Lalabalavu v Native Land Trust Board [2000] FJLawRp 35; [2000] 1 FLR 92 (19 May 2000)

[2000] 1 FLR 92

IN THE HIGH COURT OF FIJI

RATU NAIQAMA TAWAKE LALABALAVU
& PENAIA DRIU SAMUSAMUVODRE

v

NATIVE LAND TRUST BOARD
& FIJI TIMES LIMITED

High Court Civil Jurisdiction
Byrne, J
19 May, 2000
HBC0533/99

Defamation - striking out Statement of Claim - whether newspaper report of striking out of claim against defendants in HBC0557/98S is defamatory in its natural and ordinary meaning - High Court Rules O.18 r.18(2)

The plaintiff claimed unfair dismissal from NLTB and filed a Writ against the NLTB, which writ was struck out against all defendants except the NLTB. The Fiji Times published a report of the striking out and the plaintiff issued a Writ against the defendants claiming damages for defamation. They allege that in their ordinary meaning the article meant the plaintiff and his solicitor were and are of poor reputation; the court's rejection of the plaintiff's defamation claim against the first defendant was false; the imputation that the court had heard evidence and did not find any defamatory meaning was false; implied low mental capacity; the article had not disclosed that the claim against the 1^st defendant had yet to be determined; the article was calculated to disparage the plaintiffs in their persons, character, status and standing, and they suffered humiliation, distress and embarrassment. The second defendant applied to strike out the plaintiffs' claims as they disclose reasonable cause of action were scandalous and vexatious and otherwise an abuse of the court process. It claimed a defence of fair comment in the public interest. The court rejected the allegation that failure to disclose the alleged defamatory words of the letter, it implied the defamation action against the first defendant was frivolous.

Held - (1) The claim is an abuse of the court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. A reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the restructuring of the first defendant, a number of employees, including the first plaintiff lost their jobs.

(2) The article's suggestion that the second plaintiff had misread the letter was evidence of the second plaintiff's unreasonable sensitivity, not that he had a low mental capacity, and the second defendant's claim of such an implication is an imagined grievance where none existed.

(3) The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.

(4) No amendment will not cure inherent weakness in the plaintiffs' claim against the second defendant.

Claim struck out as against 2^nd defendant with costs.

Cases referred to in judgment

dist Rt Sir Kamisese Mara v Fiji Times Ltd (1984)30 FLR 119
dist Attorney-General v Shiu Prasad Halka & PSC 18 FLR 210
ref Ratu Naiqama Tawake Lalabalavu v Native Land Trust Board, Coopers & Lybrand, Permanent Secretary for Fijian Affairs & Attorney-General [1999] HBC0557/98S judgment of 10 February, 1999

Kini Marawai for the plaintiffs
Grahame E. Leung for the 2^nd defendant

19 May, 2000.

JUDGMENT

Byrne, J

Don Quixote tilted at windmills. In my opinion in so far as their Statement of Claim concerns the 2nd Defendant the Plaintiffs are copying Don Quixote. I shall elaborate.

By letter dated 7th July 1998 the 1^st Plaintiff's employment with the 1st Defendant was terminated with effect from the 8th of July 1998.

In its letter, the 1^st Defendant wrote to the Plaintiff:

"As you would be aware the selection process was rigorous and focussed on assessing technical, management and change in leadership capacity. It was with regret that the Board in endorsing appointments to the new structure recognised that your competency profile was not a close match with the profile required for the new leadership team."

The Plaintiff was unhappy with his dismissal and so issued a Writ against the Native Land Trust Board, Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and the Attorney-General.

In a Judgment delivered on the 10th of February 1999 Fatiaki J. struck out the Statement of Claim against all the Defendants except the Native Land Trust Board. That was in Civil Action HBC0557 of 1998/S. The Fiji Times the 2nd Defendant in the instant proceedings published a report of the dismissal of the Plaintiff's claim against the three Defendants on February the 11th 1999. That article read as follows:

"An attempt by a former Native Land Trust Board employee to claim damages for defamation of character after his termination was yesterday rejected by the High Court in Suva.

And Justice Daniel Fatiaki ordered Ratu Naiqama Lalabalavu to pay $150 each as costs to Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General for making a frivolous and vexatious allegation.

Ratu Naiqama, who was the NLTB Divisional Estate Manager Western, was made redundant in July as part of the NLTB's restructuring programme.

He was among three others who had their services terminated.

Ratu Naiqama, through his lawyer Penaia Samusamuvodre claimed he was unhappy with board's decision.

He claimed the board colluded with accounting firm Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General and wrote his termination letter.

However, Graham Leung, acting on behalf of the NLTB and Coopers and Lybrand, and Siteri Tabaiwalu on behalf of the Fijian Affairs Permanent Secretary and the A-G, objected to his claims.

They said there was not a shred of evidence to suggest that the letter contained any defamatory sentence.

There was a strong possibility that he may have misread the letter and made an unfounded allegation, they said.

Justice Fatiaki agreed with Ms Tabaiwalu and Mr Leung's submission and struck out the defamation claim against Coopers and Lybrand, Permanent Secretary for Fijian Affairs and the Attorney-General."

On the 16th of November 1999 the Plaintiffs issued a Writ claiming damages for defamation against the Defendants.

On the 17th of November 1999 the 2nd Defendant issued a Summons which is now before me seeking to have the Plaintiff's claims against it struck out on the grounds that they:

(a) disclose no reasonable cause of action;

(b) are scandalous and or vexatious;

(c) are otherwise an abuse of the process of the Court.

The Plaintiffs allege that in its natural and ordinary meaning the article was understood to mean:

(a) That the 1st Plaintiff through, and together with his solicitor, the 2nd Plaintiff, were and are of poor reputation to claim damages for defamation because the 1st Plaintiff was terminated;

(b) That the 1st Plaintiff's defamation claim against the 1st Defendant was rejected by the Court, which is false;

(c) That the Court had heard the evidence about the subject letter, and did not find any defamatory sentence, which is false. But the article did not disclose the alleged defamatory words of the said letter, implying that the defamation action was frivolous as far as the 1st Defendant is concerned;

(d) That "strong possibility that he may have misread" implies low mental capacity in failing to read and understand the termination letter of the 1st Defendant which was addressed to the First Plaintiff, the subject letter in civil action HBC No. 557/98S;

(e) That the 1st Plaintiff, inter alia, in that case, was claiming defamation against the 1st Defendant, the claim which the Court is yet to determine. That was not disclosed;

(f) The said words were calculated to disparage the 1st and 2nd Plaintiff in their persons, character, status and standing;

(g) In consequence, the 1st and 2nd Plaintiffs' reputation was seriously damaged, and they suffered humiliation distress and embarrassment.

The 2nd Defendant denies these allegations and in support of its Summons has filed an affidavit by Samisoni Kakaivalu who is the Editor of the 2nd Defendant. Mr. Kakaivalu deposes among other things that the report published was neither defamatory nor intended to be defamatory of the Plaintiffs and that it was simply fair comment in the public interest.

Mr. Kakaivalu also says that the reportage of the earlier case involving the 1st Plaintiff was made in good faith by a then employee of the 2nd Defendant. It purported to accurately report on a story perceived to be of public interest.

I have received helpful submissions from the parties but cannot accept that the article complained of is in any sense defamatory. I consider that a reasonable, ordinary and intelligent reader would have read the article to mean no more than that as part of the re-structuring of the 1st Defendant, a number of employees, including the 1st Plaintiff lost their jobs.

In my view the article, read as a whole, does not state that the 1st Plaintiff's claim against the 1st Defendant for defamation was rejected. The article clearly states that the defamation claim against Coopers & Lybrand, the Permanent Secretary for Fijian Affairs and Attorney-General was struck out but does not make any such allegation concerning the 1st Defendant. I do not agree that because the article did not disclose the alleged defamatory words of the letter it implied that the defamation action against the 1st Defendant was frivolous. Likewise I reject the meaning attributed by the Plaintiffs in allegation (d). To put such a construction on the article is in my opinion unjustified and evidence only, if that, of the fact that the 2nd Plaintiff has an unreasonable sensitivity. Like Don Quixote it seems to me the 2nd Defendant in claiming such an implication is simply imagining a grievance where none exists or reasonably could not be considered to exist.

The complaint in (e) in my view goes only to the fullness of the report. The fact that the article could possibly have been better written does not mean that a story with gaps is defamatory.

In Ratu Sir Kamisese Mara v. Fiji Times Ltd (1984) 30 FLR 119 Court of Appeal said at p.131:

"We remind ourselves also that where Judge (sic) is sitting alone to try a libel action without a jury the only questions he has to ask himself are 'Is the natural and ordinary meaning or the words that which is alleged in the statement of claim?' and: (If not) what, if any, less injurious defamatory meaning do they bear?"

I have read the various cases cited by the Plaintiffs in opposing the Summons and say that they are distinguishable on the facts from those in the instant case.

The power to strike out a Statement of Claim must always be used sparingly - for example AG v. Shiu Prasad Halka & PSC 18 FLR 210 and many other cases too numerous to mention in this judgment. However in so far as the Plaintiffs seem to place some reliance on Shiu Halka it must be observed that that case is distinguishable from the present because the question in Shiu Halka concerned the right of the Crown to dismiss its servants at will whereas the present case is an action in defamation.

In Gatley on Libel and Slander Ninth Edition, paragraph 26.42, page 675 the author states:

"If it appears to the Judge that none of the words complained of are capable of bearing the meaning or meanings attributed to them, he may dismiss the claim ..."

The Plaintiff complains in its submissions that the 2nd Defendant in relying on the affidavit of Samisoni Kakaivalu is attempting to allege evidence which is forbidden under Order 18 Rule 18(2) of the High Court Rules. In my opinion there is no merit in this complaint. In the note to the equivalent rule in the 1993 Supreme Court Practice at p.332 it is said:

"On an application to strike out an originating summons on the ground that it discloses no reasonable cause of action, the prohibition in para. (2) against adducing evidence on the application itself does not apply to an affidavit already put in as supporting the originating summons."

In my judgment the Plaintiffs' Statement of Claim is an abuse of the Court process because it discloses no reasonable cause of action, is misconceived and has no basis in law. I am also satisfied that any amendment will not cure the Plaintiffs' claim against the 2nd Defendant of its inherent weakness because in my view their case is plainly unarguable.

For these reasons I grant the Orders sought in the 2nd Defendant's Summons and Order the Plaintiffs to pay the 2nd Defendant's costs which I fix at $300.00.

Application granted.

Marie Chan