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2020 MarsdenLR 2551
COURT OF APPEAL PUTRAJAYA
N GANESAN N NARAYANAN – Appellant
Versus
WAYTHA MOORTHY PONNUSAMY – Respondent
[Civil Appeal No: N-02(NCVC)(W)-1540-07/2018]
The burden of proof in defamation cases lies on the plaintiff to establish authorship and liability, which was not sufficiently met in this case.
Headnote:(A) Defamation Act 1957 – The impugned article published on 13 March 2016 was found defamatory, targeting the Plaintiff's reputation. The case revolved around who authored the article and whether the 1st Defendant was responsible for it. (Paras 1-4, 9-10, 16-18, 30-31)
(B) Burden of proof in defamation – The Plaintiff failed to establish that the 1st Defendant was the author of the impugned article, ultimately leading to the appeal’s success. The appellate court highlighted the Plaintiff's failure to discharge the burden of proof, requiring proof that the Defendant caused the publication. (Paras 23-40)
Facts of the case: The Plaintiff, Chairman of HINDRAF, claimed defamation from an article in Tamil Nesan, alleging the 1st Defendant authored defamatory statements about him with malicious intent. (Paras 5-10)
Findings of Court: The court found there was no evidence linking the 1st Defendant to the publication, leading to the conclusion that the learned JC's findings were plainly wrong. (Paras 66-70)
Issues: The court assessed whether the 1st Defendant was liable for the statements made in the impugned article and if the Plaintiff met the burden of proof. (Paras 1-4, 12)
Ratio Decidendi: The appellate court decided the Plaintiff failed to establish the 1st Defendant's authorship of the impugned article, which was critical for the defamation claim. (Paras 23-24)
Result: The appeal was allowed with costs of RM 30,000.00 awarded to the 1st Defendant.
Introduction
[1] This is the 1st Appellant's appeal against the decision of the learned Judicial Commissioner (the learned JC) given on 9 July 2018. The JC allowed the Respondent's defamation claim against the 1st Appellant and Tamil Nesan (M) Sdn Bhd in the court below) and proceeded to grant damages of RM 100,000.00 and costs of RM 20,000.00 each against the Appellant and Tamil Nesan (M) Sdn Bhd.
[2] From the record, this appeal is only brought by the 1st Appellant in the notice of appeal dated 24 July 2018. Tamil Nesan (M) Sdn Bhd, the 2nd Defendant did not appeal against the said decision of the learned JC.
[3] In this appeal, the parties will be referred to like what they were referred to at the High court as the Plaintiff, the 1st and 2nd Defendants and the 3rd Party respectively.
[4] We heard the 1st Defendant's appeal. The 1st Defendant's and the Plaintiff's counsels had made oral submissions and also referred to their written submissions. Having considered the submissions and perused the Record of Appeal and the grounds of judgment of the learned JC, we found there is merit in the 1st Defendant's appeal. We were uninamous in our decision that the 1st Defendant's appeal ought to be allowed. Hence, we allowed the 1st Defendant's appeal with costs of RM 30,000.00 here and below subject to allocator fee. We gave our reasons.
Background Facts
[5] The Plaintiff at all material time is the Chairman of a NonGovernmental Organisation known as HINDRAF. The 1st Defendant was formerly the national advisor of HINDRAF. The 1st Defendant resigned from his position in 6 March 2016.
[6] The subject matter of the Plaintiff's claim against the Defendants is premised on an article titled "HINDRAF is Splitting Again" published in Tamil Nesan, a Tamil National Newspaper, on 13 March 2016 [the Impugned Article].
[7] The Impugned Article was written in the Tamil Language. It was later translated by a Tamil Interpreter of the Seremban High court into English which reads as follows:
Daily Press- Tamil Nesan
March 13, 2016 - Tamil Nesan HINDRAF Is Splitting Again.
Hindraf which stood forward without fear has voiced out for the development of socio economic status for the Malaysian Indians appears to have a situation of a major split.
The Hindraf Organisation and their struggle are being diverted by its leader Waytha Moorthy for his own political gains and this has been realised by the superior leaders who had stood as pillars for the past few months informed the Hindraf National Advisor N Ganesan.
Since his own political benefits are being hindered by some of these superior people of the Organisation who are also opposing his ways, it is said that Waytha Moorthy has appointed his family members as well as his school and college friends in the Central Committee and with their unanimous support he is moving his steps towards fulfilling his political dreams.
When Waytha Moorthy was in London under asylum, many important members in Malaysia were continuing the struggle for Hindraf in Malaysia but now Waytha Moorthy is disregarding them as well as embarked on a defamatory campaign against them in exploitation of the people and their problems towards his search of political gain Waytha Moorthy's real character would be exposed soon.
It is said Waytha Moorthy's conduct has raised major objections amongst the Central Committee members and today the 13 March 2016 @ 10.00am, at the Annnual/General Meeting that to be held at the Chinese Assembly Hall, Kuala Lumpur hence Waytha Moorthy to fulfil his political dreams after appointing his puppets as Central Committee members, there would be another major unavoidable split in Hindraf Organisation states Ganesan regretfully.
(at para 5 (a) of the Plaintiff's statement of claim (p 43 to 44 of the Rekod Rayuan/Jilid 1 (Bahagian A).
[8] The Plaintiff averred that the Impugned Article is defamatory of the Plaintiff as it connotes the adversed meanings as pleaded at para 8 (a) to (q) of the Plaintiff'
