Pacific Daily (Fiji) Ltd v Usher [1971] FJLawRp 21; [1971] 17 FLR 122 (7 September 1971)

[1971] 17 FLR 122

COURT OF APPEAL OF FIJI

PACIFIC DAILY (FIJI) LTD AND ANOTHER

-v.-

LEONARD GRAY USHER

[COURT OF APPEAL, 1971 (Gould V.P., Marsack J.A., Tompkins J.A.)
23rd, 27th August, 1st, 7th September]

Civil Jurisdiction

Libel - defamatory meaning - words complained of to be considered in context of whole publication - defence of fair comment - words must constitute comment and not statement of fact - Court of Appeal Ordinance (Cap. 8) s.13 - Defamation Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c.66).

In an action for damages for libel in considering whether the words complained of have a defamatory meaning it is necessary for the court to take into consideration the whole context and the whole of the publication from which the alleged libel is extracted.

A defence of fair comment to words which are prima facie defamatory is only available if the words used are recognisable as comment and are not a statement of fact.

Cases referred to:

Kemsley v. Foot [1952] A.C. 345; [1952] 1 All E.R. 501.

Neville v. Fine Art & General Insurance Co. Ltd [1896] UKLawRpAC 58; [1897] A.C. 68; 75 L.T. 606.

Davis v. Skepstone [1886] UKLawRpAC 12; (1886) 11 A.C. 187: 55 L.T. 1.

Walker (Peter) & Son Ltd. v. Hodgson [1908] UKLawRpKQB 158; [1909] 1 K.B. 239; 99 L.T. 902.

Appeal and cross appeal from a judgment of the Supreme Court in an action for damages for libel.

S. M. Koya and H. M. Patel for the appellants.
R. G. Kermode for the respondent.

The facts sufficiently appear from the judgments.

7th September 1971

The following judgments were read

GOULD V.P.:

This is an appeal and cross-appeal. The respondent to the appeal (appellant in the cross-appeal) was the plaintiff in an action in which he sought damages in respect of six publications, which he claimed were libellous, in the newspaper of the first appellant company (of which the second appellants was editor) and in which the two appellants were defendants. The publications were referred to as "extracts one to six" in the judgment in the Supreme Court and I will continue so to refer to them.

Publication was admitted and the issues were whether the extracts were defamatory, and in the case of extracts one to five (inclusive) whether, if they were defamatory, they constituted fair comment. The learned trial Judge found that the first extracts was defamatory but that the defence of fair comment on a matter of public interest in relation thereto succeeded. He found that the second, third, fourth and fifth extracts were not defamatory in law or fact but he found the sixth extract was defamatory in law and fact and awarded damages to the plaintiff in the sum of $3,000.

From that judgment, dated the 21st December, 1970, the appellants gave notice of appeal to this court against the finding that the sixth extract was defamatory. The respondent then obtained leave to cross-appeal out of time against the finding of fair comment in relation to the first extract, and the findings that the second, third, fourth and fifth extracts were not defamatory. The appellants then sought leave from this court to amend their Statement of Defence so as to bring in (a) the defence of fair comment in relation to the sixth extract and (b) the defence that the words complained of in the second, third, fourth, fifth and sixth extracts were published on an occasion of qualified privilege, with consequent amendments to the grounds of appeal.

With regard to (b) above, this court had no hesitation in refusing the application on the grounds of its extreme lateness, that the defendants had every opportunity of introducing the defence in the Supreme Court, and that it would involve amendments by the plaintiff to his pleadings on the subject of malice and in all probability have necessitated further evidence had it been introduced in he Supreme Court. The application in relation to fair comment was allowed, as counsel on both sides were agreed that no further evidence would be required and there appeared to be some possibility of a misunderstanding between counsel at the trial, in relation to this defence. As a corollary to this it becomes apparent that if this court were to find any of the second, third, fourth or fifth extracts to have a defamatory meaning (pursuant to the cross-appeal) It would be incumbent upon the court to consider also the defence of fair comment in relation to any such extract, as that defence was originally pleaded, and the learned Judge did not have occasion to consider it. Counsel for the appellants did not agree to this course but his objection could have no basis, in the light of his application in relation to the sixth extract, when he argued that the defence of fair comment, if allowed, could be decided by this court and required the introduction of no further evidence.

At the beginning of his judgment the learned Judge in the Supreme Court set out the six extracts complained of, together with the meaning ascribed to each in the Statement of Claim. I can do no better than quote that part of the judgment, though with the comment that each extract must be read with the whole of the item of which it formed part:-

"In so far as the first article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to A as the First Extract) meant and were understood to mean that the Plaintiff had acted in a most disgraceful manner and had deliberately used his position as Mayor of Suva to gain advantage for the Fiji Times and thereby for himself as editor thereof to the detriment or disadvantage of the Pacific Review:-

'Press Banned When Pacific Review Wants

To Be Present

WHO'S SCARED OF PACIFIC REVIEW,

'THE BIG BAD WOLF?'

WHAT'S THE SECRET MR. MAYOR?

An interview on the controversial question of Sunday trading, between the Mayor of Suva, Councillor L.G. Usher, and representatives of the Suva Retailers' Association was held in COMMITTEE yesterday. Why in Committee?

What is so secretive about this issue, which has received wide publicity, particularly through the Fiji Times, whose Editor is the Mayor of Suva himself?

Who decided the interview should be held in committee? Who is on this committee? When was this committee set up? What is its specific responsibilities? Why was it not stated earlier that the interview would be held in committee? And indeed, at what time precisely yesterday was it decided to hold the interview in committee?

IT STINKS

But the most peculiar aspect of the whole disgraceful affair is the way the Mayor Editor seems to have gone about the interview. To put it mildly - it stinks.

It is no secret that Pacific Review strongly supports the lifting of the ban on Sunday trading. The Fiji Times does not support this for obvious reasons. That is fair enough as far as this newspaper is concerned. Every newspaper is entitled to its own views.

Can the Mayor claim, not for a moment forgetting that he is the Editor of the Fiji Times, that he did NOT know that this interview would be held in committee, and the Press would be banned from it?

DID he REALLY?

If it was at all intended to hold the interview in committee from the outset, why, we repeat why did the Fiji Times ask the Town Clerk, Mr. Balfour, if it could be represented at the interview?

DON'T forget for a single moment that Mr. Usher is the Mayor and he is also the Editor!

Pacific Review challenges Mr. Usher to say that HE did not know the interview would be held in committee.

CHALLENGE

Will he take up this challenge? We hope he will. Two very reliable people - The Town Clerk and the President of the Suva Retailers' Association, Mr. S.B. Desai, told Pacific Review that the Fiji Times wanted to be represented.

Earlier, Mr. Balfour - who could not have expected the interview was to be held in committee (judging from the facts now before us) informed Mr. Desai that the Fiji Times wished to be represented. Wisely, Mr. Desai said that his Association had no objection to the Press being present "and Pacific Review rang me this morning to ask if it will be allowed."

THAT'S when the bomb went off!

Some hasty telephone ringing followed. Then came the big stinking decision to hold the interview in SECRET.

The biggest joke of all is this: The Fiji Times need NOT be represented .......'

In so far as the second article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to as the Second Extract) meant and were understood to mean that the Plaintiff had acted improperly in using his position as Mayor of Suva to exclude the Defendants from the meeting referred to gain advantage for the Fiji Times and thereby for himself as editor thereof and that the Plaintiff as Mayor was not a truthful person:-

'WAS THERE A MIX-UP?

STILL, THE PRESS WAS EXCLUDED

Mayor Usher has issued a press release about reporters being excluded from an interview between himself and representatives of the Suva Retailers' Association on Monday. But the fact remains that the Press was told that it could not come.

So far as Mayor Usher was concerned, it did not make any difference. If anything important happened, he was there to observe things anyway, and his paper could benefit.

However, he blames matters to a 'mix-up' between Mr. Balfour the Town Clerk and Mr. S.B. Desai, the President of the Suva Retailers' Association. However, the press release did not include any apology to Pacific Review for this omission. Nor did the Mayor, or his men, ring up Pacific Review at the last minute (as they could have done) and ask that it be present.

NOT THE RETAILERS

The truth remains: We were excluded, and it was not because the retailers said we could not be present. It is simple and straight forward as that.

We also wish to state that as a responsible newspaper, continually fighting for the right of the community for the last 21 years, we were treated too shabbily when we tried to be present at this interview. We won't have it!'

In so far as the third article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to as the Third Extract) meant and were understood to mean that the Plaintiff as Mayor in his statement referred to in the said article had not told the truth:-

'Pacific Review did NOT accept the Mayor's explanation nor that of the Town Clerk. It was impossible to do so under the circumstances. BUT having made our points very clearly and forcefully, and having laid the statements of the three gentlemen concerned before the readers to sort out who was telling the truth, it was our intention not to press the matter of the exclusion of the Press, any further.'

In so far as the fourth article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to as the Fourth Extract) meant and were understood to mean that the Plaintiff had used his position as Mayor to gain advantage for the Fiji Times and 'thereby for himself as editor thereof to the detriment of the Pacific Review and that the Plaintiff in his press release had not been truthful:-

'MAYOR AND HIS MONOPOLY

The recent debacle whereby Pacific Review was prevented from attending a conference between the Mayor and Suva Retailers' representatives, has aroused in many minds a grave anxiety as to the freedom and privileges of the Press.

This country is moving towards Dominion status on cherished British lines. One of the fundamental freedoms which we must uphold is the freedom of the Press.

The position in this case has not been made easier by the fact that the Mayor of Suva (whose recent election is entirely controversial, and who holds the post on a minority) is at the same time the Executive Director and Editor of the Fiji Times, which is a monopoly since it is the only daily in this country. The position is even worsened by the fact that a responsible citizen and Justice of the Peace, Mr. S.B. Desai has given a version which disagrees with that of Mr. R.B. Balfour, the Town Clerk. Where indeed does the truth lie? But the fact remains that a radical newspaper could not be present.

MUST BE COUNTERED

Pacific Review does not boast the same age or the resources of the Fiji Times. But this newspaper is locally-owned and is a venture by local citizens, who feel that the Fiji Times is too colonial and too conservative and must be countered.

Now, it has come as a shock to many citizens that a Fiji Times photographer was allowed to be present. We publish in full the Mayor's release on this subject. Obviously, he has tried to gloss over the situation. It is equally obvious that he has tried to mock our own resources. We realise that the Fiji Times can afford full-time photographers; that it has off-set facilities, and it can reach the public at short notice. Of course, we do not have the resources to be present at each and every meeting of the Suva City Council. But this is no reason for the Mayor to mock us. We warn him that despite our resources, we must be given the opportunity to be present. The old colonial thinking that the Fiji Times is the last word on Journalism in Fiji must go.

ENTIRELY OUR BUSINESS

We entirely deprecate what the Mayor says in his release: 'Oh, we hope you will be reporting other S.C.C. matters'. That is entirely our own business, but we have a right to be treated the same as any other Press.

If the Fiji Times could have photographers there, then other newspapers should have been offered the same facilities. The Mayor was there to make requests for his own monopoly. We were not'.

In so far as the fifth article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to as the Fifth Extract) meant and were understood to mean that the Plaintiff had used his position as Mayor to gain advantage for the Fiji Times and thereby for himself as editor thereof to the detriment of the Pacific Review:-

'Reporters were banned from the meeting.

Pacific Review alleged last week the cause for the ban was to prevent Pacific Review from reporting the meeting.

The Mayor, who this newspaper alleged, was responsible for this disgraceful decision, issued a hasty statement to defend himself.

We will maintain our original stand: Reporters were banned from the interview only to prevent Pacific Review from reporting. No matter how many statements are issued denying this, nothing will shake us!

In so far as the sixth article is concerned the Plaintiff complains that the words contained in the following extract (hereinafter referred to as the Sixth Extract) meant and were understood to mean that the Plaintiff had not been truthful:-

'We have already said that we are determined to get the truth; we are NOT satisfied with the kind of "truth" we got from the Mayor, which was designed purely to mock us and not to settle the dispute.'"

I will deal first with the first extract, which is in fact not an extract but the whole article. The trial Judge found that the following facts contained in this extract were truly stated:-

(i) The issue of Sunday trading had received wide publicity, particularly through the Fiji Times.

(ii) The Pacific Review strongly supported the lifting of the ban on Sunday trading. The Fiji Times did not support it.

(iii) An interview between the Mayor of Suva, Councillor L.G. Usher, and representatives of the Suva Retailers' Association on the controversial question of Sunday trading was held in committee the previous day.

(iv) The Fiji Times asked the Town Clerk, Mr. Balfour, if it could be represented at the interview.

(v) The Town Clerk, Mr. Balfour, informed Mr. Desai that the Fiji Times wished to be represented. Mr. Desai replied that his Association had no objection to the press being present and informed him that the Pacific Review had telephoned him that morning to ask if it would be allowed to be represented.

(vi) The Town Clerk, and the President of the Suva Retailers' Association, Mr. S.B. Desai told the Pacific Review that the Fiji Times wanted to represented.

(vii) The press was banned when the Pacific Review wanted to be present. (It should be noted that this does not read "because" the Pacific Review wanted to be present).

(viii) Mr. Usher was both the Mayor of Suva and the Editor of the Fiji Times.

In relation to the plea of fair comment the trial judge found that the matter commented on in the first extract was one of public interest and there is no challenge to this finding. He then said -

"The Defendants have satisfied me that so far as the First Extract consists of statements of fact they are substantially true and not misstated. So far as the facts on which the comment is based are contained in the Particulars of Defence I have concluded that sufficient have been justified to support the comment so as to make it fair. So far as the words complained of are expressions of opinion I have formed the view that they were the honest expression of the Defendant's real opinion, that they were warranted by the facts truly stated and that they do not exceed the limits of fair comment. The Defendants have accordingly succeeded on their defence of fair comment on a matter of public interest and the Plaintiff's claim in respect of the First Extract is dismissed."

I would view the extract complained of in this way. First, it alleges in unbridled language that the Major has been guilty of some disgraceful conduct - so bad that it stinks. If it be said that the word disgraceful is used in relation to "affair", my view would be that an affair in the context must mean something done by one or more people and nowhere in the article is any such conduct attributed to any other person. A reader might infer from the later use of the word "stinking" in the sentence, "Then came the big stinking decision to hold the interview in SECRET" that the disgraceful conduct was in relation to that decision. Secondly, the extent contains a clear imputation that the Press was excluded because the Pacific Review wished to be represented. That, in fact, is the interpretation put on the extract in a publication by the Pacific Review on the 15th January, 1970. Thirdly, the last sentence of the extract in the context of the whole is an imputation that the Mayor had deliberately used his position to gain advantage for the Fiji Time, of which he was the editor.

Relevant facts contained in the extract and held to have been established were -

(a) that an interview between the Mayor and representatives of the Suva Retailers' Association was held in committee the previous day;

(b) that the respondent was both Mayor and editor of the Fiji Times;

(c) that Mr. Desai, President of the Association and Mr. Balfour, Town Clerk, informed the Pacific Review that the Fiji Times wished to be present;

(d) Mr. Balfour informed Mr. Desai that the Fiji Times wish to be represented and Mr. Desai said his Association had no objection to the Press being present and that Pacific Review had telephoned him to ask if it would be allowed to be represented; and,

(e) the decision to exclude the Press was taken after this telephoning; there is no finding that it was, "hasty" telephoning. It appears that the only additional relevant fact established was that the decision to ban the Press was made after the Town Clerk consulted the Mayor, which was after it was known that the Pacific Review wished to be present.

The first question is whether the reference to the whole disgraceful affair is properly to be regarded as comment, or, as contended by counsel for the respondent, as a statement of fact. If the latter, the defence of fair comment is not available. Paragraph 711 of Gatley on Libel and Slander (6th Edition) states that in order that an allegation prima facie defamatory must be defamatory may be defended as fair comment the allegation must be recognisable by the ordinary reasonable man as comment and not a statement of fact: and if the defendant alleges that a public man has been guilty of disgraceful conduct and does not state what the disgraceful acts are, his allegations are of fact. In a passage from Odgers on Libel and Slander (6th Edn. p. 266) approved by Lord Porter in the House of Lords case of KEMSLEY v. FOOT [1952] A.C. 345 at 356 it is said-

"It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful' this is merely the expression of his opinion, his comment on the plaintiff's conduct ...... the defendant enables his readers to judge for themselves how far his opinion is well founded; and therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact ......."

In the present case the allegation of disgraceful conduct was made early in the extract. There are facts set out later and I would not say that merely because the writer adopted that order it follows necessarily that the allegation of disgraceful conduct is a statement of fact. Nevertheless, I think that the better opinion in the present case is that it should be read as a statement of fact designed to prepare the minds of the readers for the reception of the evidence in support thereof to be later stated.

The article as a whole was not of that clarity which was necessary to enable a reader to decide upon or even properly to appreciate the charge of disgraceful conduct. There was no plea of justification and the trial Judge's view that the defence pleaded in this respect amounted to no more than a plea of fair comment has not been challenged. It follows that I regard this aspect of the extract as defamatory and no plea of fair comment is available.

The second question arising from the first extract is whether the imputation that the respondent banned the Press because the Pacific Review wanted to be represented at the meeting is fair comment. It must be remembered that the explanation given by the respondent of how the decision came to be taken was given after the first extract was published. The writer of the extract would have before him the sequence of events only, showing that the decision was taken after Mr. Balfour was informed by Mr. Desai that the Pacific Review wished to attend the meeting. That was in essence the purport of the facts set out in the extract, and I agree with the trial Judge that the comment in this case, considered objectively was fair.

The third question is that of the imputation that the respondent would deliberately use his position as Mayor to gain an advantage for the paper edited by him. It might be argued that this differs from the imputation last discussed only in matters of degree, but I think it goes much further, in that this imputation definitely alleges dishonourable conduct on the part of the respondent, an element which was not necessarily present in the other case. I think, in this case, the imputation is comment and not an allegation of fact - it appears only as a matter of inference from the words used. The position in such cases is summarised in Clerk and Lindsell on Torts (11th Edn.) para. 1332 in the words "where the comment imputes corrupt or dishonourable motives it will not be fair comment unless it is reasonable warranted by the facts; the defendant's honest belief will not be sufficient." In the present, case the trial Judge has held that the words of the extract represented the honest opinion of the writer, but I am unable to accept that it was an opinion warranted by the facts. I think that included among the facts for this purpose must be a fact established in evidence, namely that the Mayor was the originator of the system of issuing Press releases in lieu of having reporters present, and that was what took place in the present case and had frequently been done before. This, a matter of practice clearly connected with the Press must have been known to the Pacific Review as a matter of public knowledge. Taking this together with the telephone calls mentioned above as the established facts, I find no basis for holding that a fair-minded man, even a prejudiced one, could have been capable of commenting that the Mayor took the action he did in order to put himself in a position to use his knowledge acquired as Mayor to gain a competitive advantage for the paper edited by him. The relevant Press release was, in fact, issued to all papers, including the Pacific Review, immediately after the meeting. This was an imputation that the Mayor in taking a certain course of conduct, was actuated by dishonourable motives; it is clearly defamatory and, in my opinion, not fair comment.

The second extract has been quoted above. It constitutes the headlines and the opening portion of a larger publication; in the second part it quotes the explanation of events issued by the respondent. The important part of the latter is the statement that he had been given specifically to understand by Mr. Balfour that Mr. Desai preferred a Press released to the presence of reporters. Notwithstanding this explanation, the defamatory imputation is repeated that the respondent was capable of misusing his knowledge acquired at the meeting for the benefit of the Fiji Times. There is even less justification for holding that this was fair comment than in the case of the first release and I do not so hold.

I have studied the third and fourth extracts in the context of the articles of which they were parts, and respectfully agree with the trial Judge that they are not defamatory. As to the fifth extract, I think it contains a defamatory imputation but is limited to a repetition of comment which I have above to be fair.

The sixth extract, which the trial Judge held in very strong terms to be defamatory, presents a difficult problem. The question of fair comment was not, of course, before the trial Judge and there was no occasion for him to deal with it. During the course of the controversy, it was ascertained that a photographer of the Fiji Times had been permitted to take some photographs of the meeting in question. The respondent made a further statement giving details of this occurrence, saying that he had given permission and would have done so on request in the case of any other publication, to serve as illustration in connection with the Press release. The Pacific Review made a new issue of this question, pressing the respondent to admit error on the basis that a press photographer is covered by exclusion of the "Press." The respondent in evidence admitted that he had been in error, but quite understandably, he made no respond to the invitation to do so put out by the Pacific Review. Then came the article containing the sixth extract which reads in full:-

"WHO (WHAT) IS THE PRESS?

Opinion Sought From London.

Evidently, the Mayor of Suva, Cr. L. G. Usher, who was invited on Thursday to admit his error regarding the Press and an interview he gave early last week, does not intent to do so.

So the battle must continue.

Pacific Review's London correspondent, Dr. Tarapada Basu, has now been asked to get the opinions of several newspaper organisations and an executive of the journalists' union in London. They will be asked to define the meaning of the Press as it would apply in the current controversy.

CORRECT OPINION

Every word printed during the two-week old row - including statements from Mayor, the Town Clerk and Mr. Desai - has been sent to Dr. Basu to enable him to get the correct opinion.

Dr. Basu, who himself is a highly respected journalist, has also been asked to give his views. These will be published in due course.

Pacific Review intends to seek similar opinion from a number of Australia newspaper executives.

We have already said that we are determined to get the truth; we are NOT satisfied with the kind of "truth" we got from the Mayor, which was designed purely to mock us and not to settle the dispute."

Counsel for the appellants has argued strongly that this article is to be read as confined to the one particular aspect of the matter and I think that must be the correct approach. The allegation of untruthfulness contained in the last paragraph must be read in the light of what has gone before and of the headlines. That clearly conveys that what the paper is talking about is what is comprised in the definition of "the Press", though in this particular article the exact nature of the dispute is not made clear as photographers are not mentioned: there is, however, a reference to the previous article which makes that point clear. The allegation in the last paragraph would therefore be understood by readers to relate in some way to this question.

Part of the difficulty in this matter arises because the Pacific Review has chosen to use words which are not apt to express the meaning which it probably intended. That can be deduced from the subject matter, for the meaning of "Press" is not a matter of truth, or falsehood - it is a matter of opinion. If the passage complained of had read that the paper was not satisfied with the kind of opinion expressed by the Mayor, there could be no defamatory meaning. To say that the paper is determined to get the truth, if all that is meant is to ascertain the true meaning of a word, is to convey a wrong impression. This choice of words cannot, in my, view, be attributed to ignorance, but must have been intended to convey what I may call a sneer at the respondent. If that is so it does not necessarily follow that the words are libellous, but the Pacific Review cannot complain if a reasonable reader takes the words used at their face value, and sees an imputation that the respondent has been guilty of untruthfulness in some aspect of the dispute. It may well be that in some circumstances an allegation of untruthfulness might not be defamatory; in my opinion, in this case, it is. To publish that a man in the office of Mayor has been untruthful (there is no suggestion of accidental misstatement) in a matter connected with his conduct in that office, must inevitably tend to lower him in the estimation of right thinking people. I think in the circumstances the words used would convey a defamatory imputation to an ordinary reader and I do not think that that finding is affected by the fact that it might be possible for an assiduous reader, after study, to conclude that the writer might not have intended to say what he said in fact.

Some argument has been directed to the trial Judge's finding as to the effect of the use of inverted commas in the extract. I do not consider the question material - the inverted commas may give some emphasis but without them the extract would, in my view, have the same meaning. The pleading of a true innuendo was not necessary.

The defence of fair comment in relation to the sixth extract was permitted to be argued on the appeal. Assuming for the purpose of the argument that the definition of "the Press" was in the circumstances a matter of public interest, the defence cannot avail the appellants. The only facts established to serve as basis for comment are that the Pacific Review had invited the respondent to admit that he was in error in permitting a photographer from the Fiji Times to be present at the meeting and that the respondent had been untruthful. He was under no duty to make any statement on the subject or to publicise his views on the meaning of "the Press". I think that counsel for the respondent was correct in his submission that this defamatory material was really an allegation of fact; all the more so if it was intended to be a statement at large referring to some other unspecified aspect of the controversy and not to be limited to the subject matter of the publication of which it was part. If it is to be regarded as comment, I would find that it is not fair comment, and if as a statement of fact the defence is not available.

There is an appeal against the quantum of damages awarded and in view of the fact that I found liability in respect of extracts one and two, which the trial Judge did not do, the whole question should be looked at afresh. Under section 13 of the Court of Appeal Ordinance (Cap. 8) this court has all the powers of the Supreme Court and it is not necessary to send the case back for this purpose. To my mind, the really harmful aspect of the whole matter is contained in the allegations in extracts one and two in relation to misuse of the respondent’s position as Mayor for the benefit of the Fiji Times. The libel in the sixth extract is of a different nature but in the light of my findings, I would regard it as to some extent merged, so far as damage is concerned, in the earlier libels. I would for that reason reduce the award made in the Supreme Court in relation to the sixth extract to $1,000 but award the additional sum of $2,000 in relation to the first and second extracts. The result is that, the total award being $3,000, there is no need to disturb the Supreme Court judgment for that amount; in the Supreme Court, however, the respondent was awarded only three-fifths of his costs as he had succeeded on one extract only. As a result of the appeal and cross-appeal, he is now successful on the first and second extracts also, and I would therefore vary the judgment in the Supreme Court by substituting an order for the payment by the defendants of the whole of the plaintiff’s costs. As to the costs of the appeal, the variation of the amount of damage in relation to the sixth extract does not, in my opinion, represent any measure of success by the appellants (respondents on the cross-appeal). They will therefore pay to the respondent (appellant on the cross-appeal) the whole of his costs of the proceedings in this court.

MARASCK J.A:

I have had the advantage of reading the full and careful judgments of the learned Vice President and Mr. Justice Tompkins and agree both with the decision proposed on extracts 1 to 5, and the reasons for that decision.

With regard to the 6th extract, in respect of which the learned trial Judge gave judgment against the appellant awarding damages of $3, 000, I am of the same opinion generally as that expressed by the learned Vice President. It is not necessary for me to set out the facts in detail since they are clear from the judgments to which I have referred. I desire however to state very briefly my reasons for holding that the 6th extract is defamatory and is not covered by the defence of fair comment.

It is true that the words complained of in the 6th extract form but one paragraph of the article in Pacific Review, which was directed generally to what was referred to as the "error" of the respondent in permitting a photographer from Fiji Times to be present at a meeting from which the Press, by the order of the Mayor, was excluded.

Counsel for appellant submitted that the whole article must be read carefully for the purpose of ascertaining what was meant by the extract quoted; and that any reasonable reader who had perused the whole article would realise that what the extract meant was this: "We are not satisfied with the opinion expressed by the Mayor." He conceded that the use of inverted commas round the word "truth" could have a sinister meaning if the extract were read by itself; but contended that no such sinister meaning could attach if the article were considered as a whole.

In Neville v. Fine Arts and General Insurance Company (H.L.) [1896] UKLawRpAC 58; [1897] A.C. 68, it is clearly laid down that in order to ascertain whether a written statement is defamatory it is necessary to take into consideration not only the actual words used, but the context of the words and the persons to whom the communications were made. At p. 78 Lord Shand says "We must take the document as a whole." In that case, the document in question was a letter of some ten or twelve lines.

It appears clear that the Plaintiff in an action for libel is not entitled to pick out isolated sentences to which a defamatory meaning may attach, when the whole context in which those sentences appear may qualify or eliminate the defamatory meaning. I am by no means certain that the principle applies to the extent that it makes it obligatory to take into account everything that is written in the course of a long article, which may well appear in several sections in different parts of the same newspaper. But in any event I am not satisfied that a perusal of the whole article in this case will result in so modifying the apparent meaning of the extract that it loses the defamatory character which it has on its face.

Although the subject matter of the article as set out in the headline is the question of a proper definition of the phrase "the Press", and although the article proceeds to state that the appellant was going to obtain opinions from overseas authorities as to whether the Mayor was right in permitting a press photographer to be present when the Press was banned from the meeting, yet I do not think that the average reasonable man of ordinary intelligence would, on reading the whole article, conclude that no imputation against the truthfulness of the Mayor was contained in or intended by the passage quoted. Standing by itself, the paragraph definitely means that the Mayor is an untruthful person, and as such not worthy of the respect of the citizens of Suva. In my opinion that meaning is not materially watered down by a consideration of the whole article. I agree with the learned trial Judge that a reasonable man of ordinary intelligence would conclude that the 6th extract complained of, meant that in his office as Mayor the respondent lacked one important requisite of that office, namely honesty.

For these reasons I am of the opinion that this Court should not overrule the finding of the learned trial Judge that the paragraph complained of is defamatory to the respondent, such as to injure him in his character and reputation.

As for the defence of fair comment, I agree with the learned Vice President, for the reasons set out in his judgment, that that defence is not available to the appellant with regard to the 6th extract.

As to the quantum of damages and the order for costs I agree with what is proposed in the judgment of the learned Vice President.

TOMPKINS J.A.:

This is an appeal from a judgment against the appellants (Defendants in the Court below) awarding the respondent (Plaintiff in the Court below) $3,000 damages for libel on the 6th cause of action alleged in his statement of claim. Also, respondent has cross-appealed against the Judgment for the appellant in respect of the first, second, third, fourth and fifth cause of action. Accordingly, all six causes of action are in issue on this appeal. I shall refer to each cause of action as an extract, as did the Judge in the Court below.

Appellant was granted leave in the Court to add to his defence, in respect of the 6th cause of action, a plea of fair comment. The Court, however, refused appellants further application to amend his defence by pleading justification and qualified privilege in respect of all the causes of action.

As all the newspapers articles complained of have been set out in full in the judgment of the learned Vice President, I shall not burden this judgment with setting them out again. I propose to deal with each extract in order of date. The appellant in its defence denied that they bore the defamatory meaning alleged or any other defamatory meaning. Alternatively, the appellants plead in respect of each of the extracts that the words complained of, were fair comment made without malice upon a matter of public interest and that so far as the words consisted of statements of fact they were true in substance and in fact. This is what is known as the "rolled up plea."

It is noteworthy that in respect of none of the extracts is any innuendo pleaded. The defamatory meaning alleged is said by the respondent to be contained or implied in the words themselves and is that which the ordinary reasonable man would understand to be conveyed by them.

The Appellants set out in paragraph 20 of their statement of defence particulars of the facts and matters on which it relied in support of its plea of fair comment. Some of these were admitted by the Respondent and the learned trial Judge made findings of facts in regard to others. In regard to the first cause of action, he held the following facts had been justified-

(a) The Fiji Times is the only daily newspaper in Fiji, and the Plaintiff is the executive director and editor of same.

(b) The Pacific Review is a rival publication, and is published three times each week, and the two newspapers differ on many vital issues, and often confront each other.

(c) The Suva City Council had passed a resolution banning Sunday retail trading in the City of Suva. The resolution was passed on an entirely religious basis, namely that Sunday should be observed as the Sabbath.

(d) The Plaintiff was at the time of the passing of the resolution the Mayor of Suva.

(e) The Plaintiff (at one stage) voted in favour of the banning of Sunday trading.

(f) The Suva Retailers’ Association, a local body of Suva merchants, whose president is Shantilal B. Desai, opposed the ban and protested against it very strongly.

(g) On the 5th January, 1970 representatives of the Suva Retailers' Association and the Plaintiff met at Suva to discuss the Sunday trading controversy.

(h) Prior to the meeting the Pacific Review through its representatives asked the Town Clerk if the Pacific Review could be present at the meeting. The Town Clerk informed the representative of the Pacific Review that' it had been decided to ban the press from the meeting.

(i) The Plaintiff was a party to this decision, and did not at any time insist that the press should be present, and in the result the Pacific Review was excluded.

(j) The said Shantilal B. Desai had informed the Town Clerk that he had no objection to the press being present.

(k) After the Pacific Review wished to be present the Town Clerk consulted the Mayor and a decision was made to exclude the press altogether.

(l) As the Plaintiff was present at the meeting he was in a position to report what took place (which is not to say that the Plaintiff would have done so or did do so).

(m) The Pacific Review was entitled to agitate that it should have been admitted. The Plaintiff could have permitted the Pacific Review to be present.

The learned Judge also said "the following facts are contained in the first Extract:-

(i) The issue of Sunday trading had received wide publicity, particularly through the Fiji Times.

(ii) The Pacific Review strongly supported the lifting of the ban on Sunday trading. The Fiji Times did not support it.

(iii) An interview between the Mayor of Suva, Councillor L.G. Usher, and representatives of the Suva Retailers' Association on the controversial question of Sunday trading was held in committee the previous day.

(iv) The Fiji Times asked the Town Clerk, Mr. Balfour, if it could be represented at the interview.

(v) The Town Clerk, Mr. Balfour, informed Mr. Desai that the Fiji Times wished to be represented. Mr. Desai replied that his Association had no objection to the press being present and informed him that the Pacific Review had telephoned him that morning to ask if it would be allowed to be represented.

(vi) The Town Clerk, and the President of the Suva Ratepayers' Association, Mr. S. B. Desai told the Pacific Review that the Fiji Times wanted to be represented.

(vii) The press was banned when the Pacific Review wanted to be present. (It should be noted that this does not read "because" the Pacific Review wanted to be present).

(viii) Mr. Usher was both the Mayor of Suva and the Editor of the Fiji Times.

It has been established to my satisfaction that apart from the statement that the Pacific Review strongly supported the lifting of the ban on Sunday trading and that the Fiji Times did not, and the statement that the Fiji Times asked the Town Clerk, Mr. Balfour, if it could be represented at the interview, these facts were truly stated.

The remainder of the extract consists of comments, being conclusions from the facts and expressions of opinion."

I think that I should set out here a short account of the sequence of events as shown by the exhibits and by the trial Judge’s findings of fact:-

1. On Monday, 5th January, the Respondent told the Town Clerk, Mr. Balfour, that the Fiji Times wished to be present at the meeting and asked him to find out whether Mr. Desai had any objection to this.

2. The Town Clerk informed Mr. Desai by telephone of this and Mr. Desai replied that his association had no objection to the Press being present and also informed him that the Pacific Review had asked to be present.

3. There is a conflict between Mr. Desai's account of what then took place and that of Mr. Balfour. Mr. Desai says that Mr. Balfour, on learning that the Pacific Review wanted to be present said he would ring him back in half an hour. When he rang back, he asked if Mr. Desai would be agreeable to the press being excluded and to a statement being issued to the press after the meeting. Mr. Desai then said he had no objection to that course.

4. Mr. Balfour, on the other hand, said that Mr. Desai informed him that he would prefer to have the meeting in committee provided a press release was made following the meeting.

5. The Respondent gave evidence that Mr. Balfour told him that Mr. Desai preferred the meeting to be closed to the press and that they issue a joint press release afterwards.

6. The Mayor then made a ruling that the meeting was to be held in committee without press representatives present. This ruling was communicated both to the Fiji Times and the Pacific Review.

7. When the meeting had proceeded a short time a press photographer from the staff of the Fiji Times was allowed to take photographs for this paper of the persons at the meeting.

8. A press release was prepared and issued to both papers at the conclusion of the meeting.

9. On Tuesday, 6th January, the Pacific Review published an article containing the first Extract.

10. On the same date the Respondent issued a lengthy statement.

11. On Thursday, 8th January, the Pacific Review published the article containing the second Extract. In that article it published the Respondent's statement in full, and also a statement from Mr. Desai.

12. In the same issue it published in full the press release of the meeting and also a statement received from the Town Clerk.

13. On Saturday, January 10th, the Pacific Review published the article containing the third Extract.

14. On Tuesday, 13th January, the Pacific Review published an article containing the 4th Extract; also a long statement from the Respondent.

15. On 15th January, the Pacific Review published a further statement inviting the Mayor to admit the error; in the same issue it published another statement which contains the 5th Extract.

16. On 17th January, it published the 6th Extract.

I now proceed to consider the first Extract in order to decide:-

1. Whether it is capable of the defamatory meaning alleged;

2. Whether in fact it bears a defamatory meaning;

3. Whether the defence of fair comment protects the appellants from liability.

As to the defamatory meaning, Halsbury’s Laws of England (3rd. Edn.) vol. 24 para. 40 p. 19 says:

"A statement is defamatory of a person if, broadly speaking, it is calculated to lower him in the estimation of right-thinking members of the community or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule...a statement is prima facie defamatory if the words, in their natural and primary sense, that is, in their plain and popular meaning, are defamatory."

The whole of the article here is claimed by the Respondent to be defamatory. He alleges that it meant that the Plaintiff had acted in a most disgraceful manner and had deliberately used his position as Mayor of Suva to gain advantage for the Fiji Times and thereby for himself as Editor thereof to the detriment or disadvantage of the Pacific Review. The main grounds of complaint in regard to this article were:

1. That it inferred that the Mayor had banned the press from the meeting because the Pacific Review wanted to be present.

2. That it imputed dishonourable conduct to the Mayor in the way he had gone about the banning of the press.

3. That it imputed that the Mayor would, if necessary, report the meeting to his paper notwithstanding the ban on the press.

I think that all three inferences or imputations are proved in that they are inferences which would be drawn by any reasonable man reading the whole article; that they are defamatory, in that they must tend to lower the respondent in the estimation of right-thinking members of the community.

As to the first complaint, when the appellant says “Press banned when Pacific Review wants to present”, it is stating a fact which is true; but the inference which the average reader would take from that, I think, is that it means that the ban was imposed because the Pacific Review wanted to be there. This in my view, is both untrue and defamatory.

In regard to the second complaint, the article contained this extract "It stinks but the most peculiar aspect of the whole disgraceful affair is the way the Mayor/Editor seems to have gone about the interview. To put it mildly- it stinks”. I think that any reasonable member of the community would infer that that the Mayor had been guilty of disgraceful conduct. I think that statement also is defamatory.

The third imputation is founded on the concluding words of the article "The biggest joke of all is that the Fiji Times need NOT be represented". I think the only reasonable inference to be drawn from these words is that the Respondent would be willing to report the meting to his own paper notwithstanding that he had ruled the press were banned from it. This would, in my view, be a dishonourable thing for him to do and the imputation that he would do it is, I think, defamatory.

The next question to consider is the defence of fair comment. Gatley on Libel (6th Edn.) Para 704 p. 319 says:

"To succeed in a defence of fair comment the words complained of must be shown to be -

(i) Comment

(ii) Fair comment

(iii) Fair comment on some matter of public interest."

In the first place, comment must be based upon true facts. The Defamation Act (1952) (Imperial) is not in force in Fiji. In Davis v. Shepstone [1886] UKLawRpAC 12; (1886) 11 A.C. 187, Lord Herschell said at 190 -

"There is no doubt that the public acts of a public man may law-fully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment and criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct."

As to the first complaint, the statement that the press were banned when Pacific Review wanted to be present, I think, that any inference arising from these words is comment based on a true statement of fact. As to whether the comment is fair, I think, the authorities show that the comment need not be true, if it reasonably and honestly made, and a conclusion which any fair-minded man could draw from the facts. In Walker v. Hodgson [1909] 1. K.B. Vaughan Williams L.J. said at 250 -

"A man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid or wicked motives, unless there is so much ground for the imputation that a jury shall find not only that he had an honest belief in the truth of his statement, but that his belief was not without foundation."

It seems to me that the imputation contained in the words of the first complaint are opinions reasonably and honestly held upon facts which the Judge has held to be truly stated and which provide reasonable grounds for the imputation that the reason for the ban was to prevent Pacific Review from being present. The evidence shows that the reason for the ban was not for that purpose at all but because the Mayor had been informed by the Town Clerk that Mr. Desai preferred it. The question is not whether the imputation is correct, but whether a fair-minded man could have been capable of making such an imputation.

In Walker's case (supra) Buckley L.J. said at 253 -

".....the jury may have found as untrue that the plaintiff was actuated by an improper motive. But the defendant may nevertheless succeed upon his defence of fair comment, if he shows that the imputation of bias, although defamatory, and although not true, yet was an imputation in a matter of public interest made fairly and bona fide as an honest expression and opinion and was....warranted by the facts, in the sense that a fair-minded man might upon those facts bona fide hold that opinion."

I now turn to the second extract. In Kemsley v. Foot [1952] A.C. 345, Lord Porter, quoting Odgers on Libel and Slander, said at 356:

"Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts such conduct is disgraceful, this is merely the expression of his opinion, his comment on the plaintiff’s conduct....but if he asserts that the plaintiff has been guilty of disgraceful conduct and does not state what the conduct was, this is an allegation of fact for which there is no defence but privilege or truth."

In the present case, the Appellant has set out not only part of the facts on which he bases his comment. This is so, because the writer asks many questions as to what happened before the ban was imposed, without alleging any true facts as answers to those questions. He characterises as disgraceful the way the Mayor seems to have gone about the interview. Thus part of the article constitutes comment at all. It is both defamatory and untrue.

I now pass to the third complaint contained in the words "The biggest joke of all is this, the Fiji Times need NOT be represented." I have already held this to be defamatory. I think it is a comment on a matter of public interest, but is it fair? The Appellant claims that it is fair comment upon the basis of the true fact the Mayor is also the editor of the Fiji Times; but I do not think it is fair comment to impute of the Mayor the he might act in defiance of this own ban, in order to give an advantage to the paper by which he is employed, by reporting to it what happened at the meeting. When dishonourable motives are imputed, as is done here, it seems to me that the Appellant must bring himself within the test stated in Walker's case (supra), and show that the imputation was made bona fide as an honest expression of opinion and was warranted by the facts. But I do not think the Appellant can say that the imputation he takes from the dual capacity of the Respondent as Mayor and as Editor was an opinion that a fair minded man bona fide could hold on those facts. I think the imputation of dishonourable conduct, based on such a narrow ground, could not be reasonably be held by any fair-minded person. I think therefore, that the defence of fair comment as far as the third complaint is concerned fails.

This means that the Respondent is entitled to succeed in his cross-appeal in regard to the first extract.

I now turn to the second extract. This article, after setting out in headline-

"Was there a mix-up?"

goes on to say:-

"So far as Mayor Usher was concerned, it did not make any difference. If anything important happened he was there to observe things anyway, and his paper could benefit."

This, I think, is repeating in another form, the third complaint made regarding the first extract. In my view, it imputes to the Respondent the same dishonourable conduct as was imputed in the first article, and does not constitute fair comment.

I have already held that the imputation, that the Respondent had excluded the Press because the Pacific Review wished to be present, to be fair comment upon truly stated facts. Accordingly, I think that the paragraph "The truth remains: We were excluded, and it was not because the retailers said we could not be present. It is simple and straightforward as that", constitutes fair comment.

As the defence of fair comment is not established as far as the first complaint is concerned, the Respondent is entitled to succeed on his cross-appeal in regard to the second extract.

In regard to the third extract, published on Saturday, January 10th, this article was published because the Appellant had found out that a Fiji Times photographer was admitted to the meeting from which the Mayor had banned the press. After referring to the Mayor's statement, to Mr. Desai's 'statement, and to Mr. Balfour's statements, the article says -

"Pacific Review did not accept the Mayor's explanation nor that of the Town Clerk. It was impossible to do so under the circumstances. But, having made our points very clearly and forcefully and having laid the statements of the three gentlemen concerned before the readers to sort out who was telling the truth, it was our intention not to press the matter of the exclusion of the press, any further."

Later in the article the Appellant says -

"Questions arising from the presence of, photographer - when the entire controversy is on the exclusion of the press - are many.

Who authorised a photographer's presence at his private interview when it was taboo for reporters to be there?

Was Mr. Desai consulted about it - he was entitled to a courtesy at least. No?

Was the Mayor aware a photographer there? Did he ask how he was there?

If he did, was the photographer asked for an explanation about his presence?

Why did the Mayor or the Town Clerk not reveal the photographer's presence when each made a statement?

If photographers were allowed, why was the Pacific Review not informed of this? We are fully aware that a large number of photographs were taken. But who were they for- if not for the Fiji Times use?

This question will do for the time being. We are, however, determined to get the truth out and we will."

The following facts set out in Para 20 of the Statement of Defence were admitted to be correct relating to this and the subsequent articles-

(s) The Pacific Review commented on the fact that the photographer was a number of the Press, and he was allowed to be present although it declared that the Press would be excluded.

(t) From the accounts given by the plaintiff, and the Town Clerk, and Shantilal B. Desai, there was a conflict between the said accounts as to who was responsible for the ban on the Press. The Pacific Review highlighted this conflict, and expressed itself and grossly dissatisfied with the role played by the Plaintiff and the Town Clerk.

(u) The Pacific Review gave full coverage to all Press released issued by the Plaintiff, the Town Clerk and Shantilal B. Desai.

The respondent pleads that the words complained of in the article mean that the Respondent had not told the truth. I do not think that the words used are capable of conveying that meaning. The words, of course, must be taken in the context of the whole article. I think that all the article is doing is criticising severely the Mayor for relaxing the ban on the press to admit a photographer from his own paper. Its comment, that it does not accept the Mayor’s explanation, seems to me to be fair having regard to the fact that the Respondent had written a long letter of explanation without referring to the presence of the photographer. It had published in full the statements of Mr. Desai, Mr. Balfour and the Mayor; the paper goes on to say that it will leave the readers to sort out who was telling the truth. This is not charging anyone with telling an untruth. I think the article is not capable to the ordinary fair-minded reader of conveying an imputation that the Mayor was not telling the truth. I think that the cross-appeal fails in regard to the third extract.

I now pass to the 4th extract of 13th January, 1970. The whole of this article is alleged by the Respondent to mean that the Plaintiff had used his position as Mayor to gain advantage for the Fiji Times and thereby for himself as Editor thereof to the detriment of the Pacific Review. I think it is hard to find anything objectionable, having regard to the then known facts, in this article. The heading is "Mayor and his Monopoly". There does not seem to be anything defamatory in this statement because the Fiji Times is the only daily paper in Fiji, as is carefully explained in the article itself. The article goes on to say -

"The position is even worsened by the fact that a responsible citizen and Justice of the Peace, Mr. S. B. Desai, has given a version which disagreed with that of Mr. R. B. Balfour, Town Clerk. Where indeed does the truth lie? But the fact remains that a radical newspaper could not be present."

The last paragraph of the article reads-

"If the Fiji Times could have photographers there, then other photographers should have been offered the same facilities. The Mayor was there to make requests for his own monopoly. We were not."

I think that the article comments on the facts quite fairly. It is not suggested that any untrue statements of fact were included in the article. When the article asks where the truth lies, it makes it quite clear that it is referring to whether Mr. Desai's or Mr. Balfour's statement is correct. Even it should be held that the last paragraph is defamatory when it says that the Mayor was there to make requests for his own monopoly, I would think that the statement does not go beyond fair comment on the facts set out in the article, namely, that the Respondent, after banning the press, had allowed his staff photographer to take photographs. I think the cross-appeal fails in regard to the fourth extract.

The fifth extract of 15th January, 1970, consists of two paragraphs, contained in a fairly lengthy article criticising the Mayor for not having disclosed the presence of the photographer at the meeting. The paragraphs complained are as follows:-

"Reporters were banned from the meeting. Pacific Review alleged last week the cause of the ban was to prevent Pacific Review from reporting the meeting. The Mayor, who his newspaper alleged, was responsible for his disgraceful decision, issued a hasty statement to defend himself."

The second paragraph complained of was-

"We will maintain our original stand: Reporters were banned from the interview only to prevent Pacific Review from reporting. No matter how many statements are issued denying this, nothing will shake us!"

Care must be taken not to read these paragraphs out of their context. In view of the disclosure then known to the Appellants that the Mayor had admitted a photographer to the meeting from the staff of his company, I do not think that the statement was defamatory. It was then clear that the respondent had obtained an advantage for his paper by allowing its staff correspondent to take photos.

But, if it held that the paragraph first quoted above was defamatory, I would hold that it was fair comment based on truly stated facts on a matter of public interest.

As regards the second paragraph, I have already held that the imputations that the press ban was imposed in order to prevent the Pacific Review from reporting the meeting was defamatory and untrue but that the Appellant was protected because it was fair comment on a matter of public interest.

I think, therefore, that the Respondent fails in his cross-appeal in respect of the fifth extract.

I now turn to the 6th extract which is the last of the series. The last paragraph is complained of here. It reads -

"We have already said that we- are determined to get the truth; we are not satisfied with the kind of 'truth' we got from the Mayor, which was designed purely to mock us and not to settle the dispute."

It is most important, I think, in regard to this very short extract, taken entirely out of its context, that it should be considered in relation to the whole article. Gatley (6th Edn.) para. 102, p. 58 says -

"The words complained of must be construed as a whole. It is necessary to take into consideration, not only the actual words used, but the context of the words. Words which are not in themselves defamatory may, from the whole context in which they are published, convey a defamatory imputation. Conversely, this or that sentence may be considered defamatory, but there may be other passages which take away their sting.

The defendant is entitled to have read as part of the plaintiff's case the whole of the publication from which an alleged libel is extracted, and also any other document referred to which qualifies or explains its meanings. If a libel is contained in a letter, the whole of the correspondence of which the letter forms part should be taken into consideration."

Applying these principles to the present case, I think, the article makes it abundantly clear that when it uses the word 'truth' in the last paragraph it means the 'truth' as regards the dispute of whether a press photographer is included in the term 'press' for the purposes of the ban. In other words, the article makes its own dictionary as regards what it means when it says 'truth'. The article starts with the headline: 'Who (What) is the Press?' The sub-headline says. 'Opinion Sought From London' then it says, "Evidently, the Mayor of Suva, Councillor L. G. Usher, who was invited on Thursday to admit his error regarding the press and an inter-view he gave early last week, does not intend to do so." The next sub-headline reads "So the Battle Must Continue". Then it goes on to say how its London representative has been asked to get from an acknowledged expert an opinion "to define the meaning of the press as it would apply in the current controversy". It goes on to say that its London correspondent has been given "Every word printed in the two-week-old row"; that he himself will also be asked to give his opinion; and that further opinions are being sought from Australia. Immediately after all this it says, "We are determined to get the truth". I fail to see how a reasonable, ordinary fair-minded reader could take from reading such an article any other meaning from the use in that context of the word 'truth' than that it meant the truth in regard to the press controversy; that it referred only to the answer to the question of whether a press photographer was included in the term 'press' and whether the Mayor was in error in refusing to agree that he was wrong to have allowed the photographer into the meeting to take photos. Then the article goes on to say "We are not satisfied with the kind of 'truth' we got from the Mayor which was designed merely to mock us and not to settle the dispute."

I think that any reader, who had read the whole article, would refer the last sentence just quoted only to the question in dispute; to what is called, earlier in the article, "The Battle."

I think that the Appellant is entitled to refer to the article of 15th January, 1970, in which the Mayor was invited to admit his error. This is clearly the article referred to in the article containing the sixth extract. In the article of 15th January, the second paragraph says-

"We always understood the press to mean all personnel connected with the production of news media-whether they be reporters, photographers, advertising them, compositors, printers, and the rest."

The last paragraph of the article reads-

"Does the Mayor want to challenge this or admit his error and end the dispute."

I think the Appellant also is entitled to call in aid of the meaning of the 6th extract the statement given by the Mayor on 12th January regarding the admission of the photographer. In that statement the Respondent admits that he granted permission to the photographer to attend the meeting and that he was a member of the staff of the paper of which the Respondent is the Editor. He says further that he would have given like permission if the Pacific Review had sought it. But he did not direct that any relaxation of the press ban was to be communicated to Pacific Review. The whole purport of his statement was that there was nothing wrong or contrary to the ban in admitting photographers, because the only use it would be put to, was to illustrate the press release to be made latter. Could there be any doubt in the minds of any reader the "The Battle" referred to in the sixth extract was the battle as to whether banned to the press? I do not think so. It seems to me that there is not a single word in the article which could refer to anything else. No doubt the word ‘truth’ is not a very suitable word to use in the article, when the writer is obviously referring to a true answer as to who or what is the press, but I think the Appellant has made it abundantly clear that it means that the Mayor’s ‘truth’ as regards the answer to the controversy is not the true one; and that the Appellant is determined to get the truth in regard to the controversy referred to in the article.

The meaning of the words alleged by Respondent in Para. 18 of the Statement of Claim is "that the Plaintiff had not been truthful." In order to make these words defamatory the Respondent must show, I think, that they meant that the Mayor had made some misstatement of fact and that he knowingly did so. In other words, that he was a liar. If, anywhere in the controversy, it had been alleged that he had done this, such for example as saying that no photographer had been there, then I would agree that to say that the Mayor had been truthful would be libellous. But nowhere in the article or in the prior articles is it alleged that the Mayor made any misstatement of fact or told any lie. Respondent even in his pleadings does not say so.

The inference is only that the Mayor has told an untruth in regard to the press and what it includes and the whole article says that the Appellant is obtaining other opinions to show that what the Mayor says is wrong and incorrect and in that sense untrue. What is there in such an imputation to lower the Mayor in the estimation of right-thinking members of the community? Is there more in it than the alleging of a credibility gap, which is so often charged against public men?

I do not think, having regard to the limited meaning of the word 'truth' in its context as here used, that one could possibly think that the article meant that the Mayor was guilty of deliberate untruth; or that he was a liar; or that he was guilty of falsehood; or want of honesty; or that the Mayor's 'truth' was a deliberate distortion or perversion of the truth. All these terms are used by the learned Judge in considering the meaning in the article of the word 'truth'. With the greatest respect, I disagree with these findings. It is noteworthy that the Respondent himself in cross-examination at p. 56 of the record agrees that he was guilty of an error of judgment in allowing the photographer to be there. He also agreed in cross-examination that the dictionary definition of 'press' "included all personnel connected with production of news media whether they be reporters, photographers, advertising men, compositors and printers."

This, I think, was the kind of 'truth' the Appellant was saying, in the sixth extract; it had not got from the Mayor.

I do not think that if the article be read as a whole, it is capable of a defamatory meaning. I do not think that the average right-thinking citizen would take from, that article any more than that there was a controversy raging as to whether a photographer was a member of the press or not, and that what the Mayor had said about it was not true. I do not think that the meaning of the words of the 6th extract, as understood by the ordinary reader, would tend to lower the Respondent in the estimation of right-thinking members of the community. The sixth extract being a statement of fact, the defence of fair comment does not arise.

In the result, I would allow the appeal in regard to the sixth extract and also allow the cross-appeal in regard to the first and second extracts but I would dismiss the cross-appeal in regard to the third, fourth and fifth extracts.

As, however, the majority of the court think otherwise in regard to the sixth extract, I would like to express an opinion as to the question of damages and costs. I have read the Judgment which the learned Vice President proposes to deliver and, on the basis that the appeal is dismissed in respect of the sixth extract I agree with what he has said in regard to damages and costs.

Appeal dismiss: cross-appeal allowed in part.