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2024 MarsdenLR 1004
HIGH COURT MALAYA PENANG
TAN SIEW KIN – Appellant
Versus
MALAYAN BANKING BERHAD & ANOR – Respondent
[Civil Suit No: PA-22NCvC-161-11/2022]
A plaintiff in a defamation action must plead and prove the essential elements of defamation; failure to do so results in dismissal of the claim.
Headnote:(A) Defamation – Burden of proof – Essential ingredients of defamation – Plaintiff failed to plead and prove the three essential ingredients of defamation: (a) the impugned words are defamatory; (b) the impugned words refer to the plaintiff; and (c) the impugned words were published – Plaintiff's claim dismissed due to defective pleading and res judicata. (Paras 17-28, 62-70)
(B) Limitation – Action for defamation must be brought within six years from the date of publication – Plaintiff's claim time-barred as it was filed after the limitation period expired. (Paras 73-84)
Facts of the case: Plaintiff, an advocate, claimed defamation against the Defendants for alleged harassment and tarnishing of her reputation regarding a debt she had settled. The Defendants were a bank and its debt collection agency. (Paras 2-14)
Findings of Court: Plaintiff's claim for defamation was dismissed as she failed to prove the essential elements of the tort and her action was barred by res judicata and limitation. (Paras 95-96)
Issues: Whether the Plaintiff established a valid cause of action for defamation and whether the claim was time-barred. (Paras 17-28, 73-84)
Ratio Decidendi: The court held that the Plaintiff's failure to plead the defamatory statement was fatal to her claim, and the principle of res judicata barred her from relitigating the same matter. (Paras 17-28, 62-70)
Result: Claim dismissed.
JUDGMENT
Introduction
[1] This is a defamation action brought by the Plaintiff ("P") against the Defendants. After a full trial, I dismissed P's claim. Here are the grounds of my judgment.
Background Facts
The Parties
[2] P is an advocate and solicitor of the High Court of Malaya. She practices under the style of Messrs Tan Siew Kin & Associates, in which she is the sole proprietor.
[3] The 1st Defendant is a licensed financial institution. The 2nd Defendant ("D2") was appointed by the 1st Defendant to be its debt collection agency.
The Relationship Between Pavillion United Sdn Bhd And The Plaintiff
[4] In the year 1996, Pavillion United Sdn Bhd ("Pavillion United") took a hire purchase facility from the 1st Defendant or its predecessor company ("Bank"). Pursuant to a Joint and Several Guarantee and Indemnity Agreement dated 6 June 1996, P stood as one of the guarantors for the said hire purchase facility.
[5] At that time, P was a director of Pavillion United. On 30 October 1996, P tendered a letter of resignation as a director of Pavillion United.
[6] In the year 1998, the Bank issued a notice of intention to repossess against P due to the indebtedness of Pavillion United. On 17 January 2002, P paid a sum of RM22,692 in settlement of her portion of the debt owing to the Bank. On 11 November 2002, the Bank issued a letter of discharge to P, whereby P was discharged as a guarantor for Pavillion United.
Previous 2007 Suit
[7] On 17 August 2007, P commenced a civil suit against the Bank vide Penang High Court Suit No 22-512-2007 for defamation ("previous 2007 suit"). Via an order of Court dated 23 December 2011 ("2011 Court order"), the Penang High Court ordered the Bank to pay a sum of RM150,000 to P as general damages.
[8] The events pertaining to the previous 2007 suit are these:
(a) On 4 June 1999, the Bank obtained summary judgment against Pavillion United, P and another guarantor.
(b) On 24 October 2002, the Bank filed a bankruptcy notice against P ("said bankruptcy notice").
(c) On 11 November 2002, the Bank issued a letter of discharge to P to discharge her liability as a guarantor of Pavillion United.
(d) On 10 January 2003, the Bank obtained an order for substituted service to serve the said bankuptcy notice to P.
(e) On 13 February 2003, the said bankruptcy notice was advertised in a newspaper (The Sun) as per the substituted service order.
(f) It can be seen that the said bankruptcy notice against P was advertised (ie on 13 February 2003), after the Bank had issued the letter of discharge in favour of P (ie on 11 November 2002). This led to P filing the previous 2007 suit against the Bank for defamation. The Bank admitted liability.
(g) On 23 November 2011, following a hearing on assessment of damages, general damages in the sum of RM150,000 was awarded in favour of P vide the 2011 Court order.
The Involvement Of The 2nd Defendant In The Dispute Between The Plaintiff And The 1st Defendant
[9] On 14 January 2016, the Bank engaged the services of D2 via a Professional Services Agreement dated 14 January 2016 ("said agreement"). The services in question was to collect the outstanding debt due and owing to the Bank.
[10] Via a letter dated 16 January 2017, the Bank suspended the services of D2 effective from 16 January 2017. D2 was instructed not to keep any files or documents pertaining to the matters of the Bank for longer than 3 months, from the receipt of instructions from the Bank. As such, D2 asserts that it does not have any record of the transactions performed by it on behalf of the Bank.
The Plaintiff's Case
[11] In the year 2014, P allegedly received a call from an individual known as 'Carlos'. The said Carlos identified himself as an agent appointed by the Bank to recover the debt under the hire purchase facility taken by Pavillion United, where P stood as a guarantor for Pavillion United.
[12] P alleged that the said Carlos had repeatedly contacted her between 2014 until 2016. And that D2 had threatened to tarnish her
