Sugar Festival Committee 2010 v Fiji Times Ltd [2010] FJHC 250; HBC078.2010L (15 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 78 of 2010L

BETWEEN:

SUGAR FESTIVAL COMMITTEE 2010
Plaintiff

AND:

FIJI TIMES LIMITED
1st Defendant

AND:

SPECIAL ADMINISTRATOR
2nd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. K Tunidau for the Plaintiff
Mr F Haniff for the 1st Defendant
Ms N Khan for the 2nd Defendant

Solicitors: Tunidau Lawyers for the Plaintiff
Munro Leys for the 1st Defendant
Natasha Khan Associates for the 2nd Defendant

Date of Hearing: 10 May 2010
Date of Judgment: 15 July 2010

INTRODUCTION

[1] The Plaintiff Applicant in this case is the organising committee for the Sugar Festival held annually in Lautoka City. In this application, it seeks to restrain certain news items being published in the Fiji Times newspaper and to restrain the Second Defendant from interfering with its organisation.

[2] The original motion was filed ex-parte but I did not think that it was a case justifying the matter being heard ex-parte because there was neither any urgency nor the likelihood of irreparable or serious mischief being done if the interim orders were not granted ex parte. I therefore directed that it be issued as an inter-partes motion.

THE APPLICATION

[3] The motion filed on 21 April 2010 sought the following orders:

1. An Order restraining the 1st named Defendant from publishing or causing to be published the said or similar words defamatory of the Plaintiff;
   
2. An Order restraining the 2nd named Defendant, his servants or agents or otherwise from interfering directly or indirectly in any manner whatsoever in the management and control of the affairs of the Plaintiff pursuant to the powers conferred and vested upon it by the constitution of the Lautoka Sugar Festival Association AND/OR to terminate or by way of threats, intimidation or otherwise attempt to terminate and or to relinquish the position of any member of the Plaintiff body in the employment of the Lautoka City Council.
   
3. DAMAGES (including punitive and exemplary damages);
   
4. COSTS of this action on Solicitor/Client basis;
   
5. ANY further and other relief that this Honourable Court deems just and fit.
   

[4] The motion was supported by the affidavit of Mr Bijesh Chand, the President of the Lautoka Sugar Festival Association (the "Association") and the chairman of the Sugar Festival Committee (the "Committee"). He said the Association is a body incorporated under the Charitable Trusts Act. Its Constitution vested management and control of the Association in the Committee. The Committee held its own meetings and published accounts and passed resolutions, one of which was the issue of medical insurance cover for its members. He said that the Second Defendant made certain demands for funds under threat which the Committee refused on one occasion but submitted to on another. He said he believed that upset the Second Defendant. He said he was called to the Lautoka Council Chambers for a meeting and when he arrived a reporter from the newspaper was present who quizzed him about the Committee’s accounts and the medical insurance cover. On 20 February 2010 the newspaper published an article which he said was defamatory of the Committee. Further articles followed on 24 February and 6 March 2010. It is not necessary for me to quote those articles for the purposes of this application other than to say that the articles contained allegations which were not all false.

[5] Mr Chand also complained that the Second Defendant directed by letter on 31 March 2010 that all of his staff and employees who were executive or co-opted members of the Committee, which included him, to "step down" from their posts with the Committee. The "letter" was annexed to his affidavit as Annexure BC13 and stated:

LAUTOKA CITY COUNCIL

MEMORANDUM

File: 27/14/5

TO: All Staff & Unestablished Workers

FROM: Mr. Josefa Vucago
Special Administrator

DATE: March 31, 2010

RE: PARTICIPATION IN THE SUGAR FESTIVAL

Due to the pending investigation on the Sugar Festival Association, all staff and employees who are executive members and co-opted members in the association are to step down from your post FORTHWITH until the matter is amicably resolved.

Your cooperation in the matter is highly appreciated.

Sgd

[JOSEFA VUCAGO]

SPECIAL ADMINISTRATOR

[6] Ms Wise of the newspaper swore an affidavit on behalf of the First Defendant in which she said she was at the meeting of the 20 February 2010 which she understood to be called by Mr Chand. She said an issue was raised after a concerned sponsor reported that the Association was asking for more donations and sponsorships despite it having a large sum of money in a term deposit. She admitted that the articles were published but denied that they were defamatory.

[7] The First Defendant defends the action on the bases that the articles were not defamatory and/or were fair comment.

[8] The Second Defendant also filed an affidavit in which he denied and explained Mr Chand’s allegations against him. His only involvement was in helping the Committee during the Sugar Festival in his capacity as the Special Administrator of the Lautoka City Council. He said he was telephoned by Ms Wise regarding the issue of the Association’s term deposit. He said he was not aware of the deposit but "in the spirit of transparency" he then called Mr Chand and Ms Wise to his chambers. Mr Chand then informed them of the existence of the deposit which shocked him. He said on 24 February 2010, the Commissioner Western, who is responsible for monitoring the operation of all charitable trusts in the West, wrote to him stating that the Committee was "currently facing some internal problems" and suggested that he hire a lawyer to "freeze all operations of the said committee so that a full investigation can be carried out". Following those instructions he engaged solicitors who issued a notice to Mr Chand on 4 March 2010 to "cease all operations" and handover the office keys to the bailiff serving the notice and leave the premises. Mr Chand was not to remove "any papers, cheque book, deposit books, keys, etc". The Committee’s operations were to remain closed until such time as a full investigation was carried out and failure to comply with the notice would result in court action. The Committee did not comply with the notice. Mr Vucago, the Commissioner and Mr Chand held several meetings but the matter remained unresolved. Mr Vucago then issued the memorandum of 31 March 2010 to his staff and employees who were members of the Committee to step down from the Committee pending completion of investigations.

CONSIDERATION OF THE APPLICATION

[9] I am grateful for counsels’ very helpful written and oral submissions.

(a) Interim Order to restrain publication

[10] Mr Haniff referred me to several cases but I think I need only cite one to illustrate the difficulties that the Plaintiff faced in this application. In Burns Philp (Fiji) Ltd v Associated Media Ltd [1998] FJHC 88; Hbc0297d.98s (3 July 1998) this Court said:

That this Court has the necessary jurisdiction to restrain the publication or continued publication of a libel has been settled since Coulson v. Coulson (1887) 3 T.L.R. 846 where Lord Esher M.R. whilst affirming the jurisdiction, nevertheless, described it, as '... a most delicate jurisdiction ...' and '... only to be exercised in the clearest case' where irreparable harm would be done to the plaintiff.

Indeed so 'delicate' is the jurisdiction that a well-established 'rule of law' has developed where 'the court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years since Bonnard v. Perryman.' per Lord Denning M.R. in Frazer v. Evans (1969) Q.B. 349 at 360.

The ambit of this 'rule of law' is illustrated by the case of Khashoggi v. IPC Magazines Ltd. (1986) 1 W.L.R. 1412 where the Court of Appeal (U.K.) in setting aside the injunction granted in that case at first instance where the defendant had pleaded justification,

"held: ... the (rule of law) extended to the situation where the defendant intended to justify the common sting of several allegations, including the allegation complained of, even though it might not be able to prove the particular facts contained in that allegation;"

Needless to say in exercising its discretion whether or not to grant such an injunction as that sought by the plaintiff company, this Court is obliged to balance the defendants' constitutional right to freedom of expression against the plaintiff's right to protect its reputation from the publication of defamatory material.

In this latter regard it is noteworthy that counsel for the plaintiff company was not so much concerned at the alleged libel committed against the plaintiff company by the offending article as he was, with maintaining absolute confidentiality and secrecy in the highly sensitive negotiations being undertaken with a view to the eventual takeover or purchase of the plaintiff company.

In the light of the foregoing, the onus on an applicant for an injunction to restrain publication of an allegedly defamatory article is an onerous one to discharge more so, at an interlocutory stage. 'The Court must be satisfied that in all probability the alleged libel is untrue' (per Lord Esher op. cit.).

A fortiori where the injunction is sought after publication, when it might be said that the damage has already been done, and, where there is no evidence or grounds upon which the Court can infer that the defendants threaten or intend to continue publication of the article.

I am also mindful of the breadth of the injunction sought in the plaintiff company's motion which, if granted, would effectively render the subject-matter of the article (not the allegedly defamatory words used in it) completely 'out-of-bounds' to the defendants. Such an injunction would be a severe and, in my view, an unwarranted curtailment of the defendants' constitutional freedom of expression which includes the "freedom to receive and impart ideas and information without interference".

[11] The onus of proof is on the Plaintiff. I am not satisfied that it has met the required standard of proof in this case. Further, the articles have been published. If they are defamatory the Committee will be compensated by an appropriate award of damages. Similarly, if further articles are published and if they are defamatory then the Committee would be entitled to a further award of damages. I cannot stop the newspaper publishing any articles in the future on the issue without first being satisfied that they are defamatory. That cannot be done at this stage and summarily. That is a matter to be decided as and when they arise applying the principles cited above or at the full hearing of this action.

(b) Interim Order to restrain interference

[12] In respect of the Second Defendant’s attempt by the memo of 31 March 2010, I do not think that he can stop any of his staff or employees from engaging, outside of their working hours, in voluntary or other work or services which do not affect their performances as staff or employees. There is no evidence to say that their work performances were being affected by their membership of the Committee. It is entirely up to his staff and employees to engage in whatever activity they chose outside of working hours, even if the activity might be tainted. By his own admission, he stopped them from being members of the Committee "pending investigations". Even if his motives were well intentioned and were not to make it difficult for the Committee to operate effectively, I think that was the unavoidable effect of his memorandum. Charitable organisations need all the help they can get from willing volunteers.

[13] Further, the Second Defendant was only involved in helping the Association during the Sugar Festival and therefore an outsider, has no powers under the Association’s Constitution to determine the membership of the Committee.

[14] I think the order sought in paragraph 2 of the Motion is too wide. The only interference with the Committee’s operation is from the Second Defendant’s memorandum of 31 March 2010 so I will limit the restraint to that. The Second Defendant is to be restrained from directing his staff members and employees from stepping down as members or co-opted members of the Committee as stated in that memorandum.

(c) Order for damages

[15] The order for damages cannot be granted at this interlocutory stage.

COSTS

[16] The Plaintiff has won against the Second Defendant but lost against the First Defendant. Much would depend on whether the articles were defamatory and that remains to be decided at the full hearing. In the circumstances I order that the costs of this application be costs in the cause.

ORDERS

[17] The Orders are therefore as follows:

1. The Orders sought in paragraphs 1 and 3 of the Motion filed on 21 April 2010 are refused.
   
2. The Second Defendant is restrained from directing and stopping staff members and employees of the Lautoka City Council from being members or co-opted members of the Sugar Festival Committee.
   

100. The costs of this application are to be costs in the cause.
     

4. The action is to take its normal course.
   

Sosefo Inoke
Judge