PUTRAJAYA (May 9): The Federal Court on Thursday agreed to hear the merits of the appeal filed by the National Feedlot Corporation Sdn Bhd (NFCorp) and four others, including its chairman Datuk Seri Mohamad Salleh Ismail, for damages against Public Bank Bhd (KL:PBBANK).
At the same time, the apex court also granted leave to Public Bank's cross-appeal, to challenge the outcome of the Court of Appeal’s decision that had overturned the High Court’s decision to grant RM10,000 in damages to NFCorp and others, and RM500,000 in costs to be paid by the bank.
The originating suit in the High Court was filed by NFCorp, Mohamad Salleh, National Meat & Livestock Corporation Sdn Bhd, Agroscience Industries Sdn Bhd, and Real Food Company, against Public Bank for leaking details of their accounts and the proposed purchase of properties at KL Ecocity.
NFCorp failed in its case at the High Court, resulting in a re-hearing at the appellate court. Last August, the COA ruled that Public Bank is liable to pay damages to NFCorp over the alleged breach of contract in protecting information concerning NFCorp’s bank accounts.
The three-member Federal Court bench, led by Federal Court judge Datuk Seri Hasnah Mohamed Hashim, granted NFCorp and Public Bank two questions each for determination when the hearing of the merits of their appeal is heard.
Hasnah, who sat with Federal Court judges Datuk Abu Bakar Jais and Datuk Vazeer Alam Mydin Meera, also fixed May 14 for case management for both appeals.
NFCorp’s questions pertain to the quantum of damages awarded, while Public Bank’s questions are mainly on liability.
NFCorp and four others’ two questions are, namely:
- The COA exercised full appellate jurisdiction in rehearing the appeal in relation to liability consonant with the requirement of Section 69 of the Courts of Judicature Act 1964, and in exercising that power of rehearing, reversed the entire High Court decision on virtually every pertinent issue relating to liability. Should the Court of Appeal not exercise similar power of rehearing in dealing with the matter of damages?
- Since the COA found the causes of action in breach of confidentiality and fiduciary duty (all of which arise from common law and equity) and in breach of contract, even if (which is denied) there is no proof of damages, are not the more proof of the torts of confidentiality and fiduciary duty to bring about the entitlement for the plaintiffs’ damages to be assessed under equitable damages?
Meanwhile, the two questions posed by Public Bank were:
- Whether a bank’s implied contractual duty of confidentiality is a qualified duty (as opposed to an absolute duty), in that there are defences of exceptions to such a duty;
- Where a bank’s implied contractual duty of confidentiality is a qualified duty, whether a bank’s liability thereunder, in a banker customer contract of service, is a fault-based liability (as opposed to strict liability).
COA overturned decision
Last August, the COA ruled that the High Court judge had ignored vital evidence from the bank’s domestic inquiry on its former clerk Johari Mohamad, who was implicated in the leak of confidential documents.
COA judge Datuk S Nantha Balan, who wrote the unanimous judgement, said that he agreed with NFCorp’s submission that there is no evidence that confidential information with regard to the plaintiffs’ documents was in the public domain prior to March 7, 2012.
“The bench is of the view that there was serious misappreciation of evidence by the High Court, which warrants appellate intervention on our part. In the case before us, the High Court judge ignored vital evidence, in particular, the testimony of Veronica Foo (the head of investigation audit at the bank) before the domestic inquiry.
“[The judge also ignored] the bank’s stance vis-à-vis the charge of serious misconduct by Johari (where it found the clerk guilty of misconduct) for breaching Section 97(1) of the Bank and Financial Institutions Act. We therefore allow the appeal on liability in respect of all plaintiffs, except Real Food Company Sdn Bhd, which has no claim against the bank,” Nantha Balan said.
The appellate court ruled that Johari had wrongfully accessed Public Bank’s IBM mainframe to download NFCorp’s customer profile and balance summary (CF-BS) on Feb 16, 2012.
Politician and current Economy Minister Rafizi Ramli had at the time then held a press conference to disclose the information along with the CF-BS, that led to Mohamad Salleh complaining on March 30, 2012, about wrongful disclosure and thus filed the suit.
In Thursday’s proceeding, NFCorp’s counsel Tan Sri Muhammad Shafee Abdullah described that the damages should be revised due to the bank’s atrocious conduct of having leaked the information which affected NFCorp’s reputation, as it had not gone ahead to make the purchase of the property that it was accused of.
Public Bank’s counsel KK Chan, who appeared with Poh Choo Hoe, informed the court that their client would only apply leave to appeal should NFCorp’s questions of law be accepted by the court.
Following consideration, Hasnah said the bench unanimously allowed the questions from NFCorp and the bank to be considered in the hearing of the merits of their appeal.