Res Judicata: Recognised & Neglected Exceptions

What is res judicata?

“The Latin term ‘res judicata’ literally translated means ‘a matter adjudged’.”[1] “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 …”[2]

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 [2011] 6 MLJ 788, per Abdul Hamid Embong JCA, as he then was, delivering the judgment of the court).”[3]

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.”[4]

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.”[5] (issue estoppel).

Recognised exceptions

In the recent Federal Court case of Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 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 [1991] 3 All ER 41; [1991] 2 AC 93 and Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143).”[6]

This is consistent with the decision of an earlier Federal Court in Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd [2018] 5 MLJ 204 [Scott & English].[7] 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.