Naivaluwaqa v Yaba [2005] FJHC 610; HBC0288.2002 (1 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0288 OF 2002

BETWEEN:

TIMOCI NAIVALUWAQA
PLAINTIFF

AND:

VIDALI YABA
TALIAI KALIOPATI
VARANISESE GAUNA
ASAELI NAWASA
JACK VOLAVOLA
ALIFERETI NAIBUKA
and RAM KISHORE
DEFENDANTS

Mr Naivalu for the Plaintiff
No appearance for the Defendant

Date of Hearing: 29 June 2005
Date of Judgment: July 2005

JUDGMENT OF FINNIGAN J

This is an action for damages for defamation. There had been adjournments previously and it went to hearing despite another application to adjourn. Subpoenas had been issued but only the Plaintiff gave evidence. It was a matter of Formal Proof.

Judgment in liability had previously been entered by default. I doubted the validity of this and required the Plaintiff to give evidence for the whole of his claim.

I am satisfied that the Defendants were duly served with notice of this proceeding and with notice of the purported default judgment and of the hearing, purportedly to assess damages. The Defendants have never appeared.

The Evidence

The Plaintiff by his evidence satisfied me that he was a Trade Union official and a well respected member of the community both in this country and overseas. I am satisfied that the Defendants wrote a letter dated 30 April 2002 in which they said inter alia,that the Plaintiff had two intentions which spells out deceit and corruption in the Union, that he had deceived the members of the Union by adding and deleting changes and amendments to the Union Rules and Constitution, that he had deceived the Ministry of Labour about the rules and that he should be suspended for being incompetent to perform the duties of the General Secretary. I am satisfied that the words used were calculated to disparage the Plaintiff in his position as Trade Union Secretary. I am satisfied that the letter was circulated to all members of the Plaintiff’s union and to the Executive Committee of the Plaintiff’s Union and that this is how the letter was drawn to his attention.

That is as far as the Plaintiff’s evidence went. I am left to draw inferences. Counsel, who had accepted the brief at the 11^th hour he said, took the matter as far as he could but made no submissions.

Decision

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 he complains of were “of a kind likely to lead ordinarily decent folk to think less of the person about whom [they were] made”. He must also show that the words clearly identified him and he must prove publication of the words to a third party. To assess his claim for damages I resorted to McGregor on Damages, 17^th Ed. chapter 39. The Plaintiff gave practically no evidence about the effect of this letter on him, but his claim is both in the area of special damage because he pleads pecuniary loss and in the area of defamation per se. Damages are at large and do not need to be related to a pecuniary loss. There is pecuniary loss pleaded but not proved in this case. The Plaintiff may obtain damages for injury to reputation, and injury to feelings, the only pleaded heads which are remotely supported by his evidence.

The authorities in McGregor leave the assessment up to me. I advised Counsel at the hearing that the Plaintiff would receive nothing like the $100,000.00 which he claimed.

I am satisfied there was injury to his feelings and I am satisfied there was injury to his reputation from the fact that the Union and Executive Committee members received this letter and the fact that they reported it to him. Beyond that the depth of injury to be given solace in damages is a matter of inference only. In the circumstances of both the Plaintiff and Defendant as I apprehend them I award damages of $1,000.00 against all five Defendants jointly and severally. All other pleaded claims are dismissed.

The Plaintiff pleaded and at the hearing sought indemnity costs which Counsel informed me were $3,500.00. Against all the Defendants I award costs of $3,000.00 jointly and severally. In a related action against one Defendant heard simultaneously with this I have awarded $500.00. Each Defendant may pay $500.00, but till the whole $3,000.00 is paid they are all jointly liable for that amount.

D.D. Finnigan
JUDGE

At Lautoka
July 2005