The Bankruptcy Notice is protected by absolute privilege, and insufficient particulars in defamation claims can lead to dismissal.

[1] This is a claim brought by the Plaintiff against the Defendant for the alleged defamation and abuse of the court process in filing Bankruptcy Proceedings No BTU -29NCC-76/4-2017. The Plaintiff prays for the following orders and reliefs:

i. General damages for Abuse of the process of the court;

ii. General damages for libel;

iii. Special damages of RM35,000.00;

iv. Interest on the aforesaid general and special damages at the rate of 5% per annum for such period of time until full and final payment and settlement;

v. such other reliefs as the court deems just; and

vi. costs

Salient Facts

[2] On or about 25 July 2014, the Plaintiff commenced an action against the Defendant in the Bintulu Magistrates' court No BTU-A72-NCvC-166/7-2014 for general and special damages of RM 257,117.25 for breach of a Tenancy Agreement as well as for trespass, conversion, wrongful interference, removal and transportation of chattels and goods.

[3] On 15 July 2015, the Plaintiff filed a separate civil suit action in Originating Summons No BTU-24NCvC-7/7-2015 seeking relief to transfer the aforementioned action from the Magistrates' court to the Sessions court. The learned High court judge allowed the Plaintiff's application with costs of RM 5000.00.

[4] On 21 January 2016, the learned Sessions court Judge dismissed the Plaintiff's action and the Plaintiff appealed to the High court against the ruling of the Sessions court. On 27 October 2016, the Plaintiff's appeal was once more dismissed with costs of RM 5000.00.

[5] The Defendant thereafter commenced Bankruptcy Proceedings under case No BTU-29NCC-76/4-2017 against the Plaintiff.

[6] The present suit was subsequently filed by the Plaintiff by way of Writ and Statement of Claim alleging that the commencement of Bankruptcy Proceedings No BTU-29NCC-76/4-2017 was defamatory and amounted to an abuse of the court process.

[7] On 19 July 2017, Bankruptcy Proceedings No BTU-29NCC-76/4-2017 was struck out by the Senior Assistant Registrar with liberty to file afresh and no order as to costs.

[8] On 19 September 2017, the Defendant applied to strike out the Plaintiff's Writ and Statement of Claim (Encl 7), while the Defendant on 28 September 2017 applied for Summary Judgment (Encl 9).

[9] On 8 May 2018, the learned High court Judge dismissed both the applications and fixed the above matter for trial.

Preliminary Issues

[10] During the trial, the parties called 1 witness each.

[11] Before I consider whether the Plaintiff have proven his case on a balance of probabilities, I shall first of all deal with the preliminary objections averred by the Defendant.

[12] Order 32 r 13(1) of the Rules of 2012 is clear in that any party intending to use an affidavit filed in previous proceedings have to give a notice of intention via Form 58. The court nonetheless has the discretion to use affidavits despite the failure to give such a notice if the opposing party would not be prejudiced: Re Yeap Chee Fun, ex p Pernas Trading Sdn Bhd , 2000 MarsdenLR 1649 .

[13] Bearing this principle in mind, I am of the view that the Defendant here is not prejudiced by Encl 10 and Encl 18 since the existence of the affidavits are already within the knowledge of both parties even before the hearing of this instant suit and the Defendant had duly submi