Air Terminal Services (Fiji) Ltd v Fiji Daily Post Company Ltd [2005] FJHC 608; HBC0110.1998 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0110 OF 1998

BETWEEN:

AIR TERMINAL SERVICES [FIJI] LIMITED
PLAINTIFF

AND:

FIJI DAILY POST COMPANY LIMITED
1ST DEFENDANT

JALE MOALA
2ND DEFENDANT

Mr M S Sahu Khan for the Plaintiff
No appearance for the Defendant

Date of Hearing: 11 July 2005
Date of Judgment: 22 July 2005

JUDGMENT OF FINNIGAN J

This is an action for defamation. The Plaintiff pleads publication on 10 January 1998 of an item in the Daily Post, a newspaper with a large circulation throughout Fiji which at the time was owned by the 1^st Defendant and edited by the 2^nd Defendant. The Plaintiff pleads that by reason of the publication the Plaintiff had been injured in its credit and reputation and had been brought into public scandal, odium, contempt and damage. It seeks exemplary damages of $100,000.00 for malicious, unfounded, mischievous and defamatory allegations. A prayer for an injunction was included, but the seven-year lapse has proved it unnecessary, and at the hearing before me it was abandoned by Counsel.

The Defendants filed, through Counsel, a statement of defence which admitted the essential pleaded facts but denied that the words complained of bore or were understood to bear any of the meanings alleged for them and denied that the Plaintiff had suffered damage. It pleaded further that the content of the article was fair comment and was not defamatory or malicious to the Plaintiff, and consisted of the truth which was published without malice upon a matter of public interest.

On 12 August 1998 Counsel for both parties appeared and consented to an order for discovery and inspection of documents. Thereafter the Defendant has taken no further part in the proceedings. The matter was called before me on 18 April 2005 on Notice, but only Counsel for the Plaintiff appeared. Counsel advised that the Plaintiff actively seeks a hearing and that the Defendants had had 4 reminders. I thereupon set the matter down for hearing on 11 July 2005.

On that day I heard the evidence of Mr Alifereti Malo the Chief Executive Officer of the Plaintiff. He said and I accept that the Plaintiff does all the ground handling activities for aircraft at Nadi International Airport. It deals with all aspects of handling aeroplanes, including passengers, baggage, cargo, catering and documentation. In particular the Plaintiff is responsible for preparation of what is called the load sheet which is one of the last documents put aboard an aircraft before departure and which the captain of the aircraft must sign. This load sheet states precisely the weights of various components that have been put aboard the aircraft and without it the captain cannot calculate such details of the flight as the amount of fuel to take aboard.

He told me and I accept that every month the Plaintiff services a large number of aircraft, presently between 340 and [at peak times] 470. It services freighters that re-fuel at Nadi International Airport on-route to Sydney, he mentioned Federal Express. It services also international airlines such as Qantas, Air New Zealand and Polynesian Airlines.

Passengers’ baggage is taken in at a counter by an agent who is under supervision of a supervisor. Passengers to the Americas are allowed two pieces of luggage with a weight limitation and passengers to Australasia are allowed either 30 kilograms or 20 kilograms per person.

He told me the Plaintiff investigated the allegations before publication and told the Defendants that there was no truth in the story.

Publication of the article complained of, as pleaded, has been admitted and it was that version which was read to the Court. I now set it out here;

“The passenger, who had flown to the City of Angels on Air Pacific has implicated a Nadi Airport-based Air Terminal Services employee whom he said had asked him to take 20 cartons of yaqona to the US”. A source said Mr Ali told US authorities that he was asked by an ATS traffic agent to take the yaqona to Los Angeles Airport where he would [be] met and the consignment taken off him. “Mr Ali said the yaqona was sent by an ATS traffic agent known simply as “SK” or “KS”, the source said. Mr Ali allegedly told Los Angeles authorities the ATS traffic agent had cleared all the cartons along with his personal luggage much before other passengers had arrived to check-in for Flight FJ 810. Air Pacific acting Chief Executive Ramendra Narayan confirmed that a consignment of yaqona was sent on flight FJ810 to Los Angeles last Saturday”

The witness said that the claimed quantity of yaqona amounted to a commercial quantity and that therefore the published item was claiming a breach of Customs Regulations as well as FAA Regulations which I take to be international aviation regulations. He said it inferred that the weight had not been recorded and that therefore there was an error in the load sheet on which the Captain based his calculations. He said that Civil Aviation officials read the story, suspected them of doing wrong things and investigated them. The Plaintiff itself made enquiry of the Manager and of every single staff member in the department concerned and received anonymous denials. He said the Civil Aviation officials also did that, because they are the regulating authorities.

About damage suffered, he gave evidence that some of the airlines expressed a concern about safety but more particularly about losing revenue from their excess baggage charges. He said some major airlines felt that the Plaintiff was not to be trusted. Smaller airlines questioned the credibility of the Plaintiff’s counter staff.

The competition he said is always there and in 1991 the Plaintiff started losing some ground handling and engineering contracts. Lost income from cancellation of contracts with major airlines which he said is “our core business” would have been about $20m to $24m per annum if that had occurred. He said the Plaintiff employs 460 to 475 staff.

Being largely uninformed about this special branch of the Law of Tort, I resorted to Law of Torts, 3^rd Ed., Balkin & Davis, Lexis Nexis Butterworths Australia 2004, Chapter 18. At law the Plaintiff must show that the words it complains of were “of a kind likely to lead ordinarily decent folk to think less of the person about whom [they were] made”. It must also show that the words clearly identified it and it must prove publication of the words to a third party. To assess its claim for damages I resorted to McGregor on Damages, 17^th Ed. chapter 39. The Plaintiff gave limited evidence about the effect of this published item on it, but its claim is in the area of defamation per se. Damages are at large and do not need to be related to any pecuniary loss. The Plaintiff may obtain damages for injury to reputation.

The authorities in McGregor leave the assessment up to me. I am satisfied that the words complained of were of a kind likely to lead ordinary decent folk to think less of the Plaintiff. I am satisfied that the words clearly identified the Plaintiff. I am satisfied the words were published to third parties. There is nothing in the Plaintiff’s evidence to hold the pleaded defence that the words complained of bear any meaning other then that’s pleaded by the Plaintiff. I am inclined to believe that the article was a reporting of statements that had been made and to that extent may have been a true report. However it was clearly defamatory of the Plaintiff and could not have been fair comment if it was published without the Plaintiff’s denial. Its publication without reporting that the Plaintiff had conducted its own investigation and found the story baseless indicates publication with malice.

But what injury has the Plaintiff suffered? There was no pecuniary loss. The evidence does not amount to much. It may well have been more detailed and in sharp focus had the evidence been heard within a reasonable time after the claim was filed. However before me it was no more then I have set out above.

Apparently time has proved that any major damage that might have been caused has in fact not come to pass. Only nominal damages are called for and I award $1,000.00.

This judgment is against each and both Defendants jointly and severally.

The Defendants took no steps to aggravate costs. I assess costs against them at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005