IN THE HIGH COURT OF MALAYA AT
(CIVIL DIVISION) CIVIL SUIT NO.
S2 - 23 - 38 - 2006
1. SARAWAK SHELL BHD
SHELL MALAYSIA TRADING
SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY
(FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMUR SDN BHD
5. SHELL EXPLORATION AND
PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS
(MALAYSIA) LLC (993830-X)
7. SHELL SABAH SELATAN
SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM
COMPANY LTD (993229-W)
HUONG YIU TUONG
THAVAKUMAR KANDIAH PILLAI (NRIC NO. 8299631), care of Bangunan Shell Malaysia,
Changkat Semantan, 50490 Kuala Lumpur, a Malaysian citizen of full age, do
solemnly and sincerely affirm and say as follows:
I am the Legal Manager
of the Plaintiffs and I am authorised to make this affidavit on behalf of
I make this affidavit
from personal knowledge and from documents I have seen.
I make this affidavit in
support of the Plaintiffs' application under Order 38 Rule 2 of the Rules of
the High Court for leave to cross-examine Alfred Ernest Donovan as a
precondition to his affidavit of 19.5.06 being used in the hearing of the
Plaintiffs application to cite the Defendant for contempt.
supplements my previous affidavit of 5.4.06 in support of the Plaintiffs'
Application for interim injunctive relief.
The grounds of this
application are these:
Between April and May
2004, the Defendant circulated various emails which were defamatory of the
Plaintiffs. The Plaintiffs commenced proceedings against the Defendant for
them in Kuala Lumpur High Court Civil Suit Mo. 52-23-41- 2004 (the first
On 24.6.04 the High
Court made an Order in the first action against the Defendant, in this
action, on inter alia the following terms:
Defendant, by himself, his servants or agents or otherwise howsoever, be
restrained from publishing or causing lo be published on the internet website
"Shell Whistleblower No. 2" any statements, articles, correspondence and any
other publications whatsoever, concerning the Plaintiffs' and/or "Shell
Management" and/or the Plaintiffs' Management Officers and/or the Plaintiffs'
servants or agents alleging that they or each or them are liars, cheats,
dishonest, corrupted and practised deception and conspiracy, criminal conduct
and were generally evil, and/or statements to similar effect, pending the trial
of this action or further order.
The Defendant, by
himself his servants or agents or otherwise howsoever, be restrained from
publishing or causing to be published any
correspondence, circulars in any form whatsoever containing allegations that the
Plaintiffs and/or "Shell Malaysia" and/or the Plaintiffs' servants or agents are
liars, cheats, dishonest, corrupted and practised deception and conspiracy,
criminal conduct and were generally evil, and/or statements to similar effect,
pending the trial of this action or further order".
contend that the Defendant has disobeyed the Order by publishing or causing
to be published further defamatory statements. Contempt proceedings have
been commenced against him for this.
Without prejudice to the
Plaintiffs rights in the first action, the Defendant made further defamatory
publications against the Plaintiffs. These are the subject matter of the
The Plaintiffs applied
herein for interim injunctive relief. The grounds are set out in detail in
my previous affidavit.
After this application
was filed and before it was heard, the Defendant made further defamatory
publications of and concerning the Plaintiffs. All were published on
the Shellnews.net which Donovan owns and controls.
Donovan thereafter made
4 postings on his Shellnews.net website on the Notice to Show Cause
served by the Plaintiffs on the Defendant in the first action. The
publication of these comments themselves constitutes contempt of court as
they comment on the merits of the contempt proceedings against the
In particular, the
postings include an allegation that a Malaysian judge, when hearing a matter
commenced by a 'Shell' company, ruled in Shell's favour because of
inducement by Shell. The juxtaposition of these otherwise irrelevant remarks
into the comments on the Notice to Show Cause in this action, amounts to an
assertion that the Malaysian courts have ruled against the Defendant because
they have been influenced by the Plaintiffs.
Donovan expressly states
that more postings will be made. These too will be as the Defendant's
servant and /or agent. Copies of these 4 postings are annexed hereto and
marked as Exhibit "TK-5".
These form the basis of
contempt proceedings in the first action. They however show Donovan's
The Plaintiffs contend
that, from the above, the Defendant has published and has manifested a clear
intention of continuing to publish defamatory statements. In this he is
aided and abetted by Donovan. Donovan admits as much.
The Defendant filed 2
affidavits to oppose the Plaintiffs' application for interim injunctive
relief. The first was by the Defendant, and the second by Donovan.
position is that all the publications that form the subject of this matter
were by him and/or in conjunction with his son. He contends that they were
done independently, and not in any way on behalf of the Defendant.
The Plaintiffs deny this
conclusion. Their position is that the postings were done at the behest of
the Defendant and therefore on his behalf. Even if they were not, they were
published by Donovan with the Defendant's knowledge that such publication
was certain. The Defendant is therefore responsible for the publications.
The Plaintiffs do not
believe the bare assertions made by Donovan in his affidavit. In addition,
the Plaintiffs contend that the effect of Donovan's affidavit is that he
admits, aiding and abetting the Defendant in breaching the Injunction Order
in the first action. At the very least, Donovan impeded or interfered with
the administration of justice by ensuring that the Defendant breaches that
Donovan continues to
impede or interfere with the administration of justice. He has published his
own latest affidavit on his website at
A copy of this posting is annexed hereto and marked as Exhibit "TK-6".
Donovan is outwardly
contemptuous of this Honourable Court. His latest posting contains a
Click here to ACCESS
THE DR HUONG ARTICLES PROHIBITED BY THE HIGH COURT OF MALAYA ORDER (English) (Do
not access the Dr Huong articles immediately above if you are located within the
legal jurisdiction of the High Court of Malay)
If Donovan accepts sole
responsibility for the publications, he should submit to Malaysian
jurisdiction and submit to cross-examination. The Plaintiffs therefore would
like to cross-examine Donovan as a precondition to his affidavit being used.
This Honourable Court can then satisfy itself as to whether the statements
made by Donovan are in fact true.
The Plaintiffs therefore
pray for leave to cross-examine Donovan as a precondition to his affidavit
To an Affidavit by the
deponent named )
THAVAKUMAR KANDIAH PILLAI )
affirmed on this
day of June, 2006
at Kuala Lumpur 21 June
COMMISSIONER FOR OATHS
This Affidavit is filed by
Messrs T H Liew & Partners, solicitors for the Plaintiffs abovenamed and whose
address for service is at 4-02, 4th Floor, Straits Trading Building, 2, Lebuh
Pasar Besar, 50050 Kuala Lumpur.
Tel : 03 2612 9000
Fax : 03 2612 9001
Ref : LTH/SARAWAKSHELL/00599-06
LEGAL DOCUMENT ENDS
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