Consent judgments preclude relitigation of settled issues; elements of defamation must be proven, including publication and malice.

Noor Hisham Ismail J:

Introduction

[1] This is a defamation action filed by the Plaintiff ("P") against the Defendant ("D") and a counterclaim 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 counterclaim where the 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 had actually, since the end of April 2019, obtained 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 complained about the type of work assigned to her by P, which, according to D, was 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, whose 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 the relevant cause papers in her petition for admission as an advocate and solicitor.

[13] P, although he consented to D's change of master, actually did it 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 2019, 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 lodging a complaint with the Advocates and Solicitors Disciplinary Board ("ASDB"), 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 for D's complaint.

[17] D then decided to withdraw her complaint against P via a letter addressed to the ASDB dated 25 November 2019, and the same was communicated to P as well. P was also informed of the same by the ASDB 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 and solicitor of the 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 admi