Khan v Sun (Fiji) News Ltd [2008] FJHC 256; HBC572.2005 (16 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 572 of 2005

BETWEEN:

MUHAMMED SHAMS-UD-DEAN SAHU KHAN
Plaintiff

AND:

SUN (FIJI) NEWS LIMITED
First Defendant

AND:

RUSSELL HUNTER
Second Defendant

AND:

AMIT RAJ
Third Defendant

Mr S. Ram with Ms Sahu Khan for the Plaintiff
Mr R. Stanton with Mr R.J. Singh for the Defendants

Date of Hearing: 14 October 2008
Date of Ruling: 16 October 2008

RULING

A. BACKGROUND

[1] This is an application by the Defendant for a ruling on six issues and an application by the Plaintiff for a ruling on three issues which have arisen soon after the commencement of the final hearing of the substantive defamation action on 14 October 2008 .

[2] Counsel for the Defendants objected to the tender into evidence by Counsel for the Plaintiff of the whole of the “Bundle of Documents of the Plaintiff” which had been previously filed with the Court on 15 May 2006. In particular, objection is taken to the tendering into evidence by the Plaintiff of documents 2, 3, 4, 7, 8 and 15 from his bundle. The main objection, however, if I am to understand correctly the written submissions filed by Counsel for the Defendants on 15 October 2008, is in relation to document 15. That is, a copy of the “Minutes of the Special General Meeting of Fiji Football Association held at 10am on 4 September 2005 at Dr M S Sahu Khan National Football Academy, Ba”. The basis of the objection is in relation to:

“(a) the form and manner in which the Statement of claim (the Claim) is pleaded; and

(b) the absence of a reply”

[3] In addition, Counsel for the Defendants then raised a number of issues concerning how the Plaintiff has pleaded his case.

[4] Conversely, Counsel for the Plaintiffs raised three issues concerning the way the Defendants had pleaded their case.

[5] In an attempt to resolve these issues so as to be in a position to continue with the trial at an adjourned date, the Court ordered that Counsel for the parties to file and serve their respective written submissions by 12 noon on 14 October 2008 and to file and serve and Reply by 4.30pm that same date.

B. OBSERVATIONS

[6] Having read the four sets of submissions overnight, the court is now in a position to make a number of observations followed by a number of Rulings.

[7] The Pleadings in this matter are as follows:

(a) “Writ of Summons and Statement of Claim” filed 13 November 2005;

(b) “Amended Statement of Defence” filed pursuant to Leave granted by the Master on 4 December 2006;

(c) Orders made by the Master on 8 February 2006 –

(i) That the Defendants to file Amended Statement of Defence by the 3rd day of March 2006;(ii) That the Plaintiff to file any reply to the Amended Statement of Defence by the 17th day of March, 2006;

(iii) That the Plaintiff and Defendant to concurrently file their Affidavit Verifying List of Documents by 14th day of April, 2006;

(iv) That Discovery and Inspection by the 1st day of May, 2006;

(v) That the matter be adjourned for mention on the 4th day of May, 2006 at 9.00am for further directions.”

(d) Pre-Trial Conference Minutes held 23 August 2006.

[8] The history of the matter since the Orders were made by the Master 8 February 2006 is as follows:

(a) 4 May 2006 mention before the Master;

(b) 28 June 2006 mention before the Master;

(c) 24 July 2006 mention before the Master;

(d) 29 August 2006 mention before the Master;

(e) 13 October 2006 mention before the Master;

(f) 15 November 2006 mention before the Master;

(g) 4 December 2006 mention before the Master when Leave was granted to File the Amended Statement of Defence;

(h) 22 January 2007 mention before the Master;

(j) 2 February 2007 mention before Coventry J – no appearance on behalf of the Plaintiff;

(k) 14 June 2007 mention before Coventry J – no appearance by the parties;

(m) 5 December 2007 mention before Coventry J;

(o) 14 March 2008 mention before me in a general call-over of all matters when it was put before the Master to allocate a hearing date;

(p) 31 March 2008 mention before the Master;

(q) 21 April 2008 mention before me when it was allocated a hearing date.

[9] On the seven (7) occasions this matter came before the Court from when the Orders were made by the Master on 8 February 2006 up to and including 4 December 2006, when Leave was granted by the Master to File the Amended Statement of Defence, there is no record of either party raising the objections now being raised at the final hearing. Of more concern is that on the seven (7) occasions when the matter has been before the Court since 4 December 2006, there is no record of either party raising the objections which are now being raised at the final hearing. In addition, a Pre-Trial Conference was held on 23 August 2006, that is, prior to 4 December 2006, when Leave was granted to File the Amended Statement of Defence. As to why a further Pre-Trial Conference was not held has been left unexplained.

[10] In light of the above the Court is of the view:

(a) That following the mention before the Master on 4 December 2006, when Leave was granted to file an Amended Statement of Defence, the Parties should have arranged to hold a further Pre-Trial Conference but failed to do so;

(b) That having regard to the history of the matter each party has had sufficient time to file any interlocutory application (including a request for particularisation) in relation to the Pleadings;

(c) That as each Party has failed to file any interlocutory application (including a request for particularisation) in relation to the Pleadings, by their acquiescence they are taken to have accepted the Pleadings in their present form;

(d) Therefore, the only objections which the Court will be allowing to be raised during the course of the hearing in relation to the Pleadings will be those in relation to either Party allegedly leading evidence of matters not pleaded and thereby attempting to take the other Party by surprise;

(e) As to whether the Plaintiff has sufficiently pleaded his cause of action and conversely whether the Defendants have sufficiently pleaded their defences will be matters for written submissions at the close of the hearing and thus to be ruled upon as part of the final judgment such as took place in Chand v Fiji Times Ltd (Unreported, High Court of Fiji at Suva, Civil Action No. HBC0306.2000L, 13 April 2007, Phillips J) (PacLII: [2007] FJHC 1, http://www.paclii.org/fj/cases/FJHC/2007/1.html).

C. RULINGS

1. Defendants’ Issues

[11] The Court makes the following Rulings in relation to the Defendants’ Issues:

1. Is the Plaintiff precluded from relying upon or adducing evidence of:
   
   • (a) Facts, acts and circumstance occurring prior to 7 October 2005?
     

RULING: NO – the Plaintiff will be restricted, however, to relevant matters which took place in the period prior to and including when the alleged defamatory articles were published.

(b) Evidence of what occurred or is said to have occurred as pleaded in paragraph 48 and 49?

RULING: YES – the Plaintiff will be restricted to the specific alleged defamatory articles and relevant matters which took place in the period prior to and including when the alleged defamatory articles were published.

2. (i) In the absence of the whole article being pleaded in paragraphs 35, 37, 38 and 39 – is the Plaintiff precluded from giving evidence on any matter except for the fact of publication and extract as pleaded?
   

RULING: NO - the Plaintiff will be restricted, however, to relevant matters which took place in the period prior to and including when the alleged defamatory articles were published

(ii) In like terms and for the same reasons is the Plaintiff similarly precluded in respect of paragraphs 40, 41, 42, 43 and 44?

RULING: NO - the Plaintiff will be restricted, however, to relevant matters which took place in the period prior to and including when the alleged defamatory articles were published

3. In respect of paragraph 45 in absence of imputations being pleaded apart from the whole article, is the Plaintiff precluded from giving evidence other than publication?
   

RULING: NO - the Plaintiff will be restricted, however, to relevant matters which took place in the period prior to and including when the alleged defamatory articles were published. As to whether the Plaintiff has sufficiently pleaded his cause of action including imputations, these will be matters for written submissions at the close of the hearing.

4. In respect of paragraph 38 the reference to the Second Defendant "making further innuendo" in the absence of identification and more particularly the pleading thereof as to whether there is a true or a false innuendo, does the lack of pleading, a special meaning and the absence of any facts pleaded in support of such a special meaning preclude reliance upon evidence in support. Equally the same comments apply to the concept "insinuations"?
   

RULING: NO - the Plaintiff will be restricted, however, to relevant matters which took place in the period prior to and including when the alleged defamatory article was published. As to whether the Plaintiff has sufficiently pleaded his cause of action including "the making of further innuendos and imputations" in this article, these will be matters for written submissions at the close of the hearing.

5. In respect of the Plaintiff’s Bundle are the objections to Nos. 2, 3, 4, 7 and 8 together with 15 made out on one or more of the bases set out above?
   

RULING:

(a) YES for nos. 2, 3, 4, 7 and 8 – the Plaintiff will be restricted to relevant matters which took place in the period prior to and including when the alleged defamatory articles were published. The Court is of the view that these letters are self-serving and not objective and relevant documents to the issues before this Court.
(b) No for no.15 – these are the minutes of the SGM and are particularly relevant.

6. Finally, expressly reserved for argument at an appropriate time is whether the statement of claim as pleaded can sustain a challenge that it fails to make out a cause of action. This matter to be dealt with at the end of the trial.
   

RULING: This is a matter which should have been raised by way of Interlocutory Motion far earlier in the history of this matter. As a final hearing has commenced, the issue as to whether the Statement of Claim as pleaded can sustain a challenge, that is, that it fails to make out a cause of action, is now appropriately a matter for written submissions at the close of the hearing.

2. Plaintiff’s Issues

[12] The Court makes the following Rulings in relation to the Plaintiff’s Issues:

1. In view of the provisions of the Defamation Act can the Defendant rely on the alleged defence of fair comment and public interest and in particular as pleaded in paragraphs 22, 23, 24, 25, 26, 27, 28 and 29?
   

RULING: It is noted that the Plaintiff submits that the Defendant cannot rely on the Defences of fair comment and public interest in view of the provisions of the Defamation Act. These will be matters for written submissions at the close of the hearing.

2. Whether in the view of the above and the HC Rules in Fiji does a reply to a defence have to be filed?
   

RULING: NO. Order 18 Rule 13(4) suffices.

3. Was it necessary for the Plaintiff to plead joinder of issue?
   

RULING: NO. Order 18 Rule 13(4) suffices.

3. Costs

[13] In view of the Court’s findings in relation to the history of this matter and, in particular, that each party had sufficient time to file any interlocutory application but failed to do so, (as well as the fact that no further Pre-Trial Conference was arranged between the Parties following 4 December 2006 when Leave was granted by the Master to file an Amended Statement of Defence), the delay to the hearing caused by the need for rulings at this late stage can be attributable to each side and thus each party is responsible for their respective costs of 14-16 October 2008 inclusive.

4. Orders

[14] The Orders of the Court are as follows:

(a) That the further hearing of this matter shall take place in accordance with the above rulings;

(b) That each party is responsible for their respective costs of 14-16 October 2008 inclusive.

Thomas V Hickie
Judge

Solicitors:
Samuel K. Ram for Shau Khan & Sahu Khan, Barristers & Solicitors, Ba, for the Plaintiff
Patel Sharma Lawyers, Barristers & Solicitors, Suva, for the Defendants