Immunity under section 22(1) of the Trade Unions Act 1959 only applies to tortious acts committed on behalf of a registered trade union; claims for immunity when the union was not registered are invalid.

[1] The defendants in S-23NCVC-14-2011 and S-23NCVC-20-2011 are Noorzeela binti Lamin ("the 1st defendant") and Zayuddin bin Mohamed Yusof ("the 2nd defendant") respectively. The plaintiff in both suits is the National Union of Bank Employees. The plaintiff's claim against the defendants is for, inter alia, general and aggravated damages arising out of the publication by the defendants of alleged defamatory comments against the plaintiff and the plaintiff's National Executive Council members on Facebook and in a leaflet entitled "MAYNEU Maybank Non Executive Union".

[2] In the course of the hearing and after two witnesses had already been heard, learned counsel for the defendants had suddenly sought to raise an issue about the court's jurisdiction to hear the cases. When questioned as to why this was only being raised at this late stage, counsel had offered the explanation that his attention was only drawn to this after a recent decision of the High court where VT Singham J had, in a defamation suit against the National Union of Bank Employees (NUBE), held on 24 November 2011 that NUBE had immunity and the suit against it was struck off with costs of RM15,000.00.

[3] Counsel had submitted that by reason of the decision of the FM court of Appeal in the case of The National Union of Plantation Workers v. K Annamalai , [1959] 25 MLJ 9 which held that such a suit shall not be entertained in any court, the jurisdiction of this court would effectively be removed.

[4] In light of this stand taken by the defendants, the court had directed that a formal application for striking out be made before the court would make a ruling thereon.

[5]Vide a Summons in Chambers dated 5 December 2011, the defendants had applied to strike out the plaintiff's Writ of Summons and Statement of Claim under O 18 r 19 (1)(a), (b) and (d) of the Rules of the High 1980.

[6] The relevant portions of O 18 r 19 of the Rules of the High 1980 read as follows:

"19. (1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in the indorsement, on the ground:

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) 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.".

[7] The basis for the application is founded on s 22(1) of the Trade Unions Act 1959 which affords immunity against liability in respect of tortious acts to a registered trade union and members of the registered trade union in respect of tortious acts alleged to have been committed by or on behalf of the trade union.

[8] In her affidavit in support of the application (encl 24), the 1st defendant has averred that s 22(1) of the Trade Unions Act 1959 affords her immunity as a member of the plaintiff. Although she denies publication of the offending leaflet, she has nevertheless claimed immunity in light of the protection afforded by that section. She admits that she was a member of the plaintiff at the time that the offending leaflet was published but has since been expelled from the plaintiff with effect from 10 December 2010. She is now an executive committee member of Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Berhad ("MAYNEU") which was registered on 3 January 2011. As a committee member of MAYNEU, she further claims immunity in respect of tortious acts committed against the plaintiff although in the same breath she denies committing such tortious acts.

[9] In his affidavit in support of the application (encl 20), the 2nd defendant has also averred that s 22(1)