The Tort of Abuse of Process: A Recognised Tort?

In Dato’ Sri Najib bin Tun Abdul Razak (“DSN”)’s civil suit against Tan Sri Tommy Thomas and the Government of Malaysia,[1] the Defendants have filed an application to strike out the civil suit.[2]

Amongst others, the Defendants are taking the position that “the cause of action for abuse of process [pleaded by DSN] is not a cause of action recognised by law”.[3]

With all due respect to the Defendants, and to the learned Deputy Public Prosecutor who affirmed the affidavit taking such a position, the Malaysian courts (at least at the Court of Appeal level and below) have in fact recognised a cause of action for abuse of process.

In KHK Advertising Sdn Bhd v Siera Management Sdn Bhd (in liquidation) [2018] 4 MLJ 168, the Court of Appeal referred in passing to the existence of the tort of abuse of process:

“We found no reason to interfere with the learned judge’s finding. As pointed out by learned counsel for the defendant, a plain reading of the amended statement of claim would show that the issue of abuse of process was not at all alluded to, let alone pleaded. The tort of abuse of process is a separate cause of action and it is trite that the issue should be separately pleaded and not merely raised in submission (see Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152).”[4] [Emphasis mine]

Back in 1998, in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, Gopal Sri Ram JCA (later FCJ) laid down the elements to be established in a claim based on the tort of abuse of process:

“In my judgment, the essential elements of the tort of abuse of process are these:

(1) The process complained of must have been initiated;

(2) The purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be collateral, that is to say, aimed at producing a result not intended by the invocation of the process; and

(3) The plaintiff must have suffered some damage or injury in consequence.”

Circumstances giving rise to the tort of abuse of process would “include the use of interlocutory relief as an instrument of oppression.”[5]

The Court of Appeal in Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 gave the example of interlocutory injunctions and referred to the cases of Motor Sports International Ltd (Servants or agents at Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ 605 and Tsoi Ping Kwan v Loh Lai Ngoh & Anor [1997] 3 MLJ 165.[6]

In Hock Peng Realty Sdn Bhd v Ting Sie Chung @ Ting Sieh Chung and another appeal [2018] 2 MLJ 51, a recent Court of Appeal decision, the Defendant had issued a writ of seizure and sale and subsequently obtained a prohibitory order against the Plaintiff’s land (without having served any papers on the Plaintiff) in breach of the consent order in force between the Plaintiff and the Defendant.[7]

The Plaintiff then filed a civil suit premised inter alia on the tort of abuse of process.[8]

The High Court allowed the Plaintiff’s claim based on the tort of abuse of process and the Court of Appeal subsequently affirmed the High Court’s decision.[9]

In addition, the High Court had awarded the Plaintiff RM50,000 in damages for the tort of abuse of process and the Court of Appeal agreed with the quantum awarded.[10]

Notwithstanding the above, granted, it appears that there are no Federal Court decisions recognising the existence of the tort of abuse of process.

The Defendants’ striking out application, if appealed all the way to the Federal Court, could be the seminal case on the existence (or lack thereof) of the tort of abuse of process in Malaysian law.