A plaintiff cannot file a second action on identical grounds after the first was struck out for non-compliance with a court order, as this constitutes an abuse of process.

[1] This is an appeal by the appellant against the decision of the Court of Appeal in allowing the respondent's appeal against the decision of the High Court at Kuala Lumpur allowing the appellant's application for the writ and statement of claim of the respondent be struck out with costs. Before the High Court the appellant was the defendant and the respondent was the plaintiff. We shall refer to the parties as they were before the High Court.

Background Facts

[2] The relevant background facts of the case may be summarised as follows:

(i) The plaintiff had filed a suit against the defendant vide Kuala Lumpur High Court suit D1-22-270-2006 ("the 2006 suit") based on the same facts and for the same relief as set out in the present suit D-22NCC-1071-2010 ("the 2010 suit").

(ii) Pursuant to an application by the defendant for discovery of documents in the 2006 suit, an order of Court had been issued against the plaintiff on 31 October 2008 whereby the plaintiff was to file an affidavit to disclose all documents in its possession within a stipulated time.

(iii) The plaintiff did not lodge any appeal against that order of Court in the 2006 suit and neither did the plaintiff comply with the said order. On 25 August 2009 the Court on its own volition issued to the plaintiff a 'notice to show cause" in the 2006 suit as to why the suit should not be struck out as no further action had been taken by the plaintiff on the file.

(iv) On 15 September 2009, the Deputy Registrar proceeded to strike out the 2006 suit upon the hearing of the notice to show cause. Before the Deputy Registrar, the plaintiff counsel's explanation from the bar as regards the delay in prosecuting the action was rejected. The Deputy Registrar in her conclusion held expressly that the plaintiff 's delay in proceeding with the further prosecution of the 2006 suit was an intentional and contumelious default and that was ground enough for the suit to be struck out.

(v) The plaintiff appealed against the Deputy Registrar's decision to the judge in chambers. The learned judge dismissed the appeal. The plaintiff did not file any appeal against the learned judge's decision but chose instead to file this present suit, which for all intents and purposes was a fresh action for the same relief based on the same set of facts. The plaintiff maintained that as no statutory limitation had set in, they were entitled to bring this fresh proceeding against the defendant.

(vi) The defendant then filed an application for the writ and statement of claim of the plaintiff to be struck out with costs.

Findings Of The High Court

[3] On 4 October 2010, the High Court allowed the defendant's application and ordered that the writ and statement of claim in this present suit to be struck out with costs of RM7,500.00. The learned judge of the High Court ruled that the second suit was an abuse of the process of the Court by the plaintiff. The learned judge of the High Court inter alia held that pursuant to O 34 r 3 of the Rules of High 1980 ("RHC 1980") and its inherent jurisdiction, the Court had the power to dismiss an action for want of prosecution. The learned judge agreed with the finding of the Deputy Registrar that the delay of the plaintiff in not prosecuting the 2006 suit was the result of an intentional and contumelious default or conduct of the plaintiff. The learned judge of the High Court further held that the fact that the 2010 suit was filed well before the expiry of the limitation period is of no consequence.