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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 299 of 2005
ATIL CHANDRA GOSAI of Martintar, Nadi, Accountant.
PLAINTIFF
SURESH PRATAP of Nadi, Contractor and Council member of Nadi Town Council.
DEFENDANT
Counsel : Mr. Eroni Maopa for the plaintiff
: Mr. Victor Sharma for the defendant
Date of hearing : Wednesday, 29th August, 2018
Date of judgment : Friday, 08th February, 2019
J U D G M E N T
(A) INTRODUCTION
(i) By writ issued on 13th October, 2005, the plaintiff, ‘Atil Chandra Gosai’, claimed damages, from the defendant, ‘Suresh Pratap’, for ‘slander’ in respect of the words spoken by the defendant on 28th September, 2005 at Nadi Town Council Meeting.
(ii) The plaintiff alleges that the Councilor, ‘Suresh Pratap’, at the Council meeting held on 28th September 2005, uttered slanderous words before the public and media, concerning the plaintiff.
(iii) The defendant set up the plea of qualified privilege and fair comment.
(B) THE FACTUAL BACKGROUND
(i) The Statement of Claim which is as follows sets out sufficiently the facts surrounding this claim from the plaintiff’s point of view as well as the prayers sought by the plaintiff.
- That the plaintiff is an Accountant in private practice, elected member of Nadi
Town Council, member and/or official of Temples and part time teacher.
3.1 That the defendant on or about the 28th September 2005 in meeting of Nadi Town Council falsely and/or maliciously alleged of an concerning the plaintiff, plaintiff’s conduct and/or reputation that the plaintiff has been guilty of and/or committed “FRAUD” within the hearing of council and of staff members and/or Fiji Television, and/or probably Newspaper reporters. The reporters were invited by the plaintiff and/or at or by his request.
3.2 That the word “FRAUD” was understood to mean and/or capable of being understood to mean and in fact understood to mean.
“There are poor rate payers can’t afford to pay $300.00 rate. From $76000.00 rate he joined ....... His personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred to his personal name. Whom did he cheat. I think the minister should intervene now and ...... Investigate in this matter straight away. This is a white collar fraud.
5. The said statement as uttered and published by the Defendant is false and/or
malicious in that :-
the plaintiff. The relevant official record would reveal that.
6. The sting in the said statement is:-
“he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred to his personal name. Whom did he cheat. I think the minister should intervene now and ..... Investigate in this matter straight away. This is a white collar fraud”.
fooled the Nadi Town Council.
vitiated by elements of dishonesty.
to dishonestly deprive, diddle.
8. That the defendant was aware that the Nadi Town Council was required to make
necessary investigation before submitting report to the Minister responsible.
“There are poor rate payers can’t afford to pay $300.00 rate. From $7600.00 rate he joined ............... his personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred to his personal name. Whom did he cheat. I think the minister should intervene now and ............ Investigate in this matter straight away. This is a white collar fraud.
“The last full council meeting of the Nadi Town Council was explosive. Not only it brought out alleged fraudulent dealings but also differences between 2 councilors belongings to the Fiji Labour Party.
Outgoing Labour councilor Suresh Pratap attacked fellow party councilor Atil Gosai for an alleged fraud. According to councilor Pratap Councilor Gosai transferred a property to his name after a percentage of outstanding rates was waived on the approval by the Local Government Ministry on the pretext that the property was under family dispute. The council than endorsed the ministry’s ruling.
“There are poor rate payers can’t afford to pay 300.00 rate. From $76000.00 rate he joined ...... his personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this Council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred to his personal name. Whom did he cheat. I think the minister should intervene now and .... Investigate in this matter straight away. This is a white collar fraud.
Councilor Gosai strongly denied the claims .......................
The heated debate lasted over 10 minutes.
Another councilor stated that ..........................................
The mayor is saying the allegation will be investigated.
Comments by the Mayor; “Based on the concerns raised by
Councilor Pratap and the evidence that he is showing now if that is the case because I for one know very well that the discount was approved because of dispute in the family not because of one person’s property and if there is grounds on that an investigation will be called in.”
12. That the television programme was seen by whole nation and possibly overseas.
13. That in its ordinary and simple meaning the said statement meant:-
turpitude.
statement.
dishonest tricks.
17. The plaintiff has suffered loss and damages.
(ii) The plaintiff claims from the defendant;
- Injunction restraining the defendant whether by himself or through agent servant or others from publishing or uttering any defamatory statement of and concerning the plaintiff.
- Exemplary and/or punitive damages. The plaintiff seeks $5 million dollars.
(iii) The defendant in his amended statement of defence and counter-claim pleaded, inter alia;
- Save for admitting that the plaintiff is an Accountant and an elected Nadi Town Councilor, the defendant is not aware of and does not admit the allegations in paragraph 1 of the Statement of Claim.
- Paragraph 2 of the Statement of Claims is admitted.
- Save for admitting that in meeting of the Nadi Town Council the defendant brought to the attention of the Councilors of the Nadi Town Council that the plaintiff owned a portion of the Certificate of Title No. 7081 (called the “said property”) on which a discount of approximately 50% (fifty percent) of the outstanding Town Rates was granted without the plaintiff disclosing to the Nadi Town Council and to the Minister for Local Government that the plaintiff had an interest in the said property and that the defendant used the word “Fraud” in his Statement the allegations in paragraph 3.1 and 3.2 are denied and the Defendant further states as follows:
- That a Task Force Committee was formed by Nadi Town Council sometime in year 2003 to collect outstanding Nadi Town Rates.
- That the plaintiff was a member of the Task Force Committee.
- The said Property had approximately $74,848.18 as outstanding Town Rates.
- An application was made by the plaintiff’s father, Jagdish Chandra, who was a partial owner of the said property applied for a reduction and/or discount on the Town Rates owed on the said property.
- On or about the 23rd of July 2003 one Prabhat Chandra (f/n Ram Prasad) being the owner of 1/6th share in the property executed a Transfer in favour of the plaintiff to transfer his share to the plaintiff for the consideration of $6,000.00 (six Thousand Dollars).
- On or about the 01st of October 2003 one Shakuntala Devi Singh (f/n Ram Narain Singh) as the Executrix and Trustee of the Estate of Jai Ram Chandra alias Jairam Chandra, being the owner of 1/6th share in the said property executed a Transfer in favour of the plaintiff to transfer her (or the Estate of Jai Ram Chandra alias Jairam Chandra’s) share to the plaintiff for the consideration of $85,000.00 (Eighty Five Thousand Dollars).
- That on or about the 04th of November 2003, the Honorable Minister for Local Government approved a discount in Outstanding Town Rates of approximately $37,924.09 in respect of the said property.
- That the plaintiff caused the transfer dated 23rd July 2003 of the said Prabhat Chandra’s 1/6th share in the said property in his favour to be registered on 27th of July 2004.
- That the plaintiff caused the transfer dated 01st October, 2003 of the said Shakuntala Devi Singh (f/n Ram Narain Singh) as the Executrix and Trustee of the Estate of Jai Ram Chandra alias Jairam Chandra’s 1/6th share in the said property in his favour to be registered on 27th of July 2004.
- That to date of the Defendant notifying the Nadi Town Council in their meeting, the plaintiff had not disclosed his interest in the said property to Nadi Town Council.
- That the reporters were not invited at or by the defendant and that the reporters were not present at or by the defendant’s request.
- That the word complained of in 3.1 and 3.2 of the Statement of Claim did not hear and were not understood to bear the meanings alleged in paragraph 3.2 of the Statement of Claim or any of the alleged meaning or any meaning defamatory of the plaintiff.
- The defendant admits he spoke the words in paragraph 4 of the Statement of Claim.
- That save for admitting that the application to waive the rates or for a discount on the said property was made by the plaintiff’s father, Jagdish Chandra Gosai while the plaintiff was a member of the Task Force Committee of Nadi Town Council which was tasked to recover the arrears and that 2 x 1/6th shares were being transferred to him the allegations in paragraph 5 of the Statement of Claim is categorically denied.
- Save for admitting words were spoken by the defendant, the allegations in paragraph 6 of the Statement of Claim is denied; and if and so far as necessary the defendant will rely on Sections 15 and 16 of the Defamation Act.
- That the words complained of did not bear and were not understood to bear and were not capable of bearing the meanings alleged in paragraph 7 (2) of the Statement of Claim.
- The allegation in paragraph 8 of the Statement of Claim is denied.
- As to paragraph 9 of the Statement of Claim save for admitting that part of the Defendant’s words was screened on Fiji Television on or around 30th September 2005, the defendant categorically denies responsibility and/or liability for the screening and/or publication.
- Save for admitting that the Fiji TV One was present at the Nadi Town Council Meeting and that parts of the defendant’s words were screened together with the News Host’s Commentary at the 6.00pm news bulletin on 30th September 2005 the allegation in paragraph 10 of the Statement of Claim is denied.
- That in so far as the words complained of set out in paragraphs 4, 6, 9 and 10 of the Statement of Claim consists of statements of fact that they are true in substance and in fact, and in so far as they consists of expression of opinion they are fair comment on the said facts which are a matter of Public Interest.
Particulars of facts and matters on which the comment was based:
Save for any admissions herein, the allegations in paragraph 13 are denied.
PARTICULARS
(a) The Plaintiff and the Defendants were at all material times Councilors of Nadi Town Council, a Local Government Body. On or about the 28th of September, 2005, during a Meeting of the Nadi Town Council, the Defendant raised his concerns and in discharge of his duties as a councilor to express himself freely, said what he believed to be true in respect of grant of approximately 50% discount on the outstanding Town Rates in respect of Certificate of Title No. 7081 in which said property the Plaintiff has an interest.
(b) The participants in the said meeting had a common interest in the matters raised.
(c) The Defendant, being an elected Councilor was entitled to and/or was under a duty to speak freely and frankly, boldly and bluntly, on any matter which he believed affected the interests of welfare of the Nadi ratepayers or residents.
COUNTER-CLAIM
“Suresh was given the Nadi Town Council Contract to Construct Namaka Mini Market Car Park and access Road. Suresh and Robin (Town Clerk-Nadi) collaborated and procured the contract to be given to Suresh with the Nadi Town Council’s approval.
The Namaka Mini Market Contract was worth $30,000.00 and Suresh and Robin have stolen the $30,000.00.
Suresh is a liar by saying he did not do the Mini Market Contract and that he had misled you (Satendra Sharma). Suresh had misappropriated the $30,000.00 and had cheated the Council (Nadi Town) of the $30,000.00.
Councilor;
(iv) Wherefore the defendant prays;
(v) The plaintiff’s reply to defence and defence to counter-claim is as follows;
1.1 As to paragraph 3 the plaintiff says that the defendant had apparent motive to make false and malicious statement of an concerning the plaintiff in Council meeting and to have news media present so that the false and malicious statement is widely published to cover the plaintiffs reputation because the plaintiff was selected as labour party candidate but the defendant was not so selected.
1.2 The defendant had actual and/or constructive notice of the contents of record
kept by Nadi Town Council under Local Government Act, particularly Part XI containing names of persons registered owners and/or liable to pay rates and the defendant as their councilor and/or rate payer had access thereto. The record kept by the Nadi Town Council clearly shows the plaintiffs name in respect of the property comprised in CT No 7786.
1.3. The plaintiff did not apply for rates to be waived nor did he take any part in any
deliberation the discussion of the meeting. The defendant and other councilor knew and/or ought to have known that fact because the records of Nadi Town Council would clearly REVAL that fact. The plaintiff made relevant disclosure to the council.
1.4 As to paragraph 1 (a) (b) and (c) the plaintiff says that he did not participate in
any action discussion or deliberation in respect of CT 7786.
1.5 As to paragraph 1 (d) the plaintiff says that plaintiff’s father and grandfather are
well known to the council and their respective interests are perfectly well known to the Council.
1.6 As to 1 (e) the plaintiff says that Prabhat Chandra transfer could be registered
without having some obstacles cleared and that required High Court order.
1.7 As to 1 (g) registration of transfer delayed because there were caveats and they had to be removed and other interests cleared. The two transfer were not deliberate “on hold” to wait for any decision by the Council.
Alternatively the alleged words [plaintiff denies having uttered or published them] do not amount to defamation but fair comment on matter of public interest. The plaintiff says that there was no reason or new for him to speak to Satend Sharma when the plaintiff as councilor had access to the relevant file papers and he would cause investigation by the council without any need to speak to Satend Sharma.
(vi) The minutes of the pre-trial conference record, inter-alia, the following;
AGREED FACTS
statement to the Council meeting which was meant to refer to the plaintiff.
“There are poor rate payers who can’t afford to pay $300.00 rate. From $76000.00 rate he joined ..... his personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred in his personal name. Whom did he cheat. I think the minister should intervene now and investigate this matter straight away. This is a white collar fraud.”
television on or about 30th September 2005 together with the News Host’s commentary at the 6.00 pm news bulletin.
AGREED ISSUES
malicious.
understood to bear the following meanings:-
(a) That the plaintiff by trick false representation deception or dishonesty fooled the
Nadi Town Council.
(b) That the property was dishonestly acquired by the plaintiff and/or it was vitiated
by elements of dishonesty.
(c) That he cheated the Nadi Town Council, cheats its ordinary sense
means to dishonestly deprive, diddle.
(d) That he tricked the Council to his advantage.
(e) That he deceived the Council and/or unfair benefit.
“Suresh was given the Nadi Town Council Contract to Construct
Namaka Mini Market Car Park and access Road.
Suresh and Robin (Town Clerk – Nadi) collaborated and procured the
contract to be given to Suresh with the Nadi Town Council’s approval.
The Namaka Mini Market Contract was worth $30,000.00 and Suresh
and Robin have stolen the $30,000.00.
Suresh is a liar by saying he did not do the Mini Market Contract and
that he had misled you (Satendra Sharma). Suresh had
misappropriated the $30,000.00 and had cheated the Council (Nadi
Town) of the $30,000.00.”
(18) Whether the said statement was false and malicious or not.
(19) Whether the said words were understood to mean or capable of meaning:-
(20) Whether the Namaka Mini Market Car Park and Access Road was constructed by the Public Works Department.
(21) Whether the plaintiff deliberately and recklessly made false and malicious statements about the defendant so the defendant would not get the Fiji Labour Party Ticket.
(22) Whether this is a proper case for award of exemplary and/or punitive damages and indemnity costs, and if so to whom.
(C) ORAL EVIDENCE
Plaintiff’s case
* Mr. Balram Kistaiya
* Mr. Atil Chandra Gosai (the plaintiff)
Defendant’s case
* Mr. Suresh Pratap (the defendant)
(D) DOCUMENTARY EVIDENCE
| Date | EXHIBIT NO: | DESCRIPTION OF EXHIBIT | TENDED BY | WITNESS PRODUCING |
| 29/8/18 | 1 | Minutes of the adjourned Ordinary Council Meeting dated 28th September 2005 | Mr. Balram Kistaiya | 1 |
| 29/8/18 | 2 | Valuation Roll Nadi Town Revaluation – 2003 | Plaintiff | 2 |
| 29/8/18 | 3 | Letter dated 4th August, 2003. | Plaintiff | 2 |
| 29/8/18 | 3(a) | Nadi Town Council receipt. | Plaintiff | 2 |
| 29/8/18 | 4 | ‘Approval for 50% Discount on Town Rates,’ Letter dated 4th November, 2003. | Plaintiff | 2 |
| 29/8/18 | 5 | Minutes of Ordinary Meeting held in the Council Chambers – 21st September, 2005. | Plaintiff | 2 |
| 29/8/18 | 6 | ‘Council Probes Alleged Scam’ – article published on 3rd October, 2005, in the Fiji Times. | Plaintiff | 2 |
| 29/8/18 | 7 | “FLP Councilor under scrutiny” article published in the Daily Post, dated 18th October, 2005. | Plaintiff | 2 |
| 29/8/18 | 8 | CD’s | Plaintiff | 1 |
| 29/8/18 | 9 | Transcript of Fiji One News. | Plaintiff | 2 |
| 29/8/18 | 10 | Report from the specific committee in relation to 50% discount allowed on assessment No. 474. | Defendant | Defendant (1) |
(E) THE EVIDENCE
(i) In May 2003, the Nadi Town Council, in an effort to collect outstanding arrears, offered its constituents a special discount on rates up to 30% if the rate payers pay the total outstanding sums before 31st December 2003. The council only had power to grant discounts up to 7% but the Minister of Local Government increased the limit of authority up to 30%. Any discounts above 30% had to be referred back to the Minister for approval.
(ii) A Task Force Committee (TFC) has been established on 21st May 2003 to consider the applications for discounts where the plaintiff was a member.
(iii) The plaintiff’s father, Mr. Jagdish Chandra Gosai, by letter dated 04th August 2003 (plaintiff’s exhibit-3) had made an application requesting a 50% discount wherein he had disclosed 1/6 ownership in the property in question.
(iv) His application had been approved on 17th September 2003 by the ‘Task Force Committee’, unanimously by the Council and subsequently the Minister of Local Government had approved it by letter dated 04th November 2003. (plaintiff’s exhibit – 4).
(v) On being notified by the Town Clerk, the payments had been made on 17th November 2003 by the plaintiff’s father. (plaintiff’s exhibit 3A).
(vi) The plaintiff was not present when the ‘Task Force Committee’ and the Council considered his father’s application.
(vii) In 2003, an investigation had been carried out by the Council to investigate the grant of the specific discount to the plaintiff’s father. A report had been submitted to the effect that the discount was proper.
(viii) At the hearing before the court the plaintiff said that Councilor, ‘Suresh Pratap’, the defendant, at the Council meeting held on 28th September 2005, uttered slanderous words concerning the plaintiff before the public and the media in the Council meeting chaired by the Mayor, ‘Sanjit Patel.’
(ix) The words complained of were broadcast on Fiji television accessible in and out of Fiji. The plaintiff states that the said words complained of portray that the plaintiff committed fraud and cheated the council and the rate payers by obtaining a 50% discount on the outstanding rates without declaring his interest in the property in question. He states that the words uttered by the defendant are ‘slanderous’ and have a tendency to prejudice the plaintiff in his position of elected member of town council, member and official of temples and part time teacher.
(x) The full council minutes for that day are plaintiff’s exhibit – 1. The audio visual recording on DVD of Fiji One national news broadcast showing defendant’s words concerning the plaintiff at Nadi Town Council meeting is at number (01) on the agreed bundle. (plaintiff’s exhibit – 8). A transcript of what was said on Television is plaintiff’s exhibit – 9.
(xi) A part of what Councilor Pratap said is pleaded in para (4) of the statement of claim and the defendant in para (4) of his amended statement of defence has admitted that he spoke the words mentioned in para (4) of the statement of claim. The statement made by the Councilor Suresh Pratap, the defendant, on 28th September 2005 at the Nadi Council Meeting in the presence of the Town Clerk, other Councilors, Fiji TV Reporters, photographers and others (which is admitted by the defendant) is as follows;
“There are poor rates payers who can’t afford to pay $300.00 rate. From $76000.00 rate he joined his personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred in his personal name. Whom did he cheat? I think the minister should intervene now and investigate this matter straight away. This is a white collar fraud.”
The above statement is agreed fact No. 10 in the pre-trial conference minutes.
The plaintiff said at the hearing before the Court that the statement made by the Councilor Suresh Pratap, the defendant, is defamatory because it alleges that the plaintiff committed fraud and cheated the Council and the rate payers by obtaining a 50% discount on the outstanding rates without declaring his interest in the property.
(xii) Consequent to the statement made by the defendant at the said council meeting, a resolution was passed giving authority to the Mayor of the Nadi Town Council, Sanjit Patel to investigate the matter. The Mayor directed the Town Clerk to investigate the matter. The Council then appointed a ‘Specific Committee’ to consider the issue and submit a report with recommendations to the finance committee.
The minutes contain in a report (which is disputed by the defendant) that was prepared by the Specific Committee. The report is plaintiff’s exhibit (10). The report after deliberations was put to a vote and the matter was finally put to rest with two voting against motion and the others for it.
I have set out below the salient parts of the minutes.
The said minutes read as follows:
“LETTER FROM LOCAL GOVERNMENT MINISTER – REVERSAL OF MINISTER’S ORDER PAGE 205: ITEM F61 [4] REFERS.
COUNCILOR ATIL GOSAI DECLARED HIS INTEREST AND LEFT THE CHAMBERS AT THIS POINT IN TIME.
Reported that the following report was presented to the Councilors.
The Councilors were given time to read the report:-
REPORT FROM THE SPECIFIC COMMITTEE TO LOOK INTO THE 50% DISCOUNT ALLOWED ON ASSESSMENT NO. 474 (RAM PRASAD GOSAI)
The meeting of the above Committee was held on 28/07/06. In (the) presence were the Mayor Cr Salesh Mudaliar, the Deputy Mayor Cr Timoci Koroqica, Cr Tarun Patel, Cr Tuidraki, Cr Rosahn Ali, the Treasurer and the Town Clerk.
The Committee was briefed about the above from the time the application from Mr Jagdish Gosai for 50% discount was received (04/08/2003) to the time the discount was approved by the Minister and the discounted payment made. Council was also briefed about the Council’s resolution to rescind the Councils earlier resolution that recommended 50% discount to the Minister for Local Government.
The Committee interviewed Mr Balram, the former Mayor of the Council, the former Mayor Cr Sanjit Patel and Cr Atil Gosai.
Events
discounted amount.
(i) Criminal proceedings – to be reported to the Police if considered there exists valid reasons for the apparent delay in raising this matter now.
(ii) Re-tabling the application and passing a fresh resolution now, the date on which the Council to consider the application should be specifically stated:
Findings
Gosai and Mr Suresh Gosai.”
The plaintiff said at the hearing that having considered the above report of the Specific Committee, the Minister by his letter had informed the Council that the matter has been properly dealt with at committee and council level and that no further action to be taken and the matter to be put to rest.
(xiii) The plaintiff said in his evidence that the defendant’s statement was false and defamatory due to the following reasons;
(*) It was not the plaintiff who made the application for discount and that it was plaintiff’s father.
(*) The plaintiff did not participate in ‘Task Force Meeting’ which approved the discount.
(*) The plaintiff did not participate in any meetings regarding the application.
(*) The Council was well aware and had knowledge that the plaintiff was a one third (or two sixths) owner of the property when the Task Force Committee approved Jagdish Chandra’s application.
(*) The plaintiff had been paying his share of the rates and he has urged others to do the same. He did not benefit from the discount.
(xiv) The plaintiff said in his evidence that the words uttered by the defendant were slanderous and as a result he was seriously injured in his character, credit and reputation and has been brought into public scandal, odium and contempt. He says his reputation as a Teacher, an Accountant and as a Hindu Temple Official and as a reliable and decent person was gravely affected and destroyed.
The embarrassment had prompted him to migrate. He further said that the newspaper publications (at plaintiff’s exhibit (06) and (07)) aggravated the defamation and the pain and suffering.
The excerpt from ‘The Fiji Times’ on Monday, 03rd October 2005 entitled “Council probes alleged scam’ (plaintiff’s exhibit -6) is number (03) in the agreed bundle of documents.
The excerpt from ‘The Fiji Daily Post’ on Tuesday, 18th October 2005 entitled “FLP Councilor under scrutiny’ (plaintiff’s exhibit (07)) is number (04) in the agreed bundle of documents.
Defendant’s defence
(xv) In the defence filed, the defendant admitted that he spoke the words complained of but he denied that they bear defamatory meaning. Alternatively, the defendant says that in so far as the words complained of consist of statement of fact, they are true in substance.
The defendant in his amended statement of defence and in his evidence before this court set up the defence of qualified privilege and fair comment.
(F) THE CONSIDERATION AND THE DETERMINATION
(1) Counsel for the plaintiff and the defendant have tendered extensive written submissions in support of their respective cases. I am grateful to counsel for those lucid and relevant submissions and the authorities therein collected which have made my task less difficult than it otherwise might have been.
If I do not refer to any particular submission that has been made, it is not that I have not noted that submission or that that submission is not relevant; it is simply that, in the time available, I am not able to cover in this decision every point that has made before me.
(2) The words on which the allegation of slander was based were agreed upon and recorded as an agreed fact at the pre-trial conference. (see para (10) of the agreed facts).
So, there is no issue as to the making of the statement. The defendant is relying on the defence of qualified privilege and fair comment.
The issue before the court is whether the statements which were derogatory were true in relation to the evidence placed before the court by the parties. The law presumes that defamatory words are false. If words are used which are defamatory and untrue the law implies malice. See; Reynolds v Times Newspapers Ltd & Other [1999] UKHL 45; (1999) 4 ALL E.R. 609 at 649.
(3) The plaintiff states that the alleged defamatory statement purport to portray that the plaintiff committed fraud and cheated the council and the rate payers by obtaining a 50% discount on the outstanding rates without declaring his interest in the property.
(4) Let me now turn to the evidence given before the court.
(5) The subject property (Certificate of Title No:- 7081, item No. (5) in the agreed bundle of documents) had several owners. The plaintiff had been a two sixths owner from 26th September, 1994. CT 7081 contains the memorandum that says land was transferred in the name of the plaintiff on 26/9/1994. Since 1994 the Council had records of the ownership of the plaintiff of the property.
The transcript of Mr. Atil Chandra Gosai’s evidence in chief contains this, (page 14 and 15 of the transcript)
Q: Does that property in Martintar or did the property in Martintar attracts town rates?
A: Yes my Lord.
Q: In fact that property in Martintar, who owns that property?
A: My Lord, at the present time there are three (3) Shareholders. I am the majority shareholder with 46 shares, 1/6th is held by State of my Father, and 1/6th is held by my Uncle.
Q: Prior to 2003 who all owns that property?
A: My Lord, I had 2/6th interest since 1994 in the property, 1/6th was held by my Father, 1/6th was by my Uncle Prabhat Chandra, 1/6th by the estate of my Uncle Jairam Chandra and 1/6th by my Uncle Suresh Chandra.
Q: So Witness, I’ll be showing you in the Agreed Bundle Sir, the document of Certificate of Title Number 7081 which is number 5. Is that the property you are talking about?
A: Yes my Lord.
Q: And when was your share transferred to you? Can you indicate to the Court from that?
A: It was 26th of September, 1994 where I acquired 2/6th interest in the property.
Q: So, that is on page
A: On the 2nd last page my Lord.
Q: Of the endorsement? 2nd last page
A: Endorsement of the Transfer, right at the bottom, on the left hand side.
Q: So, when did you elect to be a Nadi Town Council member?
A: My Lord, it’s sometimes in year 2002.
Q: 2002, okay. So, in 2002 were you a member of the Taskforce Committee? That looks after the Town Rates.
A: My Lord, the Taskforce Committee was formed after 2002 or sometimes in 2003, late 2002 to 2003.
Crt: The question is; were you a member of this Team?
A: Yes my Lord. When it was formed, yes, I was a member of the Task force Committee.
Q: And did you at any time Witness disclose your interest on that property in Martintar?
A: Yes my Lord. My interest was endorsed on the Council’s Valuation Roll of 2003.
Q: How was that Valuation Report compiled?
A: The Valuation Report is a record kept by the Nadi Town Council for all the registered owners in the property. And my name was registered as a property owner since 1994 to 2003.
Q: Who prepared the Valuation Report, Witness?
A: My Lord, it’s prepared by Nadi Town Council and kept by Nadi Town Council as they register for Ratepayers and Property Owners.
Q: So, you were also registered Ratepayers?
A: Yes my Lord.
(6) When the plaintiff bought the land, the Council had a caveat on the property because it owed town rates. The plaintiff had paid $7,500.00 in rates in 1994 to Council to uplift the caveat. [Certificate of Title No:- 7081, Item No.5 in the agreed bundle of documents] I quote the following portion of plaintiff’s evidence given under cross-examination. (page 29 of the transcript).
Q: Since when were the rates owed, your property rates to Nadi Town
Council?
A: My Lord, I acquired my share in 1994. I have paid $7500.00 prior to requisition of my share.
(7) Therefore, it is clear that the Council was aware since 1994 and had knowledge since 1994 that the plaintiff was a two sixths owner of the subject property. Therefore, I am unable to accept the defendant’s proposition that the Council was unaware of the fact that the plaintiff was a part owner of the property in question when the discount was recommended on 17th September, 2003 by the ‘Task Force Committee’ of Nadi Town Council.
(8) What is more, the ‘valuation roll’ (plaintiff’s exhibit –(2)) prepared on 25th November 2002 and maintained by the Nadi Town Council, contains a column depicting the registered owners of the property in question as “Atil Chandra Gosai f/n Jagdish Chandra” as the owner of Lot -01, CT 7081. As a Councilor, Chairman for Development Committee and Chairman for the Staff Management, the defendant could have easily satisfied himself with a simple perusal of the valuation roll that the plaintiff was the owner if he thought ownership mattered. I am satisfied that the defendant had access to the knowledge that the plaintiff was part owner. The Council had knowledge as well.
I am very conscious of the fact that in cross- examination the defendant admitted that he was aware of the plaintiff’s interest in the land. When he was asked whether he was aware of the plaintiff’s interest in the land, he said in cross-examination (page 45 of the transcript)
Crt: Were you aware of his interest in the land?
A: Yes, he had interest in the land, I knew about it, that’s why I said it is very wrong of him to join that Special Task Force Committee knowing very well he own the property and he had interest, that’s why he joined the committee to reduce his rate 50%.
(9) Moreover, the plaintiff’s father, Mr. Jagdish Chandra made the application to the Council for a 50% discount. (plaintiff’s exhibit -3 and item No. 8 in the agreed bundle of documents)
He clearly applied as a 1/6 owner only and did not make the application for the plaintiff or anybody else. He states in the letter that he was having problems with other owners to agree to payment of outstanding rates and that if he is given a discount of 50% of the total outstanding rates he would personally pay all the discounted amount of approximately $37,000.00. He did not state that the plaintiff was one of the owners refusing to pay. There were three other undivided one sixth share owners.
The plaintiff’s father’s application had been approved on 17th September 2003 by the “Task Force Committee” of the Council and subsequently the Minister of Local Government had approved it by letter dated 04th November 2003. (Plaintiff’s exhibit -4). It is undisputed that the plaintiff had not been present when the ‘Task Force Committee’ and the ‘Council’ considered his father’s application.
I quote the following portion of plaintiff’s evidence given in his evidence in chief (page (18) of the transcript)
Q: So witness, in regards to the 50% discount applied for by your father, who are the members that deliberate on that application?
A: My Lord, the members of Task Force Committee, I was part of the Task Force Committee who normally look at all applications. In this instance my Lord, I was not a member to make decisions or take in the particular meeting. I had not attended the meeting which discussed the issue of my father’s application.
The plaintiff said that he did not manipulate the Council or Task Force. The plaintiff said in his evidence that he had been paying his share of the rates from time to time and his evidence is that he has urged others to do the same. He said that he did not benefit from the discount.
(10) The plaintiff said in evidence that there was an inquiry in relation to his family property in 2003 (prior to 17th September 2003).
At the meeting of the Council held in 2003, a motion had been moved to investigate the grant of specific discount to the plaintiff’s father. The investigation had been carried out by the Council and a report had been submitted which was to the effect that the discount was proper.
(11) As a result of the statement made by the defendant at the Nadi Council meeting on 28/9/2005, a resolution has been passed to investigate the matter by a “specific committee”. The ‘Specific Committee’ has investigated and prepared a report.
The plaintiff’s exhibit P-10 contains the minutes of the report that was prepared by the Specific Committee. The report of the ‘Specific Committee’ says that the Council was aware that the plaintiff was a part owner of the subject property when the discount was recommended on 17th September, 2003.
(12) I gather from the evidence that Nadi Town Council had several cases filed against Gosai family relating to outstanding rates. Therefore, the defendant had access to the knowledge of Gosai family’s interest on the subject land. The Council had that knowledge as well when the discount was recommended on 17th September, 2003.
(13) Due to the reasons which I have endeavored to explain in the preceding paragraphs, I am satisfied that the Council and the defendant were fully aware prior to 17th September, 2003 that the plaintiff was a part owner of the subject land. I am satisfied that when the Council approved the 50% discount on 17th September, 2003 it was fully aware that the plaintiff was a part owner of the subject land. The fact that the plaintiff was two sixths owner of the subject land in 1994 was a matter that was known or should have been known by the Council especially when a matter like a 50% special discount was being recommended to be given, as the Council roll of the owners of the properties. The plaintiff has declared his interest in the subject land to the Council and it was a fact known to the Council when the 50% discount was recommended on 17th September, 2003. I am unable to accept the defendant’s evidence that the Council was unaware of the fact that the plaintiff was a part owner of the land in question when the 50% discount was recommended on 17th September, 2003.
For the reasons which I have endeavored to explain in the preceding paragraphs, I do not hesitate to say that the words uttered by the defendant concerning the plaintiff are contrary to true facts and it is a far cry from the reality. What is most damaging is that the defendant admitted in court that he was well aware of the plaintiff’s interest in this subject land. (Page 45 of the transcript) Therefore, it is fair to say that the defendant was well aware of the falsity of the statement he made at the council meeting on 28th September 2005.
The plaintiff states that the alleged defamatory statement purport to portray that the plaintiff committed fraud and cheated the council and the rate payers by obtaining a 50% discount on the outstanding rates without declaring his interest in the property.
“Any statement which tends to lower the plaintiff, to whom the article refers, in the estimation of right-thinking persons generally or bring them into hatred, ridicule or contempt is defamatory” – Broome v Castell & Co, [1972] UKHL 3; (1972) 2. WLR 645.
That is what has happened in the case before me.
The question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law. This question is one for the trial Judge to determine. In Hopwood v. Muirson [1945] 1 K.B. 313 at p.316 Lord Goddard C.J. said:
“Whether or not words are capable of bearing a defamatory meaning is always for the court and is therefore to be regarded as a question of law”.
Although the defendant denies that the words complained of are defamatory, I find the words complained of to be defamatory because, (1) the facts upon which the comment is based are contrary to true facts, turned out to be untrue, and are proved to be false. [What is most damaging is that under cross-examination the defendant admitted that he was well aware of the plaintiff’s interest in the land and therefore it is fair to say that the defendant was well aware of the falsity of the statement he made at the council meeting]. The words complained of are capable of bearing the meaning pleaded in para (7) of the statement of claim because the words complained of were meant and understood to mean that the plaintiff had deliberately and dishonestly suppressed his interest in the land in question and misled the Council by withholding his interest in the land and as a result the words complained of tend to lower the plaintiff to whom it refers in the estimation of right-thinking persons generally or to bring the plaintiff into hatred or contempt.
Let me pose the question – would any ordinary fair minded listener, not unduly suspicious and nor over astute to seek out a hidden meaning, regard the plaintiff as a dishonest person with the result that his reputation and the estimation in which he stands in the opinion of others would be lowered ? I would answer the question posed, in the affirmative.
In the upshot it comes to this; the words used by the defendant are untrue and defamatory. Thus, the law implies malice. See; Reynolds v Times Newspapers Ltd and Others [1999] UKHL 45; (1999) 4 ALL E.R. 609 at 649..
In Gatley on’ Libel and Slander’, 7th Edition, at paragraph 93 the learned author states:
“Words are normally construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable men of ordinary intelligence, with the ordinary man’s general knowledge and experience of worldly affairs, would be likely to understand them. The natural and ordinary meaning may also include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.”
“The law of defamation does not even look to the meaning intended by the writer or speaker, but to the meaning attached by a reasonable reader or listener” – The Law of Torts by John F.Fleming, 9th Ed. 1998, p.590.
It is further stated at Lee v Wilson (1934) HCA 60, 51 C.L.R. 276 at 278 (Dixon J)
“A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff is in fact he did both”
‘In 1825 it was finally settled that absence of ill-will against the persons defamed and honest belief in the truth of the allegation did not excuse’. Broomage v Proser, [1825] EngR 42; (1825) 4 B & C 247, 107 ER 1051.
‘Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made.’ Law of Torts by Balkin & Davis at 558.
‘Case of a newspaper article the hypothetical reader or listener is less concerned with the precise words used and more with the overall impression gained.’ (Balkin &Davis – supra at 562-563)
The defamatory statement must refer to the plaintiff. If it is defamatory, liability in defamation is imposed irrespective of the actual intention of the defendant. (Hulton & Co, v. Jones [1909] UKLawRpAC 57; [1910] AC 20 (H.L.).
All that is important or relevant is that;
‘Some ordinary reasonable people reading the publication would understand it to refer to the plaintiff.’ (Balkin & Davis – supra).
What would the words convey to an ordinary man? How an ‘ordinary man’ looks at them? Lord Reid in the classic judgment in Lewis v Daily Telegraph Ltd [1964] A.C. 234 at 258-260 said as follows:
“There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs... What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But the expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning... Generally the controversy is whether the words are capable of having a libelous meaning at all, and undoubtedly it is the judge’s duty to rule on that.”
(Emphasis added)
“A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally”. Lord Justice Neill in Gillick v British Broadcasting Corporation and Anor., 20 October 1995 The T.L.R. 527 at 528
DEFENCES
(14) The plaintiff brought this action against the defendant for uttering slanderous words concerning him at the meeting at Nadi Town Council, on the 28th day of September, 2005.
The defendant says that the action is not maintainable on two grounds:
First, the slanderous words complained of are privileged to a qualified extent, or sub modo- that is, being uttered on a privileged occasion;
Secondly, the words complained of were fair comment on a matter of public interest.
QUALIFIED PRIVILEGE
(15) I have not been referred to any legislation to establish that the defendant councilor has statutory immunity.
(16) Therefore, the defendant Councilor has to rely on common law principles on qualified privilege.
(17) Privilege or immunity in respect of defamation is of two kinds – absolute privilege, which is conceded to members of the Houses of Parliament, judges, etc; qualified privilege to which every subject of the State is entitled, provided, that the occasion on which the defamatory matter is written or spoken is privileged, and that there is an absence of express malice.
(18) In other words, by the law of England there are occasions on which a person may make defamatory statements about another which are untrue without incurring any legal liability for his statements. These occasions are called privileged occasions. A reason frequently given for this privilege is that the allegation that the speaker has “unlawfully published” is displaced by proof that the speaker had either a duty or an interest to publish such duty or interest conferring the privilege. But communications made on these occasions may lose their privilege; (i) They may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (ii) they may be published with express malice, so that the occasion is not being legitimately used, but abused.
As Lord Dunedin pointed out in Adam v Ward ([1917] AC at 326, 327, [1916-17] All ER Rep at 167) the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realized that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive.
The classical definition of “privileged occasion” is that of PARKE, B., in Toogood v. Spyring [1834] EngR 363; (1834), 1 Cr. M. & R 181 a case where the tenant of a farm complained to the agent of the landlord, who had sent a workman to do repairs, that the workman had broken into the tenant’s cellar, got drunk on the tenant’s cider, and spoilt the work he was sent to do. The workman sued the tenant. PARKE, B., gave the explanation of privileged occasion (1 Cr.M. & R. at p.193);
“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
(19) In law if a man writes or says what is not true and what is libelous or slanderous of another, it is presumed to be malicious: but when the occasion is privileged then we require something more, we require what the law calls ‘express malice’. The phrase ‘express malice’ means; it does not mean that hatred and uncharitableness which are usually associated with the word malice. Malice in law means this – a wrongful act done intentionally without just cause or excuse, that is what malice means.
(20) Applying those principles to the case before me what do we find?
Whether the occasion is privileged?
(21) The duty of deciding whether the occasion is privileged is cast upon the court. The criterion whether the occasion is privileged or not is most tersely stated in the passage of Parke B’s Judgment in Toogood v Spyring (supra) at p.193;
“..... fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned.”
Lord Esher, M.R. says in Pullman v. Hill & Co. (11) ([1891] 1 Q.B. at p.528):
“An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.”
(22) With all those considerations bearing in mind, let me now turn to the facts of this case again. The defendant was a member of the Nadi Town Council. The slanderous words complained of were uttered towards the end of the full Council Meeting on the 28th September 2005 during Mayoral matters. The slanderous words complained of concerning the plaintiff were not uttered in the course of a debate with regard to the non-disclosure of the interests of the plaintiff regarding the land in question for which a discount had been given regarding arrears of rates. The allegation of non-disclosure of the interests of the plaintiff regarding the land in question for which a discount had been given regarding arrears of rates was not part of the agenda.
Moreover, the defendant did not give notice to the plaintiff of his intention to raise the matter at a Mayoral meeting of the Council. I have the strongest opinion that the defendant does lose the protection of the privilege because occasion was used not in accordance with the purpose for which the occasion arose. The occasion arose only for the Mayoral matters. This is the circumstance in which the words complained of were made. An inference of malice can be drawn from the circumstances in which the words complained of were uttered. The privilege is not absolute but qualified and it is lost because the occasion which gave rise to is misused. As Lord Diplock explained in “Horrocks v Lowe (1974) 1 ALL ER 662 at 669, “..... with some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit- the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of privilege”.
I am clearly of opinion that the slanderous words complained of were not uttered on an occasion of qualified privilege. The question whether the occasion was abused because of ‘malice’ is a question of fact. The test of ‘malice’, if I may paraphrase Brett Lj, in ‘Clark v Molyneux’ [1877] UKLawRpKQB 104; (1877) 3 QBD 237 at 247, is, (1) Has it been proved that the defendant did not honestly believe that what he said was true? (2) Was he either aware that what he said was not true or he was indifferent to the truth or falsity of what he said? As I said in paragraph (08) and (13) the defendant admitted in cross-examination that he was well aware of the plaintiff’s interest in the subject land and therefore it is fair to say that the defendant was well aware of the falsity of the statement he made at the council meeting. Applying the dicta of Lord ‘Dunedin’ in ‘Adam v Ward’ (supra) and Brett Lj, in ‘Clark v Molyneux’ (supra) to the facts of the present case, I am of opinion that an inference that the defendant was actuated by express malice can properly and safely be drawn. I have no doubt that the words complained of were uttered with a deliberate and calculated view to bring the plaintiff into hatred, ridicule or contempt. This is a gross personal attack made upon a member of the council without any previous Notice being given to him. The occasion upon which the slander was committed was not a privilege occasion. Therefore, I shut out the defence of qualified privilege.
(23) Assuming that the occasion was privileged, I do not hesitate to say the defendant abused a privileged occasion by making a defamatory statement, which he knows to be false. At the costs of some repetition, I state that the defendant was a member of the Nadi Town Council. He was also the Chairman for Development Committee and the Chairman for the Staff Management. The ‘valuation roll’ (the plaintiff’s exhibit -2) prepared on 25th November 2002 and maintained by the Nadi Town Council, contains a column depicting the registered owners of the property in question as ‘Atil Chandra Gosai f/n Jagdish Chandra’ as the owner of Lot-1. As a member, a Chairman for Development Committee and as a Chairman for the Staff Management, the defendant could have easily satisfied himself with a simple perusal of the “valuation roll” that the plaintiff was the owner.
I reiterate that the plaintiff’s father, Mr. Jagdish Chandra, made the application to the Council for a 50%discount. (Plaintiff’s exhibit -3 and item No. 8 in the agreed bundle of documents)
As I mentioned earlier, he clearly applied as a 1/6 owner only and did not make the application for the plaintiff or anybody else. He states in the letter that he was having problems with other owners to agree to payment of outstanding rates and that if he is given a discount of 50% of the total outstanding rates he would personally pay all the discounted amount of approximately $37,000.00. He did not state that the plaintiff was one of the owners refusing to pay. There were three other undivided one sixth share owners.
The plaintiff’s father’s application had been approved on 17th September 2003 by the “Task Force Committee” of the Council and subsequently the Minister of Local Government had approved it by letter dated 04th November 2003. (Plaintiff’s exhibit -4). The plaintiff had not been present when the ‘Task Force Committee’ and the Council considered his father’s application.
The defamatory statement was made by the defendant without due or proper inquiry. There was carelessness or recklessness and disregard for the feelings of the plaintiff, a disregard of that sort of duty which one man owes to another. I say that the slanderous words complained of were uttered by the defendant without bona fide in the honest belief that it was true. ‘Honest belief’ means not the actual belief in the defendant’s mind but, belief founded on reasonable ground. Malice may be inferred on such an occasion. The defendant was actuated by feelings of malice. I regard his statement as a whole an unfair and tendentious assessment of the plaintiff’s conduct and it established gross and unreasoning prejudice on the defendant’s part.
His statement before the Council that “the plaintiff committed fraud and cheated the Council and the rate payers by obtaining 50% discount on the outstanding rates without declaring his interest in the property” was most casual. He has not taken any pains to satisfy his mind, and that he was not acting simply and fairly from a consideration of what his duty was. He made the statement utterly regardless of the truth, or of any personal injury he might be inflicting, perfectly reckless whether what he was saying was true or false. From the nature of his conduct I find that he had abused the occasion and he was actuated by malice.
Therefore, the defendant cannot claim the protection of qualified privilege.
Is it a fair comment on a matter of public interest ?
(24) The defendant also relies on a defence of fair comment under section 16 of the Defamation Act, Cap 34.
Section 16 reads:
“In an action for defamation in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”
(25) Before I address myself to the defence of ‘Fair Comment’, I think it is advisable to lay down what I consider would be a true exposition of the law in such matters.
(26) In Abbas Ali v Edward Hentry Thompson & Two Others Civil Appeal No: ABU 0029 of 2011, the Court of Appeal discussed this defence thoroughly starting from page 4. The requisites required for establishing the defence of fair comment are stated on page 5:
In Telniknoff –v- Matusevitch [1992] 2AC at 351 quoted in the aforesaid judgment, it is stated:
“The question whether words are facts or comments is in the first instance for the judge; if he is satisfied that they must fall into one of the categories he should so rule. If a defamatory allegation is to be defended as fair comment it must be recognizable by the ordinary, reasonable reader as comment and the key to this is whether it is supported by facts, stated or indicated, upon which as comment, it may be based.”
Another passage stated by the FCA in the above case is from Hasselblad (G.B.) v Orbinson [1985] QB 475, an observation had been made to state:
“Whether an inquiry is made of a person with a view to the detection of a criminal offence, it is his duty in the sense here
used to give such information as he may possess, and such information, if given bona fide and without malice, will be privileged.
“I cannot doubt, said Parke B. In Kine v Sewell, that is a perfectly privileged communication, if a party who is interested
in discovering a wrongdoer, comes, and makes inquiries, and a person in answer makes a discovery, or a bona fide communication, which
he knows or believes, to be true, although it may possibly affect the character of a third person”. However, answers to inquiries
by the police may now be protected by absolute privilege even though no proceedings have been started.”
At page (6), His Lordship cites a passage from the text book of “Gatley on Libel and Slander”, it is stated:-
“To succeed in the defence of fair comment, defendant must show that the words are comment and not a statement of fact. [Campbell v Spottiswoode [1863] EngR 405; (1863) 3 B & S 769; Minister of Justice v S.A Associated Newspapers, 1979 (3) S.A. 466. However, an inference of fact from other facts referred to, may amount to a comment. [Kemsley v Foot(1952) A.C. 345; Jeyaratnam v Goh Chok Tong (1989) 1 W.L.R. 1109; London Artists v Littler (1968) 1 W.L.R. 607; He must also show that there is a basis for the comment, contained in the matter complained of. Finally, he must show that the comment is on a matter of public interest or is otherwise a matter with which the public has a legitimate concern.” [Page 288 in Chapter 12].
And then goes on to say:
“As stated by Gatley, to succeed in the defence of fair comment, it is necessary to establish that the words are written for the purpose of comment only and not to state facts at a given situation. This is the law found in all the authorities including in Albert Cheng, referred to by the learned Trial Judge as well as both the Counsel.”
In the case of Fiji Times v Vayeshnoi [2010] FJCA 35; ABU002 of 2008 (16th July 2010) at pages 4 to 8 the FCA has analyzed the boundaries of fair comment where it is stated:-
“Reynolds v. Times Newspapers Ltd and Others [2000] UKHL 57; (2001) 2 AC 127 concerned the plaintiff, a prominent public figure in Ireland who began proceedings for defamation against the defendants, the publishers of an article contained in the British mainland edition of the national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff’s resignation as Taoiseach and the collapse of his coalition government which had during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Dail and his Cabinet colleagues. He sued for defamation.
20.0 On appeal to the Court of Appeal Lord Bingham of Cornhill, CJ in a reserved judgment on behalf of the whole Court said at p.165 dealing with the defence of fair comment that “it is the right of fair comment or honest opinion which has, up to now, provided the main protection of free political discussion in places and on occasions not attracting the protection of privilege.” Later, at p.170 the Court of Appeal mentioned with approval the decision of the House of Lords in Derbyshire County Council v. Times Newspapers Ltd [1992] UKHL 6; (1993) AC 534 where the House held that since the threat of Civil Action for defamation would place an undesirable fetter on freedom to express criticism of a democratically elected government body, it was contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation. Then, at p.174, and in our view very relevant to the facts of this case, the Court said:
“There can be little doubt that in a modern parliamentary democracy electors have a proper interest in being informed about the activities of their elected representatives when those activities are relevant to their performance as such and their fitness to hold their representative office. That being so, members of the news media and others have a proper interest, some would say duty, in informing electors as a whole of relevant activities of individual politicians.”
21.0 In the House of Lords, Lord Nicholls of Birkenhead delivered the leading
judgment. At page 193, he said: “Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasized the latitude to be applied in interpreting this standard. So much so, that the time has come to recognize that in this context the epithet “fair” is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it”: see Diplock, J in Silkin v. Beaverbrook Newspapers Ltd [1958] I WLR 743,747.
22.0 Towards the end of his judgment, Lord Nicholls said at page 205;
“Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a blood hound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”
25.0 The clear conclusion to be drawn from the judgments of Lord Nicholls and Lord Cooke is that although the constitutional structures vary, the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies. The whole purpose of defamation law is to enable a plaintiff to clear his or her name.
26.0 Because we consider this question of fair comment is so important we believe it necessary to refer to two judgments of Mr Justice Eady in the Queen’s Bench Division of the English High Court, Branson v. Bower [2001] EWHC 460; (2002) QB 737 and Sara Keays v. Guardian Newspapers Ltd and 2 Others, the only citation for which we have is (2003) EWHC 1565 delivered on the 17th of June, 2003, a copy of which was provided by the appellants and not disputed by the respondent.
27.0 In Bransson v. Bower the Judge held that the touchstone for fair comment on a matter of public interest was always honesty and should not be watered down by considering issues such as fairness or moderation even if the words complained of could be characterized as attributing corrupt or dishonourable motives to the claimant; and that, accordingly, the only requirements for establishing a defence of fair comment were that the defendant had expressed his opinion honestly or has done so upon facts accurately stated. It was not submitted by the respondent in this case that the expression “chamcha” was not accurately stated by the appellants nor that it was stated dishonestly”.
In the aforesaid case His Lordship also considered the famous summing up of Diplock J as follows:
“35.0 We cannot conclude our comments on the defence without referring to the classical summing up to the Jury by Diplock, J in Silkin v. Beaverbrook Newspapers Limited (1958) 2 ALL E.R. 516.
His Lordship began his summing up with these words:
“This is an important case, for we are here concerned with one of the fundamental freedoms- freedom of speech, the right to discuss and criticize the utterances and the actions of public men. Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between the right of the individual, like the plaintiff, whether he is in a public life or not, to his un-sullied reputation if he deserves it. That is on the one hand. On the other hand, but equally important, is the right of the public, which means you and me, and the newspaper editor and the man who, but for the bus strike, would be on the Clapham omnibus, to express his views honestly and fearlessly on matters of public interest, even though that involves strong criticism of the conduct of public people. If I spend a little time in talking to you about the law in this matter, I hope you will excuse me, because it is an important matter, not merely to the parties in this case, but to all of us.”
36.0 At page 518 the judge said:
“People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate, or prejudiced, provided – and this is the important thing – that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?”
At page 10 FCA states:
44.0 It has to be remembered that public figures do not live in a cocoon, safely protected from the slings and arrows which the media may see fit at times to fire at them. This is part and parcel of a public figure’s life and he or she must be prepared to accept it or choose another occupation. We therefore reject Mr Justice Singh’s finding that this article was also defamatory of the Plaintiff.”
[Emphasis added]
The rationale - plea of fair comment
❖ Where it appears that the words in question have attributed dishonourable motives to the complainant, a fair comment defence will not avail the defendant in the absence of reasonableness.
see; (i) Wason v Walter (1886) LR4 QB 73;
(ii) Hunt v Star Newspaper Co Ltd [1908] UKLawRpKQB 51; [1908] 2 KB 309;
(iii) Stevens v British Medical Association The Times, 8 May 1915;
(iv) London Artists Ltd v Littler [1968] EWCA Civ 3; [1969] 2 QB 375 and
(v) Peter Walker & Son Ltd v Hodgson [1908] UKLawRpKQB 158; [1909] 1 KB 239.
❖ Where, a defendant has been negligent in assembling the factual bases of his comment, he will fail the test for fair comment.
see; (i) Reynolds v Times Newspapers Ltd [2001]2 AC 127.
❖ The principle of fair comment is established in European Union jurisprudence.
see; (i) Lingens v Austria [1986] ECHR 7; (1986) 8 EHRR 407;
(ii) De Haes and Gijsels v Begium [1997] ECHR 7; (1997) 25 EHRR 1;
(iii) Nilsen and Johnsen v Norway [1999] ECHR 134; (1999) 30 EHRR 878 and
(iv) Derbyshire County Council v Times Newspapers Ltd [1993]
AC 534;
❖ The question of fair comment is to be decided by reference to the defendant’s honesty.
see; (i) Cheng v Tse Wai Chun [2000] HKCFA 35; [2000] 3 HKLRD 418 and
(ii) Sugar v Assocaited Newspapers [unreported] 6 Feb 2001
❖ And it is nothing to the point that the defendant may have been immoderate or obstinate or may have displayed gall or exaggerated.
see; (i) Gardiner v John Fairfax & Sons Pty Ltd [1942] NSWStRp 16; (1942) 42 SR (NSW) 171;
(ii) Turner v Metro – Goldwyn-Mayer Pictures Ltd [1950] 1 All ER
449;
(iii) Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743;
(iv) Merivale v Carson [1887] UKLawRpKQB 202; (1887) 20 QBD 275 and
(v) Peter Walker & Sons Ltd v Hodgson [1909]1 KB 239.
❖ Fair comment must be based on expressly or implicitly indicated facts.
see; (i) Kemsley v Foot [1952] AC 345;
(ii) Cheng v Tse Wai Cun [2000] HKCFA 35; [2000] 3 HKLRD 418;
(iii) Hunt v Star Newspaper Co. Ltd [1908] UKLawRpKQB 51; [1908] 2 KB 309;
(iv) Lingens v Austria [1986] ECHR 7; 8 EHRR 407;
(v) Nilsen and Johnsen v Norway [1999] ECHR 134; 30 EHRR 878 and
(vi) Barfod v Denmark (1989) 13 EHRR 493.
Matter of public interest ?
(27) With these considerations in mind, let me now turn to the case before me.
The plaintiff claimed damages for slander in respect of following words spoken by the defendant (agreed fact No. 10) before the Nadi Town Council Mayoral meeting on the 28th September, 2005.
“There are poor rate payers can’t afford to pay $300.00 rate. From $7600.00 rate he joined ............... his personal interest. He maneuvered the council. I don’t know how he made it. The rate was dropped to $38000.00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred to his personal name. Whom did he cheat. I think the minister should intervene now and ............ Investigate in this matter straight away. This is a white collar fraud.”
(28) Let me now return to the primary task of deciding whether the matter on which the defendant says that he was commenting was a matter of public interest.
(29) The onus is on the defendant to satisfy me on the balance of probability that he was commenting on a matter of public interest, and until he does so the question of fair comment will not arise.
(30) Was the comment made on a matter of public interest?
(31) There is no definition in the books as to what is a matter of public interest.
(32) I have the strongest opinion that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, what may happen to others; then it is a matter of public interest on which everyone is entitled to make fair comment.
In “South Hetton Coal Co. Ltd v North Eastern News Association Ltd” [1893] UKLawRpKQB 194; (1894) 1 Q.B. 133, a Colliery Company owned most of the cottages in the Village. It was held that sanitary conditions of those cottages or rather their insanitary condition was a matter of public interest.
(33) Returning back to the case before me, strictly speaking, of course, the management and administration of the collection procedure of outstanding town rates and the efforts taken to recover the outstanding town rates in each local district are matters of public interest. The conduct of an elected town Councilor in a local district concerning the payment of outstanding town rates may be of the greatest importance in that particular local district, and so may concern the public in general. The public have business to know about it and would undoubtedly be a matter of public interest and, indeed, of public concern and should be submitted to public criticisms and attention. The defendant in the present case was himself vitally interested in the subject-matter and the public had a corresponding interest in receiving the information he gave them. The public in general have a legitimate interest in them. I therefore cannot concur with counsel for the plaintiff in thinking that the matter to which the present action for slander relates was not a matter of public interest. Many people are interested in what happens in local districts. I rule that the defendant was commenting on a matter of public interest, and, indeed, of public concern. I do not, of course, for a moment presume to doubt the correctness of the view which I have formed.
Whether the words spoken by the defendant was a statement of fact or comment ?
(34) In order to be fair, the defendant must get his basic facts right. The basic facts are those which go to the pith and substance of the matter, see Cunningham-Howie v F.W. Dimbleby & Sons Ltd (1950) 2 All E.R. at p.883.
The defence pleaded without qualification and in relation to the words complained of as a whole that “the words complained of set out in paragraphs 4,6,9 and 10 of the statement of claim consists of statements of fact.....”. [See paragraph 11 of the amended statement of defence & counter claim filed on 08.02.2009)
On a fair reading of the whole words complained of concerning the plaintiff, I think the words complained of were clear assertions of facts.
What are the basic facts in the words complained of concerning the plaintiff?
They are:
The defendant failed to prove above mentioned facts. Its falsity became demonstrated. Those facts were not proved and indeed it is recognized that they were not correct. Its falsity became demonstrated, and that the facts were highly defamatory of the plaintiff. The reality of the situation is that the conduct which is being commented on is the conduct of the plaintiff, and that is being commented on without any basis of fact to support it. For these reasons, I would hold that no plea of fair comment could protect the defendant in respect of it. The industry and experience of counsel engaged in this case , and my own endeavors , have failed to disclose a single reported case where a plea of fair comment of this type has ever been asserted. I cannot say that I am surprised, because if this is the law, it seems to me grossly unfair.
Since the alleged facts relied on as the basis for comment turned out to be untrue, the plea of fair comment avails the defendant nothing. As was pointed out in Lefroy v Burnside [(1879) 4 LR Ir 556 at p.565] the very nature of the plea;
“....assumes the matters of fact relied upon to be somehow or other ascertained. It does not mean that a man may invent facts and then comment on the facts so invented in what would be a bonafide manner on the supposition that the facts were true.”
“A man may be led to invent quite honestly and without realizing that he is doing so, by mistake, through ignorance or prejudice, or under the stress of emotion. But, whatever the source of error, the defence does not extend to cover misstatements of facts, however bonafide.”- Thomas v Bradbury, Agnew & Co. Ltd (1906) 2.k.B 627 at p. 638
Lord Tucker in “Kemsley v Foot” (1952) 1 All E.R. at p.508; (1952) A.C. at p.362 said:
“......................................it is incumbent on the defendant to prove the truth of every fact stated in order to establish the plea of fair comment.......”
In my view, it is an a fortiori case that one cannot make defamatory statements or comments about someone else altogether, unless one is prepared to justify it.
In the upshot it comes to this; the conduct of an elected local government Councilor in a local district with regard to his payment of outstanding town rates was a matter of public interest. The defendant was fully entitled to comment on it as long as his comment was fair and honest. The defendant failed to prove the basic facts in the words complained of concerning the plaintiff. Its falsity became demonstrated. The facts were not correct. Thus, he has no defence except as to damages.
Counter-Claim
(35) Let me now turn to the counter-claim of the defendant. By para (17) of the amended statement of defence and counter-claim, it was alleged as follows;
“Suresh was given the Nadi Town Council Contract to Construct Namaka Mini Market Car Park and access Road. Suresh and Robin (Town Clerk-Nadi) collaborated and procured the contract to be given to Suresh with the Nadi Town Council’s approval.
The Namaka Mini Market Contract was worth $30,000.00 and Suresh and Robin have stolen the $30,000.00.
Suresh is a liar by saying he did not do the Mini Market Contract and that he had misled you (Satendra Sharma). Suresh had misappropriated the $30,000.00 and had cheated the Council (Nadi Town) of the $30,000.00.
(36) Not a word was said about the counter-claim in the defendant’s testimony before the court on 30th August 2018. Therefore, the counter-claim fails.
Damages – General [On compensatory basis]
(37) The plaintiff is claiming an award of $70,000.00 as general damages.
(38) The plaintiff pleaded that the words spoken by the defendant in their natural and ordinary meaning meant and were understood to mean that;
❖ That the plaintiff was a cheat.
❖ That the plaintiff was a dishonest person and/or committed to moral turpitude.
❖ That the plaintiff committed deception and/or deceit and/or made false statement.
❖ That the plaintiff indulged in false representations and/or deception and/or dishonest tricks.
In my view, the said utterance taken in the context of the plaintiff being an Accountant, elected member of Nadi Town Council and an official of Temples and part time teacher and having being uttered in the presence of Council and staff members and Fiji Television and Newspaper reporters, is calculated to disparage the plaintiff in his profession and bring the plaintiff into contempt, hatred, or ridicule, or to injure his character.
Therefore, the words uttered by the defendant are slanderous.
The effect of slanderous words
(39) Exhibits (6) and (7) are two newspaper articles which show how much interest was generated by the slanderous words spoken by the defendant and how far the humiliation the plaintiff had to endure. I heard that the plaintiff’s employer had questioned the plaintiff regarding the words spoken by the defendant. The plaintiff said that a further investigation had been carried out as a result of the words uttered by the defendant. This further aggravated the pain and suffering of the plaintiff. The embarrassment had prompted him to migrate.
(40) I quote the following portion of his evidence in his evidence-in-chief. (page 24 of the transcript)
Q: Witness when you heard those comments, how do you feel hearing those comments from the Defendants Suresh Pratap?
A: My Lord, it still hurts me the day it happened, it reminds me of what had happened like what happen to me. I was so embarrassed, I walked out of that meeting and Suresh Pratap said, look at my black shirt, see what I have done. No one was prepared to listen to me. All my friends, my family members, they started questioning. This was most embarrassing for me and my family.
Q: Witness, how these publications affect you personally and financially?
A: My Lord, I was a professional accountant, I was a member of the Fiji Institute of Chartered Accountant, I was a Tax Agent, I was a Part-Time Teacher with FNTC, I was member of Holy Temples. I had good standing in my community and overnight it all turned upside down. I have been questioned by my employer and my family started calling me.
(41) Further down at page (25)
A: My Lord everywhere I went, it was just that I was a cheat, I was a fraud. It give me very low morale, affected my employment, my wife was a professional High School Teacher, she started questioning because she was embarrassed. I was well known in school board, I was well known in temples and people looking at me like making jokes, like a fraudster. I was a fraudster. I took advantage of a situation as a Councilor. It came to a stage that we had to leave this country my Lord, just because of this. I had my house here, I had my car, I had my plans for business developments, all shattered. I had to leave everything then we have to make a decision that yes, this is being lingering on, we cannot continue with a normal life with my kids, my wife. I left the country and had to start all over again. It was not my choice to go, I never thought about leaving the country, my Lord. I had been developing here, I had acquired property, I had a good job, good family, had to leave everything behind and get away until this was resolved. It had cost me a lot of in monetary terms. I had to engage Solicitors costing me approximately about $30,000.00 until now. I had to make regular trips, got all the copies of invoices with me my Lord. Travel, accommodation, I had to pay rent when I moved abroad. I could not acquire a property because all my investment was in Fiji, that was all extra burden which was put on me and my family.
(42) In ‘Reynold v Times Newspapers Ltd and Others’ [1999] UKHL 45; (1999) 4 All.ER 609, Lord Nicholas of Birkenhead said at p.622;
“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others”.
As stated by Duncan and Neill on Defamation (1978 Edition) at page 130 for compensatory damages, the ‘basic rule of common law is that in civil action damages are awarded as compensation for injury, not as punishment for wrongdoing’. (18.03). The authors go on state:
“The purpose of an award of compensatory damages is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed. This principle of restitutio in integram was stated by Lord Blaskburn in Livingstone v Rawyards Coal Co as follows:
‘Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which would put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’”
The nature of damages and the purposes for which it is awarded has been well expressed by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1967] 117 CLR at 150 ;
“It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
“That is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libeled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large”.”
What factors should be considered in awarding General damages on compensatory basis ?
As stated in Neill (supra) at 18.09 the factors which are to be taken into account in assessing damages, apart from the ‘seriousness of the libel are: (a) special damages; (b) injury to the plaintiff’s feelings including aggravating factors; (c) extent of the publication; and (d) mitigating factors.’
What are the factors relevant in considering the measure of damages in defamation cases?
In the Singapore Court of Appeal case of Tang Liang Hong v Lee Kuan Yew & Anor and other appeals [1998] 1 SLR 97 (CA) (also reported in Commonwealth Law Bulletin – January and April 1998 at 195) said;
“First, a defamation action was fundamentally an action to vindicate a person’s reputation on a matter as to which he had been falsely defamed, and the damages awarded had to be regarded as the demonstrative mark of that vindication. Thus, the amount of damages awarded in defamation actions was only given in relation to circumstances of the past and present but it must be sufficient to vindicate the plaintiff’s reputation in the relevant respect in the future. Damages, and the size of the award, were the only means which ordinarily were available to attract the public or private attention involved in the vindication of the plaintiff’s position; Dingle v Associated Newspapers Ltd & Ors [1964] AC 371, Broome v Casell and Co Ltd [1972] UKHL 3; [1972] AC 1027 and John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 followed. The defamation award also had to reflect the aggravation caused to the plaintiff by the defendant’s subsequent conduct or any mitigation, in addition to the need to vindicate the plaintiff’s good name; Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Rantzen v Mirror Group Newspapers (1986) Ltd & Ors [1993] EWCA Civ 16; [1994] QB 670 and Carson v John Farifax and Sons Ltd (1993) HCA 31, (1993) 178 CLR 44 followed.”
Assessing damages for defamation is fraught with difficulties; Lord Atkin in Ley v Hamilton (1935) 153 L.T. 384, H.L.) said:
“The damages for defamation were not arrived at as the Lord Justice seems to assume by determining the ‘real’ damage and adding to that a sum by way of vindictive or punitive damages. It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. No doubt in newspaper libel injuries take into account the vast circulations which are justly claimed in present times. The ‘punitive’ element is not something which is or can be added to some known factor which is non-punitive.”
As for damages a greater amount can be awarded where “the publication of a libel was irresponsible. No effort was made to check the report’s accuracy and the plaintiff’s name was included” (Kiam v Neill and Another ,TLR 26.7.96 p.33 C.A.)
The Court of Appeal in Kiam (supra) went on to say further:
“The libel jury could properly take into account the prominence of the plaintiff’s reputation when deciding what figure was required to vindicate it. They were also entitled to take account of the fact that it struck at the core of his life’s achievement and that, according to the unchallenged evidence, it had a prolonged and significant effect on him personally”.
Sir Thomas Bingham M.R. said in John v MGN Ltd [1995] EWCA Civ 23; [1996] 2 All ER 35, 48).
“The most important factor is the gravity of the libel; the more closely it touches the plaintiff’s person, integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant; a libel published to millions has a greater potential to cause damage than a libel published to a handful people.”
(43) In the case of Sakiusa Rabuka and Volau Rabuka vs Fiji Daily Post Company Limited and Others, Civil Action No. 511 of 2000, a sum of $40,000.00 was granted by the High Court as damages for the Permanent Secretary of Justice in respect of an article which reported that Mr Rabuka’s wife had been caught in a raid by New York Police at a house suspected by Police as a base for a migration racket. Mrs Rabuka was given an award of $38,000.00. These awards have recently been confirmed by the Fiji Court of Appeal.
In the case of Mohammed Hassan –v- Fiji Times and Herald Limited, Supreme Court Decision no. 304 of 1983, Honourable Justice Kermode said in respect of a Prison Officer who had been alleged to have offered $1500.00 in a bribe to protect his name following the bashing of a prisoner.
“National Newspapers overseas have a very wide publication and this has some bearing on the high damages that juries overseas award. Those national dailies make profits out of circulating a sensational libel which juries consider justify very substantial awards.
In Air Fiji Ltd v Shandil, High Court of Fiji Civil Action No. 380 of 1999, the court awarded general damages of $80,000 and special damages of $120,000 with respect to a media broadcast after there had been a fatal air crash.
(44) Damages in defamation are awarded generally to compensate the plaintiff for the injury done to his or her reputation.
Here no apology was tendered. There were no mitigating factors. The words complained of were uttered with a deliberate and calculated view to tarnish the reputation of the plaintiff. There was no opportunity to vindicate the plaintiff’s reputation and the damage was forever.
The defamatory material came to the notice of a very large number of people since it was broadcast on national TV and it was published in national newspapers. I consider this as an aggravating factor and it leads to a very substantial award.
“.... A publication in a national newspaper or by means of a television or radio may lead to a very substantial award because the defamatory material is likely to come to the notice of a very large number of people” – Duncan and Neill on Defamation, 1978 Edition, at 18, 14).
I award $70,000.00 as general damages on a compensatory basis. This award includes factors for (1) injury to the plaintiff’s feelings (2) the anxiety and uncertainty undergone by the plaintiff in the litigation (3) the absence of apology by the defendant and (4) the malice of the defendant.
Damages – Special
(45) In the written submissions filled on 02.10.2018, the plaintiff claims $30,339.66 as special damages.
(46) I note that there is no claim for special damages pleaded by the plaintiff in the statement of claim. Therefore, there is no basis for any award in special damages.
(47) It is well established in cases such as (1) Mark v Redwing Aircraft Co. Ltd (1942) 1 K.B. 182, (2) Hayroad & Another v Pullinger & Partners Ltd (1950) (1) ALL E.R. 581, (3) British Transport Commission v Gourley [1955] UKHL 4; (1956) AC 185 that in order to found a claim for special damages, the claim must be specifically pleaded. Not the least basis for this rule in fairness; to ensure that the party against whom such damages are claimed has proper and particularized notice of the claim.
Exemplary Damages (Punitive Damages)
(48) The plaintiff claims in the sum of $5 million as exemplary damages.
(49) A claim for exemplary damages was pleaded. The para (18) of the Statement of Claim is in these terms;
(50) In what circumstances exemplary damages are awarded?
Lord Devlin has dealt with it quite extensively in the House of Lords in Rookes v Barnard and Others [1964] UKHL 1; 1964 AC 1129 at 1221-1231.
His Lordship said at p.1131;
“that exemplary damages could be awarded in cases (i) of oppressive, arbitrary or unconstitutional acts by government servants; (ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff: (iii) where expressly authorized by statute (post, pp.1226-1227); that in a case in which exemplary damages were appropriate a jury should be directed that only if the sum which they had in mind to award as compensation (which might of course be aggravated by the defendant’s behavior to the plaintiff) was inadequate to punish and deter him, could it award some larger sum (post, p.1228); that the facts disclosed in the summing up showed no case for exceptional damages and possibly none for aggravated damages (post, pp. 1232, 1233); however, the plaintiff could, without any departure from the compensatory principle, invite the jury to look at all the surrounding circumstances and award a round sum based on the pecuniary loss proved (post, pp. 1221, 1233).”
Further down at p.1221
“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter....”
Sir Thomas Bingham M R in John v MGN Ltd (T.L.R. 14.12.1995 675 at 677 C.A.) said;
“The authorities gave judges no help in directing juries on the quantum of exemplary damages. Some such damages, were analogous to a criminal penalty, and although paid to the plaintiff played no part in compensating him, principle required that award should never exceed the minimum sum necessary to meet the underlying public purpose: that of punishing the defendant, showing that tort did not pay and deterring others.”
The Fiji Court of Appeal said as follows in James Arthur Rennie Borron & Mago Islands Estate Limited v Fiji Broadcating Commission & Newspapers of Fiji Limited (Civ. Appeal No. 40/81 FCA at p5):
“Exemplary damages are damages which are awarded to punish a defendant and vindicate the strength of the law. In considering whether exemplary damages should be awarded the Court should ask itself whether the sum it proposes to award as compensatory damages, which may include an element of aggravated damages is adequate in all the circumstances for compensating a plaintiff and also for punishing or deterring a defendant. Only if it is inadequate for the latter purpose should the Court consider awarding exemplary damages.”
Further the Appeal Court stated that ‘exemplary damages or punitive damages are exceptional and only in rare cases are they awarded’. The Court then referred to the following passages in Manson v Associated Newspapers Ltd. [1965] 1 W.L.R. 1038 where Widgery J said:
“Of course, a newspaper is always published for profit. It is the purpose of a newspaper to make money and build up circulation. You must not go away with the idea that because of that any libel in a newspaper is a libel for which exemplary or punitive damages must be awarded. If a newspaper, in the ordinary way of business, publishes news in regard to a particular item and happens to make a mistake, the mere fact that it is publishing for profit does not open the door to an ward of exemplary or punitive damages. The only cases (and they must be very exceptional, you may think) in which exemplary or punitive damages are permissible are those cases where the jury, is satisfied that the publication was done with a deliberate, calculated view to making a profit out of that publication and ignoring the fact that damages might be payable because they would be so small, at any rate so small in relation to the potential profit.”
Whether or not to award exemplary/punitive damages?
The guidelines of Lord Reid in Broome v Cassell & Co. [1972] UKHL 3; [1972] 2 W.L.R. 645:
“The only practical way to proceed is first to look at the case from the point of view of compensating the plaintiff. He must not only be compensated for proved actual loss but also for injury to his feelings and for having had to suffer insults, indignities and the like. And where the defendant has behaved outrageously very full compensation may be proper for that. For the tribunal will fix in their minds what sum would be proper as compensatory damages. Then if it has been determined that the case is a proper one for punitive the tribunal must turn its attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages is or is not, adequate to serve the second purpose of punishment or deterrence. If they think that sum is adequate for the second purpose as well as for the first they must not add anything to it. It is sufficient both as compensatory and as punitive damages. But if they think that sum is insufficient as a punishment they must add to it enough to bring it up to a sum sufficient as punishment. The one thing which they must not do is to fix sums as compensatory and as punitive damages and add them together. They must realize that the compensatory damages are always part of the total punishment”.
The sum I awarded as general damages on compensatory basis includes an element of exemplary/punitive damages and it is adequate to (1) punish the defendant for this outrageous conduct (2) to mark the court’s disapproval of such conduct (3) to deter him from repeating it.
Therefore, I reject the claim for exemplary/punitive damages. I consider that my award in general damages on compensatory basis reflect the serious nature of the slander and compensate the plaintiff for the mental torment and distress he must have suffered.
Indemnity Costs
(51) The plaintiff seeks indemnity costs.
What is the basis upon which the plaintiff seeks indemnity costs?
The paragraph (18) of the Statement of Claim is in these terms;
“The defendant deliberately made false and malicious statement to bring the plaintiff into disrepute as a dishonest person so that plaintiff does not get Fiji Labour Party Ticket and the plaintiff’s reputation is generally destroyed and/or damaged in the hope that the defendant may get Labour Party ticket. The plaintiff claims that this is a proper case for award of exemplary and/or punitive damages and costs on full indemnity basis”
Bearing that in mind, I now turn to the applicable law and the judicial thinking in relation to the principles governing “indemnity costs”.
Order 62, rule 37 of the High Court Rules, 1988 empower courts to award indemnity costs at its discretion.
For the sake of completeness, Order 62,rule 37 is reproduced below.
Amount of Indemnity costs (0.62, r.37)
37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any
order of the Court) be in the discretion of the taxing officer.
The following passage is illuminating;
G.E. Dal Font, on “Law of Costs”, Third Edition, writes at Page 533 and 534;
‘Indemnity’ Basis
“Other than in the High Court, Tasmania and Western Australia, statute or court rules make specific provision for taxation on an indemnity basis. Other than in the Family Law and Queensland rules
- which define the 'indemnity basis ’ in terms akin to the traditional ‘solicitor and client basis’ - the ‘indemnity basis’ is defined in largely common terms to cover all costs incurred by the person in whose favour costs are ordered except to the extent that they are of general law concept of ‘indemnity costs. The power to make such an order in the High Court and Tasmania stems from the general costs discretion vested in superior courts, and in Western Australia can arguably moreover be sourced from a specific statutory provision.
Although all costs ordered as between party and party are, pursuant to the ‘costs indemnity rule ’, indemnity costs in one sense, an order for ‘indemnity costs' or that costs be taxed on an ‘indemnity basis’, is intended to go further. Yet the object in ordering indemnity costs remains compensatory and not penal. References in judgments to a ‘punitive’ costs order in this context must be seen against the backdrop of the reprehensible conduct that often justifies an award of indemnity costs rather than impinging upon the compensatory aim. Accordingly, such an order does not enable a claimant to recover more costs than he or she has incurred. ”
I will pause here to consider the principles underlying the exercise of the courts discretion when considering whether or not to award indemnity costs.
The principles by which courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in “Prasad v Divisional Engineer Northern (No. 02)”, (2008) FJHC 234.
As to the “General Principles”, Hon. Madam Justice Scutt said this;
established law’ and the court needs ‘to consider how it should exercise its unfettered discretion ’: Fountain Selected Meats, at 401, per Woodward, J.
recovered by a plaintiff are not depleted by irrecoverable legal costs’: Willis v. Redbridge Health Authority, at 1232, per Beldam, LI
circumstances. He should have awarded costs on the ordinary party and party scale’: Credit Corporation (Fiji) Limited v.
Wasal Khan and Mohd Nasir Khan (Civil Appeal No. ABU0040 of 2006S; High Court Civil Action No. HBC0344 of 1998, 8 July 2008), per Pathik, Khan and Bruce, JJA, at 11
Indeed, as was set out in Carvill v HM Inspector of Taxes (Unreported, United Kingdom Special Commissioners of Income Tax, 23 March 2005, Stephen Oliver QC and Edward Sadler) (Bailii: [2005]UKSPCSPC00468, http://www.bailii.org/cgibin/markup.cgi?doc=/uk/cases/UKSC/2005/SPC00468.HTML), “reprehensible conduct” requires two separate considerations (at paragraph 11):
“The party’s conduct must be unreasonable, but with the further characteristic that it is unreasonable to an extent or in a manner that it earns some implicit expression of disapproval or some stigma.”
As I indicated in paragraph (22) the words complained of, proved to be actuated by ‘malice’. And from the circumstances in which the words were uttered an inference of deliberate and calculated view to prejudice or to impute blame to the plaintiff can easily be drawn. Therefore, the conduct of the defendant had been high-handed, insolent, vindictive or malicious. He had exhibited a ‘contumelious’ disregard of the plaintiff’s rights.
In the light of the above, I have no hesitation in holding that an award of indemnity costs is warranted.
(G) ORDERS
(i) Judgment entered in favour of the plaintiff.
(ii) The defendant to pay $70,000.00 as general damages (on compensatory basis) to the plaintiff within fourteen (14) days from the date of this judgment.
(iii) The plaintiff is entitled to 6% simple interest per annum on $70,000.00 from the date of filing of the Writ (i.e. 13th October 2005) to the date of the judgment of this Court. (Pre-judgment interest)
(iv) The plaintiff is entitled to 4% simple interest per annum on $70,000.00 from the date of the judgment of the Court until payment is made in full. (Post-judgment interest).
(v) The claim for special damages is dismissed as it has not been pleaded.
(vi) The claim for exemplary/punitive damages is dismissed because the sum awarded as general damages on a compensatory basis includes an element of exemplary damages and is adequate in all the circumstances for compensating the plaintiff and also for punishing and deterring the defendant.
(vii) The counter-claim is dismissed as it has not been proved by the defendant.
(viii) The claim for indemnity costs is allowed.
(ix) The plaintiff is directed to file and serve his detailed costs for the assessment of indemnity costs before the Master within fourteen (14) days from the date of this judgment.
Jude Nanayakkara
Judge.
At Lautoka,
Friday, 08th February, 2019.
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