CIVIL LAW CONFERENCE 2022

1.7.2022 – 2.7.2022

SESSION 1 : DEFAMATION ❖ Burden is upon Pf to prove impugned words published by

YA DATUK SERI MOHD FIRUZ BIN JAFFRIL Df
Judge of the HC ❖ Presumption of publication to third parties of postcards and
telegrams
Case Codes in HC Matchplan (M) Sdn Bhd v William D Sinrich [2004]
❖ Publication includes failure to remove defamatory
❖ Arahan Amalan Bil 7 Tahun 2013 statement from notice board
❖ 23NCVC – Writ Saman (Tort) Byrne v Deane [1937]
❖ 23CY – Writ Saman (Cyber) ❖ Republication of impugned itself amounts to its publication
❖ Subsequent republication of impugned statements
Steps for Court’s Defamation published at press conference was forseeable as natural
and probable consequence
❖ Who can sue? Chua Jui Ming v Hoo Kok Wing [2000]
❖ Defense ❖ Failure to remove defamatory statement stored on internet
❖ Exception to defense service provider amounts to publication
❖ Quantum of damages
Defamatory Imputation
Who can sue?
❖ Lower Pf’s reputation
❖ Defamation is right in personam – only defamed person can ❖ Cause Pf to be shunned/avoided
sue, and no representative actions ❖ Expose Pf to hatred
Atip b Ali ❖ Alleges dishonorable conduct or lack of integrity of Pf
s. 10 Civil Law Act Dato Seri Anwar Ibrahim v The New Straits Time

Who can be sued? 2 Types of Meaning

❖ Individual ❖ Natural & ordinary

❖ Company ❖ Innuendo
❖ Trade Union MGG Pillai v. Tan Sri Vinctent Tan [1995]
❖ Person liable for act of agent/servant – vicarious liability ❖ Pf must plead exact words or no cause of action if fails
❖ Company cannot be liable for employee’s defamation Lim Kit Siang v Datuk Dr Liong Sik & Ors [1997]
❖ Innuendo = separate cause of action from natural &
Who cannot be sued? ordinary meaning

❖ Political parties Defamatory Imputation: Test

❖ Company cannot be liable for employee’s defamation
❖ Government
Derbyshire County Council v Times Newspaper [1993]
Lim Guan Eng v Roslan Kassim [2021]
Departed from the principle in Derbyshire case
Publication
❖ Defamatory words must have been communicated by Df to
3rd Party
Pullman v Water Hill [1891]
S Pakianathan v Jenni Ibrahim [1988]
❖ Tendency test, NOT actual effect test
❖ Two stage test:
a. Whether words complained capable bearing
defamatory meaning
b. Whether words are in fact defamatory
❖ Objective Test
a. Meaning decided by judge alone
b. Meaning as understood by ordinary reasonable man
c. Meaning intended by Df irrelevant
d. Meaning understood by Pf irrelevant

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 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022

Defences Reynolds Defence

❖ Extension of qualified defense
Justification Reynolds v Times Newspaper [2001]
❖ Df must plead and prove defamatory imputations are true ❖ Elements
in substance & fact a) Publications were made in public interest
❖ Defamatory imputation is meaning determined by Court b) Df acted responsibly in publishing statements – he
NOT meaning pleaded by Pf or Df confirmed with Pf and sought for comments –
❖ Defence of justification will succeed if facts pleaded and undertook ‘responsible journalism’
proved by Df supports meaning found by Court ❖ Not for media only but anyone who disclose material of
public interest provided they undertook responsible
Fair Comment journalism
❖ Df must prove at time of publication
❖ Words complained of are comments but may consist of or Reportage
include inferences of fact ❖ Must be specifically pleaded
❖ Matter of public interest Mkini Dotcom v Raud Australian Gold Mining [2021]
❖ Based on true facts ❖ Not the same as Reynold’s defence
❖ Comment which a fair minded person can honestly make
on the facts proved Express Malice
❖ Df must plead with particularity
O. 78 R. 4(2) ROC 2012 ❖ Relevant in 2 instances
❖ Failure to particularise in pleadings are fatal to defence of ❖ After defense of FC / QP have been established
fair comment a) Factor in awarding of aggravated damages
Dato Dr Tan Chee Khuan v Chin Choong Seng @ Victor b) Pf has to prove EM to defeat defense of QP / FC
Chin [2011]
❖ Express malice defeats defence of fair comment Damages
Datuk Seri Mohammad Nizar Jamaluddin v Sistem
Televisyen Malaysia [2014] ❖ Pf came to court as a matter of principle
❖ Pf does not need to quantify / prove general damages
Absolute Privilege ❖ General damages for defamatory statement presumed in
❖ Defence of absolute privilege is based on legislation and law
common law ❖ Single global award of damages
❖ Applies where primary interest is the due administration of ❖ To determine Quantum Damages, Court has to consider:
justice and overriding public policy that those with a) Seriousness of libel
complaints are free to make them b) Extend of publication
❖ Examples: c) Pf’s standing and reputation
a) Statements made in judicial proceedings ❖ Depends on facts and circumstances of the case – no scale
b) Fair, accurate report of public court proceedings can be fixed
c) Statements made in Parliament
d) Complaints made to MACC or Bar Council Judicial Trend
❖ Exceptions
a) Contempt of court ❖ Utusan Melayu Malaysia v Othman Hj Omar [2017]
b) Malicious prosecution Global award in the sum RM 100,000
❖ Chin Choon v Chua Jui Meng [2005]
Qualified Privilege Awarded of RM 200,000
❖ Privilege attaches to occasion not to statement ❖ Datuk Harris Mohd Salleh v Datuk Yong Teck Lee [2018]
❖ Categories: Awarded RM 600,000
a) Parties who have common interest in subject matter
b) Madein Df’s own self-interest
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 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022

Position and Development of DA in UK Republication of impugned itself amounts to its publication.

However, it depends on the circumstances to succeed in
❖ DA 2013 came into force 1.1.2014 then introduced a privilege defences
‘serious harm’ threshold for bringing a defamation claim
S. 1 of DA 2013
❖ Cooke an Anor v MGN Ltd [2014]
Not enough that Pf faced distress and injury, must prove
serious harm
❖ How serious harm be proved:
Reputation – sum of the estimations of person by other
people, not something that can be measured with any
degree of accuracy
❖ Lachaux v Independent Ltd [2017]
“…the intention was that claimants should have to go
beyond showing a tendency to harm reputation. It is now
necessary to prove as a fact on balance of probabilities that
serious reputational harm has been caused by or likely to
result in the future from the publication complained of”

Q&A

❖ How development in UK affects decision new

defamation cases in Malaysia
Judges maybe hesitated to apply the requirement in UK but
we have no equivalent provision but somehow maybe we
can find a way to follow this development. Adopted only
after research on the pro and cons

❖ Quite of trend for parties to assassinate each other in

the affidavits. In the course of affidavits, either party
make allegations to the 3rd party, will they still be
protected by absolute privilege or can 3rd party take
action?
By right can be protected by absolute privilege but depends
on the context of the libel

❖ Would a published rhetorical question be sufficient to

constitute a defamatory statement?
Cannot become a defamatory statement unless if the
answer is obvious

❖ Currently we see publications now reply on posts of

social media being made as source of publication or
news report altogether. Would publication be able to
rely on privilege as a defense in relation to these sort
of publications?

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 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022
SESSION 2 : CHALLENGES ON ARBITRAL AWARDS
YA DATO’ MARY LIM THIAM SUAN
Judge of the FC
❖ S. 36 of AA – Arbitral awards are final
Issues of Arbitration Agreement
❖ Case of Tindak Murni (2020) – stay of Court’s proceeding
❖ Df filed stay under s.10 to refer to arbitration.Judge
affirmed for setting aside and allowed application for stay
❖ Arbitration agreement – very important as that’s what the
parties want
Award
❖ Is the award final? Cost? Interim?
❖ Interlocutory order – cannot do much
❖ In so far winning party is concern, proceed to collect the
terms and for losing party to pay
❖ After getting notifications, pay the arbitrator’s fees,pay the
terms
❖ With arbitral awards, winning party can start file an action
❖ Pf to look for recognition and enforcement of order
according to s. 38
❖ Resisting recognition s. 39
❖ Winning party to turn the arbitral award as good as a Court’s
order regardless if they are domestic or international
❖ Refer to New York’s Convention – regardless if you come
from civil law regime or common law regime
Award turned into Court’s Order
❖ O. 69 by way of ex-parte application
❖ O. 69 R. 8 – such Order only good for 14 days. Need to
serve upon Defendants for them to respond i.e set aside
❖ Christopher Martin Boyle [2014]
Limitations for winning party
❖ Grounds to be relied by Defendants – s. 39
Routes for Defendants
❖ Passive route – to challenge the recognition under s. 39
90 days for winning party to enforce the arbitral award
❖ Active route – to set aside award under s. 38
If you have any grounds under s. 37 & 39
a) Party was under incapacity
b) Arbitration agreement is not valid
c) Party was not given proper notice i.e arbitrator / arbital
proceedings
d) Awards deals with a dispute not contemplated by or not
falling within the terms of submission to arbitration
e) Award contains decisions on matters beyond scope of
submission to arbitration
f) Composition of arbitral tribunal not in accordance with
agreement of parties
g) Award has not yet become binding on parties
h) If HC find subject matter is not capable of settlement
by arbitration under MY laws or award is in conflict with
MY public policy
2 applications filed in 2 different HC – 1 in Semenanjung, 1
in Sabah
❖ Case of Masenang
❖ Matter of territorial jurisdiction
❖ Before arguing the complexity of arguing, settle first where
to file
Public Policy
❖ Departure from procedural justice – injure the public policy
Inherent Power of Court
❖ Ancillary power in the CJA allowed Court in circumstance
of where a party is 1 day late to file their application
Last 17 years
❖ Act applies to government both federal & state
❖ English is the authoritative text
❖ Covers both arbitrations/awards anywhere
❖ Peculiarities of 2 HC in MY – seat of arbitration (east &
west)
❖ Recognition & enforcement – “final & binding”
Q&A
❖ Is unilateral option arbitration clause (UAC) is valid and
fair in MY when big companies have the sole discretion
to choose own arbitrator. Is this a breach of natural
justice?
Either such mechanism is a breach to NJ will be addressed
by Court when a party files in Court