Fijian Holdings Ltd v Baba [2001] FJLawRp 2; [2001] 1 FLR 23 (8 January 2001)

HIGH COURT OF FIJI

Civil Jurisdiction

HBC 400/00S

FIJIAN HOLDINGS LIMITED

v

TUPENI LEBAIVALU BABA, ADI KUINI VUIKABA SPEED & THE PEOPLES' COALITION

24 October 2000, 8 January, 2001

Injunction – to restrain Defendants from publishing of media release – whether breach of confidence– failure to particularise breach -whether injunction justifiable on moral grounds or substantial risk of injustice – failure to establish elements of breach of confidence – law required information be put in the public domain – information sourced from Companies registry and from Plaintiff's own annual report - whether need for Plaintiff's authorization to use information in the public domain - Companies Act ss114, 115, 117, 127

The Plaintiff, a publicly listed company, applied for an interim injunction to restrain the Defendants from publishing confidential information of the Plaintiff, its directors, members and officers. The Defendants had 4 months earlier published a media release alleging that individual Fijians and Fijian family companies acquired shares irregularly from the Plaintiff; that the government gave a $20m loan to the Plaintiff for the benefit of individual Fijians and Fijian family companies but its conversion into a grant to be shared among each province would result in short-changing the Fijians; that the Fijian Affairs Board condoned the alleged share allotment; the interim Prime Minister Mr. Qarase was Managing Director of the Fiji Development Bank and a member of the Plaintiff Board during a period of dramatic increase in the Plaintiff's shares issued to individuals and companies funded by the Fiji Development Bank; the hijacking of an initiative intended to help ordinary Fijians through their Provincial Councils. The release demanded a full and independent inquiry into these allegations. The Plaintiff alleged breach of confidence, (but had failed to particularise these), that the release was deliberately false, and would punish unfairly members of the Plaintiff who have bought shares in good faith and who face financial risk for borrowings to fund their share purchase and that unless restrained from further publication would cause further irreparable damage to the Plaintiff's reputation as a successful undertaking. The Plaintiff claimed the Second Defendant had a duty not to take unfair advantage of her knowledge of the Plaintiff gained through public and other sources. The Court acknowledged the right of freedom of speech proclaiming the freedom of expression and the rights of the individual first enunciated in the Magna Carta and the reluctance of any government accepting the Westminster system to reject or attempt to dilute them. The Court noted that as a public company, the Plaintiff is required to keep a share register and an index of members, both of which were open to inspection from members and others. Further, it was required to file an annual return at the Registrar of Companies office, a public domain, from which the media release makes clear the information was sourced. In short, the membership of the Plaintiff is not confidential information. The Court found that information used by the Defendant was readily in the public domain, and there was no need to obtain the Plaintiff's authorization to use the information. The Court concluded that there were no grounds for the grant of an injunction, and that the Plaintiff's motion was nothing more than a clumsy attempt to gag discussion of a legitimate topic of public interest, namely the use of $20 million of public money in a public company dominated by private shareholders.

Held–(1) information which a law requires a company itself put in the public domain - namely the Registrar of Companies, or is put out by a company, namely an annual report, is not confidential information. There is no need for any authorization from the Plaintiff to use information put into the public domain in compliance with the Companies Act.

(2) It is well-established that an injunction in support of defamation proceedings will not issue so long as the Defendants assert their rights to common law defences such as justification, as here, where information is readily available in the public domain, or fair comment.

(3) Any information on the indebtedness of shareholders, even if it was confidential, would belong to the shareholders, not the Plaintiff.

[note: no further action was taken by any party subsequent to this Judgment.]

Cases referred to in Judgment
ref Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41
Fraser v Evans [1969] 1 QB 349
Hubbard v Vosper [1972] 1 All ER 1023
Schering Chemicals Ltd v Falkman Ltd & Ors [1982] 1 QB 1.

Apisalome R. Matebalavu for the Plaintiff
Richard K. Naidu for the Defendant

8 January, 2001

JUDGMENT

Byrne, J
"I disagree completely with what you say but shall defend to the death your right to say it."

So said Voltaire nearly three centuries ago but it would seem from the evidence and submissions presented by the Plaintiff in this application for Interim Injunction that the Plaintiff, at least in the circumstances of this case, does not share the belief so passionately held by the French Philosopher. My reasons for this conclusion will appear in the course of this judgment which is a Notice of Motion for an Injunction restraining the Defendants:

"from carrying out any further unlawful publication of the confidential information of the Plaintiff or any other part thereof or other information of the Plaintiff or any part thereof or other information the property of the Plaintiff and pertaining to the Plaintiff, its directors, members and officers."

On the 14th of September 2000 the Defendants published a Media Release of some 15 pages making allegations against the Plaintiff to the effect that individual Fijians and Fijian family companies have acquired shares irregularly from the Plaintiff and particularly –

(i) that the government gave a $20 million loan to the Plaintiff for the benefit of individual Fijians and Fijian family companies;

(ii) that the Fijian Affairs Board condoned the alleged share allotment;

(iii) the Interim Prime Minister Mr. Qarase was Managing Director of the Fiji Development Bank and a member of the Board of the Plaintiff during a period which saw a dramatic increase in Fijian Holdings shares issued to individuals and companies funded by the Fiji Development Bank;

(iv) an initiative that was intended to help ordinary Fijians through their Provincial Councils was allowed "to be hijacked by individuals and family companies who were close to the SVT Government";

The Release demanded a full and independent inquiry into these allegations.

The Plaintiff says that the publication complained of is deliberately false in certain material particulars and that unless restrained from further publication will cause further irreparable damage to the Plaintiff's reputation as a successful undertaking.

The Defendants allege in their Release that an announcement made by the Interim Prime Minister shortly before the 14th of September 2000 to convert the $20 million loan to a grant and to give each Province one million shares in the Plaintiff will result in the Provinces who were to be issued with "B" Class shares receiving a much lower dividend than Class "A" shares held by the family company. The Defendants say that as a result the Fijian people are being short changed.

The application alleges breach of confidence. It also alleges that the Defendants, particularly the Second Defendant, have a duty not to take unfair advantage of their knowledge of the Plaintiff which they have gained through public and other sources.

The motive of the Defendants is said to be to destroy certain members and officers of the Plaintiff. This, it is claimed, if successful, will destroy the reputation of the Plaintiff and punish unfairly members of the Company who have bought shares in good faith and who face financial risk for borrowings to fund their share purchase. The Plaintiff cites a number of cases in which judges of great distinction in England have said for example the following:

"The party complaining must be the person who is entitled to the confidence and to have it respected."

Lord Denning M.R. in Fraser v Evans [1969] 1 QB 349 at p. 361.

".... The law will, in a proper case, intervene to restrain a Defendant from revealing information or other material obtained in confidence, such as trade secrets and the like. This depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it.

.... But the information must be such that it is a proper subject for protection. As I said in Fraser v Evans:

"there are some things which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret.".

Lord Denning M.R. in Hubbard v Vosper [1972] 1 All ER 1023 at pages 1028 - 1029.

Lord Denning again in Schering Chemicals Ltd v Falkman Ltd. & Ors [1982] 1 QB1 at page 23 said:

"Freedom of the press is of fundamental importance in our society... unless there is a "pressing social need" for such restraint. In order to warrant a restraint, there must be a social need for protecting the confidence sufficiently pressing to outweigh the public interest in freedom of the press. No injunction forbidding publication shall be granted except where the confidence is justifiable on moral or social grounds"

".... It comes back to this, prior restraint is such a drastic interference with the freedom of the press that it should only be ordered when there is a substantial risk of great injustice."

These statements of the right of freedom of speech are nothing new to the common law of democracies. In a sense they proclaim the freedom of expression and the rights of the individual first enunciated in Magna Carta and it would be a brave government of any country accepting the Westminster system to reject or attempt to dilute them. The question for my decision is "Has there been any breach of confidence by the Defendants?"

The best known statement of the law is that of Megarry J. in Coco v A.N. Clark (Engineers) Ltd. [1969] RPC 41, 47:

"First, the information itself ... 'must have the necessary quality of confidence about it'. Secondly, the information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Early in its submission the Plaintiff acknowledges that it is a listed Company and much of the content of the Media Release is public knowledge. The Plaintiff nowhere suggests that the allegations made in the Release are of confidential information nor in my judgment could they be for the following reasons:

The Plaintiff is a public listed company. Like all companies, it is required to keep a share register (s.114 of the Companies Act) and, if it has more than 50 members, an index of members (s.115). Both are open to inspection from members and others (s.117). It is required to file an annual return (s.127), which includes details of members as required in the Sixth Schedule. In short, the membership of the Plaintiff is not confidential information. Indeed, the law requires that the company itself put the information in the public domain - namely the Companies Registry - from which the media release makes clear the information was sourced (the other stated source was the Plaintiff's own annual report).

To the extent that there is reference in the media release to the debt financing of shareholders, this too is ascertainable from public records (s.127). Of course, any information on the indebtedness of shareholders, even if it was confidential, would belong to the shareholders, not the Plaintiff.

In paragraph 8 of the affidavit of Jaoji Koroi the Secretary of the Plaintiff, complaint is made that the Release of the "information" by the Defendants was not authorised by the Plaintiff. I ask, why should it have been? What need is there for any authority relating to information put into the public domain in compliance with the Companies Act? The answer must be none. In my judgment the motion by the Plaintiff is nothing more than a clumsy attempt to gag discussion of a legitimate topic of public interest, namely the use of $20 million of public money in a Company dominated by private shareholders. The Plaintiff makes no attempt to assert any of the necessary elements of breach of confidence. Consequently I find there are no grounds for granting an Injunction. It is well-established that an Injunction in support of defamation proceedings will not issue so long as the Defendants assert their rights to common law defences such as justification or fair comment. I deduce from the material that if a statement of claim is ever delivered by the Plaintiff the Defendants will most likely plead that defence.

Accordingly the Motion is dismissed. I order the Plaintiff to pay the Defendants' costs of $350.00.

Application fails.

Marie Chan