What is res judicata?
“The Latin term ‘res judicata’ literally translated means ‘a matter adjudged’.” “A point or question becomes res judicata when it has been so decided … as conclusively to settle it, and so as to prevent the same question being against raised by the same parties or their representatives …”
The principle of res judicata “… expresses a general public interest policy that the same issue (or cause of action) should not be litigated more than once even if the parties are different. It prevents vexatious litigation and any abuse of the courts’ process on the premise that final judgments are binding and conclusive (see Henderson v Henderson (1843) 3 Hare 100)” (Letchumanan a/l Gopal (representative for the estate of Rajammah a/p Muthusamy, deceased) v Pacific Orient & Co Sdn Bhd  6 MLJ 788, per Abdul Hamid Embong JCA, as he then was, delivering the judgment of the court).”
Spencer Bower and Turner, Res Judicata, 3rd Edition (1996) states six matters to be established in a plea of res judicata. They are the following:
“(i) the decision was judicial in the relevant sense;
(ii) it was in fact pronounced;
(iii) the tribunal had jurisdiction over the parties and the subject matter;
(iv) the decision was – (a) final, and (b) on the merits;
(v) it determined the same questions as that raised in the later question; and
(vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.”
Res judicata acts as a bar to “prevent a party from filing an action based on a cause of action which has been decided in an earlier suit concerning the party and/or his or her “privy”” (cause of action estoppel) or “prevent a party from raising any issue in any second and subsequent proceedings which (a) has been raised; or (b) can be raised – in the first proceedings between the parties and/or their privies.” (issue estoppel).
In the recent Federal Court case of Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor  2 MLJ 689 [Sykt Sebati], the following was held:
“It is clear however from decided cases that the circumstances alluded to by the Court of Appeal (ie non-consideration of the provisions of the GCA 1949) do not fall within the exceptions to the doctrine of res judicata which are limited to the following situations: fraud or where evidence not available at the original hearing becomes available (see Arnold and others v National Westminister Bank plc  3 All ER 41;  2 AC 93 and Hock Hua Bank Bhd v Sahari bin Murid  1 MLJ 143).”
This is consistent with the decision of an earlier Federal Court in Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd  5 MLJ 204 [Scott & English]. It would seem that at this point in time, the only recognised exceptions to res judicata are fraud and where evidence not available at the original hearing becomes available.
However, case law in Malaysia and in other jurisdictions have revealed exceptions which were previously accepted by our superior courts only to be neglected in recent times.
1) Exceptional/special circumstances
The Supreme Court in Superintendent of Pudu Prison & Ors v Sim Kie Choon  1 MLJ 494, per Abdoolcader SCJ held that “the plea of res judicata applies, except perhaps where special circumstances may conceivably arise of sufficient merit to exclude its operation …”
Meanwhile, the Federal Court in Manoharan Malayalam v. Menteri Dalam Negeri, Malaysia & Anor  2 MLJ 660 noted that it does “… recognize the fact that there would be exceptional cases where matters which should have been raised were not, but when raised in subsequent proceedings would not amount to an abuse of process and the plea of res judicata does not appear to be correctly taken [See the case of Re Tarling (1979) 1 All ER 981]. This point was considered in our local case of Rakesh a/l Ram Tawar v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors.  4 MLJ 97.”
It remains unclear why in recent cases, namely Sykt Sebati and Scott & English, the Federal Court has abandoned such an important exception to the res judicata rule in light of the fact that it has been affirmed by previous superior courts and which has been adopted in various jurisdictions.
2) Justice of the case
In Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd  4 MLJ 346, Gopal Sri Ram JCA (as he then was), in relying on the decisions of the UK House of Lords in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd and Others (No 2)  2 All ER 536, Arnold v National Westminister Bank Plc  2 AC 93, and Johnson v Gore Wood & Co (2000) (Unreported) expanded the list of exceptions to res judicata.
His Lordship opined that:
“… there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. And there is respectable authority in support of the view I have just expressed.
On the authorities discussed thus far, the principle comes to this. Whether res judicata in the wider sense should be permitted to bar a claim is a matter that is to be determined on the facts of each case, always having regard to where the justice of the individual and particular case lies.”
This is a key exception which has been relied upon in many subsequent decisions and is consistent with the courts being i) required to, in administering its rules, have regard to the overriding interest of justice, and ii) empowered to make any order as may be necessary to prevent injustice.
However, in Sykt Sebati, the Federal Court was of the opinion that “whether an ‘unjust result’ or the justice of the case constitutes a further exception to the doctrine of res judicata remains to be seen. For the moment, based on recent Federal Court decisions, it is not yet a recognised exception to the doctrine of res judicata.”
The court in Sykt Sebati missed a golden opportunity to solidify an exception to res judicata which not only finds support in previous cases but is consistent with its statutory obligation and happens to find support in other jurisdictions.
 Kerajaan Malaysia v Mat Shuhaimi bin Shafiei  2 MLJ 133, at paragraph 19
 Trayner’s Latin Maxims, 4th Edition, (1993), p. 553
 Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd  5 MLJ 204, at paragraph 19
 Spencer Bower and Turner, Res Judicata, 3rd Edition (1996), p. 10, para 19. This was cited by the Federal Court in Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor  2 MLJ 689, at paragraph 34
 Ramachandran a/l Meyappan & Ors v Chellapan a/l K Kalimuthu (sued as a public officer on behalf of the Management Body of Sri MahaMariamman Temple, Seafield under s 9(c),Societies Act 1966) & Ors  MLJU 113, at paragraph 40.
 Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor  2 MLJ 689, at paragraph 43
 Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd  5 MLJ 204, at paragraph 20: “… if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v Neotia & Co  AC 888 and Jonesco v Beard  AC 298”
 Superintendent of Pudu Prison & Ors v Sim Kie Choon  1 MLJ 494, at page 498
 Manoharan Malayalam v. Menteri Dalam Negeri, Malaysia & Anor  2 MLJ 660, at paragraph 17
 E.g. Australia [Kingston City Council v Monash City Council  VSC 41, para 105; Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd  FCA 393, para 19], Canada [Minott v. O’Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.)], United Kingdom [Arnold v National Westminister Bank Plc  2 AC 93]
 Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd  4 MLJ 346, at pages 357-358
 See e.g. Francis Joseph Puthucheary v Eng Securities Sdn Bhd  4 CLJ 433 and CNLT (Far East) Berhad (Dalam Likuidasi) v JCT Limited  MLJU 543
 See e.g. Order 1A of the Rules of Court 2012, Rule 1A of the Rules of the Court of Appeal 1994, and Rule 3 of the Rules of the Federal Court 1995
 See e.g. Order 92, Rule 4 of the Rules of Court 2012, Rule 105 of the Rules of the Court of Appeal 1994, and Rule 137 of the Rules of the Federal Court 1995
 Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor  2 MLJ 689, at paragraph 43
 See e.g. Australia [Commonwealth of Australia v Cockatoo Dockyard Pty Ltd  NSWCA 322 (SC); Petrie v Linsley (1995) 21 MVR 413 (SC)], Canada [Danyluk v. Ainsworth Technologies Inc.,  2 S.C.R. 460 (SC); British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), para. 32]; Singapore [Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd  SGCA 39;  1 SLR 998 (CA); LEE TAT DEVELOPMENT PTE LTD V MANAGEMENT CORPORATION STRATA TITLE PLAN NO 301  SGCA 47;  1 SLR 875 (CA)]