JUDGMENT

Haidar Mohd Noor JCA:

The appellant (plaintiff) appealed against the orders given on 17 October 1997 by the learned Judicial Commissioner ('JC') (as he then was) in respect of summons-in-chambers dated 20 September 1997 (encl. 69) and summons-inchambers dated 8 October 1997 (encl. 73) (see p. 19 of the appeal record). Both summonses-in-chambers relate to the suit filed by the appellant against the respondent (defendant). The suit is a defamation action and it arose out of a dispute in respect of the vast estate left behind by the respondent's father. In that ensuing dispute allegations have been made by the respondent against the appellant which the latter considers to be defamatory of him.

Both parties are advocates and solicitors of the High Court, Malaya. They are related. The appellant is the brother-in-law of the respondent, that is, his wife is the sister of the respondent.

Before considering encls. 69 and 73 it would be appropriate to set out the background facts leading to the filing of the two summonses-in-chambers.

For ease of reference, hereinafter the appellant is referred to as the plaintiff and the respondent as the defendant.

Background

Pursuant to the plaintiff's summons-in-chambers dated 29 April 1997, the deputy registrar, on 18 June 1997 made an order ordering, inter alia, the defendant to file and serve on the plaintiff further and better particulars ('particulars') of the defendant's amended counterclaim dated 19 April 1997, on or before 18 July 1997, failing which, paras (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (20) and (21) of the amended counterclaim be struck out. (See pp. 137 to 141 of the appeal record). The defendant was also ordered to pay the costs of the application.

On 21 June 1997, the defendant filed an appeal to the judge-in-chambers against the whole decision of the deputy registrar given on 18 June 1997. (encl. 39). (See pp. 142 - 147 of the appeal record).

It is not disputed that the defendant did not obtain a stay of the order of the deputy registrar.

On 7 July 1997, the appeal came for hearing before the learned JC but was adjourned to 8 July 1997.

On 8 July 1997, the learned JC ordered:

(a) the parties to put in written submissions; and

(b) fixed the date of decision on 14 August 1997.

On 14 August 1997, the learned JC gave his decision orally. His written judgment was delivered on 17 December 1997, (pp. 21 to 26 of the appeal record). The learned JC made the following orders:

(i) affirmed the order of the deputy registrar dated 18 June 1997 in respect of the particulars and the time prescribed therein (para. 3 of the order); and

(ii) allowed the defendant's appeal in respect of the other orders made by the deputy registrar (para. 1 relating to the striking out of paras. (9), (10), (12), (15) and (16) with the exception of para. (11) of the amended statement of defence dated 19 April 1997 and para. 2 relating to the striking out of paras. (22), (23), (24), (25) and (26) of the amended counterclaim dated 19 April 1997). (See the order at pp. 135 to 136 of the appeal record).

There was no order in respect of costs of the appeal.

There has been no appeal against the order of the learned JC by either party.

The plaintiff's solicitors vide letter dated 14 August 1997, sent to the defendant's solicitors a copy of the draft order dated 14 August 1997 for approval, the receipt whereof was duly acknowledged by the defendant's solicitors on the said letter itself. (See p. 295 of the appeal record). No evidence was shown by the defendant that she did not agree with the draft order. As a result the draft order was accordingly perfected as reflected at pp. 135 to 136 of the appeal record.

Next, the defendant's solicitors on 15 September 1997, took upon themselves to serve on the plaintiff's solicitors the English language version of the particulars. On the same day the plaintiff's solicitors wrote a letter to the defendan