The (Bundle) ABCs of defamation trials: the recent Federal Court decision of Melawangi dissected
Civil trials are replete with pitfalls. One of these would be the classification of documents.
In a civil trial, parties are obligated to mark their documents as being in either Parts A, B or C.
For practical purposes, this is achieved by solicitors exchanging a draft bundle of documents prior to the trial. They will then respectively take instructions and classify all documents according to Parts A, B or C.
The bane of every trial lawyer would be to have an opponent who marks every document as a Part C document; such conduct is abhorrent and must be decried. In Jet Holding v Cooper Cameron [2006] 2 SLR 769, the Singaporean Court of Appeal (the equivalent of Malaysia’s Federal Court) stated as follows:
[50] There is also a broader policy reason why an overly punctilious insistence on compliance with the provisions in the Evidence Act for its own sake is undesirable. If it is the case that a party is placed with the positive burden of producing original documents or calling the maker of the documents sought to be introduced into evidence, this would entail (particularly in situations akin to that outlined in the preceding paragraph) an enormous waste of court time and resources in the event that the party seeking to introduce the documents concerned is seeking to do so in good faith. That being said, it is of course open to the opposing party to object to the admission of the documents concerned and insist that the other party produce the original documents or the maker of the documents concerned. That is his or her prerogative. But what if such an objection is frivolous or vexatious? It is our view that if it can be demonstrated that this is in fact the case, then sanctions can be imposed by way of an order for costs.
Solicitors be warned: such unmeritorious conduct has been noted by the Courts and an adverse order as to costs may be the least of one’s concerns (see also KTL, below).
Classification of documents
The classification of documents has a wide bearing on the manner in which a trial proceeds. It will also impact who is called as a witness.
In KTL v Leong Oow Lai [2014] MLJU 1405, Wong Kian Kheong JC (as His Lordship then was) provided a symposium on the subject:
[32] Order 34 rule 2(2)(d), (e)(i) and (ii) of the Rules of Court 2012 (RC) provide that during pre-trial case management, parties may —
(a)agree to both the authenticity and contents of documents to be adduced and used at trial (Part A Documents);
(b)agree only to the authenticity but dispute the contents of documents to be adduced and used at trial (Part B Documents). Part B Documents are documents where parties agree to their authenticity but dispute the weight to be attached to these documents; and
(c)dispute both the authenticity and contents of documents to be adduced and used at trial (Part C Documents).
[33] It is to be noted that s58(1) and (2) of the Evidence Act 1950 (EA) allow parties in a civil suit to agree to admit any “fact” (defined widely in s3(a) EA to include documents).
[34] If a document is classified as a Part C Document, the party adducing that document bears the evidential burden to satisfy the court on a balance of probabilities the following 2 conditions of admissibility of that document (2 Conditions of Admissibility):
(a)in accordance with the rule against documentary hearsay, the maker of the Part C Document has to be called as a witness — the Federal Court’s judgment in Capital Insurance Bhd v Cheong Heng Loong Goldsmiths (KL) Sdn Bhd [2005] 4 CLJ 1, at 20, 21-25 and 28. If the maker of a Part C Document cannot be called as a witness, the party adducing that document has to satisfy the court regarding the application of any one of the exceptions to the hearsay rule such as ss32(1)(a) to ss32(1)(a) [ss32(1)(i) and (j) EA only apply to criminal proceedings according to ss32(2)], 33 to 37, 73A(1), (2) and/or 90A(1) EA [s90c EA provides that s90A EA shall prevail over, among others, any other provision of EA relating to the proof of evidence]; AND
(b)“primary evidence” of the Part C Document as understood in s62 EA must be adduced in court as required by s64 EA — the Supreme Court’s decision in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, at 631. It is to be noted that Explanation 3 of s62 EA provides that a document produced by a computer (in compliance with s90A EA) is primary evidence. If “primary evidence” of a Part C Document is not available, s64 EA provides that “secondary evidence” [within the meaning of s63(a) to (e) EA] of the Part C Document can only be admitted as evidence if there is proof of the application of any one of the paragraphs in s65(1)(a) to (g) EA.
[35] The 2 Conditions of Admissibility need not be fulfilled in respect of Part A Documents and Part B Documents.
[36] As the 2 Conditions of Admissibility apply to a Part C Document, Order 34 rule 2(2)(i) of the RC allows any party to apply to court for directions during pre-trial case management to “ascertain” whether the opposing party still insists on the classification of that document as a Part C Document. Order 34 rule 2(2)(i) of the RC empowers the court to “make such order or give such direction as is necessary to achieve the just, expeditious and economical conduct of the trial”. I am of the considered view that if a party still insists on categorizing a document as a Part C Document, namely to put the opposing party to fulfil the 2 Conditions of Admissibility, that party is entitled to do so but the court may make a note of such a conduct by that party. Such a conduct may be subsequently taken into account by the court in deciding whether to award costs after trial and if so, how much — Order 59 rule 8(b) RC (conduct of all parties, including conduct before and during proceedings).
Practitioners would benefit by reading the entirety of the judgment. His Lordship’s ratio was considered and adopted by Azizul JC (as His Lordship then was) in Mohamad Fauzi v JR Joint Resources [2016] MLJU 62.
Classification of documents in defamation trials
Classification becomes especially important in defamation trials. How ought a document which contains defamatory material (but which all parties do not dispute exists) be classified?
The Duke v Caesar saga
A simple example would be as follows. Caesar, an academic who specialises in canine psychology, exchanges his findings with his longtime intellectual sparring-partner, Duke. The exchanges become heated and they culminate in Caesar rushing-off a riposte in the Canine Times, where he dubs Duke “a simpleton who fastidiously avoids (and continues to prevaricate upon) wisdom’s cry to arms”.
Duke is understandably upset. Letters are exchanged via their solicitors and a civil suit is filed. The article in the Canine Times becomes the centrepiece of the civil suit. Caesar claims that his comments were justified; he further labels Duke a “dunderheaded ninny with scant regard for common decency”.
During the exchange of the draft bundle, Duke’s solicitors classify the article as a “Part A” document. After all, its authenticity is not disputed; neither would the fact that its contents exist.
At trial, Caesar’s solicitors capitalise on this. They allege that by virtue of the article being classified as a “Part A” document, its contents and authenticity are not disputed. Hence, the very fact that the contents are not disputed will substantiate the defence of justification.
The Court of Appeal clarifies
In Yeo Ing King v Melawangi [2016] 5 MLJ 631, the majority of the Court of Appeal held that such a situation would not give rise to a defence of justification:
[45] Having given careful consideration to the matter, we take the view that what r (2)(d) envisages is only agreement on the contents of the documents and not the truth of the contents, unless agreed by the parties. In the present case there was no such agreement between the plaintiff and the defendant at the pre-trial case management. Therefore the agreement by the parties to place the documents in Part A of the BOD was only an agreement that the documents contained the impugned defamatory statements and not an agreement that the defamatory statements were true of the plaintiff.
[46] It is true that it was the plaintiff itself who chose to include the three defamatory statements in Part A of the BOD, but it will be stretching the imagination to suggest that by doing so the plaintiff had admitted to the truth of the statements. That is wholly illogical and runs counter to the pleadings and the plaintiff’s object of filing the claim in the first place.
[47] Order 34 r 2 is not designed to be a trap for the unwary to fall into. It is designed to simplify the procedure in a civil trial and to expedite the disposal of cases. Whether the statements were defamatory and whether they were the truth were matters that the court had to decide. The flaw in the defendant’s argument is that it equates contents with truth.
However, careful consideration must be given to the dissenting judgment of Hamid Sultan JCA, where His Lordship stated as follows:
[21] Bundle A document clearly must mean that the contents are not disputed as to content or to its truth. If the contents are disputed as to content or its truth then it has to be in Part B. In this respect, I agree with the submission of the learned counsel for the appellant and will allow the appeal with costs of RM30,000 here and below and order the deposit to be refunded.
The Federal Court decision in Melawangi v Tiow Weng Theong
Very recently (26.02.2020), the Federal Court revisited this issue in Melawangi v Tiow Weng Theong 02(f)-10-02/201(B). The High Court found the Defendant liable for defamation. This was overturned by the Court of Appeal on the following principal grounds:
22] Principally, the decision of the Court of Appeal was premised on the issue of the legal effect or consequence of including the email in Part A of the Agreed Bundle of Documents. The Court of Appeal held that the High Court erred in law and fact when holding that document in Part A (in the instant case the e-mail dated 13.10.2008) required proof of the truth of the contents of the document. The Court of Appeal held that the emplacement of the e-mail in Part A resulted in the defence of justification being made out.
The decision of the Federal Court
Of crucial importance, at this juncture, would be to note that the Federal Court delved into the facts. A material dispute was as to whether the defamatory email was agreed to be included as a Part A document. The Federal Court held that there was no such agreement:
Our decision
[24] In the memorandum of appeal (see pages C1-C4, Jilid 1 Bahagian A) and the written submissions, the plaintiff attacked the judgment of the Court of Appeal on a number of grounds. However, what turned out to be of critical importance in the course of the arguments before us is the factual question whether the plaintiff in the first place had agreed that the e-mail be emplaced in Part A of the Agreed Bundle of Documents.
[25] It is material to point out at this juncture that the Court of Appeal anchored its judgment on the primary ground that the plaintiff had agreed to place the e-mail in Part A of the Agreed Bundle of Documents. As we shall see later, this has a far-reaching implication. As a consequence, it was marked in the course of evidence without reservation and admitted into evidence.
[27] In the circumstances, one of the key questions for us to determine is whether the plaintiff had agreed to place the e-mail in Part A of the Agreed Bundle of Documents.
[28] The answer to this factual question must be approached on the basis of what was precisely agreed to by the litigating parties. All this came out during the proceedings before the learned JC and meticulously recorded in the notes of proceedings that formed part of the Appeal Records (“AR”). At the hearing before us, in responding to the questions posed by us, learned counsel for the plaintiff took us through the relevant parts of the notes of proceedings to support his contention that the plaintiff never agreed to place the e-mail in Part A and that in truth the plaintiff wanted to remove the e-mail from Part A and to move it to Part B of the Agreed Bundle of Documents. On the basis of the factual matrix in the present case, in our opinion, this line of argument has merit.
…
[44] The result is that we allow the appeal with costs by setting aside the orders of the Court of Appeal. We hereby restore the order of the High Court.
Analysis of the Federal Court’s decision
These 3 decisions, namely that of the(1) majority in Yeo Ing King, the (2) dissenting in Yeo Ing King and (3) the Federal Court in Melawangi must be read carefully. It would appear that there has been a subtle shift as to how documents ought to be classified in a defamation trial.
In Melawangi (FC), it must be noted that the Federal Court did not outright dismiss the arguments of the Respondent. Instead, there appears to be a tacit acceptance of the ratio of Hamid Sultan JCA in Yeo Ing King, wherein the Federal Court appears to endorse the view that a libellous statement ought to be placed in Part B.
This is an important consideration and one that practitioners must bear in mind. Better to err on the side of caution and to mark an alleged defamatory publication as a Part B document, than to be left out in the cold with a Part A document that would allow for the (admittedly frivolous) defence of justification.
With respect, the Federal Court in Melawangi ought not to have delved so deeply into the Record of Appeal; the ratio decidendi of the majority judgment in Yeo Ing King is flawless and it clearly sets-out the fact that defamation proceedings would be rendered nugatory if a Defendant was allowed to capitalise on magnanimous classification to satisfy its pleaded case.
The Federal Court decision in Melawangi is correct; of that there can be no doubt. However, by delving into the facts and considering ancillary issues such as the Notes of Proceeding, the focus of the decision has shifted and placed greater emphasis on classification of documents (as opposed to the jurisprudential route taken by the majority judgment in Yeo Ing King).
Conclusion
As a result of the FC decision in Melawangi, the waters are somewhat muddied. It is a shame to note that the majority decision in Yeo Ing King was not considered by the Federal Court in Melawangi.
Until an emphatic declaration is issued by the Federal Court, practitioners must be circumspect; judicious classification (as a Part B document) may save one’s client from a taxing appellate conundrum.
GAVIN JAYAPAL
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