This appeal raises a short but interesting point in the context of private international law. It has to do with whether the High Court in Malaya has jurisdiction to try the plaintiffs’ action for libel against the defendant. There is of course no new point of law here. It is merely a matter of applying settled principles to the particular facts of this case. And those facts, in so far as relevant to the narrow point here, may be shortly stated.

On September 3, 1996 the second defendant sent a facsimile message addressed to the second plaintiff at Kuala Lumpur. It was transmitted to the fax number of the first plaintiff also at Kuala Lumpur. It was sent out of London. It was prepared on the letterhead of the second defendant. It was signed by the first defendant. On its face, it appears to have been copied to four other persons. (Two of these persons are within Malaysia.) That is to say, they are within the jurisdiction of the High Court. Of that there is no dispute.

It is the plaintiffs’ case that the facsimile message in question contains defamatory matter. They therefore instituted the present action against the defendants. Their claim is based in tort. They applied for and obtained leave under RHC Ord. 11 r. 1 to serve their writ out of jurisdiction on the defendants in England. The defendants entered a conditional appearance to the writ and applied to discharge the order granting leave. They succeeded. The plaintiffs now appeal to us.

Before dealing with the merits of this appeal, it is appropriate that this opportunity be taken to re-state the principles generally governing jurisdiction in the field of private international law. They are beyond argument.

To begin with, as a matter of private international law, the High Court in Malaya (and this applies equally to the High Court in Sabah and Sarawak) may entertain an action in personam only if it has jurisdiction to do so. It is to be emphasised that the expression “jurisdiction” is one that may be used in a variety of senses and therefore takes its colour from the context of its use: Lipohar v The Queen [1999] 200 CLR 485, at 516-517. In the present context it refers to the authority of the High Court in three senses, namely, jurisdiction over the parties; jurisdiction over the subject matter of the action; and jurisdiction over the cause of action.

First, jurisdiction over parties. The jurisdiction of the High Court is available to any plaintiff, Malaysian or foreign, save an enemy alien in time of war. See, Porter v Freudenberg [1915] 1 KB 857. Next, any defendant, save those immune from suit, for example, foreign sovereigns, diplomats and other consular officers protected by written law, may be impleaded as a defendant to an action governed by principles of private international law.

Second, jurisdiction over the subject matter of the action. Here, it is settled by what has come to be known as the rule in the Moçambique (British South Africa Co v Companhia de Moçambique [1893] AC 602) that the High Court has no jurisdiction to adjudicate upon rights of property in or the possession of foreign immovable property even though the parties to the dispute are domiciled or resident in Malaysia. See Potter v Broken Hill Pty Co Ltd [1906] 3 CLR 479; Hesperides Hotels Ltd v Muftizade [1979] AC 508. The rule in the Moçambique may apply to foreign movable property as well. See, Tyburn Productions Ltd v Conan Doyle [1991] Ch 75; Pearce v Ove Arup Partnership [1997] Ch 293. However, in personam relief may be decreed in an action relating to foreign property if the defendant is resident within the jurisdiction of the High Court. See Penn v Lord Baltimore [1750] 27 ER 1132; Richard West & Partners (Inverness) Ltd. v Dick [1969] 2 Ch 424.

Third, jurisdiction over the cause of action. The jurisdiction of the High Court over a cause of action rests on the twin pillars of effectiveness and submission. Effectiveness means that any judgment of the court in the given dispute can be enforced. Submission refers to a defendant submitting to the jurisdiction of the court. Absent either of these, the court cannot seise itself of the cause of action. In Malaysia, the High Court is seised of jurisdiction over a dispute in any of the following three cases:

1. where the defendant is served with the writ or other originating process within the jurisdiction; or

2. where any of the conditions set out in section 23 of the Courts of Judicature Act 1964 are satisfied; or

3. where a plaintiff is able to obtain leave of court to serve a defendant who is outside the jurisdiction of the court pursuant to RHC Ord. 11.

At common law, jurisdiction is founded on personal service on a defendant present within the jurisdiction. It is of no moment that the defendant’s presence is transient: Carrick v Hancock [1895] 12 TLR 59; Razelos v Razelos (No.2) [1970] 1 WLR 392. Personal service here refers to one or more of the methods of service specified by RHC Ord. 10 read with Ord. 62.

It is now settled by binding authority that the High Court may exercise jurisdiction over a non-resident defendant pursuant to section 23(1) of the Courts of Judicature Act 1964: Malayan Banking Bhd v International Tin Council [1989] 3 MLJ 286.   The relevant part of the section reads as follows:

In Malayan Banking Bhd v International Tin Council, it was held (per Mohd Azmi SCJ) that in Malaysia service is not solely the foundation of jurisdiction of the High Court and that apart from Ord. 11 r. 1, s 23(1)(b) of the Courts of Judicature Act 1964 confers extra-territorial jurisdiction on the High Court in cases falling within the section. In that case, the facts fell within section 23(1)(b). In the present case, the relevant provisions are both paragraphs (b) and (c) of section 23(1). In other words, for the appellants to succeed in the instant appeal they must show one of two things. Either that the tort of libel of which they complain was committed within the jurisdiction. Or, that the facts on which their action in tort is based are alleged to have occurred within the High Court’s jurisdiction. If they demonstrate either of these things, then they would ex debito justitae entitled to have their writ served pursuant to RHC Ord. 11, r. 1. Once the court is seised of extra territorial jurisdiction by virtue of section 23(1), Ord. 11 r. 1 ceases to be of jurisdictional relevance. The decision in Malayan Banking Bhd v International Tin Council makes it plain that Ord. 11 r. 1 assumes jurisdictional importance only in cases falling outside the scope of section 23(1). Accordingly, in cases where section 23(1) applies, Ord. 11 r. 1 becomes a mere procedural formality to enable a plaintiff to effect service abroad.

In the present case, if the plaintiffs are right in their argument on the facts, then this is a case that falls both under section 23(1)(a) and (c) of the Courts of Judicature Act as well as under paragraph (h) of Ord. 11 r. 1 which empowers the court to grant leave to a plaintiff to serve a writ out of jurisdiction “if the action begun by the writ is founded on a tort committed within the jurisdiction”. So it does not really matter which of these provisions is relied upon to found jurisdiction in this case.

It is trite that publication of an alleged libel to some person other than the plaintiff is the sine qua non of the tort. Absent the ingredient of publication, there is no cause of action in defamation. See Pullman v Walter Hill & Co. [1891] 1 QB 524. On the facts pleaded in the statement of claim, if the alleged libel was published to persons within the local jurisdiction of the High Court in Malaya, the tort of defamation would have been committed within the jurisdiction. For it is publication within the jurisdiction that gives rise to the cause of action in defamation: Bata v Bata [1948] 92 Sol. Jo.574; Eyre v Nationwide News Pty Ltd [1967] NZLR 851; Dow Jones & Co Inc v Gutnick [2003] 194 ALR 433. In any event, if the plaintiffs allege that publication occurred within the jurisdiction, that is sufficient to enable the High Court to seise itself of jurisdiction over the dispute.

The first ground may be taken now, namely, whether the cause of action arose within the jurisdiction. The question that then arises is: was there publication within the jurisdiction? The plaintiffs say there was. And in support of their contention, they rely on the contents of the defendant’s facsimile. The defendants say there was no publication within the jurisdiction. In support of their case they rely on an affidavit filed by them in which they say that although their facsimile shows it being copied to the two other persons within the jurisdiction, no copy was ever sent to these persons. The defendants argue that their denial of publication, unchallenged by the plaintiffs at the interlocutory stage, concludes the matter in their favour. Meaning no disrespect to learned counsel for the defendants, the argument advanced is over-simplistic and devoid of any merit in that it overlooks certain fundamental principles that operate in the environment of adjectival law.

It is elementary law that for the purpose of determining whether the High Court at Kuala Lumpur has jurisdiction over the defendants, the allegations made by the plaintiffs in their statement of claim must be assumed to be true. Thus, in Vanity Fair Mills Inc v T Eaton Co. Ltd [1956] 25 CPR 6 Waterman J observed as follows:

See also Rediffusion (Hong Kong) Ltd v A-G of Hong Kong [1970] AC 1136 per Lord Diplock.

So too here. The merits of the plaintiffs’ claim that there was publication are yet to be tried. The mere ipse dixit of the defendant that there was no publication cannot be determinative of the matter. At the risk of repetition, it needs to be said that at the point of determining whether the tort of defamation was committed within the jurisdiction, all the allegations in the statement of claim must be presumed to be true. At that stage there is no preliminary inquiry through a trial on affidavits as to whether the defamatory material was indeed published within the jurisdiction. Were it otherwise, there is a risk that applications to discharge an order granting leave under Ord. 11 r. 1 may turn out to be mini trials without determining the suit on its merits.

Whether publication had taken place is a jury question, that is to say, it is an issue of fact. So, in Gaskin v Retail Credit Co [1965] SCR 297, Ritchie J who delivered the judgment on behalf of the majority of the Canadian Supreme Court said:

Accordingly, the question as to whether there was publication, and to whom, is a matter that requires to be resolved at the trial after hearing all relevant viva voce evidence. Even assuming that the plaintiffs may not be able to prove at the trial that there was publication to the two Malaysians mentioned in the defendant’s facsimile, they may nevertheless be able to succeed by proving publication to other third parties in Malaysia: persons other than those whose names appear in the facsimile. The true principle is that set out in the 2nd edition of Dr Spencer Bower’s classic work “The Law of Actionable Defamation” as follows:

In Huth v Huth [1915] 3 KB 32, at p.38, Lord Reading CJ said:

Admittedly these words were spoken at a time when communication by facsimile was not even remotely in mind. Yet they hold true even in today’s world where the method and medium of national and international communication has altered. It is amply clear that on a purely practical footing there is no difference between a defamatory statement contained in a post – card or a telegram and a facsimile message. Just as it is presumed in a plaintiff’s favour that the contents of a post-card or a telegram would be read by third parties, so too it should be presumed that the contents of a facsimile message would be read by persons other than the addressee at the point of receipt. Unless such a presumption is made available – by analogy with the telegram and post-card cases – plaintiffs will be hard put to prove actual publication in facsimile cases. The presumption is one of fact that arises upon proof of certain primary facts raising a prima facie inference that there must, in the ordinary course of events, have been publication to a third party. The presumption may be rebutted by a defendant by showing that not one person actually read the defamatory facsimile message. Of course, there may be particular circumstances in which the presumption is so strong that it may become impossible to rebut.

Take an obvious example. A facsimile message defamatory of A is sent by B to A who works in a large office. Evidence is led by A to show that the facsimile machine is situated in a general area in A’s office and that several employees have ready access to the machine either to send or to receive messages. Upon proof of these basic or primary facts, the court may presume that there was publication to one or more third parties. In such circumstances the defendant may find it difficult, if not impossible, to show that there was no publication unless it can be shown that no one other than A himself read the document. It goes without saying that the presumption may be strong or weak according to the facts of each case.

Now, it is true that the statement of claim in the present case relies on publication only to the two persons within the jurisdiction. But this is not fatal to the issue at hand. For, it is open to the plaintiffs at any time, during or after case management, to amend their statement of claim and allege a wider publication in the sense already discussed. Further, there is no duty on the plaintiffs to adduce evidence at this stage to prove actual publication. That, on the authorities was a matter to be left for the trial proper.

On the material presented to the court below, there was an allegation of publication within the jurisdiction reasonably supported by the contents of the defendants’ own document. Against that was the bare denial by the defendants that there was no such publication as alleged.

That brings you to section 23(1)(c) of the Courts of Judicature Act. That provision has already been referred to earlier in this judgment. Under this section there is no burden on the plaintiffs to prove to a conviction that the facts on which their action is based (that is to say the action for defamation) exist within the jurisdiction of the High Court. It is enough if those facts are alleged to have occurred within the court’s jurisdiction. That is what the latter part of section 23(1)(c) says. Nothing more; nothing less. Consequently, the plaintiffs are under no duty to adduce positive evidence, as suggested by learned counsel for the defendants, to disprove the defendants’ contention that there was no publication. The plaintiffs have alleged that the defamatory statement was published to two persons within the jurisdiction. That is sufficient to bring them within the purview of section 23(1)(c).

Based on the foregoing discussion it is clear that the High Court cast on the plaintiffs a burden which the law does not. Prima facie, the facts of this case come squarely within section 23(1)(a) and RHC Ord. 11 r 1(h) or alternatively within section 23(1)(c). But all this does not mean that the issue of publication is concluded against the defendants. It is open to them, in the ordinary way, to show at the trial that there was no publication as alleged by the plaintiffs or at all.

The appeal was accordingly allowed and the orders usually consequent upon success in a case as this were made.

One last point. The decision in this case which was pronounced at the conclusion of arguments was reached by a majority with our learned brother Abdul Aziz Mohamad, JCA dissenting. This is the majority judgment.

Abdul Aziz Mohamad, JCA

(dissenting)

As to leave to serve the notice of the writ, the appellants' argument was in paragraph 5 of their skeletal submission, which I quote:

It was about the stage of the appellants' application for leave to issue and serve the writ out of the jurisdiction, which was applied for, necessarily, ex parte. But the appellants did not there state what their argument was as regards the bearing that that stage had on the respondents' subsequent application to set aside under Order 12 r 7. If they meant to say that because they had succeeded in obtaining leave at that stage on the basis that they had a good arguable case, the respondents were not entitled to show on their application under Order 12r7 that the appellants had no case at all against them within the jurisdiction, then they would be denying the raison d'etre of Order 12 r 7. And it was not their argument that Order 12 r 7 was restrictive as to the matters that need to be shown to succeed in an application under it.

The appellants cited two cases in relation to their paragraph 7, but I could not see how the cases benefited them. Vitkovice Horni A Hutni Tezirstvo v Korner [1951] 2 All ER 334 was cited merely as an authority for what a plaintiff needs to show on an application for leave to serve notice of a writ out of the jurisdiction. It does not concern the setting-aside stage.

The following passage by Staughton LJ is enlightening. It appears at p 1194 c-d:

So at the setting-aside stage, conflicting evidence or arguments do, and have to, arise as to the truth of the assumed facts on the basis of which leave was earlier granted. The conclusion for the question is at pp 1196 h-1197 a:

At the setting-aside stage, "the nettle must be grasped". It means that, faced with the applicant's averments which raise disputes of fact, the plaintiff must fight out the dispute and persuade the judge that he has a good arguable case that the facts contended for by him are true. He cannot fall back on his success in obtaining the leave which he obtained only on the assumption that the facts were true. Now, at the setting-aside stage, he must show that, despite the applicant's contentions, there is still a good arguable case that his facts are true. The applicant, on his part, has to be entitled show that there is not even a good arguable case that the plaintiffs facts are true.

As to non-submission to jurisdiction, the appellants' argument was in paragraph 6 of their skeletal submission. I quote the crucial part of it.

[See affidavit of the first respondent at paragraph 11 p 92 of the appeal record.]

The first sentence suggested that because the respondents had not yet submitted to the jurisdiction of the Malaysian courts, the court ought not to hear them on their plea that there had not been publication in Malaysia. I supposed that what the appellants meant by saying that the respondents had not yet submitted to the jurisdiction of the Malaysian court was that they had only filed a conditional appearance to the writ in order to contend that the Malaysian High Court had no jurisdiction to try the action. But that was so only as far as the writ was concerned. Order 12 r 7 entitled the respondents to come to court for a decision on their plea that the court had no jurisdiction. They exercised their right, thereby submitting to the jurisdiction of the Malaysian High Court to decide the question of jurisdiction. They were then entitled to show why they claimed that the court had no jurisdiction.

It was a claim in tort for damages against a foreign bank for fraudulent misrepresentation. The appellant plaintiffs had obtained leave to serve notice of the writ of summons out of the jurisdiction on the foreign bank. The foreign bank applied for an order setting aside the order granting leave, the notice of the writ of summons, and its service on them. One of the grounds for the application was that the tort was not committed in Malaysia, and therefore the Malaysian courts had no jurisdiction to hear the claim, it being contended that the tort of fraudulent misrepresentation, where the misrepresentation is made by telephone or telex, is committed at the place where the message is sent, in this case the foreign country, Singapore. The judge dismissed the application, holding that in such a situation the tort is committed at the place where the message is received, in that case Malaysia, and so the High Court in Malaysia had jurisdiction over the claim. The foreign bank appealed to the Supreme Court, which dismissed the appeal.

I quote holding [1] in the report:

The last two sentences might be construed to mean that the Supreme Court dismissed the appeal and held that the Malaysian court had jurisdiction simply because "the statement of claim was cast in tort committed in Malaysia". It was probably on that view of the case that the appellants made the suggestion stated earlier, that seemed to lurk behind the second sentence of paragraph 6 of their skeletal submission. But it was not for that reason that the Supreme Court found that the Malaysian court had jurisdiction. The Supreme Court found that there was jurisdiction for the same reasons as the judge gave, not simply because the statement of claim was cast in tort committed in Malaysia. At p 279 b the Supreme Court said:

I have read in draft my learned brother Gopal Sri Ram JCA's grounds of judgment. I gather from paragraphs 13 and 14 that he holds the view that in an application under Order 12 r 7 an allegation in the statement of claim must be assumed to be true. He cites Vanity Fair Mills Inc v T Eaton Co Ltd [ 1956] 25 CPR 61 and Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136. The two cases were not cited by the appellants. I have since looked at the reports. I fail to see in the headnote of Rediffusion any decision or principle in the case that has a bearing on an application under Order 12 r 7 and my learned brother has not quoted any passage from the body of the judgment that he relies on. Vanity Fair Mills was a dispute between a United States company (the plaintiffs) and a Canadian company over rights in the trade mark "Vanity Fair" when used in connexion with women's underwear. The plaintiffs' "complaint" in a district court of the United States sought injunctive relief against the use by the defendants of the trade mark in connexion with women's underwear both in Canada and the United States, and other reliefs. The defendants moved to dismiss the complaint under rule 12(b) of the Federal Rules of Civil Procedure on the grounds, inter aha, that the district court lacked jurisdiction over the subject matter of the complaint insofar as it related to the defendants' alleged trade mark infringement in Canada. The district court held that it lacked subject-matter jurisdiction over that portion of the complaint that raised Canadian trade mark issues. The plaintiffs appealed to the United States Court of Appeal for the second circuit. It was in the judgment on the appeal that Waterman, circuit judge, uttered the following words which are cited by my learned brother:

I do not have the benefit of knowing what rule 12(b) of the Federal Rules of Civil Procedure, under which the defendants' motion to dismiss was made, says so as to enable me appreciate the circumstances in which resort to it is available. But if under United States law in all cases in which a defendant raises before trial a question of jurisdiction in order to put an end to the plaintiffs action against him, including cases possessing the like procedural circumstances as the present case, the truth of the facts asserted by the plaintiff cannot be questioned, then the law is in conflict with Attack Cement, supra, which I think is the correct law as to the material to be considered in an application to set aside service of a writ out of the jurisdiction on a foreign defendant.

Those are the reasons why, as I said, I was of the view that there was no merit in the three considerations that the appellants relied on for taking the stand in the appeal that the respondents' assertion that they did not send copies of the first letter to the two Malaysians ought not to be accepted as true at the stage of the setting-aside application.

In paragraph 9 of their skeletal submission the appellants argued that " [Sinrich] knew when he faxed the said defamatory letters that there was a possibility that the letters would be read by some other person, for example, by [Wilmott's] partner or staff ...." That argument was probably based on this statement that begins at the bottom of p 532 of Gatley on Libel and Slander, 5th edn:

I was of the view that the argument ought not to be entertained because the appellants' pleaded case was publication to the four persons. They were not concerned about being defamed in the estimation of Wilmott's partners and staff. Even after being told more than a year previously that copies of the letters were not sent to the four persons, the appellants chose to institute their action on the basis of publication to them and not also to others in Wilmott's organisation. An application under Order 12 r 7 must be decided on the claim as then pleaded because it is only on that basis that an applicant can possibly act under the rule. It might be possible, as submitted orally by learned counsel for the appellants, for the statement of claim to be amended to allege publication to other persons, but until that happened the respondents could only act on what was currently pleaded. That being the case, it would not be fair to set up against the respondents, to frustrate their application, a basis of claim that might be pleaded in the future.

For the reasons that I have given I was of the view that the learned judge was right in accepting it as true that there was no publication within the jurisdiction and in consequently allowing the appeal to him and setting aside the action, and that accordingly the appeal before us should be dismissed.