The Court of Appeal in the case of Sathish Kumar Ayyaswamy & Anor v Peeran Syed Mohamed Syed Mahaboob [2025] MLJU 33 addressed the appeal against the High Court’s decision to strike out the Plaintiffs’ Statement of Claim under Order 18 rule 19(1)(a) of the Rules of Court 2012.
For ease of reference, parties will be referred to as they were in the High Court. The Appellants were the Plaintiffs whereas the Respondent was the Defendant. The appeal was filed by the Plaintiffs against the High Court’s decision to strike out their defamation claim. The case revolved around alleged defamatory remarks made by the Defendant during a meeting. The appeal focused on whether the Statement of Claim disclosed a reasonable cause of action for defamation, emphasizing the requisite elements for defamation.
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Background Facts
The 1st Plaintiff is the Construction Manager of Poratha Corporation Sdn Bhd (“PCSB”). The 2nd Plaintiff is the Managing Director of PCSB. The Defendant was a former Director of ATB Sdn Bhd (“ATB”) and is also a Trading & Marketing Manager of Vitol Trading Malaysia Ltd (“VTML”).
ATB appointed HQC Engineering Sdn Bhd (“HQC”) as its contractor for a project known as ATB PU at Tanjung Bin, Johor (“Project”). Subsequently, HQC appointed PCSB as its sub- contractor for the Project. ATB and PCSB entered into a Letter of Undertaking (“LOU”), pursuant to which ATB undertook to underwrite HQC’s payments to PCSB.
On 25.11.2021, the Defendant went to PCSB’s site cabin and requested for a brief meeting with the 1st Plaintiff purportedly to discuss an alleged discrepancy pertaining to an outstanding payment for the Project. During the meeting, the Defendant allegedly used abusive and defamatory language, including words such as “bastard, big shot, periya pudinggi, f*ck, f*cker, your boss is a bastard” (“Impugned Words”) directed at both the Plaintiffs. The 1st Plaintiff claimed that the verbal abuse occurred in the presence of PCSB workers, potentially damaging their professional reputations.
On 24.2.2022, the Plaintiffs filed a defamation suit against the Defendant, alleging that the Impugned Words uttered by the Defendant harmed their reputations. On 18.5.2022, the Defendant filed an application to strike out the Statement of Claim, arguing that it disclosed no reasonable cause of action.
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High Court
As On 31.5.2023, the High Court allowed the Defendant’s application to strike out the Plaintiffs’ claim on the grounds that it did not disclose a reasonable cause of action for defamation. The High Court held that profanity words such as “bastard, big shot, periya pudinggi, f*ck, f*cker, your boss is a bastard” uttered were not defamatory but merely abusive. The High Court also held that a mere statement in the Plaintiffs’ Statement of Claim that a group of employees overheard the Impugned Words without elaborating their identities explicitly is not sufficient to support the Plaintiffs’ averment that the element of publication to a third party is sustainable.
Based on the reasons above, the High Court dismissed the defamation suit and struck out the Plaintiffs’ claim.
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Court of Appeal
The Court of Appeal overturned the High Court’s decision and held that on the face of the pleadings in the Statement of Claim, the Plaintiffs had pleaded the requisite facts to establish all the three elements necessary for a cause of action in defamation, namely the Impugned Words: (i) were defamatory; (ii) referred to the Plaintiffs; and (iii) were published to a third party. The Court of Appeal further held that whether the Impugned Words amount to defamation or not can only be determined through viva voce evidence during trial from the third parties who were there and heard the Impugned Words. The Plaintiffs are only required to show that there is a reasonable cause of action and even if it is not likely to succeed at trial, it is no ground for a claim to be struck out.
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Conclusion
Following the Court of Appeal’s decision, on 2.9.2024, the Defendant had obtained leave to appeal to the Federal Court. With leave to appeal to the Federal Court now granted, it remains interesting to see what will be the decision of the Federal Court in dealing with defamation, particularly slander.
About the author
Tey Siaw Ling
Senior Associate
Employment and Industrial Relations,
Alternative Dispute Resolution
Harold & Lam Partnership
siawling@hlplawyers.com
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