Nuemera (M) Sdn Bhd v Suruhanjaya Komunikasi dan Multimedia Malaysia (WA-22NCvC-138-03/2023)

HAIRUL ANUAR BIN MAT NOR .… DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Before this Court is the Plaintiff’s claim against the First to the Fifth Defendants in misfeasance in public office and wrongful interference of 16/02/2024 17:51:18 WA-22NCvC-138-03/2023 Kand. 54 trade. The Plaintiff’s Statement of Claim (SoC) was filed on 25.3.2023. It iterated that the Public Cellular Blocking Service Agreement (PCBS Agreement) entered into with the First Defendant was terminated unlawfully. The Plaintiff’s case is that the Second to the Fifth Defendants as officers and representatives of the First Defendant had ended the PCBS Agreement with the intention to cause loss to the Plaintiff. [2] Three months after initiating this action, the Plaintiff on 14.6.2023 filed an application [Enc 10] under Order 15 Rule 6 and/or Order 20 Rule 5 Rules of Court 2012 (RoC) to amend its writ and SoC. It desired to include two new defendants and add the facts thereto. This Court had allowed Enc 10 and ordered the Plaintiff to file its amended writ and SoC the following day. This Court had further ordered that the same be served to the two new defendants. This Court set a deadline for the all the Defendants to file their respective (amended) Defence and the Plaintiff to file its Reply accordingly. The First to the Fifth Defendants had just filed an appeal against this Court’s decision in part which was the order allowing the addition of the two new defendants – Dato Mohd Ali Hanafiah Mohd Yunus as the Sixth Defendant and Noor Syahira Surya Noordin as the Seventh Defendant. Reasons for the Amendment to the SoC [3] The Plaintiff submitted that since the filing of its SoC, the Plaintiff became apprised of various factual matters that indicated the Sixth and Seventh Defendants had also, in the Plaintiff’s words ‘conducted themselves individually and/or collectively in targeting their malice against the Plaintiff on the same subject matter to cause loss and damage to the Plaintiff.’ Order 4 Rule 1(1) RoC was cited where this Court may order for the causes or matters to be consolidated and tried at the same time. The Plaintiff highlighted that the questions of law and facts were common in all of them and their claimed rights to relief were in respect of or arose out of the same transaction/series of transaction. [4] This Court was taken through the proposed amendment – most of the proposed amendments were to include the names of the Sixth and Seventh Defendants in the facts pleaded. There was an inclusion of a letter from the Ministry of International Trade and Industry (MITI) dated 24.3.2023 which was received after the date of the filing of this action by the Plaintiff. There was an additional paragraph under the heading of ‘Particulars’ that detailed the Plaintiff’s contention against the Sixth and Seventh Defendants. The Plaintiff submitted that the amendments did not change the character of this action and placed reliance on the Federal Court’s case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213. The Defendants’ objection [5] It was claimed that when the Plaintiff sought for an extension of time to file its Reply and Defence to the Defendants’ Counterclaim, there was no mention of any proposed amendment application. Just before filing it, the Plaintiff filed this Enc 10 which the Defendants stated was a departure from the Plaintiff’s indication that it had needed extra time to file its Reply and Defence to the Defendants’ Counterclaim. [6] The Defendants submitted that save for the proposed amendments related to the MITI letters, all the other amendments were contingent upon the joinder of the Sixth and Seventh Defendants. It was argued that as the joinder was not warranted, the proposed amendments related to the Sixth and Seventh Defendants ought to have been refused. The Defendants contended that the Plaintiff had not justified the reasons for joinder of the Sixth and Seventh Defendants to this action. The PCBS Agreement was suspended and not renewed in 2018 which was before the Seventh Defendant was not yet employed as the First Defendant’s Chief Legal Officer. And whilst the Sixth Defendant was an officer of the First Defendant at the material time, she had only become its Chief Operating Officer in 2022. The Defendants’ argued that there were no particulars pleaded that demonstrated how and in what manner the Sixth and Seventh Defendants had caused the suspension and eventual non-renewal of the PCBS Agreement. The Defendants contended that the Plaintiff had sought for the joinder of the Sixth and Seventh Defendants on the basis that they were in the without prejudice settlement negotiations which were inadmissible matters. The Defendants cited Tajjul bin Mustafa v Heng Cheng Hong [1993] 3 CLJ 117; [1993] 2 MLJ 143 where the Supreme Court reminded at p117: “The principle of overriding importance is that all necessary and proper parties, but no others, should be before the Court at the same time to enable the effectual and complete determination and adjudication to be made by the Court of all questions and issues between the parties which arise for decision.” [7] The Defendants’ objection was based on their contention that the presence of the Sixth and Seventh Defendants were no necessary to ensure the matters in dispute to be effectually and completely determined as the Plaintiff’s cause of action and reliefs sought were affected without the joinder of the Sixth and Seventh Defendants. It was additionally submitted that there were no questions or issues connected to the Sixth and Seventh Defendants that related to the Plaintiff’s cause of action and reliefs sought – the Court of Appeal’s decision in Dato’ Dr Hj Mohamed Haniffa Hj Abdullah & Ors v Koperasi Doktor Malaysia Bhd & Ors [2008] 3 CLJ 323; [2008] 3 MLJ 530; [2008] 4 AMR 293 was referred to. This Court’s decision [8] There were no excessive of unexplained delay on the part of the Plaintiff to file Enc 10 – see Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 2016. It was a bona fide application and the Defendants had not raised a fact to show otherwise. This Court proceeded to assess Enc 10 as it was of the view that the complaint of delay by the Defendants was not a good reason to discard Enc 10 at the outset. [9] The proposed action against the Sixth and Seventh Defendant could be clearly seen in the proposed amendments to the SoC. The Plaintiff has the right to pursue a legal action for the losses it contended it had suffered due to the alleged actions by the Sixth and Seventh Defendants. Whether it will succeed or not is another matter which is subjected to this Court’s determination upon the finding of facts adduced at trial. The pleaded cause of action and facts showed that it was part of the transaction or formed a series of transaction of the pleaded facts against the First to Fifth Defendants. Therefore, this Court opined that an order for joinder of the Plaintiff’s proposed legal action against the Sixth and Seventh Defendant was appropriately granted as one trial would assist this Court to effectively determine the dispute – see Mohamed Azmal Noor Naina Mohd Noor v

[10] This Court opted to allow the joinder and the amendment to the SoC based on Order 15 Rule 6(2)(b) RoC. This Court found that the Sixth and Seventh Defendants could be joined as a party as:

their presence was necessary to ensure that all matters in the dispute may be effectually and completely determined; or

there may exist a question or issue arising out of or relating to any relief or remedy claimed in the cause or matter which this Court thinks just and convenient to determine between them to the cause or matter. [11] This Court found that there was no change in the nature and character of the Plaintiff’s action. Just as important, the Defendants had not shown any prejudice to them as a consequent of the joinder and amendment that this Court was minded to allow. The proposed amendments in paragraphs 12A and 12B of the SoC had identified the Sixth and Seventh Defendants that posed no possible prejudice on the First to the Fifth Defendants. The inclusion of references to the Sixth and Seventh Defendants in paragraphs 13, 22 and 23 IX(b), (c), (p), (q), (s),

(t)(i)-(iii), (viii) also could not prejudice the First to the Fifth Defendants. There were no facts disclosed, neither submissions made on any alleged prejudice for this Court’s consideration. At the opposite, this Court agreed with the Plaintiff that it was not for the First to Fifth Defendants to raise defences for the Sixth and Seventh Defendants. The SoC when read in its entirety illustrated that the Plaintiff’s case against the Sixth Defendant was on the fact that he, as a long serving senior officer and a responsible team member of the First Defendant was fully aware and involved in the alleged misfeasance in public office and wrongful interference of trade. Whilst against the Seventh Defendant was that she had allowed false evidence to be given by the Fifth Defendant against the Plaintiff at arbitration. Again, whether the Plaintiff could at trial prove on a balance of probabilities its case against the Defendants remained to be seen. But, at this juncture, the Court viewed that it was appropriate to exercise its discretion on the totality of the circumstances and the factual matrix before it to allow the Plaintiff’s application to amend its SoC, adding/joining the Sixth and Seventh Defendants to this action – refer to Greenlinx Sdn bhd & Anor v Suruhanjaya Syarikat Malaysia [2012] CLJ 7 490; [2012] 5 MLJ 373. [12] The argument that the Plaintiff’s amendments to the SoC referred to without prejudice communication could all be dealt with at the trial proper. The fact as to whether it was indeed a without prejudice communication has not been determined, which meant that there was no cogent legal hindrance to the application to amend and for a joinder as per Enc 10. On the face of the SoC, the Plaintiff sought for reliefs against the Sixth and Seventh Defendants – the words pleaded were “against the Defendants or any one or more of them.” [13] In line with the Federal Court’s decision in Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (Previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292; [2018] 1 CLJ 415 that the function of the pleadings like the SoC was to give fair notice to the Defendants the case that the Plaintiff sought to meet so that they would not be embarrassed of mislead, this Court found that the amendments ought to be allowed. For the expediency of the justice system, this Court allowed the joinder of the Sixth and Seventh Defendants to this action. Time and costs on the part of all parties would be greatly saved as the alleged actions by all the Defendants (the Sixth and Seventh Defendants included) were part of the same transaction/formed a series of transaction. The First to Fifth Defendants had failed to satisfy this Court that they would as a consequence of the joinder suffer prejudice that cannot be compensated by an order of costs at the conclusion of this action – refer to HSBC Bank Malaysia Berhad v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398. DATED 14 FEBRUARY 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT IN MALAYA KUALA LUMPUR For the Plaintiff: Liee Teck Huat, Rueben Mathiavaranam, Ong Kang Nyong and Kathleen Samantha George T/n Zaid Ibrahim Suflan T H Liew & Partners For the Defendants: Saritha Devi Kirupalani together with Ainnabila