Kota Kinabalu: The High Court here dismissed an application by plaintiff Waikiki Management Corporation against Sabah Publishing House Sdn Bhd, publisher of the Daily Express and its Chief Editor James Sarda, to disclose the identity of the source of an article titled “No End to the Problems at Waikiki Condominium.”
High Court Judge Datuk Celestina Stuel Galid dismissed the plaintiff’s Originating Summons with costs of RM5,000, subject to allocatur, to be paid to the defendants.
The plaintiff, sought an order under Order 24 rule 7(A) of the Rules of Court 2012 and the Court’s inherent jurisdiction for disclosure of the identity of the person or company using the pseudonym “Unhappy,” who authored the impugned article.
The plaintiff also sought related materials, including emails and correspondence between the defendants and “Unhappy.”
Among others, the plaintiff sought the full name, NRIC No, company No, address, email and also documents such as email, letters and/or correspondences between the newspaper and “Unhappy”.
On a preliminary objection that the plaintiff’s affidavit in support was defective due to a hanging jurat, the Judge said:
“The Preliminary Objection raised by the defendant/s that the plaintiff’s Affidavit in Support (AIS) is defective for having a hanging jurat can be immediately dealt with.
“In a perfect world, all the documents filed in court including affidavits and pleadings would satisfy all the requirements under the ROC 2012.
“However, it is an imperfect world and this Court itself has, unfortunately, seen more than its share of hanging jurats. In dealing with this issue, the Court’s consideration is as to whether such alleged defect is prejudicial to the opposing party.
“In the present case, much as this Court frowns upon it, in my view it does not rise to the level that it renders the application fatal,” she said.
Turning to the merits, Datuk Celestina noted the defendant’s contention that the plaintiff’s failure to state whether the defendant was likely to be a party in the intended action was fatal to its application under O 24 r7A(3)(a) ROC 2012.
The plaintiff’s counsel argued that based on the plaintiff’s averment, the intended defendant is clearly identified as “Unhappy” therefore it follows that the Defendant is not likely to be a party to the defamation proceedings and cited a decided case.
Datuk Celestina said: “With respect, it would appear to me that learned counsel for the Plaintiff has misread Ahmad Zahri for the proposition that the Plaintiff is advancing i.e. that O 24 r7A(3)(a) ROC 2012 is not mandatory.
In that case, there was no such issue as the plaintiff had stated clearly and categorically that its defendant was not intended to be a party to subsequent proceedings in court.
“This is to be contrasted in the present case where the Plaintiff omitted to expressly state as such but merely suggested that it may be inferred that the Defendant is not intended to be a defendant merely on account that the intended defendant is clearly identified as ‘Unhappy.’”
She further remarked: “I find it quite untenable that the Plaintiff would likely be commencing an action for defamation against the said ‘Unhappy’ without also commencing an action against the Defendant or Daily Express themselves who are the publishers of the alleged defamatory statements.
“In fact, the Defendant is quite forthright to say that the Plaintiff could very well go after them instead.
“In my view, the reason is very simply that if the respondent is going to be a party in the intended action, an application for discovery post commencement of proceedings is available to the plaintiff and it is unlikely that the pre-action discovery application would be successful,” she added.
Citing the Court of Appeal decision in Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2018] 4 MLRA 345, she noted that pre-action discovery is an equitable remedy and not granted as of right.
“As such, if there is an alternative remedy available, that must be resorted to, or if an action can be filed without pre-action discovery, that action ought to be filed and subsequently discovery orders should be obtained through the normal process.”, she said.
Datuk Celestina ruled: “Based on this ground alone, I would dismiss this application.”
The plaintiff was represented by Ng & Co while the defendant was represented by counsel Ho King Kong and Sonia Iilani.
