THIAGARAJAN A/L S. RENGASAMY v Sri Ganes a/l Palaniapan (W-02(W)-1746-10/2023)

ANTARA THIAGARAJAN S RENGASAMY …PERAYU-PERAYU

BHD ASIAN RAIL ACADEMY SDN BHD DAN SRI GANES PALANIAPAN …RESPONDEN DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA

ANTARA THIAGARAJAN S RENGASAMY …PLAINTIF-PLAINTIF

BHD ASIAN RAIL ACADEMY SDN BHD DAN SRI GANES PALANIAPAN …DEFENDAN 19/03/2025 09:35:18 Kand. 30 Thiagarajan S Rengasamy v Sri Ganes Palaniapan 2 CORAM LEE SWEE SENG JCA AZIZUL AZMI ADNAN JCA MOHD FIRUZ JAFFRIL JCA JUDGMENT OF THE COURT INTRODUCTION [1] The plaintiffs in this case sued the defendant for defamation. The High Court dismissed the plaintiffs’ claims, and they now appeal to the Court of 5 Appeal. The parties are described here as they were at the court below. [2] The first plaintiff was a director of an entity known as the Pembangunan Sumber Manusia Berhad (the “Corporation”). The Corporation is a public company incorporated under the Companies Act 1965. Part of its remit is as trustee of a fund known as the Human Resources Development Fund (the 10 “Fund”), which is established under the Pembangunan Sumber Manusia Fund Act 2001. Employers which are subject to the Act are required to pay a levy into the Fund. These employers may send their employees for training with training providers who are registered with the Corporation, and should they do so, they may be reimbursed for the costs of such training out of the Fund. 15 [3] The second to fourth plaintiffs are companies of which the first plaintiff is the chief executive. [4] The statements that were alleged to have been defamatory of the plaintiffs were said to have been published on six separate occasions. It will be Thiagarajan S Rengasamy v Sri Ganes Palaniapan 3 convenient for the present purposes to group the publications into two categories:

there were four posts made by the defendant on his account on Facebook that were said to be defamatory of the plaintiffs; and

there were statements made by the defendant:

during a meeting described as a “town hall meeting” on 7 June 2018, called by the then Minister of Human Resources; and

(ii) during a media conference held on 12 June 2018 on the premises of the office of the Malaysian Anti-Corruption Commission. [5] The statements alleged to have been made by the defendant during the 10 town hall meeting and during the media conference at the MACC premises had not been set out verbatim in the statement of claim. It is well established that a failure to do so would be fatal to a claim for defamation, which the counsel for the appellant plaintiffs accepted as correct in the course of submissions before us. 15 [6] The contents of the four Facebook posts had been placed in Part A of the trial bundles. The question that thus arose was whether the claim for defamation was maintainable at all in this light, on the basis that Part A documents are intended to be documents which contents are agreed by the parties to be true. 20 [7] In this case, as explained by the trial judge at paragraphs 24 to 28 of the grounds of judgment of the court below, counsel for the plaintiffs had every opportunity to re-categorise the four Facebook posts, but did not do so. Thiagarajan S Rengasamy v Sri Ganes Palaniapan 4 Crucially, when counsel for the defendant opened his case, he had specifically submitted that, because the four posts were placed in Part A of the trial bundles, their contents cannot be taken as being defamatory. Yet, despite what was described by the trial judge as the hoisting of this red flag, counsel for the plaintiffs took no remedial action. 5 THE APPLICABLE PRINCIPLES [8] The practice of categorising trial documents into Parts A, B and C is governed by order 34 rule 2(2) of the Rules of Court 2012, the material portion of which reads as follows:

At a pre-trial case management, the Court may consider any matter including 10 the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including— … 15

the period within which the parties are to file a bundle of all documents that will be relied on or referred to in the course of the trial by any party, including documents referred to in the witness statement of a witness;

the contents of the bundle of the documents referred to in subparagraph

shall be agreed on between all parties as far as possible and this 20 bundle of agreed documents shall be filed by the plaintiff and marked as

if the parties are unable to agree on certain documents, those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the plaintiff and marked 25 as follows:

Part B – documents where the authenticity is not disputed but the contents are disputed;

(ii)

The part of the decision in Young v. Bristol Aeroplane in regard to the said exceptions to the rule of judicial precedent ought to be accepted by us as part of the common law applicable by virtue of Civil Law Act 1956, vide its s. 3. To recap, the relevant ratio decidendi in Young v. Bristol Aeroplane's case is that 5 there are three exceptions to the general rule that the Court of Appeal is bound by its own decisions or by decision of courts of co-ordinate jurisdiction such as the Court of Exchequer Chamber. The three exceptions are first, a decision of Court of Appeal given per incuriam need not be followed, secondly, when faced with a conflict of past decisions of Court of Appeal, or a court of co-ordinate jurisdiction, it may choose 10 which to follow irrespective of whether either of the conflicting decisions is an earlier case or a later one, thirdly, it ought not to follow its own previous decision when it is expressly or by necessary implication, overruled by the House of Lords, or it cannot stand with a decision of the House of Lords. There are of course further possible exceptions in addition to the three exceptions in Young v. Bristol Aeroplane when 15 there may be cases the circumstances of which cry out for such new exceptions so long as they are not inconsistent with the three exceptions in Young v. Bristol Aeroplane. [26] We are of the view that the authorities on the point of law under consideration before us come within the second of the three exceptions 20 described in Young v Bristol Aeroplane [1944] KB 718 cited in the passage above. We are thus not bound by either decisions of the Court of Appeal, and would be free to elect to follow either one. [27] We further observe also that the facts of the present case differ markedly from the cases involving Melawangi Sdn Bhd cited ante. Counsel for the 25 respondent defendant in the present case had not sought to raise his argument regarding the categorisation of the four Facebook postings at the eleventh hour, unlike the defendant in Melawangi v Yeo Ing King. Furthermore, unlike the counsel for the plaintiff in Melawangi v Tiow Weng Theong, there had not been any application made for re-categorisation of the impugned documents, despite 30 the fact that every opportunity had been afforded to the plaintiff, through its counsel, to do so. Thiagarajan S Rengasamy v Sri Ganes Palaniapan 12 [28] We are of the view that there does not exist any distinction between agreeing on the contents of a document, and the meaning of the contents of such document. Once a document is agreed as authentic and no dispute arises as to its contents, it must necessarily follow that the parties have agreed that the meaning of the words contained in the document is representative of the 5 truth. If the meaning is disputed, then the document must be placed in Part B, not Part A. [29] We are unable to accept as correct any notion that somehow the Rules of Court 2012 must be applied differently with regards to an action for defamation. This contention is supported neither by principle nor authority. 10 [30] With the four Facebook postings in the present case having been placed in Part A, it must follow that the appellant plaintiffs have accepted that, even if the statements in the postings may have the tendency of reducing their reputations in the minds of the reasonable, right-thinking man—the hypothetical man on the Cheras MRT—the statements are nonetheless correct 15 in that they are representative of the truth. Such being the case, the appeal must necessarily fail. The appeal is thus dismissed with costs of RM20,000, such costs to be subject to an allocatur. 5 November 2024 20 Azizul Azmi Adnan Judge of the Court of Appeal Thiagarajan S Rengasamy v Sri Ganes Palaniapan 13 For the appellant: Ms Bhuvaneswari Krishnamurthy & Mr Ramesh Sivakumar Ramaveloo—Messrs Goik, Ramesh & Loo For the respondent:

whether documents that are included in Part A of an agreed bundle of documents pursuant to O. 34 r. 2(d) of the Rules of Court 2012, which are then admitted and marked as evidence during trial means that the authenticity and the truth of the contents of the documents have been agreed and accepted and/or cannot be challenged?

(ii) whether O. 34 r. 2(c) to (e) of the Rules of Court 2012 are applicable to all causes of action?

(iii) whether the defendant in a defamation action should be allowed to raise the issue in (i) above when parties have agreed that the truth of the contents of the said documents is an issue to be tried in the full trial?

(iv) whether the defendant in a defamation action would be demolishing his own pleaded defence of justification by raising the issue that the impugned defamatory document should be placed in Part B of the agreed bundle of documents? [22] The Federal Court allowed the plaintiff’s appeal and restored the decision 20 of the High Court. On the facts, the Federal Court found that the Court of Appeal had erred when it found that the counsel for the plaintiff had insisted for the email to remain in Part A. In fact, the notes of proceedings established that counsel that made an application for the document to be re-categorised but learned Judicial Commissioner hearing the case at first instance had ruled that 25 the categorisation be maintained, but that parties would be permitted to cross-examine the witnesses on the email. Thiagarajan S Rengasamy v Sri Ganes Palaniapan 10 [23] Crucially in the context of our present case, the Federal Court declined to answer the questions of law posed. That this was the case can clearly be seen at paragraph 43 of the grounds of judgment, which stated: [43] In consequence and in view of all the above and in the circumstances of this case, we find it unnecessary to answer the posed questions of law. We would prefer 5 to leave the resolution of the questions to a case where the questions must necessarily be determined. [24] There are thus two conflicting judgments of the Court of Appeal: In Yeo Ing King v Melawangi, the majority of the court drew a distinction between an agreement on the contents of a document, and the truth of the contents of such 10 a document, ruling that the emplacement of a document containing a statement said to be libellous into Part A would not defeat an action for defamation. The Court of Appeal in Tiow Weng Theong v Melawangi came to the contrary view, holding that there was no meaningful distinction between agreeing on the contents of a document, and agreeing on the truth of its contents. Even though 15 the Federal Court in Melawangi v Tiow Weng Theong subsequently overruled the decision of the Court of Appeal, it left open the question of law regarding the effect of categorising a document in Part A, whether it amounted to admission of the truth of its contents, or merely constituted an agreement on its contents. 20 OUR DECISION [25] The principle of stare decisis has been explained by the Federal Court in Dalip Bhagwan Singh v PP [1997] 4 CJ 645 in the following terms: The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts 25 at a higher or the same level in the court structure subject to certain exceptions affecting especially the Court of Appeal. Thiagarajan S Rengasamy v Sri Ganes Palaniapan 11 The said exceptions are as decided in Young v. Bristol Aeroplane Co. Ltd [1944] KB