Suffian LP (read by Lee Hun Hoe CJ (Borneo)):

The plaintiff was an employee of the second defendant.On or about 23 June 1970 the first defendant (a fellow employee) wrote a letter to the plaintiff concerning the plaintiff.The first defendant apparently sent copies to the Sarawak Commercial Employees' Union, to Mr. G Creighton (the Managing Director of the second defendant) and also to the Secretary/ Accountant of the second defendant.The plaintiff pleaded that his service with the second defendant was terminated by the second defendant with effect from 17 August 1970 that the first defendant had falsely and maliciously written that letter; and that as a consequence of that letter he had been greatly injured in his credit and reputation, and in his character as a commercial employee and had been unable to get another job.

The second defendant denied having written or published the letter.

The first defendant admitted that he wrote and published it, but pleaded that "in so far as the words consist of allegations of fact they are true in substance and in fact and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice upon the said facts."

The first defendant then gave particulars as follows: -

'In December 1969, the plaintiff was an Acting Clerk-in- charge of the [second defendant's] branch in Miri and on 8 December 1969 the defendant [a mistake for plaintiff] issued a temporary receipt signed by him to a customer for the sum of $4,760.However, the office copy of the said receipt shows a sum of $149.16 paid by another customer."

The plaintiff by summons-in-chambers applied for an order that para 3 of the defence be struck out under O. 25 r. 4 which reads

The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.,

and also under the inherent jurisdiction of the Court.His Counsel argued that para. 3 of the defence is a rolledup plea of fair comment, that to succeed in that defence the words complained of must be shown to be (1) comment, (2) fair comment and (3) fair comment on some matter of public interest, that nowhere in the defence is it alleged that the comment is on a matter of public interest, and that even if it were so alleged, the purported comment cannot be brought within "a matter of public interest."

The learned Judge before whom this application came rejected the application.He said that the crucial question was whether fair comment must be on some matter of public interest and that he had not been referred to any binding authority whereby a defence of fair comment simpliciter has been struck out and applying the dictum of Somervell LJ in Kemsley v. Foot [1951] 2 KB 34 he refused the plaintiff's application.Dealing with O. 19 r. 27 and O. 25 r. 4 of the Rules of the Supreme Court, Somervell LJ there said at P. 39:

They should be applied only in plain and obvious cases, and if there is a point of law which requires serious discussion an objection should be taken on the pleadings and the point set down for argument under O. 25 r. 2.

The learned Judge who rejected this application said:

It is well established that the drastic remedy of striking out a pleading or part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to discloses no arguable case.

With respect to the learned judge, I think that it is well established that the defence of fair comment cannot be on any matter but must be on some matter of public interest, as contended by Mr. Thomas for the plaintiff and that the defence pleaded here is one of fair comment and not one of justification.This is clear from Sutherland v. Stopes [1925] AC 47. There th