A professional negligence claim filed after the limitation period is barred, regardless of the plaintiff's discovery of negligence.

JUDGMENT

Anselm Charles Fernandis J:

Introduction

[1] The Plaintiff herein filed the present suit against the First and Second Defendants (collectively known as "the Defendants") the cause of action being professional negligence (Encl 1). The defendants applied under O18 r 19(1)(b) or (d) Rules of 2012 to strike out the present suit on the sole the ground that limitation had set in and the plaintiffs action was time bared (Encl 9). This Court subsequently allowed the Defendants application in Encl 9. I now give my reasons for doing so.

Brief Back Ground Facts

[2] The Plaintiff was employed as a District Engineer with the Majlis Perbandaran Alor Gajah (MPAG) since 1 January 1996.

[3] At a meeting held on 29 December 2011 and chaired by the Yang Di Pertua MPAG, the Jawatankuasa Tatatertib bagi Kumpulan Pengurusan dan Professional MPAG (the Jawatankuasa) decided that the Plaintiffs employment at the MPAG was to be terminated.

[4] On the 6 January 2012 the Plaintiff received a letter from MPAG dated 3 January 2012 notifying him of this decision. On the 6 January 2012 itself the Plaintiff went to consult the Defendants as to the decision to dismiss him.

[5] On 19 January 2012 the Plaintiff replied to the MPAG letter dated 3 January 2012 expressing his dissatisfaction at the decision and the manner the "tatatertib" proceedings were conducted. The MPAG replied to the Plaintiff's letter dated 19 January 2012 stating that as the Plaintiff had failed to appeal against the decision of the Jawatankuasa within 14 days from the receipt of their letter dated 3 January 2012 the Jawatankuasa's decision was maintained.

[6] On 16 March 2012 the Defendants filed Civil Suit 21NCVC-02-03/2012 at the Malacca High Court on behalf of the Plaintiff against the Yang Di Pertua MPAG (YDP), MPAG and the Malacca State Government for unlawful dismissal. Among the prayers in the in the suit was for a declaration that his termination was null and void.

[7] On 27 April 2012 the MPAG, YDP and the Malacca State Government applied to strike out the suit under O 18 r 19(1)(b) or (d) or under O 92(4) RHC 1980.

[8] It was contended in the striking out application that the Plaintiff had failed to appeal against the Jawatankuasa's decision and therefore failed to exhaust all internal remedies before commencing the suit against them. The plaintiff's action against MPAG, YDP and the Malacca State Government was also challenged on the ground that the Plaintiff should have challenged the decision of the Jawatankuasa by way of Judicial Review as the decision was from a public body.

[9] On 4 December 2012 the High Court allowed the MPAG, YDP and the Malacca State Government's application to strike out the Plaintiff's Writ and Statement of Claim. The Plaintiff did not appeal against the decision of the High Court.

[10] On 19 February 2013 the Plaintiff filed Originating Summons 24NCVC-80-02/2013 for leave to file Judicial Review and for an extension of time to file the leave application. The application was made under O 53 r 3 of the then RHC 1980 which required an application for Judicial Review to be made within 40 days of the decision being communicated to the Plaintiff.

[11] On 3 July 2013 the MPAG, YDP and the Malacca State Government applied for the Plaintiff's application for leave and extension of time be struck out.

[12] On 28 November 2013 Plaintiff's application under Originating Summons 24NCVC-80-02/2013 was struck out on the ground of res judicata.

[13] On 28 November 2019 the Plaintiff filed this present suit against the Defendants for professional negligence.

The Plaintiff's Case

[14] The cause of action of the Plaintiff against the Defendants was that the Defendants were negligent when, in breach of their professional duty as competent solicitors, they filed civil suit ie Civil Suit 21NCVC-02-03/2012 instead of appealing against the decision of the Jawatankuasa MPAG and exhausting all internal remedies there to. This consequently resulted in the Civil Suit 21NCVC-02-03/2012 be