Richard Malanjum JCA:

Introduction

There are five appeals before us. They arose from two civil suits, S2-23-93-99 (the first suit) and S2-23-33-00 (the second suit).

Both suits were filed by the respondent herein as plaintiff. But in this judgment he will be referred throughout as the respondent. The defendants in the respective suits are the appellants herein and will collectively be referred to as such where appropriate in this judgment. Otherwise the appellants will be referred to by their respective names.

As the background facts and events of these appeals are substantially interrelated we propose to briefly state them first before dealing with the issues and arguments.

The Parties

In the first suit the first appellant is the Bar Council, the second appellant was the former Chairman of the Bar Council being sued on behalf of all the Executive Committee members of the Bar Council including himself while the third appellant is the Malaysian Bar. The first and third appellants are bodies established under the Legal Profession Act 1976 (the LPA).

The respondent is a member of the Malaysian Bar paying an annual subscription fee of RM350 and such further sums as may be required for the various funds and projects of the Bar Council. Section 43 of the LPA made membership to the Malaysian Bar obligatory for anyone wishing to be issued with annual practicing certificate.

In the second suit the first appellant is the Malaysian Bar while the other defendants who did not appeal were formerly members of the Executive Committee of the Bar Council.

Brief Backgrounds Of Events

Raja Aziz the lead counsel for the appellants in both suits briefly summarized the object and causes of the suits:

(a) that in each of the action it sought 'to restrain the Bar Council, Malaysia, from convening and holding an Extraordinary General Meeting to discuss allegations of impropriety made against the Chief Justice who was then in office';

(b) that in the first suit 'the allegations were made in an amended defence filed in August 1999 in High Court Civil Suit No. S2-23-43-1996'; and

(c) that in the second suit 'the allegations were similar, and they were reported in the press on 31 May 2000, as having been made by Datuk Dr. Rais Yatim, the Minister in the Prime Minister's Department'.

These appeals relate to the decisions of the same learned High Court Judge in both suits.

In respect of the first suit the appeals are:

(a) W-02-75-04 (Appeal 75) which is against the judgment of the learned judge rendered on 10 November 2003 and effectively disposed of;

(b) W-02-647-00 (Appeal 647) which is against the ruling of the learned judge allowing the application by the respondent for the trial of a preliminary issue pursuant to O. 33 of the Rules of the High Court 1980 ('the Rules'); and

(c) W-02-780-00 (Appeal 780) which is against the dismissal by the learned judge of the preliminary objection on the issue of secrecy of proceedings conducted by the Bar Council.

The first suit was triggered by the move of the Malaysian Bar acting in concert with the Bar Council to call for an Extraordinary General Meeting scheduled on 20 November 1999 at 10am at the Grand Ballroom, Renaissance Hotel Kuala Lumpur. A notice dated 12 October 1999 ('the notice of 12 October 1999') containing a proposed resolution of even date ('the proposed resolution of 12 October 1999') was thus issued. The respondent received a copy of the same. For convenience, in this judgment unless stated otherwise any reference to 'the proposed EGM' includes the aforementioned notice of 12 October 1999 and the proposed resolution of 12 October 1999.

The main purpose of the proposed EGM was to consider and to adopt if approved the proposed resolution of 12 October 1999 which read: 'That the Bar Council is to forthwith bring to the attention of the appropriate authorities all relevant instances of controversy that have undermined confidence in the Malaysian Judiciary and to do all that is necessary to