JUDGMENT

Abdul Aziz Mohamad JCA:

[1] In the High Court the respondent company, as plaintiffs, sued the appellant company for defamation on account of the publication in The Star newspaper on 12 May 1999 of the advertisement pursuant to r. 24 of the Companies (Winding-Up) Rules 1972 of a winding-up petition by the appellant company against the respondent company. Sued together with the appellant company, the first defendants in the High Court, were the solicitors who acted for the appellant company in the winding-up proceedings, as the second defendants ("the winding-up solicitors"). In the defamation action the appellant company and the winding-up solicitors were separately represented. Besides other defences, the appellant company claimed, in para. 9 of their statement of defence, absolute privilege and, in para. 10, as a further and alternative defence, qualified privilege. Besides other defences, the winding-up solicitors claimed "absolute and/or qualified privilege".

[2] The appellant company and the winding-up solicitors separately applied for the determination of a certain preliminary issue or issues pursuant to O. 14A or O. 33 rr. 2 and 5 of the Rules of the High 1980 . The learned judge (Mohd Hishamudin J) dismissed the applications. By a majority (myself dissenting), their separate appeals, which we heard together, were dismissed. These grounds of decision pertain only to the appellant company's case and appeal, as I am writing them specially for the purpose of their appeal to the Federal Court. I have received no indication of an appeal to the Federal Court by the winding-up solicitors.

[3] The undisputed facts in the appeal were as follows. The appellants' winding-up petition was grounded on a sum of RM141,750 owed by the respondents to the appellants. It was filed on 22 March 1999 and served on the respondents on 23 (or 27) April 1999. On 4 May 1999 the respondents tendered to the appellants a cheque for RM141,750, the full amount of the debt. On 6 May 1999 the appellants presented the cheque to the bank for clearance. On 11 May 1999 the cheque was cleared. On 12 May 1999 the petition was published in The Star newspaper. 3 September 1999 was the date fixed for the hearing of the petition.

[4] Paragraph 6 of the respondents' statement of claim averred the initiation of the winding-up petition by the appellants. Paragraph 7 averred the service of the petition on the respondents. In para. 10 the respondents claimed that, although the hearing date of the petition was 3 September 1999, they had attended to the matter immediately and expeditiously, and therefore they were "surprised and shocked" by the advertisement "when there was seemingly no urgency to warrant the same and further compounded by the fact that the (appellants) had received and (were) in possession of payment by the (respondents), well before the date of publication of the said advertisement".

[5] I have set out the gist of those three paragraphs of the statement of claim, as far as they concerned the appellants, because those paragraphs were mentioned in the issue to be determined, after its formulation was decided by the learned judge. The winding-up solicitors had formulated the issue on their part and the learned judge, so he said, directed the appellants to adopt it. The issue, as applied to the appellants, was as follows:

Whether upon the facts alleged and pleaded in paragraphs 6, 7 and 10 of the statement of claim and the defence of absolute and/or qualified privilege raised and pleaded in paragraphs 9 and 10 of the statement of defence of the first defendant, the plaintiff's claim is maintainable in law and/or in fact by reason of absolute and/or qualified privilege.

[6] According to para. 9.2 of the appellants' statement of defence, the absolute privilege for the advertisement was claimed on the basis that it "was published as part of the (appellants') statutory obligation in prosecuting the petition". It was, the appellants' counsel informed us, the