Lees Trading Company Ltd v Flour Mills of Fiji Ltd [1992] FJHC 33; Hbc0116j.92s (31 August 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 116 OF 1992

BETWEEN:

LEES TRADING COMPANY LIMITED
1st Plaintiff

AND:

ROBERT LEE
2nd Plaintiff

AND:

FLOUR MILLS OF FIJI LIMITED
1st Defendant

AND:

NEMANI DELAIBATIKI
TANIELA BOLEA
FIJI POST CO LIMITED
2nd Defendants

AND:

JALE MOALA
GENE SWINSTEAD
FIJI TIMES LIMITED
3rd Defendants

AND:

FIJI BROADCASTING COMMISSION
4th Defendant

AND:

COMMUNICATIONS FIJI LIMITED
5th Defendant

Mr. Q.B. Bale: For the Plaintiffs
Mr. J.R. Reddy and Mr. S. Lateef: For the First and Fifth Defendants

Dates of Hearing: 17th and 31st August 1992
Date of Interlocutory Judgment: 31st August, 1992

INTERLOCUTORY JUDGMENT

The Statement of Claim endorsed on the Writ herein which was issued on the 31st of March 1992 alleges that the Defendants have defamed the Plaintiffs by an advertisement published by the Second, Third, Fourth and Fifth Defendants between 20th and 30th of March 1992. The advertisement was in the following terms:

"A MESSAGE TO OUR VALUED CUSTOMERS

A number of people in Fiji are under the impression that all flour sold in Fiji comes from the Flour Mills of Fiji Limited.

(a) Flour Mills of Fiji Limited

(b) A Lautoka Flour Mill

(c) Imported

The difference between flour sourced from the two local mills and flour imported is that the local mills produce flour from imported wheat. The imported flour is already processed overseas.

We take our "PROMISE OF QUALITY" very seriously. As regards to Flour sold by Flour Mills of Fiji Limited we can guarantee and prove that this is milled from the highest quality Australian Wheat with no unnatural additives. There are strict controls on storage and stock rotation to ensure that our products are always of the highest standard.

Consumer in Fiji may not be aware when buying flour where it is sourced from. This is because some shops sell Flour in plain plastic bags which carry no brand labels.

Therefore when buying flour we would urge all consumers to make sure that the packaging states clearly that it is sourced from Flour Mills of Fiji Limited. When purchasing bread, biscuits, cakes etc ensure that it is made from flour milled by us.

BUY

fmf
BRAND

A PROMISE OF QUALITY"

The gravamen of the allegations against the Defendants is that in their natural and ordinary meaning the words in the advertisement meant and were understood to mean that flour sold or used by the Plaintiff is not made from the highest quality Australian Wheat, has unnatural additives and is a danger to consumers. As a result the Plaintiffs claim they have been greatly injured in their credit, reputation and business and have suffered damages. On the 8th of April 1992 I granted the Plaintiffs an interim injunction against all the Defendants from publishing the advertisement of which the Plaintiffs complain until further order.

On the 16th of April 1992 a Notice of Motion was filed on behalf of the First and Fifth Defendants for an order that the injunction of the 8th of April be dissolved. Various adjournments then occurred until on the 17th of August 1992 I heard the application to dissolve the injunction. It was submitted on behalf of the Defendants that the advertisement complained of does not breach the order of this Court and furthermore is not defamatory of the Plaintiffs. It was submitted that the Plaintiffs were unduly sensitive and that the Court should be slow to make any order which effectively restrains trade.

For the Plaintiffs Mr. Bale claimed that although the advertisement did not name the Plaintiffs in direct terms it did so in a very subtle way but he conceded that if it were not for the known history of the matter the advertisement would not be defamatory. At the conclusion of argument on the 17th of August I expressed the view that on its face I did not consider the advertisement defamatory and the matter was adjourned until today to enable Mr. Bale to obtain further instructions. I am informed by Mr. Lateef who appeared today that the matter between the parties is still unresolved.

A defamatory statement is not accountable unless published "of and concerning" the Plaintiff. It is true that the Plaintiff need not be specifically mentioned or identified so long as the matter complained of reasonably implicates him.

The test for identification is: Would a sensible reader of the publication reasonably identify the Plaintiff as the person defamed? - Morgan v. Odham's Press (1971) 1 WLR 1239.

I have read the advertisement a number of times and adhere to the view I expressed in argument that the advertisement is not defamatory of the Plaintiffs on its reasonable meaning. I am confirmed in this view by the statement of Mr. Bale that the Plaintiffs regard the advertisement as a very subtle way of referring to them. If this be so then I am satisfied that the ordinary, reasonable, sensible reader would not consider the publication defamatory. Subtle references in my judgment are not likely to be regarded as defamatory by the ordinary, reasonable reader.

It appears to me that the Plaintiffs have shown themselves to be unduly sensitive and for these reasons I consider that the injunction of the 8th of April 1992 must now be dissolved against the First and Fifth Defendants. I order the Plaintiffs to pay the costs of those Defendants.

JOHN E. BYRNE
J U D G E

HBC0116J.92S