Attorney-General v Tawaia [2001] KICA 11; Civil Appeal 01 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO, KIRIBATI

Civil Appeal No. 1 of 2000

BETWEEN:

ATTORNEY-GENERAL
IN RESPECT OF CHIEF REGISTRAR AND
SINGLE MAGISTRATE KAROTU TIBA
Appellant

AND:

BINATAAKE TAWAIA
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr D James for the appellant
Respondent in person

Date of Hearing: 29 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] This Appeal by the Attorney General is against the refusal of the Chief Justice on 20 April 2000 to strike out the respondent's statement of claim in his action claiming damages for slanders alleged to have been uttered by the Chief Registrar of the High Court (Mr Lambourne) and the Single Magistrate of the South Tarawa Lands Court of Bairiki (Mr Tiba). Mr Tawaia (the respondent) prepared and filed his own pleadings and the statement of claim is a powerful illustration of the truth of the proverbial statement "a little knowledge is a dangerous thing" - especially in the legal minefield of defamation. We indicated at the hearing that Mr Tawaia would be well advised to seek expert assistance if he wishes to pursue his action. The allegations are:

"Between July and October 1999, or thereabout, the 1st Defendant [i.e. Mr Lambourne], with express malice and ill-feeling, uttered a slander about Plaintiff by directing the Magistrates on South Tarawa and Betio to consider the Plaintiff as an unworthy person and unfit to be admitted as a lawyer or even to appear to assist any of his friends in any court throughout his life time."

"The 2nd Defendant [i.e. Mr Tiba], on or about 5/10/99, with malice and knowledge to act without jurisdiction, uttered a slander about the Plaintiff to litigants who applied leave for the Plaintiff to appear with them to assist in presenting their case and without considering an application before him, uttered that the Plaintiff was an unworthy person who cannot be admitted as a lawyer or assist any of his friends in any court."

Mr Lambourne had filed an affidavit in support of the application exhibiting material showing that the respondent had been convicted on 18 counts of fraud and theft as a servant in 1984. No statement of defence has yet been filed and the appellant applied for an extension of time pending determination of this application.

[2] His Honour observed that the statement of claim may have many deficiencies, but he concentrated on what he regarded as the crucial matter of whether Mr Lambourne and Mr Tiba were absolutely privileged in respect of the alleged slanders. He prefaced his decision on this point with a reference to the general principle established in applications to strike out based on the failure to disclose a reasonable cause of action, namely that it is a summary power which should be exercised only in plain and obvious cases, citing to this effect Drummond-Jackson v British Medical Association and Others [1970] 1 All ER 1094 at 1101.

[3] Mr James had submitted that in passing on this information to Magistrates, Mr Lambourne was acting judicially and therefore entitled to absolute privilege, but His Honour rejected this and held his actions were administrative only. Alternatively he submitted that Mr Lambourne must be regarded as a "high official of State" as accepted in Chatterton v Secretary of State for India in Council (1895-9) All ER 1035, and therefore entitled to absolute immunity. It is not clear who may be such an official and His Honour quoted the following very relevant passage from the judgment of Evatt J in Gibbons v Duffel [1932] HCA 26; (1932) 47 CLR 520 at 534:

"By the year 1892 when the case of Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson was decided, the classes of publication to which the common law had attached a complete immunity were ascertained, and any proposed extension of the classes was looked upon with disfavour. 'Absolute immunity from the consequences of defamation,' as Mr E E Williams wrote in 1909, 'is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded in those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civic protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated'. (25 Law Quarterly Review p. 200).

Extension of the privilege by reason of analogies to recognized cases is not justified".

He held that it was not plain and obvious that the concept should be extended to Mr Lambourne, and we agree. We are not prepared to accept Mr James' submission that in the less sophisticated society of Kiribati he should be regarded as a high official entitled to immunity. The ordinary protection of qualified privilege in the absence of express malice is sufficient.

[4] Mr Tiba did not file an affidavit and the Chief Justice said he was left uncertain from the pleadings whether he was speaking during the course of legal proceedings, which could give rise to a defence of absolute privilege; or whether he was speaking at large in court, when he may not have been so protected. As noted above, he dismissed the application to strike out, but in respect of the case against Mr Tiba, Mr James rightly submitted to us that it was not for his client to provide particulars, but for Mr Tawaia to give sufficient details of time, place and circumstances of the alleged slanders to enable the defendants to know the case against them in order to plead properly to it.

[5] This brings us to the wide-ranging complaints about the statement of claim which were not dealt with by His Honour. In addition to what we have said about the allegations against Mr Tiba, it is plain that in many other respects it is insufficient or irrelevant, faults which may be capable of remedy by amendment or fresh pleading. It is not for us to direct the respondent as to how he should do this, but some further matters we draw to his attention are the allegations of two separate causes of action in respect of both Mr Lambourne and Mr Tiba, but with only one "rolled-up" claim for damages. In respect of Mr Lambourne we see problems in the allegation of his "directing the Magistrates" without any reference to the actual words used which are alleged to be defamatory; and in the lack of logic or even relevance in the particulars of other imputations in the alleged slander; and in the particulars of express malice, which we find difficult to understand and have presumably been pleaded on the basis that the defendant will claim qualified privilege. This list is not meant to be exhaustive, and Mr Tawaia might do well to heed the criticisms of Mr James when attending to any amendments he sees fit to make as a result of the opportunity we now give him to get his pleadings in order.

Result

1. The appeal is allowed to the extent only of remitting the matter to the High Court with a direction that the plaintiff do within 42 days of this judgment file and serve an amended statement of claim with further and better pleadings and particulars of the allegations against the defendant, who in default may apply to that Court to strike out the action on 7 days' notice to the plaintiff.

2. The time for filing and serving a statement of defence is extended to 14 days after service of any amended statement of claim.

Casey JA
Bisson JA
Tompkilins JA