The defence counsel for veteran journalist MGG Pillai told the Federal Court today that former chief justice Eusoff Chin should have disqualified himself from hearing the appeal of a high-profile defamation suit as he was biased.

"We are dealing with apparent bias here. If the judge has an interest in the case, he should have disqualified himself," defence counsel Vinayak Pradhan told a panel of five Federal Court judges which is hearing an appeal on the RM2 million defamation suit against Pillai by business tycoon Vincent Tan.

Vinayak, who is assisted by Bastian Vendargon and M Sivalingam, submitted that as photos had shown both Eusoff and Tan's counsel VK Lingam together on holiday in New Zealand, Eusoff should not have denied the meeting.

"While there is nothing wrong in members of the Bar and the Bench fraternising, Eusoff had denied it. He had said that he did not know anything about it and that he had 'just bumped' into Lingam in New Zealand," Vinayak said.

Pillai is asking the court to set aside its earlier decision in upholding the award of RM2 million in damages he was ordered to pay Tan in a defamation suit.

Pillai, who has yet to pay the amount, wants the court to re-hear the matter.

Pillai said the review was necessary on the grounds that the Federal Court which heard his appeal could have acted in bias as there was a known friendship between Eusoff and Lingam, who acted for Tan.

Same flight

The Federal Court, with Eusoff presiding, delivered a written judgment in July last year upholding the decision of the High Court which ordered Pillai to pay the amount to Tan.

The High Court in 1994 found Pillai guilty of defaming Tan in an article which he wrote in the Malaysian Industry magazine.

Pillai and several other defendants were ordered to pay Tan damages amounting to RM10 million. Pillai's share amounted to a total of RM2 million.

Pillai and two others then appealed to the Court of Appeal which dismissed their appeal in 1995.

The Federal Court, which also had Chief Judge of Malaya Wan Adnan Ismail and the then Chief Judge of Sabah and Sarawak Chong Siew Fai on the panel, then heard Pillai's appeal in January 1998.

The Federal Court dismissed Pillai's appeal on the grounds that the award made by the High Court was reasonable and based on established principles of law.

Vinayak also submitted today that Eusoff's and Lingam's tour package to New Zealand was organised by the same tour company, Holiday Tours.

"They traveled from Singapore to Auckland and then to Christchurch on the same flight. Even the return trip was the same. They only difference was the Kuala Lumpur to Singapore trip," said Vinayak.

"What we are dealing with here is perception. We have evidence here that justifies the perception that they were traveling together and Eusoff's excuse that he 'bumped into Lingam' while there, is incorrect," he added.

Judgment reserved

In concluding his submission, Vinayak reminded the Federal Court that the case was exceptional and that their judgment would redress the injustice done to Pillai.

"This case is exceptional as it could be a landmark case in deciding future mega-defamation suits. In the original appeal there had been an appearance of bias, so now you are given the opportunity to redress the injustice," Vinayak said.

The Federal Court bench chaired by the Chief Judge of the Sabah and Sarawak High Court Steve Shim Lip Kiong with Federal Court judges Haidar Mohd Noor and Siti Norma Yaakob has reserved judgment on the matter.