there was the glaring contradiction of the evidence of the 1st Defendant given in the 1st action that did not disclose of the said BP readings but had contradicted the same where his evidence was that the BP readings was only 140/80 - his evidence was in his Witness Statement in the 1st action, see copy of the Witness Statement of the 1st action in Appendix B hereto. k. The filing of this action from the concealment of the fraud being discovered is governed by Section 29 of the Limitation Act (see pages 28 of PBA). Therefore, the question of this action being barred for limitation or this action having violated the Limitation Act did not or could not arise. S/N nd6oq8B3sEyZ4s4xbFUJRg 8 | P a g e [80] In CHUA WEE SENG v. FAZAL MOHAMED [1970] CLJU 19; [1970] 1 LNS 19; [1971] 1 MLJ 106, the court held that: To constitute a matter res judicata the following conditions must be fulfilled:

The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.

The parties as aforesaid must have litigated under the same title in the former suit.

The court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. [81] In VIRGIN ATLANTIC AIRWAYS LIMITED (RESPONDENT) v. ZODIAC SEATS UK LIMITED (FORMERLY KNOWN AS CONTOUR AEROSPACE LIMITED) [2013] UKSC 46, the facts were that Virgin Atlantic Airways Ltd wishes to recover damages exceeding £49,000,000 for the infringement of a European Patent which does not exist in the form said to have been infringed. The Technical Board of Appeal "TBA") of the European Patent Office "EPO") has retrospectively amended it so as to remove with effect from the date of grant all the claims said to have been infringed. The TBA found that in the form in which the patent was originally granted the relevant claims were invalid because they had been anticipated by prior art. Virgin says that it is nevertheless entitled to recover damages for infringement because before the TBA had issued its decision, the English courts had held the patent to be valid and specifically rejected the objection based on prior art. Their case is that this conclusion and the finding of validity on which it is based are res judicata notwithstanding the later but retrospective decision of the TBA. A similar argument had succeeded before the Court of Appeal in very similar circumstances in COFLEXIP SA v. STOLT OFFSHORE MS LTD (NO 2) [2004] FSR 34 and UNILIN BEHEER BV v. BERRY FLOOR NV [2007] FSR 25. The Court of Appeal, conceiving itself to be bound by these decisions and regarding them as correct in principle, arrived at the same conclusion. [82] One of the issues that the Supreme Court considered was the Doctrine of Merger and elucidated as follows: S/N nd6oq8B3sEyZ4s4xbFUJRg 9 | P a g e

Third. there is the doctrine of merger. which treats a cause of action as extinguished once judgment has been given upon it. and the claimant's sole right as being a right upon the judgment. Although this produces the same effect as the second principle. it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as "of a higher nature" and therefore as superseding the underlying cause of action: see KING v. HOARE [1844] 13 MW 494. 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: DUCHESS OF KINGSTON'S Case [1776] 20 St Tr 355. "Issue estoppel" was the expression devised to describe this principle by Higgins J in HOYSTED v. FEDERAL COMMISSIONER OF TAXATION [1921] 29 CLR 537, 561 and adopted by Diplock LJ in THODAY v. THODAY [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in HENDERSON v. HENDERSON [1843] 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.

It is only in relatively recent times that the courts have endeavoured to impose some coherent scheme on these disparate areas of law. The starting point is the statement of principle of Wigram V-C in HENDERSON v. HENDERSON [1843] 3 Hare 100, 115. This was an action by the former business partner of a deceased for an account of sums due to him by the estate. There had previously been similar proceedings between the same parties in Newfoundland in which an account had been ordered and taken, and judgment given for sums found due to the estate. The personal representative and the next of kin applied for an injunction to restrain the proceedings, raising what would now be called cause of action estoppel. The issue was whether the partner could reopen the matter in England by proving transactions not before the Newfoundland court when it took its own account. The Vice-Chancellor said: S/N nd6oq8B3sEyZ4s4xbFUJRg 10 | P a g e "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit. the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time... Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule." [83] There are a few points to be noted which are as follows: i. The doctrine of merger concerns a matter that has been decided upon and culminates in a court judgment raises an effective defence called "estoppel". ii. the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. iii. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. iv. This doctrine arises from the same facts and the same cause of action. [84] However, it must be distinguished from a matter arising from the same facts but different cause of action is NOT caught by this Doctrine. It is only when there are not only the same set of facts but also the same set of cause of actions, then the suit is caught by the Doctrine of Merger. S/N nd6oq8B3sEyZ4s4xbFUJRg 11 | P a g e [85] The House of Lords in ARNOLD v. NATIONAL WESTMINSTER BANK PLC[1991] 2 AC 93. The question at issue in that case was whether in operating a rent review clause under a lease, the tenants were bound by the construction given to the very same clause by Justice Walton in earlier litigation between the same parties over the previous rent review. The Court of Appeal had subsequently, in other cases, cast doubt on Justice Walton's construction, and the House approached the matter on the footing that the law (or perhaps, strictly speaking, the perception of the law) had changed since the earlier litigation. Lord Keith of Kinkel began his analysis by restating the classic distinction between cause of action estoppel and issue estoppel: "Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened.(104D-E) Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue."(105E) [86] The Federal Court in TINDAK MURNI SDN BHD v. JUANG SETIA SDN BHD & ANOTHER APPEAL [2020] 4 CLJ 301 has this to say, inter alia, [87] The other submission that the doctrine of merger prevents an arbitration clause from 'severing' a judgment because the cause of action has merged in the judgment and the judgment acquires a higher status (per Lord Sumption in VIRGIN ATLANTIC AIRWAYS LIMITED (RESPONDENT) v. ZODIAC SEATS UK LIMITED [2013] UKSC is similarly inapplicable in the instant appeal. A cursory reading of the case discloses that it is a judgment relating to the adjudication of patents which went through a full trial in the English courts. The appeal in the Supreme Court of the United Kingdom relates primarily to the problems arising from the system of parallel jurisdiction for determining the validity of European patents. Its relationship to the instant appeals is completely obscure. A passage mid-way in the judgment of Lord Sumption appears to have been selected and randomly cited. S/N nd6oq8B3sEyZ4s4xbFUJRg 12 | P a g e At para. 16 of the judgment, the issue in the appeal is set out, namely that an order of the Court of Appeal upholding the validity of the patent and directing an enquiry as to damages may only be varied by way of an appeal. However, no further avenues of appeal were open. The issue before the court was whether one of the parties was entitled to contend in the inquiry that there were no damages because the patent had been retrospectively amended so as to remove the claims held to have been infringed. This in turn depended upon whether the Court of Appeal was correct to state that its order declaring the patent to be valid continued to bind the parties per rem judicatum notwithstanding that the patent was later amended on the basis that it was not valid in the relevant aspects. It is in this context that Lord Sumption made a statement on the doctrine of merger, in relation to res judicata. He explained the doctrine of merger as treating a cause of action as extinguished, once a judgment has been given upon it, and the claimant's sole right as being a right upon the judgment. He also stated that this principle is a substantive rule about the legal effect of an English judgment which is regarded as of a higher nature and therefore as superseding the underlying cause of action, premised upon a decision dating back to 1844 (KING v. HOARE [1844] 13 MW). [88] Reverting to the issue of advocacy, written or oral, it bears reiterating that if a passage in a judgment is sought to be relied upon, it is incumbent upon counsel to set out and explain:

how the passage cited is applicable to the matter before the court;

(ii) the nature of the case cited;

(iii) the facts of the case, particularly whether and how such facts are relevant, similar or distinguishable from the matter before the court;

(iv) the context in which the statement relied upon was made;

whether the statement amounts to the ratio or is obiter; or

(vi) whether the case is being cited for a principle of general application; and

(vii) whether the statement comprises an expansion of an existing principle. [89] Otherwise, such a randomly cited passage is of little or no assistance to a court in adjudicating on a matter. Similarly, the contention that res judicata prevents the "arbitration clause from severing the judgment in default" lacks clarity and coherent legal reasoning. [90] Res judicata extinguishes a cause of action once a matter has been adjudicated upon its merits. S/N nd6oq8B3sEyZ4s4xbFUJRg 13 | P a g e [91] The arguments that there was no averment made in the affidavits of the Defendants relating to Enclosure 29 to the effect that the filing of the Re-amended Writ and the Amended Statement of Claim could not be sustained for being scandalous or frivolous or being abuse of process or for breaching the Limitation Act, or that in the absence of such an averment, the striking out application in Enclosure 29 could not be sustained or Enclosure 29 has been rendered incompetent, redundant or ineffective for all legal intents and purposes is gravely misconceived. [92] The Court of Appeal, before the hearing of Enclosure 29 before this Court, has decided that the Re-Amended Writ of Summons and Amended Statement of Claim dated 1.2.2018 shall be allowed as if leave was granted. [93] Having made the application to file the Re-Amended Writ of Summons and Amended Statement of Claim dated 1.2.2018 and the subsequent appeal, I find that the argument is preposterous and antithesis to good sense and decency. The thoughts and arguments before this Court was always with the Re-Amended Writ of Summons and Amended Statement of Claim dated 1.2.2018, in mind. Selective amnesia is not welcome. [94] Whether a piece of evidence has been adduced or otherwise is a matter in the main trial. This Re-Amended Writ of Summons and Amended Statement of Claim dated 1.2.2018, in my view, tantamount to a second bite of the cherry. [95] Failure to do discovery or interrogatories is the fault of the Plaintiff and whether it is professional negligence is left to be seen. [96] But what is important is that the Defendants should not be left with the Sword of Damocles left hanging over their heads. [97] For the reasons stated, I ruled that Res Judicata has set in and the Plaintiff is estopped to pursue this Writ action. ii. Whether the requirements of Order 18 Rule 19 have been fulfilled. [98] I have ruled that Res Judicata has set in. As such there cannot be any more Cause of Action in this case. [99] This was settled by the Sessions Court and an appeal to the High Court was withdrawn by the Plaintiff. It stands final. I am unable to see on the ground that it could stand. Failure to do what is necessary during the 1st trial, is not for this Court to remedy. S/N nd6oq8B3sEyZ4s4xbFUJRg 14 | P a g e [100] 'Abuse of process' was described by Lord Denning in the case of GOLDSMITH v. SPERRINGS LTD [1972] 2 All ER 566 in the following enlightening passage: In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The Judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. [101] His Lordship Justice Abdul Malik Ishak in the Court of Appeal case of SIM KOOI SOON v. MALAYSIA AIRLINES SYSTEM [2010] 9 CLJ 924: When you say that you are abusing the process of the court, you are in fact saying that the proceeding is lacking in bona fides and is not only frivolous, it is also vexatious or oppressive. Making use of the process of the court in an oblique way amounts to an abuse of the process of the court. And the person who abuses the process of the court is only interested in accomplishing some improper purpose and that is to mount a collateral attack which offends justice. [102] In DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ v. DATUK CAPTAIN HAMZAH MOHD NOOR & ANOTHER APPEAL [2009] 4 CLJ 329; [2009] 4 MLJ 149, the Federal Court has this to say, inter alia - As I had mentioned in court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course, it cannot be. A party who is late in filing the relevant papers must obtain an order from the court to extend the time, if such extension is required and is permitted by the RHC. Therefore, the answer to question two is in the negative. [103] The Federal Court speaks of time and limitation. The same is equally true with other procedural requirements such as estoppel and res judicata. S/N nd6oq8B3sEyZ4s4xbFUJRg 15 | P a g e CONCLUSION [104] I have perused over the Cause Papers, the written submissions and heard all parties. I found that there is no reasonable cause of action as well as Res Judicata has set in and limitation has been deployed to stop this Writ Action in its tracks. [105] For the reasons aforesaid, I allow this application to strike out the Re-Amended Writ of Summons and Amended Statement of Claim dated 1.2.2018 vide Enclosure 29 and I grant cost in the sum of RM10,000-00 to the Defendants. [Emphasis added] Our Decision [8] At the outset, it is important to emphasize that D1 testified and was cross-examined in the trial of the 1st Suit. In particular, he was cross-examined on the contents of the Hospital’s Medical Report dated 31 October 2001 and as to the Deceased’s Blood Pressure (“B/P”) reading of 140/80 which was stated in his witness statement. The relevant part of the Hospital’s medical report dated 31 October 2001 is as follows;

Patient, Wan Mei Lee came to Pusat Pakar Kluang Utama Sdn Bhd at 7.45pm on 26th May 2001.

Patient left Pusat Pakar Kluang Utama at about 9.30pm on 26th May 2001.

Patient was attended to by the Doctor-in-charge i.e. Dr. Anuar Md Yasin.

& 5) The sequence of event is as follows:- Main complaint by patient was headache for one-day duration. There was no other obvious associated problem, no history of blurring of vision [sic], no history of ear problem, no history of fainting attack, no history of fall etc. On further questioning, there was history of vomiting once. No history of diarrhea, no history of abdominal pain. There was no history of similar problem before. S/N nd6oq8B3sEyZ4s4xbFUJRg 16 | P a g e Patient has no other medical problem like hypertension, diabetic etc. Examination by Doctor-in-charge noted as follows:- No fever BP: 160/96 Pulse: 80/min Ear, nose, throat normal, eye examination normal, no obvious neurological deficit. Lung normal, cardiovascular system normal. Abdomen: soft, non-tender, bowel sound normal. [9] D1 said that there was no contradiction, despite the Medical Report stating that the Deceased’s B/P was at 160/90. We note that D1 was not probed further on this point. The cross-examination of D1 was as follows: Continued Cross-Examination.

(B) page 4 & 5 This is the summarized medical report. Page (9) (B) referred. Letter issued by Pusat Pakar signed by Chief Executive Officer. In there it is stated detailed medical report prepared by me. Page 9 refer to page 4 of bundle (B). Answer 6 said patient came at 7.45 pm. Answer 10. It is stated about 15 minutes A & E unit, patient lapsed into come. Roughly around 15 minutes after patient lapse into coma, Dr How attended to her. Descreased [sic], would have lapsed into coma around 8.00 pm. Page 4 & 5: (B) In this medical report it states patient become unconscious at 8.50 pm. It takes at 8.30 pm, patient felt better headache a lot reduced at 8.45 pm patient complained of weakness and numbness in upper limbs. A13 referred I said Dr. How came around 8.30 pm. In the medical report it states at 8.30 pm. patient felt a lot better. I disagree that my testimony is in contradiction invite medical repot [sic] prepared by me. A6 referred. At 7.45 pm, blood pressure [sic] 140/80. pulse 90/minutes. Page 4 (B) referred. S/N nd6oq8B3sEyZ4s4xbFUJRg 17 | P a g e Pulse 160/96 and pulse 80/min. The blood pressure in page 4 (B) and DWS3 differs. A10 referred / page 485 (B) referred. First reading at 7.45 pm Next reading at 8.30 pm some 45 minutes later. The following take place 8.45 pm, 15 minutes later. The report differs. I don't agree the DWS3 total cotradiction [sic] with medical report. I am not aware no billing on decreased till she was sent to Johor Specialist Hospital for futher [sic] management. No medical changes because nothing was done, I disagree with counsel. We don't have CT-Scan and neurosurgicial [sic] despite calling it Pusat Pakar. I disagree there is no diffence [sic] between a Pusat Pakar and normal clinic. I disagree if I have listened to deceased and her sister, I could have taken adequate steps to save her. That's all. [10] Even in the present action – i.e. the 2nd Suit which was filed in 2016, D1 maintains there are no contradictions in the B/P readings. The 2nd Suit was filed in 2016, which was after the Plaintiff had obtained D1’s handwritten Notes through the intervention of the Ministry of Health in 2012. In the 2nd Suit, the Plaintiff’s contends that D1 had given false evidence in the 1st Suit specifically with regard to the Deceased’s B/P recordings. Hence, the Plaintiff relies of the Federal Court’s decision in Seruan Gemilang Makmur Sdn Bhd V. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 2 MLJ p.1 (FC) (“Seruan Gemilang”) and contends that res judicata does not apply where a party is seeking to impeach an earlier judgment based on fraud. S/N nd6oq8B3sEyZ4s4xbFUJRg 18 | P a g e Seruan Gemilang [11] The issue in Seruan Gemilang was whether doctrine of res judicata applied to bar respondents from challenging earlier judgment of court or whether the impeachment suit was scandalous, frivolous or vexatious, or abuse of process of court. [12] The facts in Seruan Gemilang (per Malayan Law Journal synopsis) are as follows. The second respondent had granted the appellant approval to extract timber from a 10,000 acres forest situated in Pahang (‘the concession area’). However, the appellant complained that the second respondent had prevented it from carrying out its timber extraction from the entire concession area and had also failed to prevent the extraction of timber by third parties trespassing onto the concession area. The appellant claimed that as a result of the second respondent’s breaches, it had suffered losses amounting to a sum of RM36,339,030. The appellant thus commenced a suit against the respondents for the losses it had suffered. During the trial the appellant tendered as evidence a plan of the concession area (‘the Blue Plan’), which the appellant’s witness claimed had been duly approved by the Pahang State Exco. In their defence the respondents claimed that, based on the records of the State Forestry Department, no approval had been granted to the appellant to extract timber from the area delineated in the Blue Plan. The trial judge ruled in favour of the appellant and entered judgment against the respondents. Consequently, the respondents were ordered to pay the appellant a sum of RM37,127,471.60 with interest. The respondents’ appeal to the Court of Appeal was dismissed. The respondents’ subsequent application for leave to appeal to the Federal Court was also dismissed. S/N nd6oq8B3sEyZ4s4xbFUJRg 19 | P a g e [13] Thereafter, the respondents initiated a fresh suit against the appellant to impeach and set aside the judgment obtained by the appellant against the respondents on the grounds of fraud and/or perjury committed by the appellant’s witness during that earlier trial. In its defence to this claim the appellant argued that the fraud which s 44 of the Evidence Act 1950 (‘the Act’) referred to was actual fraud and not constructive fraud ie fraud that had prevented the respondents from placing their case before the court. [14] The appellant in Seruan Gemilang also argued that in order to bring the action within the provisions of s 44 of the Act, the respondents had to show that the alleged fraud was in the nature of ‘extrinsic fraud’ as opposed to ‘intrinsic fraud’. Subsequently, the appellant filed an application to strike out paras 22–29 of the respondents’ statement of claim under Order 18 r. of the Rules of Court 2012 (‘the ROC’) by relying on the principle of res judicata as found in s 40 of the Act. The appellant also contended that the exception to res judicata as found in s 44 of the Act, was not applicable in the present case. The High Court found that based on the reliefs prayed for by the respondents the issue of res judicata did not arise and that the impugned judgment could be impeached or set aside. Thus, the High Court dismissed the appellant’s application to strike out paras 22–29 of the SOC. On appeal, the decision of the High Court was affirmed by the Court of Appeal. The appellant then applied for and obtained the leave of the Federal Court to proceed with the present appeal. In this appeal the appellant again submitted that the doctrine of res judicata applied to bar the respondents from challenging the earlier judgment of the court and that consequently the respondents’ claim should be struck out. S/N nd6oq8B3sEyZ4s4xbFUJRg 20 | P a g e [15] The appellant also submitted that in an action to impeach a previous judgment of a court, the respondents needed to pass through a much higher standard, which they had failed to do and that this in turn made the respondents’ statement of claim frivolous, vexatious and an abuse of the process. The respondents, on the other hand submitted that this was not an appropriate case for paras 22–29 of the SOC to be struck out under O 18 r 19 of the ROC as this was not an ‘obviously unsustainable’ case to be struck out summarily. [16] The Federal Court’s decision (dismissing the appeal) may be summarised as follows:

It is trite that the impeachment action should be by way a fresh action and not in the same action where the impugned earlier judgment was made. The respondents’ claim in the present case was by way of a fresh action based on fresh evidence which could not have been obtained at the earlier trial (see paras 30–32).

The case authorities referred to by the appellant to support its contention that the fraud which s 44 of the Act referred to was actual fraud and not constructive fraud, were of no help to the appellant’s case. In all those cases, the decisions of the respective courts were made after full trial of the actions to set aside earlier judgments, and not summarily by striking out process. The applicants in those cases were given their chance to prove their claims of fraud obtained in the earlier judgments by way of trial. However, the present case had not reached that stage yet. The action was still at the early stage where the appellant applied to strike out the respondents’ statement of claim under O 18 r 19 of the ROC. In any case, the fraud referred to in s 44 of the Act had to be actual positive fraud, ie a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance. Thus, the earlier judgment could not be impeached or set aside on a mere general allegation of fraud and it had to be shown with sufficient details how, when, where and in what way the alleged fraud was committed. Further, the question as to whether the fraud referred to in s 44 of the Act spoke about intrinsic or extrinsic fraud was an issue of law that required lengthy argument and mature consideration at trial. It was no part of the court’s function at this stage of the litigation to decide difficult questions of law which called for detailed argument and mature considerations (see paras 37–44). S/N nd6oq8B3sEyZ4s4xbFUJRg 21 | P a g e

The respondents in the present case relied on the issue of new evidence in the form of a file on the actual approved plan by the Pahang State Exco relating to the areas in dispute, which had been seized by the Anti-Corruption Agency for their investigation and thus was not available at the time the respondents were preparing the case for trial. At this stage of the proceedings, it was clear that the respondents’ statements of claim, particularly paras 22–29 had complied with the basic requirements or elements, on the issue of new evidence as listed above. However, whether the said evidence could or could not be obtained with reasonable diligence, whether it would have an important influence on the result of the trial, and whether it was presumably to be believed, were purely questions of facts which could only be determined at full trial where witnesses could be called to testify but not by way of affidavits evidence at the stage of summary proceedings of striking out under O 18 r 19 of the ROC as applied for by the appellant. In the present case there was a serious conflict on material facts particularly relating to issues on the existence of fraud (be it extrinsic or intrinsic), and whether the fresh evidence could not have been obtained with reasonable diligence to be adduced during the previous trial. This conflict could only be resolved by subjecting the deponents of the various affidavits to cross-examination or by calling other witnesses whose evidence could only be evaluated by the court after seeing and hearing them (see paras 46–48 & 56).

It is settled law that since the doctrine of res judicata was designed to achieve justice, a court could decline to apply it, if its application would lead to an unjust result. Thus, the Court of Appeal had rightly decided that the earlier judgment in question did not operate to bar the respondents from making an application to challenge and to set aside the said earlier judgment (see paras 50–55).

In the circumstances, paras 22–29 of the respondents’ statement of claim had sufficiently pleaded all the relevant particulars or elements to set for trial an action to impeach or set aside the earlier judgment on the ground of fraud or on the ground of fresh/new evidence. The action was based on a valid cause of action recognised by law. Therefore, the respondents’ action as well as the issue of fraud as pleaded therein, could not be said to be frivolous, vexatious and an abuse of the process of the court. The High Court judge and the Court of Appeal were right in holding that the respondents’ action was not obviously unsustainable and dismissed the appellant’s application for striking out (see paras 57–58). S/N nd6oq8B3sEyZ4s4xbFUJRg 22 | P a g e [17] As far as the case of Seruan Gemilang is concerned, we agree with the principle that was enunciated by the Federal Court. The question is whether the Seruan Gemilang principle applies to the facts of the present case. [18] We have carefully examined the factual matrix in the present case and we do not agree that the Seruan Gemilang principle which is an exception to res judicata applies here. We say this because it is quite clear that D1’s handwritten notes, which were obtained in 2012, could, with reasonable diligence have been obtained by the Plaintiff, and D1 could have been asked to explain any purported contradictions. What is indisputable here is that there is no credible or any explanation whatsoever for the Plaintiff’s failure to obtain D1’s handwritten notes for purposes of the trial in the 1st Suit. [19] Counsel for the Plaintiff argued that the issue of whether D1’s handwritten notes could have been obtained with reasonable diligence is a matter for trial in the 2nd Suit. We do not agree. [20] There is plainly and patently no explanation whatsoever in the present case as to why D1’s handwritten notes were not produced at the trial in the 1st Suit. D1’s handwritten notes are not “new evidence”. They were always available. It is just that those who had carriage of the case in the 1st suit seemed oblivious to the need to procure D1’s handwritten notes for purposes of the trial in circumstances where the need for the handwritten notes would, or at any rate, should have been obvious. S/N nd6oq8B3sEyZ4s4xbFUJRg 23 | P a g e [21] Looking at the Notes of Evidence in the 1st Suit, it is clear that there was no attempt by counsel who previously acted for the Plaintiff (in the 1st Suit) to ask D1 to produce his handwritten notes so that the cross-examiner could have pursued his line of question further and more probing questions could have been asked of the Deceased’s B/P readings. The handwritten notes could have also been procured through an application for discovery before the trial of the 1st Suit. There is nothing to suggest that the handwritten notes could not have been obtained for purposes of the trial in the 1st suit. [22] What seems to be happening is that, about 4 years after obtaining the handwritten notes, Plaintiff filed the 2nd Suit which is about 15 years after the death of the Deceased, which the Plaintiff’s claims was due to D1’s negligence. [23] This is clearly a blatant re-litigation of the 1st Suit in circumstances where it is wholly unjust to put D1 and the Hospital through another trial merely to give the Plaintiff a second attempt at cross-examining D1 to explain the so-called contradictions – all of which could, and should have been done in the 1st trial. The 2nd Suit is in our view, a clear manifestation of an abuse of legal process. See: Goldsmith v. Sperrings Ltd [1972] 2 All ER 566 EWCA. [24] We are acutely aware of the principle that the where a plea of res judicata is raised, the Court has the discretion not to apply the doctrine if it would result in an unjust outcome. Here, we think that given the circumstances as discussed above, it would be unjust not to apply the doctrine of res judicata. As the Learned Judicial Commissioner rightly observed at [96] of his Grounds of Judgment, “[D1 and the Hospital] should not be left with the Sword of Damocles left hanging over their heads”. S/N nd6oq8B3sEyZ4s4xbFUJRg 24 | P a g e [25] In all the circumstances, we are not satisfied that there was any misdirection or error on the part of the Learned Judicial Commissioner who allowed Enclosure 29. The appeal is dismissed with costs of RM10,000.00 (subject to allocator). S. Nantha Balan, Judge, Court of Appeal, Putrajaya, Malaysia. Date: 27 September 2024 Legal Representation For the Appellant Amarjeet Singh Avtar Singh Messrs. Hullon & Co. No: 62 Jalan USJ l/2A, 47620 Subang-Jaya, Selangor Darul Ehsan, Malaysia For the Respondents Shamalah Selvarajah Radhia Syahira Binti Razali Messrs. Sham & Co. Suite 205, Level 2, Block A, Damansara Intan, No. 1, Jalan SS 20/27, 47400 Petaling Jaya, Selangor Darul Ehsan. S/N nd6oq8B3sEyZ4s4xbFUJRg