A consent judgment precludes relitigation of settled issues, and defamation claims require proof of malice, which was not established.

JUDGMENT

Noor Hisham Ismail J:

Introduction

[1] This is a defamation action filed by the Plaintiff ("P") against the Defendant ("D") and a counter claim by D for tort of abuse of process against P.

[2] At the end of the trial, after having heard counsel for both parties, this Court had dismissed both the claim and counter claim with parties were ordered to bear their own costs.

[3] Parties have since filed their respective appeals to the Court of Appeal.

[4] Hence, this is the Court 's grounds of judgment for the said decision.

Salient Facts

[5] This matter originated at the Sessions Court but was transferred to this Court by consent of both parties on 10 May 2021.

[6] P was at the material time and still at present an advocate and solicitor of the High Court of Malaya, practicing in his own law firm in Johor Bahru, Johor.

[7] D was at the material time, one of P's pupils in his chambers. At present, D is also an advocate and solicitor practicing in a law firm somewhere in the Klang Valley.

[8] D started her pupillage with P on 3 January 2019. According to D, it was P's representation that he possesses extensive knowledge and skills in civil litigation that led D to apply to undergo her pupillage with P.

[9] Not long after, D claimed that P did not fulfill his role as a pupil-master as she was actually since end of April 2019 obtaining all the necessary training under the guidance and tutelage of another advocate and solicitor lawyer, one Mr R.

[10] It transpired that Mr R was often engaged by P's firm to act as counsel to conduct P's litigation cases. At the material time, Mr R was practicing in his own legal firm elsewhere, also in Johor Bahru.

[11] D further complaint about the type of work assigned to her by P which according to D were unrelated to legal work. Aggravating this further was P's action of also placing D under the supervision of one Mr D, a former lawyer that his name had been struck off from the Bar Council's roll of Advocates & Solicitors.

[12] Due to the said dissatisfaction, D had her pupillage changed from being under P to Mr R as her new pupil master starting from 8 May 2019. To that end, D had taken the necessary steps including filing of the relevant cause papers in her petition for admission as an advocate and solicitor.

[13] P, although consented to D's changed of master, but actually with reluctance.

[14] P had expressed such reluctance initially with a letter dated 30 May 2019 sent to D, a copy of which was extended to the Bar Council. Subsequently, P sent another letter dated 14 June 2009, but this time directly addressed to the Bar Council. The contents of both letters would appear in essence as P's complaints towards D pertaining to her pupilage.

[15] On 20 June 2019, D reacted by officially lodged a complaint with the Advocates and Solicitors Disciplinary Board ("ADSB"), a disciplinary body established under the Legal Profession Act 1976 , with allegations against P which form the subject matter of P's defamation action against D in the instant matter.

[16] Meanwhile, during the unfolding of the above events, D completed her pupilage on 11 October 2019 and her petition for admission was scheduled to be heard on 5 December 2019. On the other hand, at or about the same time, P received a written notice from the ASDB on 25 November 2019 seeking his explanation to D's complaint.

[17] D then decided to withdrew her complaint against P via letter addressed to the ADSB dated 25 November 2019 and the same was communicated to P as well. P was also informed of the same by the ADSB on 26 November 2019.

[18] While one may think that things could possibly de-escalate between parties since D withdrew her complaint against P, instead what happened was P decided to lodge a caveat against D's petition for admission as an advocate & solicitor High Court of Malaya ("petition") pursuant to s 17(1) Legal Profession Act 1976 at the Kuala Lumpur High Court ("caveat"). Naturally, D was unable to be admitted as an advocat