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2009 MarsdenLR 4283
COURT OF APPEAL PUTRAJAYA
CHANG NGA @ TEH SIEW YOKE & 8 ORS – Appellant
Versus
LEE LANG & 9 ORS – Respondent
[Civil Appeal No: W-02-143-2004]
[1] This is the judgment of the Court.
[2] The appellants before us (plaintiffs in the Court below) had their writ and statement of claim struck out under O 18 r 19 Rules of the High 1980. They now appeal to us to have that order reversed and to have their writ restored to file.
[3] The pleading in question, namely the statement of claim, alleges that the plaintiffs are victims of two torts, namely, the tort of malicious prosecution and that of abuse of process. When we put to counsel when he opened his appeal that the former tort is limited to cases where a criminal prosecution terminates in favour of the plaintiff he readily withdrew that head of complaint before us. Accordingly, we find it unnecessary to say anything further on that part of the case.
[4] In so far as the latter tort is concerned, the starting point, we think, is the dissenting judgment of Lord Denning MR in Goldsmith v. Sperrings Ltd & Ors [1977] 1 WLR 478:
"In a civilised society legal process is the machinery for keeping 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 it is 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."
[5] This Court has in Malaysia Building Society Berhad v. Tan Sri General Ungku Nazaruddin Bin Ungku Mohamed, [1998] 2 MLJ 425 applied Goldsmith v. Sperrings. Learned counsel for the appellant submits that it is not an essential ingredient of the tort that the proceeding in question have to terminate in a plaintiff's favour. The short answer to that submission is that it is difficult to imagine how the tort in question can be ever committed unless harm or injury has actually been done. As The Master of the Rolls pointed out in Goldsmith v. Sperrings, if proceedings are afoot, the harm can be restrained quia timet by an application to stay the action or other proceeding to prevent injury.
[6] We must mention here that the learned counsel has a third string to his bow. He says that his pleading is safe from summary dismissal because his clients are also the victims of the tort of conspiracy which Lord Diplock in Lonrho Ltd & Anor v. Shell Petroleum Co Ltd & Anor (No 2) [1982] AC 173 described as "a highly anomalous cause of action". But, in our view, whatever the tort that may be pleaded, the answer must remain the same on the facts of this case. For, an efficacious remedy is available to the instant appellants/plaintiffs internally, that is to say, within the very suits or proceedings they complain about in their pleading. Take for example the proceedings mentioned in para 15(b) of the amended statement of claim described as follows:
15. (b) "On 21 May 2001 the Defendants filed a Winding Up Petition in the Kuala Lumpur High Court against the 9th Plaintiff and naming all the Plaintiffs as Respondents namely Companies Winding Up Petition No D2-28-507-2001 which Winding Up Petition was struck off with costs on 9 October 2001."
[7] It is common ground that on appeal the petition in question was reinstated and restored to file by an order of this Court. So, if it is the instant appellant's complaint that the petition is the product of a conspiracy to commit an abuse of process that in itself must surely be a defence or answer to the petition. See Apirami Sdn Bhd v. Tamil Nesan (M) Sdn Bhd, [1986] CLJ (Rep) 279. In that case, VC George J (later JCA) dismissed a winding up petition on the ground it was an abuse of the Court's process. In doing so he relied on the following passage in the judgment of Plowman J in
