Back
2021 MarsdenLR 3475
HIGH COURT MALAYA JOHOR BAHRU
RAVICHANTHIRAN GANESAN – Appellant
Versus
LAU KOK GUAN @ LOW KOK GUAN & ORS (ENCL 7) – Respondent
[Suit No: JA-23NCvC-3-01/2021]
Elements of defamation were established as the Defendants failed to demonstrate that the Plaintiff's claim lacked reasonable cause and the letter did not enjoy absolute privilege.
Headnote:(A) Defamation Law – Elements of defamation established – Absolute privilege claims scrutinized – Letter containing allegations against Plaintiff found not protected under privilege – Defendants fail to prove no reasonable cause of action as required by law. (Paras 15, 17, 18)
Facts of the case: The Plaintiff's defamation suit arises from a letter issued by the Defendants, alleging misconduct, which the Plaintiff contends is defamatory, claiming it was sent with malicious intent.
Findings of Court: The Court concludes the Plaintiff's statement is sustainable and reveals reasonable causes of action for defamation.
Issues: Whether the elements of defamation are met and if the letter enjoys absolute privilege.
Ratio Decidendi: The Court reiterates three requisite elements for defamation: defamatory statements, reference to the Plaintiff, and publication to third parties are fulfilled; hence the case proceeds to trial.
Result: Defendants' application dismissed.
JUDGMENT
[Enclosure 7]
Brief Background
[1] On 21 January 2021, the Plaintiff filed a defamation suit against the Defendants based on the 2nd Defendant's letter and signed by the 3rd Defendant dated 18 November 2020 in which according to the Plaintiff contained defamatory remarks against the Plaintiff.
[2] The Plaintiff pleaded that on the advice of the 1st Defendant (being the solicitor for the 2nd and 3rd Defendants), this said letter was sent by the 2nd and 3rd Defendants to the Chief Police Officer of Johore and copied to the Attorney General, the Johore Head of Prosecution and a legal firm by the name of Messrs Lau Kok Guan Liana & Guan in which the 1st Defendant is a partner.
[3] The said letter states as follows:
[4] In the Statement of Defence filed on 5 February 2021, the Defendants admitted issuing the letter but denied the allegation that the same contained defamatory remarks.
[5] The Defendants also pleaded that the statements were made in government report or judicial proceedings and were immuned from any legal suit.
Application For Striking Out The Plaintiff's Statement Of Claim
[6] On 8 February 2021, the Defendants filed an application in encl 7 under O 18 r 19(1)(b) of the Rules of 2012 for an order that the Plaintiff's Statement of Claim be struck out.
[7] In the Affidavit in Support affirmed on 14 December 2020, the 1st Defendant listed out reasons for this application, inter alia-
(a) the Plaintiff's Statement of Claim does not disclose any cause of action;
(b) the Plaintiff's claim is scandalous, frivolous and vexatious as the said 2nd Defendant's letter dated 18 November 2020 is protected by absolute privilege;
(c) the Plaintiff's claim is an abuse of Court process as the statement in the said letter is made in judicial proceedings and immune from legal suit; and
(d) there is no publication by the 1st and 2nd Defendants to 3rd party as the latter was addressed to the government authorities to kick start investigation under the provisions of law.
Law On Striking Out Of Plaintiff's Claim
[8] It is trite that that an application under O 18 r 19(1)(b) and or (c) of the Rules of can be succeeded only when the Statement of Claim is on the face of it "obviously unsustainable". Order 18 r 19(1) ROC states-
"Striking out pleadings and endorsements (O 18, r 19)
19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.".
[9] In Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors, , the Court of Appeal held that on an application under O 18 r 19(1)(a) the Court has only to consider whether the statement of claim discloses a reasonable cause of action. The well- established principle is that the Court will not summarily strike out pleadings, except only in plain and obvious cases where the claim or counterclaim is plainly and obviously not sustainable.
[10] In Bandar Builders Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd, , Mohamed Dzaiddin bin Hj Abdullah, SCJ (as he was then) held that-
"The principles upon which the Court acts in exercising its power under any of the four limbs of O 18 r 19(1) Rules of the High are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney- General of Duchy of
