Ba Town Council v Fiji Broadcasting Commission [1976] FJLawRp 17; [1976] 22 FLR 91 (29 July 1976)

[1976] 22 FLR 91

IN THE SUPREME COURT OF FIJI

BA TOWN COUNCIL

v

FIJI BROADCASTING COMMISSION & OTHERS

[SUPREME COURT, 1976 (Kermode J.), 29th July]

Civil Jurisdiction

Injunction - freedom of the press - interlocutory injunction sought to prevent press and radio publishing or broadcasting any information relating to the soccer tournament held at Govind Park Ba - whether right not only to prevent media entering Park but also to effect total ban on the publishing of all football information - Ba Township Regulations regs. 11 to 19 - Fiji Constitution s.12(1).

Practice and procedure - affidavits - rules relating to swearing and filing thereof rule - mandatory and must be followed by legal practitioners - Rules of the Supreme Court 0.41 r. 9(5).

The plaintiff sought interim injunctions against the defendants to prevent them broadcasting or publishing any report or details of the inter district soccer tournament to be held at Govind Park Ba of which the plaintiff was the lessee.

Held: Injunctions refused. The plaintiff had no proprietary right to the property in a spectacle, namely the soccer matches, in the absence of express agreement, and were not entitled to ask for the imposition of a total ban on the media to prevent them from broadcasting or publishing information during the tournament. The press and radio enjoyed under the Constitution the right of free expression and speech and no court would or could restrict such rights where they were legally exercised.

Per curiam: 1. Each of the affidavits filed on behalf of the plaintiff was sworn before the filing of the writs which was in breach of the correct procedure, and each was in breach of the Rules of the Supreme Court 0.41 r.9(5).

2. It was not the practice of the court to grant an interlocutory injunction which would have the practical effect of granting the sole relief claimed.

Cases Referred to:

Victoria Park Racing and Recreation Grounds Co. Ltd., v. Taylor [1937] HCA 45; (1937) 58 C.L.R. 479.
Twentieth Century Sporting Club Inc. v. Mass Radio Press Service Inc.-unreported.
Sports and General Press Agency Ltd. v "Our Dogs” Publishing Co. Ltd. (1917) 2 K.B. 125.
Goldsmith v. Press down Ltd. & Ors July 17 The Times 1976 (1977) 2 All E.R. 557.
Oliver & Anor v Buttigieg (1966) 2 All E.R. 459; (1967) 1 A.C. 115.
Romesh v. State of Madras - unreported.
Martin v. City of Struthers - unreported.
Dodd v. Amalgamated Marine Worker’s Union (1938) 93 L.J. Ch. 65; (1924) 1 Ch. m116.
Preston v. Link (1884) 27 Ch. D. 506.

Application for interim injunctions in the Supreme Court to prevent the media publishing or broadcasting any information relating to the soccer tournament to be held at Govind Park Ba.

G. P. Shankar for the plaintiff.
B. N. Sweetman and P. I. Knight for the defendants.

KERMODE J.: (29th July 1976)-

The plaintiff, the Ba Town Council, on the 27th day of July 1976 made three applications each for an interim injunction against one of the three defendants in terms which I will refer to later.

Mr G. P. Shankar appeared for the plaintiff, Mr B. N. Sweetman for the first two defendants, and Mr P. I. Knight for the third defendant.

The three applications were heard together with the approval of counsel, as the issues raised were, with only minor variations, the same in each case.

After argument by counsel I dismissed all the applications with costs to the defendants and advised counsel I would furnish them with written reasons for such dismissals.

The plaintiff commenced actions against each of the defendants by writs filed on the 22nd July 1976.

The relief claimed in action 183 of 1976 is as follows:

"(a) A declaration that the defendant's intended act amounts to nuisance and/ or trespass on the plaintiffs rights and property.

(b) An injunction restraining the defendant from broadcasting relaying or " announcing the progress or eye witness account of soccer tournament to be held in the plaintiff's ground as from 30th day of July 1976 to 2nd August 1976.

(c) An injunction, restraining the defendant whether through its agents or servants or otherwise from entering the plaintiffs ground known as "Govind Park" without consent of the plaintiff."

The relief claimed in action 184 of 1976 is as follows:

"(a) A declaration that the defendant's intended act amounts to nuisance and/ or trespass on the, plaintiffs rights and property.

(b) An injunction restraining the defendant from publishing printing or selling supplement to Fiji Times in connection with the said inter district soccer tournament.

(c) An injunction restraining the defendant, its servant or agent from selling or otherwise distributing newspaper called Fiji Times in the said ground."

In action 185 of 1976 the same relief as in action 184 of 1976 is claimed except that the paper referred to is the Fiji Sun instead of the Fiji Times.

The plaintiff is the lessee of Crown Lease No. 3995. The land at Ba is used as a creation ground and is known as "Govind Park". The Park is to be the venue of the inter district soccer tournament to be held from the 30^th July to 2^nd August 1976. The plaintiff has, at considerable expense, erected a stadium in the Park.

On the 30th June 1976, the plaintiff entered into a written agreement with the Fiji Football Association. Clause 10 of the agreement is relevant to these proceedings and is as follows:

"The Council shall be entitled to charge and levy the news media, radio, or other advertising, announcing authorities, and the Association shall act in consultation and in co-operation with the Council but the Council shall have the sole authority to negotiate and agree to levies and charges for radio or news paper announcements, The Council may exclude any such Radio or newspapers in case they fail to pay or do not agree to pay levies, BUT the form made and nature of the radio broadcasts, or advertisements or announcements in news papers shall be under control of the Association provided however that before any such broadcast or announcement is done the Council shall collect its levy otherwise the radio or news media may be excluded."

The plaintiff in its writs alleges that each of the defendants seeks to publish news about the tournament, the first defendant by broadcasting information and the other two defendants by publishing a special supplement and other information about the tournament. The plaintiff alleges such proposed action is a nuisance and invasion of its proprietary rights conferred on it by the agreement referred to above.

On the same day as the writs were issued, the plaintiff issued three summonses each seeking an interlocutory injunction against each of the defendants. It is necessary to state what orders are sought in the applications as there is a difference between the order sought inaction 183 brought against the Fiji Broadcasting Commission and the other two actions. The plaintiff in action 183 seeks an interlocutory injunction-

"restraining the defendant from broadcasting relaying or announcing the progress or eye witness account of Soccer Tournament to be held in the plaintiff’s ground as from 30th July 1976 to 2nd August 1976 and also restraining the defendant whether through its agents or servants or otherwise from entering the plaintiff’s ground known as "Govind Park" without consent of the plaintiff."

In the other two actions the interlocutory injunction sought is on identical lines-

"that the defendant be restrained from publishing, selling or circulating any news or other paper in regard to Soccer Tournament to be held in Govind Park, Namosau from 30th July 1976 to 2nd August 1976, and also restraining the defendant whether by itself, or through its agents or servants from selling any newspaper containing any information regarding the said Soccer Tournament in the said ground."

Each application was supported by the affidavit of Mr Rajendra Prasad the Ba Town Council Town Clerk. None of the affidavits indicate that the Town Clerk was authorised by the plaintiff to make the affidavit. Each affidavit was sworn two days before the filing of the writs in breach of the correct procedure to be- followed in applications of this nature, which requires the affidavits to be sworn after issue of the writs. Mr Shankar undertook to file fresh affidavits if any order was made which is not now necessary.

Each affidavit in form was also in breach of Order 41 rule 9(5) of the Rules of the Supreme Court which reads:

"41/9(5) Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the Court."

Mr Shankar mentioned that the court was accepting affidavits in the form in which he presented them. The rule is mandatory and should be followed by legal practitioners. Mr Shankar sought and obtained leave to use the affidavits.

The three affidavits are in similar form except for variations necessitated by the fact that the Fiji Broadcasting Commission has a different method of disseminating news.

The affidavits allege that the defendants desire to broadcast or publish information about the tournament and that such desire if implemented would result in the defendants making a substantial profit. The affidavits state such profit would result in unjust enrichment of the defendants at the expense of the plaintiff. The affidavits indicate that if the defendants broadcast or publish news about the tournament such act would amount to "a violation of the valid agreement between the plaintiff and the Fiji Football Association" and "the plaintiff will suffer irreparable or incalculable loss or damage." Mr Prasad in his affidavits also states that the defendants have threatened to broadcast, or-publish as the case may be, information about the tournament without the consent of the plaintiff.

I do not accept this bare statement unsupported by any details as a threat by any of the defendants to violate any legal rights that the plaintiff has. The Ba Township Regulations -regulations 11 to 19 deal with the control of public parks. There is nothing in the affidavits to indicate that the defendants propose to act in breach of such regulations.

What the affidavits do not disclose is the real purpose in seeking interim injunctions and that is, that the defendants will be given the plaintiff's consent to broadcast or publish news about the tournament if they make payment to the plaintiff for its consent. As framed the applications would defeat this purpose because, if any orders were made in terms of the applications, the news media could not publish news even with the consent of the plaintiff as they would be in contempt of court if they did so.

Mr Shankar when this was pointed out to him suggested that the injunctions, if granted, could be qualified to indicate that the defendants could publish news if the prior consent of the plaintiff was obtained. I was not prepared to entertain such a suggestion.

The main ground of the application is that the alleged threatened acts by the defendant is said to amount to a violation of an agreement to which none of the defendants is a party. The alleged threatened acts by no stretch of the imagination can be deemed to be a violation of the terms of the agreement and clause 10 in particular.

What has not been clear in the affidavits, but made clear in Mr Shankar's argument; is that the plaintiff claims a proprietary right to what has been described as a "property in a spectacle" to wit the tournament and the defendants’ proposed action is alleged to be a nuisance violating such right which will cause loss or damage to the plaintiff.

Mr Shankar quoted a number of cases in support of his argument all of which I have considered. The first case quoted did not assist him. It was the case of Victoria Park Racing and Recreation Grounds Co. Ltd. v Taylor [1937] HCA 45; (1937) 58 C.L.R. 479. This was a case heard in the High Court of Australia. Taylor owned land near the racecourse and placed an elevated platform on his land from which it was possible to see what took place on the racecourse and to read information on notice boards on the course as to starters, scratching, etc., and winners. From this platform was broadcast a commentary on the races. The plaintiff sought to prevent the defendants from so acting. The broadcast was popular and the plaintiff’s gate takings suffered appreciably.

By a majority of 3 to 2 the High Court found against the plaintiffs The Privy Council refused leave to appeal.

The plaintiff in that action, and as claimed in the actions before me, stood to lose gate money if the defendants were not restrained from acting in a manner calculated to cause such loss. The remarks of Latham C.J. in that case are apposite. He stated:

"At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc., break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects...

It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The vagueness of this proposition is apparent upon its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see. The court has not been referred to any authority in English law which supports the general contention that if a person chooses to organize an entertainment or to do anything else which other persons are able to see, he has a right to obtain from a court an order that they shall not describe to anybody what they see. If the claim depends upon interference with a proprietary right it is difficult to see how it can be material to consider whether the interference is large or small whether the description is communicated to many persons by broadcasting or by a newspaper report, or only to a few persons in conversation or correspondence. Further, as I have already said, the mere fact that damage results to a plaintiff from such description cannot be relied upon as a cause of action.

I find difficulty in attaching any precise meaning to the phrase "property in spectacle". A "spectacle" cannot be "owned" in any ordinary sense of that word. Even if there were any legal principle which prevented one person from gaining an advantage for himself or causing damage to another by describing a spectacle produced by that other person, the rights of the latter person could be described as property only in a metaphorical sense.-Any appropriateness in the metaphor would depend upon the existence of the legal principle. The principle cannot itself be based upon such a metaphor.

Even if, on the other hand, spectacle could be said to exist as a subject matter of property, it would still be necessary, in order to provide the plaintiff in this case with a remedy, to show that the description of such property is wrongful or that such description is wrongful when it is widely disseminated. No authority has been cited to support such a proposition..."

One of Dixon J's remarks in a supporting judgment is also apposite and is the answer to the American case Twentieth Century Sporting Club Inc v. Mass Radio Press Service Inc. also quoted by Mr Shankar:

"It is not a natural right for breach of which a legal remedy is given; either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business. If English law had followed the course of development that has -recently taken place in the United States; the "broadcasting rights" in respect of the races might have been protected as part of the quasi-property created by the enterprise, organization and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value; that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour."

Another case quoted by Mr Shankar like the Victoria Park case also does not assist him. Both cases in fact assist the defendants.

The case is Sports and General Press Agency Limited v. "Our Dogs” Publishing Company Limited (1917) 2 K.B. 125. The promoters of a dog show purported to assign the sole photographic rights in connection with the show. (In the cases before me the Fiji Soccer Association purported to give the monopoly of publication of tournament football news to the plaintiff). An independent photographer took photographs of the dogs and sold the photographs to the defendant company which published them. In an action by the plaintiff for an injunction to restrain the defendants from continuing to publish the photographs it was held an action would not lie in as much as the promoters of the dog show had, in law, no exclusive right of photographing anything there and therefore could not assign that right as property.

The case does indicate however that the plaintiff could have acquired such a right by contract by making conditions as to admission but had not done so.

Most of Mr Shankar's argument dealt with the right of the Council as regards the Park although the applications were so framed as to seek orders which, if granted, would have prevented virtually the whole news media in Fiji from broadcasting or publishing information about the tournament for four days from the 30th July 1976 to 2nd August 1976 whether such information was published from within or without the Park.

The plaintiff does have certain rights as regards the Park. It is the lessee. There is no doubt that the Park is a public park. The lease was granted solely for amateur sporting and recreational purposes for which a nominal annual rent of £1.0.0 was charged.

The Ba Township Regulations apply, and in particular regulations 11 to 19. Under regulation 11 the plaintiff may grant permission to any sporting body to have the exclusive use of the Park and under regulation 13 the plaintiff may, by resolution, retain to itself the exclusive use of the Park. Under regulation 14 it may make a charge to be paid by the public where it retains to itself the exclusive use of the Park. Under regulation 18 (subject only to prescribed hours) any person may enter any public park at any time.

Regulation 18 must be read subject to regulation 14 where the plaintiff has, as in the instant cases, decided to make a charge for admission. It follows that if a member of the public pays the charge for admission he is entitled to admission.

So far as the second and third defendants are concerned they cannot legally sell newspapers within the grounds without the consent of the plaintiff as they would be in breach of regulation; 19(1)(g) if they did so. The plaintiff does not need the assistance of the court to prevent an alleged breach of this regulation and in any case I am not satisfied on the evidence before me that the second and third defendants threaten a breach of the law. There certainly has been no breach to date.

As regards broadcasting from within the Park the regulations do not specifically refer to broadcasting. I am of the view, however, that the plaintiff can refuse permission to broadcast. The Park, being reserved for the exclusive use of the Plaintiff or the Fiji Football Association or both of them, for the four days of the tournament, is not for those four days in use as a public park. The plaintiff is in the same position as a private owner of the park and can legally dictate whether broadcasts can be made from within the Park or not. Furthermore, the right of entry to those who pay the admission charge does not carry with it the right to enter with vehicles or with equipment unless permitted to do so, or to use the ground's electricity supply.

The plaintiff has the right to refuse or grant permission to broadcast from within the Park and does not require the assistance of this court to enforce that right. In any event the evidence before me does not indicate that the Fiji Broadcasting Commission intends to broadcast from within the Park without the plaintiff’s consent. The plaintiff has not established a case which would justify this court granting an interim injunction limited to entry into the Park and conduct of the defendants therein. The relief sought against each defendant, however, goes much further and seeks in effect a total ban on broadcasting or publishing of football information for the four days of the tournament.

I have already referred to the Victoria Park case where an injunction was not upheld in a case where the defendants were actually broadcasting from a position where the races could be viewed. The circumstances prompted the two dissenting judges to endeavour to find a way to prevent such conduct which was described as "unreasonable" "grotesque" and "dishonest".

In the cases before me there is no element of dishonesty or unreasonable conduct. The defendants seek only to carry on their legitimate business of keeping the public informed. That the conduct of their business may affect the attendance at the Park and thereby reduce the plaintiff's profits gives rise to no cause of action.

In England the freedom of the press is protected by public opinion rather than by any express provision in the law. The press is subject to the ordinary law. Provided it does not transgress such law it has the same rights as any citizen to express its views in any manner it sees fit. The lengths to which the courts will go to protect such rights is indicated in the very recent case of the Goldsmith v. Pressdram Ltd. and Others reported in the Times of July 17, 1976 where an interlocutory injunction was sought to restrain a paper from publishing further matter about the plaintiff who had instituted a libel action against the defendants. As reported Mr Justice Donaldson stated:

"No one was to be deprived of the right of free speech..... The Court could not grant an injunction which would prevent the defendants from saying anything which would otherwise be lawful."

In Fiji section 12(1) of the Fiji Constitution protects the freedom of expression of every person in Fiji in these terms:

"12.-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence."

In Olivier and Another v Buttigieg (1966) 2 All E.R. p.459 the Privy Council dealt with an appeal from Malta. Section 14(1) of the Malta Constitution is identical to section 12(1) of the Fiji Constitution.

In that case Lord Morris of Borth-Y-Gest, who delivered the judgment, quoted extracts from two cases which clearly indicate the attitude of the Courts to the question of freedom of speech and expression. In the Indian case Re Romesh Thapper v. State of Madras it was said:

"There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is secured by freedom of circulation. 'Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed without circulation the publication would be of little value'."

In Martin v. City of Struthers, an American case, Black J. said:

"Freedom to distribute information to every citizen wherever he desire to receive it is so clearly-vital to- the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved."

The applications by the plaintiff on the facts before me are clearly attempts to muzzle the press media for four days from exercising their fundamental rights of free speech and expression and no court would or could restrict such rights where they are legally exercised.

Quite apart from the merits of the applications the law pertaining to injunctions would also dictate that the applications be dismissed. Although each writ also seeks a declaratory judgment in effect the sole relief claimed in each writ is the injunctions.

It is not the practice of the court to grant an interlocutory injunction which will have the practical effect of granting the sole relief claimed. (Dodd v. Marine Workers Union (1923) 93 L.J. Ch. 65).

If I granted the applications the plaintiff would be given the relief claimed in the writs. I have also to consider and be satisfied that there is a serious question to be tried at the hearing and that on the facts before me there is a probability that the plaintiff is entitled to relief (Preston v. Link (1884) 27 Ch. D. p. 506).

On the facts before me at present I can see no probability of the plaintiff being granted the relief claimed on the hearing of the three actions.

I confirm my decision announced on the 27th July 1976 that each of the applications is dismissed with costs to the defendants.

Applications for interim injunctions dismissed.

Kermode J.