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2021 MarsdenLR 3832
HIGH COURT MALAYA KUALA LUMPUR
JULIAFITRIANI BAHARUDDIN & ANOR – Appellant
Versus
ROSDONI RASHID – Respondent
[Writ Summons No: WA-23CY-72-12/2019]
Service of cause papers must be regular for judgments to stand; improper service results in setting aside judgments in default.
Headnote:(A) Rules of Court 2012 – Order 42 r 13 – Civil Procedure – Default Judgment – Application to set aside default judgment – Service of cause papers – Defendant contending irregular service – Court determined service was not regular; thus, the judgment was set aside without addressing merits of case. (Paras 60)
(B) Defamation – Emotional distress claims – Plaintiffs claiming damages for defamatory statements by defendant – Court emphasizing the importance of proper service before claims can be adjudicated. (Paras 3, 5)
Facts of the case: Plaintiffs were spouses who filed action against defendant for defamation after discovering derogatory comments on social media. Defendant failed to respond to service of legal documents, resulting in a judgment in default against her. (Paras 2-4)
Findings of Court: Service of the documents was deemed irregular as plaintiffs did not produce proof of service; therefore, the judgment in default must be set aside. (Paras 60)
Issues: Whether the setting aside application was filed out of time and whether the service of the cause papers was regular. (Paras 10, 24)
Ratio Decidendi: Court held that service must be regular to maintain a judgment; improper service renders the process void, leading to violation of the defendant's rights. (Paras 60)
Result: Application to set aside judgment in default allowed.
JUDGMENT
Introduction
[1] This was an application for a judgment in default entered against the defendant to be set aside. At the end of the hearing, this Court allowed the same in light of the recent decision of the Federal Court concerning service of documents. This judgment contains the full reasons for my decision.
Key Background Facts
[2] The plaintiffs are spouses. The second plaintiff was formerly the husband to the defendant. There were divorced on 30 January 2018.
[3] On 28 March 2018 the plaintiffs found out that the defendant had uploaded a posting on her Facebook account which they pleaded to contain several defamatory and false statements, and which put a negative light on the image and personality of the plaintiffs.
[4] It was alleged that the defendant had continuously made defamatory remarks which had in turn caused her friends to post further allegedly defamatory statements. As a result, the plaintiffs pleaded that they had suffered emotional stress, depression, and extreme shame especially when dealing with family members, close friends, colleagues, neighbours, clients and everyone who personally knew them.
[5] In consequence, on 12 September 2019, the plaintiffs, through their solicitors, Messrs Nurul Hafidzah & Associates had sent out a letter of demand to the defendant, seeking among others, a formal apology from the defendant, as well as a sum of RM 1,000.000.00 to each of the plaintiffs, attributed to the said defamatory postings.
[6] As the defendant did not accede to the demand, the plaintiffs, through their solicitors proceeded to file a writ action on 24 December 2019, which writ and statement of claim were then served on the defendant on 27 December 2019. However because the defendant did not file a memorandum of appearance, the plaintiffs decided to file a notice of application to enter judgment in default of appearance against the defendant.
[7] A judgment of default ("JID") was granted by this High Court (another Judge) on 20 February 2020. Several months later, in pursuing the enforcement of the JID, the plaintiffs obtained on 13 October 2020, a Perintah Taksiran Ganti Rugi dated 9 October 2020 allowed by the deputy registrar, in respect of which the defendant was ordered to pay, among others, damages assessed at RM300,000.00 to the plaintiffs.
[8] And the defendant seems to have surfaced only on 30 November 2020 when she filed a notice of application pursuant to O 42 r 13 of the Rules of 2012 ("the RC 2012") to set aside the JID of 20 February 2020. This application, in encl 28 also prayed for the defendant be allowed to enter appearance within seven days from the order of the Court setting aside the JID and that a defence statement be filed within 14 days from the same date of the Order.
[9] The crux of the defendant's contention is that service of the writ and statement of claim was irregular and that in any event she had a defence of merits.
[10] The plaintiffs on the other hand, opposed this application. They put forward three principal reasons which may be conveniently summarised as first, the said application in encl 28 was filed by the defendant out of time; secondly, the service of the cause papers was complete and in order, and thirdly the defendant did not have a defence of merits.
[11] The application and the grounds in support, and the opposition of the plaintiffs will be discussed next.
Analysis & Findings
Whether The Set Aside Application Was Filed Out Of Time
[12] The plaintiffs contended that the defendant's application is defective as it was made beyond the timeline prescribed under O 42 r 13, the basis upon which the application was filed as is evident from the prayers in the notice of application. Given that the plaintiffs had served on the defendant the sealed JID on 3 July 2020, the defendant should have filed this application 30 days from service date, which was by 2 August 2020.
[13] This time stipulation is prescribed in O 42 r 13 of the RC 2012 which reads as
