Datt v Fiji Television Ltd [2007] FJHC 20; HBC214.2007 (12 June 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 214 OF 2007

BETWEEN:

ARVIN DATT f/n CHANDAR DATT
Plaintiff

AND:

FIJI TELEVISION LIMITED
Defendant

Mr. R. Chaudhary for Plaintiff
Mr. J. Apted with
Ms T. Waqanika for Defendant

Date of Hearing: 1st June 2007
Date of Ruling: 12th June 2007

DECISION

BACKGROUND:

[1] The background to this action arose out of a prime time television news at 6.00 p.m. and 10.00 p.m. on 14th May 2007. The news bulletin highlighted certain allegations against the plaintiff who was a newly appointed Board member of Fiji Island Revenue and Customs Authority. The defendant relied on a draft audit report on FIRCA as the basis of its news bulletin. The allegations were that the plaintiff while employed at FIRCA in 2004 had defrauded FIRCA of close to $5,000.00. This bulletin led to the plaintiff filing this action.

[2] The plaintiff by way of an ex-parte summons (which I ordered to be made inter-parte) sought to injunct the defendant from making further statements or publishing certain material which the plaintiff alleges is defamatory of him.

[3] The plaintiff issued a writ of summons together with a statement of claim on 17th May 2007. On 22nd May 2007, I heard the summons at which stage the defendant had not filed any affidavits and I granted an interlocutory injunction pending hearing and decision after the defendant had filed its affidavits.

[4] The defendant has filed two affidavits; one from Merana Kitione who is the Team leader News at Fiji Television and second one from Mesake Nawari, the Chief Executive Officer. The text of what Fiji Television first telecast appears in one of the annexures to plaintiff’s affidavit. It arises out of allegations in a Draft Management letter for Audit of Finance Statements – 2004.

[5] Merana Kitione in her affidavit states that the contents of Draft Management letter are a matter of public interest. It goes on to state that the defendant will in its defence plead that the stories relating to the plaintiff were not defamatory and in the alternative justified or fair comment.

LAW ON INJUNCTIONS IN DEFAMATION CASES:

Bonnard test applied in Fiji:

[6] Any consideration of an interlocutory injunction in defamation cases would be incomplete without reference to Bonnard v. Perryman [1891] UKLawRpCh 69; 1891 2 Ch 269. The principles it endorsed have stood the test of time and are still applicable today. That principle asks of courts to exercise "exceptional caution" and held the "right of free speech is one which it is for the public interest that individuals should possess ... until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed, and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions".

[7] In short this means that as a general principle an application to restrain publication would not be granted unless the court was satisfied that the publication is clearly untrue. The onus is on the plaintiff to show this.

[8] Coulson v. Coulson 1887 3 TLR 846 described this jurisdiction as a "most delicate jurisdiction ... to be exercised in the clearest case" where irreparable harm would be caused to the plaintiff and "where any jury would say that the matter complained of was libelous".

[9] The Bonnard v. Perryman principle has been applied and confirmed in three Fiji cases namely Ratu Ovini Bokini and Another v. Associated Media Limited & Others [1980] FCA 48; 1996 42 FLR 1; Burns Philip (Fiji) Ltd. v. Associated Media Limited & Others (1998) 44 FLR 145 and Mahendra Pal Chaudhary v. Laisenia Qarase & Fiji Television Limited – HBC 385 of 2005. In the last of the above cases the court stated: "In Bonnard v. Perryman [1891] UKLawRpCh 69; (1891) 2 Ch 269 it was settled that the power to grant an interlocutory injunction was the same in defamation cases as in any other. In a proper case, an injunction could be ordered. But whether the impugned statements are libelous or not is a matter for the trial court, not the court at the interlocutory state: Coulson v. Coulson 1887 3 TLR 846".

English position:

[10] The Bonnard v. Perryman principle has been upheld by modern English authorities. The plaintiff has sought to rely on Cream Holdings Ltd. v. Bannerjee & Another 2004 4 ALL ER 619. That was a breach of confidence claim. Bannerjee had been dismissed from her post as a financial controller in a group of companies. When she left the post, she took with her copies of documents which she claimed showed illegal and improper activity. She passed the documents to the second defendant, a recognized publisher which published two articles about the group. Cream Holdings Ltd. sought an interlocutory injunction.

[11] In Cream Holdings the House of Lords was concerned with the test in cases of interlocutory injunction in breach of confidence cases in the context of English Human Rights Act 1998. The Human Rights Act 1998 provided that the court must not grant an interim injunction "unless the court is satisfied that the applicant is likely to establish that the publication should not be allowed".

[12] The court was concerned with what did this test "likely to establish" mean.

[13] Lord Nicholls with whom the other Law Lords agreed concluded that the word "likely" "should have an extended meaning which sets as a normal prerequisite to the grant of an injunction before trial a likelihood of success at the trial higher than the commonplace American Cyanamid standard of real prospect but permits the court to dispense with this higher standard where particular circumstances make this necessary" – paragraph 20 p. 624.

[14] So what Cream Holdings proposed was a flexible test where the threshold was not as high as the Bonnard v. Perryman but higher than American Cyanamid test of real prospect of success.

[15] Cream Holdings however was distinguished in Greene v. Associated Newspapers Ltd. (2005) 1 ALL ER 30. In Greene the plaintiff’s counsel argued that the Cream Holdings test should also apply to all defamation cases where interlocutory injunctions are sought.

[16] After reviewing a series of authorities the English Court of Appeal concluded that the common law position as expressed in Bonnard v. Perryman remained unaffected by the decision in Cream Holdings. The position therefore remains that a court will not injunct a publication unless it is clear that no defence would succeed at the trial. Therefore where a defendant pleads justification, as the defendant has done so in this case, the plaintiff to succeed must show that he is bound to succeed at the trial.

[17] The court went on to give its reasons why a higher threshold of proof was required in defamation cases than in breach of confidence or of privacy. Those reasons are that first in an application for interlocutory injunction in defamation cases it is difficult to assess chances of a party’s success which often depends on credibility of witnesses and consideration of documents. Secondly, a reason which is not applicable to Fiji, that issues of justification are considered by a jury and it is impossible to know in advance how a jury would react to witnesses. Thirdly that damage to reputation of an individual can be adequately compensated if he succeeds at the trial. In contrast, in breach of confidence cases, the confidentiality of the documents will be totally lost if injunction against directive is not given.

[18] The defendant has in its affidavit disclosed that it relies on justification and fair comment as defences and that it intends to subpoena witnesses to testify even those witnesses who may for reason of being victimized may not wish to swear an affidavit at this stage.

Constitutional provisions – Freedom of Speech:

[19] Section 30 of the Constitution provides that every person has the right to freedom of speech including freedom of the press and other media. However it goes on to provide that the law may authorize the limitation of this right for the protection or maintenance of reputation – Section 30(2)(b) - but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.

[20] The Constitution by incorporating freedom of expression in the Bill of Rights Chapter gives it a high priority and therefore any restriction of that right needs to be carefully circumscribed. In Greene the plaintiff’s counsel had made the concession that the right to reputation was in Article 10 of the European Convention expressed as a limitation on the freedom of speech – similar to what our Section 30 provides. Greene concluded that the rule in Bonnard v. Perryman adequately protected the right to reputation and met the requirements of the Convention.

[21] The plaintiff’s counsel emphasized that the allegations contained in the draft Management report were not contained in Auditor General’s final report and therefore the allegations were false. I am not too certain that one could jump to such a conclusion in face of contradictory assertions in Merana Kitione’s affidavit. At this stage I cannot say why the Auditor General did not include the allegations in his report.

[22] I am of the view that the truth or otherwise of allegations can only be decided at trial. The matters raised in the draft report and allegations made are a matter of public interest. They relate to FIRCA, the body responsible for collection of tax on which the economic wellbeing of the nation rests. At the time of draft report the plaintiff was employee of FIRCA. Now he has been appointed to its Board. The background of persons who sit on high statutory bodies is a matter of public interest.

[23] It is critical at this juncture when Parliament is not sitting and there is no usual Ministerial accountability as such, the freedom of press assumes a greater significance in matters of public interest.

CONCLUSION:

[24] Accordingly in the exercise of my discretion I dissolve the injunction granted earlier. The plaintiff’s application for interim injunction is refused with costs summarily fixed in the sum of $1,200.00 to be paid in twenty-one (21) days.

[Jiten Singh]
JUDGE

At Suva
12th June 2007