6.7 Tambahan lagi setelah pendedahan ini dibuat oleh Defendan, Pengurus Besar Yayasan Warisan Anak Selangor (YAWAS) iaitu Encik Kamsani Bin Nasir telah digantikan kerana beliau seorang yang muflis namun menguruskan dana sebanyak RM 500 juta setahun. [7] In her Reply to Defence, the plaintiff pleaded malice on the part of the defendant. The suit was case managed and set down for trial on three occasions. The application to strike out was filed on 25 April 2019 which is almost 2 years after the Defence was filed. [8] The JC dismissed the defendant’s application to strike out the suit as he found that there was “substantial and unreasonable delay in making the application”. The JC followed the Federal Court’s decision in Boo Are Ngor v Chua Mee Liang [2009] 6 CLJ 617 (at p 624); [2009] 6 MLJ 145 (at p 150); [2010] 3 AMR 765 (at p 771) which stated that the court must dismiss the application for striking out if it is filed after the action has been set down for trial. [9] In the present case, the defendant’s application to strike out was filed well after pleadings had closed and after the action had been set down for trial, on no less than 3 occasions. As for merits, the JC’s findings are as follows. The alleged defamatory remarks were made at a press conference on 8 March 2017, after the defendant had lodged a report with SPRM on 16 February 2017. [6] [10] In response to the defendant's query, by a letter dated 8 August 2019 SPRM had stated that investigations against the plaintiff regarding alleged misappropriation of YAWAS' funds was still ongoing. [11] On that premise, defendant contends that the plaintiff's action is premature and that a cause of action did not exist. Further the defendant contends that the plaintiff ought to await the outcome of SPRM's investigation before initiating this action. [12] According to the JC, the plaintiff's suit does disclose some cause of action or raise some questions fit to be decided by the court. Specifically on the issue whether the suit is premature the JC opined that it is a matter that should be determined at trial. The JC opined that it cannot be a ground for striking out the action at this stage. [13] The JC also alluded to the defendant’s argument that in lodging a report with SPRM, he acted in good faith to expose alleged illegal conduct in the management of YAWAS' funds and that he is protected by law in doing do. [14] The JC took the view that the defendant's act of lodging of a report with SPRM is not the basis of the plaintiff's action and that the suit is in fact predicated on the alleged defamatory remarks made by the defendant at a press conference, subsequent upon lodgement of the SPRM report. [7] [15] The JC was thus not satisfied that there is no reasonable cause of action or that the plaintiff's claim is obviously unsustainable or frivolous or vexatious. Our decision [16] The first issue is delay. No doubt a striking out application can be filed at any time. But that does not mean that the defendant can take his time and file the application to strike out after the action has been set down for trial. Quite apart from anything else, it is plain common sense that the defendant cannot be indolent. He must act with promptitude if he intends to move the court to strike out the action. As enunciated by the Federal Court in Boo Are Ngor (supra), the court must dismiss the striking out if it is filed after the action has been set down for trial. [17] Thus on the inordinate delay alone the appeal fails. [18] At any rate, leaving aside the issue of delay, even if we are to consider the application on its merits, the defendant nevertheless, has the burden of establishing that this a plain and obvious case for striking out. [19] Thus, the discretion to strike out is only to be exercised when it is demonstrated convincingly that the claim is on the face of it, obviously unsustainable. The Court must be satisfied that there is no reasonable cause of action or that the claim is frivolous or vexatious. [8] [20] At this stage, the court is not concerned with the respective strengths and merits of the claims. If the pleadings disclose some cause of action or raise some questions which are fit to be decided by the judge, then the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out. (Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36 Supreme Court). [21] Clearly, the plaintiff’s defamation suit is based on the impugned statements which were uttered by the defendant at the press conference which was held on 8 March 2017. The suit is not predicated on the fact that the defendant had lodged a report with SPRM. [22] In our view, the defendant’s contention that the suit is “premature” is not an issue which ought to be dealt with summarily and this is particularly so because the defendant had raised the defence of justification, which means that he intends to prove that the impugned statements of and concerning the plaintiff’s reputation and character, are true. Clearly, there are several factual matters and legal issues which have to be ventilated at trial. [23] During submissions before us, counsel for the defendant said that if the defamation suit proceeds to trial, then this will “supplant” the SPRM’s investigations. We do not see how the defamation suit can be said to supplant the SPRM’s investigations. Since the defendant has pleaded justification as a defence, he has to adduce all such evidence to establish the truth of the impugned statements. [9] [24] This may well be the same evidence that the SPRM may eventually rely upon in the event the SPRM decides to file criminal proceedings against the plaintiff. [25] In our view, if SPRM does institute criminal proceedings against the plaintiff, then that in itself plus the outcome of any such criminal proceedings will be irrelevant to the defamation action. (see: Datuk S. Nallakaruppan & Ors. v Datuk Seri Anwar Ibrahim & other appeals [2015] 6 CLJ 425; [2015] 4 MLJ 34 CA (paragraph 28 and 30)) [26] Having heard the submissions of counsel, we feel compelled to refer to the case of Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 FC where the Federal Court, per Ramly Ali FCJ restated the principles on striking out as follows: [27] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75; [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following passage: A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 3 CLJ 305; [1997] 2 MLJ 565FC). [28] The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be 'obviously unsustainable'. The stress is not only on the word 'unsustainable' but also on the word 'obviously' ie, the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. [10] If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial. [27] Based on the principles that were enunciated by the Federal Court in Boo Are Ngor (supra) we are satisfied that the defendant’s application to strike out (filed about 2 years after the Defence was filed) was doomed to fail as it was filed after the action was set down for trial. [28] In any event, even on merits, it is our view that based on the principles that were enunciated in Bandar Builders (supra) and Seruan Gemilang (supra), the plaintiff’s case cannot be said to be obviously unsustainable or that it discloses no reasonable cause of action, or that it is scandalous, vexatious or frivolous or an abuse of process. [29] In the circumstances, we do not find any appealable error on the part of the JC, such that it warrants appellate intervention. The defendant’s appeal is dismissed. The decision of the JC dated 3 January 2020 is affirmed. The defendant is to pay costs of RM7,000.00 to the plaintiff (subject to allocator). S. Nantha Balan Judge Court of Appeal Malaysia Date: 27 November 2020 [11] Legal Representation For the Appellant: Mugunthan A/L Vadiveloo Mohamad Fauzi Bin Abdul Samad The Law Chambers of Fauzi & Nasser No. 46, Jalan Tk 2/15, Taman Kinrara, Seksyen 2, 47100 Puchong Selangor Tel : 016-6746042 / 017-6082501 e-mail: danaurium@gmail.com [Ruj: LACMOF/DSJY/116/FTCK/0617.01) For the Respondents: Sankara Nair Tan Han Sam Elyse Ng S N Nair & Partners (Kuala Lumpur) J-05-01, No. 2, Jalan Solaris, Solaris Mont Kiara 50480 Kuala Lumpur Wilayah Persekutuan Tel : 03-62036592 Fax : 03-62036594 e-mail: snnairpartners@gmail.com [Ruj: SNN/YBT/Jamal/2017) Statute: Order 18 rule 19 (a), (b), (c) and (d) Rules of Court 2012 Cases: Boo Are Ngor v Chua Mee Liang [2009] 6 CLJ 617 (at p 624); [2009] 6 MLJ 145 (at p 150); [2010] 3 AMR 765 FC [12] Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36 Supreme Court Datuk S. Nallakaruppan & Ors. v Datuk Seri Anwar Ibrahim & other appeals [2015] 6 CLJ 425; [2015] 4 MLJ 34 CA Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul