2011 MarsdenLR 1264

JOHN KO WAI SENG
LAYONG BUDIT & ORS – Appellant
Versus
TR GIRI TUNTONG & ORS – Respondent

Dismissal for want of prosecution is not a final judgment on merits, allowing a new action to proceed under res judicata principles.

Headnote:(A) Civil Procedure - Order 18 rule 19 and Order 92 rule 4 Rules of the High Court - Application to strike out claim on grounds of res judicata - Plaintiffs sought to establish native customary rights over land - Defendants contended that the claim was previously struck out and therefore barred by res judicata; the court found the prior dismissal was an interlocutory order and did not decide on the merits, allowing the new action to proceed. (Paras 1-2)

(B) Res Judicata - Dismissal for want of prosecution - Court distinguished between interlocutory dismissals for cause and simpliciter, emphasizing that mere procedural failures do not equate to a final decision on the merits, thus allowing plaintiffs to commence fresh action. (Paras 2-2)

(C) Rights to pursue litigation - The court underscored that failing to comply with procedural rules should not strip plaintiffs of their right to litigate their claims, as long as the cause of action is not statute-barred. (Paras 2-2)

Facts of the case:
The Plaintiffs aimed to establish land rights in a new suit after a previous identical claim was struck out due to their attorney's absence. The Defendants argued that this new suit was barred by res judicata.

Findings of Court:
The court dismissed the Defendants' application to strike out the claim, affirming that the first dismissal was not a final judgment on the merits.

Issues: Whether the dismissal of the 2007 Suit as an interlocutory order barred the 2009 Suit under res judicata.

Ratio Decidendi: The dismissal for want of prosecution was an interlocutory order that did not prevent the hardship of res judicata, affirming that procedural or technical dismissals do not equal a final decision on merits, allowing a fresh action.

Result: Application dismissed with costs to the Plaintiffs.