Ports Terminal Ltd v Arun [2000] FJHC 127; Hbc0592.1999s (29 November 2000)

Fiji Islands - Ports Terminal Ltd v Arun - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 592 OF 1999S

Between:

PORTS TERMINAL LIMITED

Plaintiff

and

NALINESH ARUN

VALESHWAN SINGH

TAMARISI DIGITAKI

First Defendants

and

TONY SINGH

Second Defendant

and

THE SUN (FIJI) NEWS LIMITED

Third Defendant

H. Lateef with Ms. B. Narayan for the Plaintiff

No appearance by the Defendants

ASSESSMENT OF DAMAGES

On 4 October 1999 the Fiji Sun, a daily newspaper circulating throughout Fiji published an article under the title “Trouble at Ports”.

The Plaintiff issued a writ in December 1999 in which it claimed that the article in its ordinary and natural meaning falsely alleged:

“(i) that the Plaintiff was disreputable and dishonest.

(ii) that the Plaintiff is involved in fraudulent conduct.

(iii) that the Plaintiff and some of its senior officials are involved in the act of smuggling goods awaiting shipment out of the Suva wharf premises.

(iv) That the Plaintiff did not conduct any investigation into the fraud since most of the senior staff of the Plaintiff were involved in same.

(v) That the Plaintiff re-employed its ex-machine operators to conceal threats by the said workers to expose the Plaintiff’s fraudulent conduct by reporting same to media and the police”.

No acknowledgment of service was returned by any of the Defendants and on 17 April 2000, no notice of intention to defend having been filed, Judgment was entered against the first named First Defendant and the Third Defendant with damages to be assessed.

The hearing of the assessment of damages took place on 5 September 2000. The Defendants did not appear. One witness, the Plaintiff’s Chief Executive Officer, Mr. Herbert Hazelman was called. He produced a written statement in which he set out the background to the publication of the article complained of. He averred that the Plaintiff reputation and business had been “greatly injured” by the article which was misleading, malicious and deceptive. An apology had been sought from the Sun but none was forthcoming. Clarifying his evidence in answer to questions from the Court Mr. Hazelman admitted that he could not quantify the damage suffered by the Plaintiff which is a monopoly. Mr. Lateef told me that loss of reputation was the basis for the damages claimed.

At the conclusion of the evidence Ms. Narayan handed up a carefully prepared written submission. Relying on the various authorities considered in the submission Ms. Narayan suggested that an appropriate award to the Plaintiff would be $15,000.

After reading Ms. Narayan’s written submission I referred to some remarks of Lord Reid in Lewis v. Daily Telegraph [1963] 2 All ER 151 who at 156 G when discussing the incidence of taxation in awards of special damages for defamation said:

“There can be no difference in principle between loss of income caused by negligence and loss of income caused by libel. Let me take first the case of the plaintiff company. A company cannot be injured in its feelings it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured. But insofar as the company establishes that the libel has, or has probably, diminished its profits I think that Gourley’s case is relevant”.

In view of Mr. Hazelman’s concession that loss of income was not being said to have been caused by the libel I sought further assistance on the basis for an award for and the quantum of damages.

On 27 September a second written submission was filed. I am grateful to Counsel for this assistance.

On the basis of the further authorities cited I am satisfied that although the Plaintiff has not identified actual financial loss caused by the Defendants’ libel it has established that its reputation has suffered and accordingly is entitled to recover. As was said by Lord Greene in Rook v. Fairrie [1941] 1 KB 507:

“In a libel action the damages awarded are for the most part and often entirely without any real connection with any pecuniary loss at all”.

In the present case the libel was, as I find it a serious one, particularly given the nature of the Plaintiff’s business. As has been noted the Defendants have never sought to justify or apologise for the libel which they published. They have declined to take any part in these proceedings.

In all the circumstances I am satisfied that the compensation sought by the Plaintiffs is reasonable. I accordingly award them $15,000 with costs to be taxed if not agreed.

M.D. Scott

Judge

29 November 00

HBC0592.99S