Lalabalavu v Native Land Trust Board [1999] FJHC 5; Hbc0557j.98s (10 February 1999)

Fiji Islands - Lalabalavu v Native Land Trust Board - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 0557 OF 1998

BETWEEN:

RATU NAIQAMA TAWAKE LALABALAVU
Plaintiff

AND:

1. NATIVE LAND TRUST BOARD
2. COOPERS & LYBRAND
3. PERMANENT SECRETARY FOR FIJIAN AFFAIRS
4. ATTORNEY GENERAL
Defendants

Mr. P. Samusare for for the Plaintiff
Mr. E. Leung for the 1st and 2nd Defendants
Ms. S. Tabaiwalu for the 3rd and 4th Defendants

JUDGMENT

By letter dated 7th 1998 the plaintiff's em's employment with the defendant Board was terminated with effect from the 8th July 1998.

In its letter signed by the Chairman, the 1st defendant Board wrote concerning the plaintiff:

'As you would be aware the selection process was rigorous and focused on assessing technical, management and change leadership capacity. It was with regret that the Board in endorsing appointments to the new structure recognised that your competency profile was not a close match with the profile required for the new leadership team.'

The plaintiff was unhappy with the Board's decision and issued a Writ against the 4 named defendants alleging the following causes of action:

* Against the 1st defendant Board - wrongful dismissal, (paras. 1-4 and 20-24) defamation (paras. 5-15) and negligence (paras. 16-18);

* Against the 2nd defendant - defamation;

* Against the 3rd defendant - defamation

and

* Against the 4th defendant - defamation.

By interlocutory motions dated the 21st and 29th October 1998 and a motion dated 6th November 1998 the defendants seek the striking out of the plaintiff's claims on the dual grounds that 'it discloses no reasonable cause of action and/or is frivolous and vexatious'.

On such an application it is sufficient for the Court to examine the plaintiff's pleadings whilst bearing in mind that the power to summarily dismiss an action is 'one to be used sparingly' and in clear cases.

In this latter regard it is convenient to set out the plaintiff's claim against all the defendants in defamation which is primarily pleaded in paras. 5 and 6 of the Statement of Claim and which read:

'5. On the 7th day of July, 1998, the 1st defendant colluded with the 2nd, 3rd and 4th defendants and wrote and published or caused to be written and published the following words contained in a type written letter addressed to the plaintiff which are defamatory of the plaintiff.

(Thereafter the entire body of the letter is set out.)

6. The letter by collusion of all defendants was dictated by the 1st defendant to a typist or for transcription by a typist, in the 1st defendants employment whom the plaintiff cannot at present identify.'

A copy of the letter was furnished to the Court by counsel for the defendant Board without objection. It is written on the defendant Board's letterhead and is signed by 'Hon. Ratu F. Mara, Chairman Native Land Trust Board'.

A large portion of the letter is irrelevant for present purposes and indeed in one clear sentence the defendant Board '(recognised) the many years of service (the plaintiff) have provided to the management of native land in Fiji and thanks (the plaintiff) for (his) contribution'. Plainly not all of the offending letter's contents could be said to be defamatory of the plaintiff and indeed his counsel was forced to concede as much. Counsel points however to the two (2) sentences at the end of the first paragraph of the letter (earlier set out at p.1) as being the defamatory part.

Further it is plain on the face of the offending letter that the author of the letter was the defendant Board and contains the decision of the defendant Board. It is somewhat difficult therefore to understand the involvement and liability of the remaining 2nd, 3rd and 4th defendants for its allegedly defamatory contents.

In this latter regard plaintiff's Counsel points to paras. 9 and 10 as linking the 2nd defendant firm to the offending letter in so far as it is alleged that: 'The letter was made direct and indirect result of the investigation recommendation vetting' by the 2nd defendant of applications for managerial positions within the newly restructured defendant Board.

In counsel's words: 'The 2nd defendant firm was part of the authorship of the letter as the recommending panel for the position applied for by the plaintiff.'

To this factual 'link', defence counsel submits that this so-called connection between the 2nd defendant firm and the offending letter is far too remote and tenuous as to give rise to a cause of action in defamation and counsel points to the absence of any facts pleaded that in any way points to the 2nd defendant having anything to do with the drafting of the allegedly defamatory sentences in the defendant Board's letter. I agree and accordingly the motion of the 2nd defendant firm is granted with costs which I fix at $100.00 to be paid within 21 days.

As for the defendant Board's denial that the letter, and in particular, the objectionable sentences 'relied upon as being defamatory do not bear and are incapable of bearing any defamatory meaning', defence counsel submits that the various meanings and innuendo's alleged in paras. 12 and 13 of the Statement of Claim constitute a misreading of the letter and is a strained and imaginary construction of a disgruntled former employee of the defendant Board and unsuccessful applicant for a position in the restructured defendant Board.

It is trite that 'before a question of libel is submitted to a jury the court must be satisfied that the words complained of are capable of the defamatory meanings ascribed to them. That is a matter of law for the Court' (per Lord Kinnear in Stubbs Ltd. v. Russell [1913] UKLawRpAC 13; (1913) A.C. 386 at 393. What's more the 'test' which the Court must adopt in considering the matter is 'what is the sense in which any ordinary reasonable man would understand the words of the communication so as to expose the plaintiff to hatred, contempt or ridicule ... it is not enough to say that by some person or another the words might be understood in a defamatory sense' (per Lord Halsbury in Nevill v. Fine Art & General Insurance Co. Ltd. [1896] UKLawRpAC 58; (1897) A.C. 68 at pp. 72/73:

In the present case the plaintiff ascribes and pleads no less than seven (7) defamatory meanings in para. 12 and a further five (5) innuendoes in para. 13.

As to the defamatory meanings ascribed by the plaintiff to the defendant Board's letter, it is noteworthy that in five (5) of the seven (7) 'natural and ordinary' meanings suggested the word 'incompetent' and/or 'incompetence' appears.

I am mindful that a person who is wrongfully dismissed cannot rely upon the dismissal itself as conveying a defamatory imputation. This proposition counsel for the plaintiff accepts, but, submits, that the plaintiff's defamation claim is not based solely on the fact of his dismissal but rather, on the 'reason' given by the defendant Board in its dismissal letter which, counsel submits, casts an imputation on the plaintiff's competence as an employee of the defendant Board.

In this latter regard it was said by Lord Pearson in Dummond-Jackson v. B.M.A. (1970) 1 W.L.R. 688 at p.699:

'In any case, words may be defamatory of a trader or businessman or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of in trade business or professional activity.'

In similar vein the learned authors of Gatley on Libel and Slander (7th edn.) write at para. 57:

'Any imputation which may tend to injure a man's reputation in a business employment, trade, profession, calling or office carried on or held by him is defamatory. To be actionable words must impute to the plaintiff ... the absence of some quality which is essential, to the successful carrying on of his office, profession or trade. The mere fact that the words tend to injure the plaintiff ... is insufficient.'

and at para. 58:

'It is defamatory to impute to a man in any office ... any unfitness or want of ability to discharge his duties, and this is so whether the office be public or private, or whether it be one of profit, honour or trust.'

I confess that having read and re-read the defendant Board's letter with an open even suspicious mind, and mindful of the 'test' to be applied, I am firmly of the view that the words used in the letter are incapable of bearing any of the defamatory meanings ascribed to them by the plaintiff in paras. 12(a) to (f) inclusive and these are accordingly struck out.

As for the alternative 'innuendoes' pleaded in the plaintiff's Statement of Claim, I am satisfied that none of the so-called meanings pleaded are 'true or legal innuendoes' capable either individually or collectively of giving rise to a separate cause of action. Nor in my view has the matter been properly pleaded.

In the leading case of Lewis v. Daily Telegraph Ltd. (1963) A.C. 234 Lord Hodson, speaking of the nature of a 'true innuendo' said at p.271:

'The true innuendo is that which depends on extraneous facts which the plaintiff has to prove in order to give the words the secondary meaning of which he complains.'

As for pleading a 'true or legal innuendo' Lord Devlin said (ibid. at p.181):

'... the essential thing is that if a paragraph is unaccompanied by particulars it cannot be a legal innuendo since for a legal innuendo particulars are mandatory and the innuendo cannot be proved without them.'

(See also: Or. 82 r.3(1) of the 'White Book')

Quite plainly para. 13 cannot be allowed to remain in the absence of any particulars of extrinsic facts and matters relied upon to support the alleged innuendoes. The paragraph is accordingly struck out in its entirety.

I turn next to consider the joint motion of the 3rd and 4th defendants filed on 9th November 1998. It is noteworthy that the 3rd defendant is the Permanent Secretary for Fijian Affairs and the 4th defendant is the Attorney General both officials of the State and both are alleged in para. 5 of the Statement of Claim to have 'colluded' in the publication of the defamatory letter.

State counsel in her submissions states that in the absence of any pleaded facts that disclose a legal or causal relationship existing between the defendant Board and the 3rd and 4th defendants there is no basis for the allegation that the 3rd and 4th defendants colluded in the writing and/or publishing of the offending letter.

Nor in counsel's submission have any facts been pleaded such as to support a relationship of proximity sufficient to raise a duty of care towards the plaintiff who was an employee of the defendant Board.

I agree with both submissions and would only note that nowhere in paragraph 17 is there any averment of negligence made against the 2nd, 3rd and 4th defendants.

As for the suggestion of 'defamation by collusion' plaintiff's counsel in the absence of any pleadings asserted, that the claim against the 4th defendant is based on the 'notorious' fact that the signatory to the offending letter was also the Minister of Fijian Affairs at the relevant time.

With due regard to plaintiff's counsel the submission is wholly untenable. Not only is the fact of the Ministership nowhere pleaded in the Statement of Claim but in addition, the submission wholly ignores the clear capacity in which the letter was signed i.e. as Chairman of Native Land Trust Board and NOT as Minister for Fijian Affairs.

What's more the mere fact that the defendant Board might be under the general direction and control of a Minister of the State cannot and does not entitle an aggrieved employee of the defendant Board to sue the Minister (as Minister) for the actions of the Board as an employer.

The application of the 3rd and 4th defendant is accordingly granted with costs which I fix at $150.00 payable within 21 days of the date hereof.

In summary the effect of this judgment is that the plaintiff's claims in defamation against the 2nd, 3rd and 4th defendants are all struck out as disclosing no reasonable cause of action and/or are frivolous and vexatious.

By way of further directions the plaintiff is ordered to file and serve on the defendant Board within 21 days, an amended Statement of Claim as complies with the court's judgment herein and conditional upon the plaintiff having first paid the costs above ordered.

D.V. Fatiaki
JUDGE

At Suva,
10th February, 1999.

Hbc0557j.98s