Doucet v Marshall [1979] KIHC 34; 1979 KILR 115 (30 November 1979)

[1979] KIHC 34; [1979] KILR 115

HIGH COURT OF KIRIBATI

Civil Case No 3 of 1979

ROBERT MICHAEL DOUCET

v

TERRY MARSHALL

(O'BRIEN QUINN C.J.)

Betio: 26th, 27th, 28th and 30th November 1979

Civil law - libel - publication - libel written and published abroad - jurisdiction of Court - words defamatory in their ordinary meaning - qualified privilege - privileged occasion - was privilege exceeded - malice - express malice - express malice not established - action for defamation fails - costs.

The plaintiff was dismissed from the U.S. Peace Corps by the defendant, and the defendant Trade investigations in Kiribati, wrote an Early Termination Report on the dismissal in Nauru and Honiara and sent it to Washington D.C. in the United States as he was required to do as Country Director of the Peace Corps for Kiribati. The Plaintiff claimed that the Report defamed him and claimed special damages in the sum of $790,000 in addition to general, aggravated, compensatory and actual damages. The defendant relied on the ground that the Report was written on an occasion of qualified privilege.

HELD: (1) That as the publication of the words in the United States of America would give rise to civil liability there the Courts in Kiribati could try the case as the defendant was in Kiribati;

(2) That the words were defamatory in their ordinary and natural meaning;

(3) That the occasions on which the words were used were privileged occasions;

(4) That "express malice" was not established and that qualified privilege was not ousted;

(5) That as the plaintiff had not wasted the Court's time and had some justification for taking the action the costs against him would be $200 only.

Authorities referred to:

Gatley on Libel and Slander, 7th Edition paragraphs 4, 547-552, 762, 856

Boys v Chaplin (1971) A.C. 356

Halsbury's Laws of England, 3rd Edition, Vol 24, pgh 97

Capital and Counties Bank v Henty (1882) 7 App Cas. 741 H.L. at 787

Adam v Ward (1917) A.C. 309, H.L. at 344

Clerk and Lindsell on Torts, 14th Edition, pgh 1743

Angel v H.H. Bushell & Co Ltd (1968) 1 Q.B. 813

Clerk v Molyneux [1877] UKLawRpKQB 104; (1877) 3 Q.B.D. 237

Royal Aquarium v Parkinson (1892) 1 Q.B. @ 454

Horrocks v Lowe (1974) 1 ALL E.R. 662 at 669

Privacy Act (United States)

Plaintiff in person (assisted by Mr Brian Orme)
G.P. Lala, Barrister, for the Defendant.

O'BRIEN QUINN C.J.:-

This is an action for damages for libel taken by the Plaintiff, a U.S. Peace Corps Volunteer, against the Defendant, the Country Director responsible for U.S. Peace Corps Volunteers in Kiribati who is resident in the Solomon Islands.

2. The defamatory words and innuendoes alleged were claimed to have been written in the Early Termination Report (hereinafter called the Report) made by the Defendant between 28th January 1978 and 30th January 1978 partly in Nauru and partly in the Solomon Island and sent to the Peace Corps Headquarters in Washington D.C. U.S.A., immediately after he, the Defendant, had terminated the service of the Plaintiff with the Peace Corps, and giving his reasons therefore and the background thereof in accordance with section 292 of the Peace Corps Manual as the Plaintiff had informed him that he would appeal against the decision to terminate him.

3. The publication alleged was to the Peace Corps, Washington D.C. U.S.A. but the Statement of Claim was amended on 20th November 1979 include a claim also for publication of the alleged libel to Alan Martin, Personnel Office, Bairiki, Tarawa, Gilbert Islands, and other unspecified persons not yet discovered.

4. The Plaintiff claimed special damages in the sum of $790,000 in addition to general, aggravated, compensatory and actual damages.

5. The first point to consider is whether or not this Court has jurisdiction to hear the claim as the alleged libel was written in Nauru and Honiara and published in the United State of America, while both the Plaintiff and the Defendant are citizens of and domiciled and ordinarily resident in the United States of America. The position is covered in law by virtue of the decision in Boys v Chaplin (1971) A.C. 356 where it was held that a foreign subject who is within the jurisdiction of the English Courts can be sued for defamatory words published in a foreign country, provided that the publication of the words gives rise to civil liability by the law of that foreign country. This proposition is set out in Gatley on Libel and Slander, 7th Edition, paragraph 856. Thus, this Court has the necessary jurisdiction to hear the claim for the alleged libel published in Washington. There is, of course, no doubt that the Court has jurisdiction to hear the claim for the alleged libel published in Bairiki, Tarawa.

6. The next point to consider is whether or not the words used in their ordinary meaning are defamatory of the Plaintiff. It is the law that any imputation which may tend to lower the Plaintiff in the estimation of right thinking members of society generally or tend to cut him off from society or tend to expose him to hatred contempt or ridicule is defamatory (Gatley, 7th Edition paragraph 4). The Report made by the Defendant, criticized the Plaintiff and generally pointed out his weaknesses and shortcomings as seen, heard about, reported to and investigated into by the Defendant. In so writing the Defendant did use words and did make imputations on the character of the Plaintiff and I must find that the words and imputations in the Report are defamatory of the Plaintiff in their ordinary and natural meaning.

7. The third point to consider is whether or not the occasion on which the words were used was a privileged occasion. This means that if the occasion were privileged then the words used, although defamatory, would not be actionable unless they were proved to have been used with express malice. It is stated in Halsbury's Laws of England, 3rd Edition, Vol 24 at paragraph 97 that, on grounds of public policy or the general welfare of society, the law affords protection on certain occasions to persons who, acting in good faith and without any indirect or improper motive, make statements about another which are in fact untrue and defamatory (Capital and Counties Bank v Henty (1882) 7 App Cas 741, H.L. at 787.). Such occasions are called occasions of qualified privilege. In this case it was for the Defendant to prove the facts and circumstances which established that the occasions were privileged. An occasion is privileged where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. (Adam v Ward (1917) A.C. 309, H.L. at page 344.). In this case there is no doubt in my mind on the evidence before me that the Defendant, who as Acting Country Director at the time, had a legal duty to report to his superiors in Washington that he had dismissed the Plaintiff and to give his reasons for so doing, particularly as the Plaintiff had a right of appeal and had expressed to the Defendant his wish to appeal. I, therefore, find that the occasion of the publication of the Report to the Peace Corps Headquarters in Washington D.C. was privileged. With regard to the publication of the Report to Mr Alan Martin, who was the Gilbert Islands Government liaison officer with the Peace Corps in the Gilbert Islands at the time, which point was not contradicted, different considerations arise, the real difficulty being defining what kind of social or moral duty, or what amount of interest, will make such an occasion privileged. It must be remembered that there must be some corresponding duty and interest before the occasion can be held to be privileged. The Personnel Division File, E.130/5/1 Vol II, upon which the Report was filed was produced in Court and at page 254 can be found the covering letter written by the Defendant to Mr Martin on 2nd February 1978 enclosing the Report. It was argued that Mr Martin was the liaison officer in respect of the Peace Corps and all matters relating to the Peace Corps in the Gilbert Islands were dealt with through Mr Martin, following an Exchange of letters between the U.S. Ambassador in Suva, Fiji and the then Governor of the Gilbert Islands in 1974. I cannot find any precedent to guide me on the point, but having examined the list of examples given in Gatley, 7th Edition, at paragraphs 547 and 552 and, having gone through the Personnel File referred to above, I find, on a balance of probabilities, that the Defendant had a social or moral duty, though not a legal one, to communicate the Report to Mr Martin, and that Martin in his capacity as liaison officer, had a social or moral interest in receiving it in that there was an appeal pending, that Mr Martin was notified of it and that the contents of the Report covered matters such as housing of Peace Corps Volunteers, the work of Peace Corps Volunteers and their general behaviour in the Gilbert Islands. I, therefore, hold that the publication of the Report to Mr Martin was on an occasion of qualified privilege.

8. Having found that both publications of the Report were privileged the next point for consideration is whether or not the privilege was exceeded, in other words, was the Report made maliciously. In Clerk and Lindsell on Torts, 14th Edition, it is stated at paragraph 1743 "Once it is ruled that the occasion is privileged and that the matter complained of has reference to the occasion, the only remaining question for consideration is whether the occasion was used without malice" (Angel v H.H. Bushell & Co Ltd (1968) 1 Q.B. 813). In Clerk v Molyneaux [1877] UKLawRpKQB 104; (1877) 3 Q.B.D. 237 it was held that - Statements made on a privileged occasion will be protected, provided it does not appear that the Defendant acted from any indirect motive. It was also stated in the same case "I apprehend the moment the judge rules out that the occasion is privileged, the burden of showing that the Defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown on the Plaintiff." Thus having established that privilege existed I must now examine the evidence to see if there was malice sufficient to destroy the privilege. The Defendant is only entitled to the protection of the privilege if he uses the occasion in accordance -with the purpose for which the occasion arose. He is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motive (Royal Aquarium v Parkinson (1892) 1 Q.B. at 454). On an occasion of qualified Privilege the law looks to the motive of the defendant in making the communication as the true test of liability. (Gatley, 7th Edition pgh 762). It is the Plaintiffs contention that the Defendant made the Report maliciously in that he did not interview the proper people, that he misconstrued certain things that may have been said to him, that he ignored evidence Which ran counter to his own preconceived ideas and that he did not fully investigate the matters relating to the Plaintiff. In effect, the Plaintiff's Case was that the Defendant, in not making a proper inquiry and in not interviewing the Plaintiff's witnesses of whom he gave a list to the Defendant (who denies having received it), and in not giving the Plaintiff an opportunity to make a written rebuttal of the Report which he has never shown, (in breach of Peace Corps rules), exhibited sufficient malice to destroy the privilege of the occasion. In arguing these points the Plaintiff relied heavily on the evidence of Mr David Wimblett who was a member of the Housing Committee for Bikenibeu at the time in question, November 1977 to January 1978, and on evidence of a local custom, prevalent in Beru and Nikunau from where his girl friend came, that co-habitation was equivalent to marriage in a Church or at a Registry. He also placed reliance on the evidence of a fellow Peace Corps Volunteer, David Lawrence, who had lived and worked with him at the time and whose evidence conflicted with the Defendant's. The Defendant who did not live in the Gilbert Islands but only visited, on occasion, gave evidence that the actions of the Plaintiff had been causing some concern to him even before the Plaintiff's formal swearing in as a Peace Corps Volunteer, i.e. during his training period at Bikenibeu. The Defendant also said that he had interviewed the Chairman of the Bikenibeu Housing Committee from whose information he wrote some of the Report, that he had spoken with one Gilbertese and to a Dr Knutson, a Social Anthropologist, on the question of the local customs regarding marriage and co-habitation which also formed part of his Report and that he had spoken at length with Dr Gopalkrishnan under whom the Plaintiff worked at the Temaiku Fish-ponds, upon whose words he also heavily relied. He also said that he spoke with other Peace Corps Volunteers and that the result of all his inquiries led him to terminate the Plaintiff and that all the information so gained formed the basis of his Report. Bearing in mind that the onus of proof is on the Plaintiff to show express malice in order to destroy the privilege, I must weigh up the evidence given on both sides. In reading the Report which is attached, I would say, subject to what I shall say later on the question of haste, that one is struck by the reasonable way in which it is couched, taking into account that it follows a laid-down format. In paragraph 2 "Job strengths and weaknesses in performance" the Defendant, while relying on Dr Gopalkrishnan's remarks, nevertheless does not confine himself to them but also points out any other good points he may have heard or learnt from other sources. In paragraph 3 he fairly set out what he knew of the whole matter in chronological form and did acknowledge that many of the "problems" were due to personality clashes between the Plaintiff and David Buchler, a former Peace Corps supervisor. In paragraph 4 he set out his sources of information. In setting out his major reasons for termination the Defendant analyzes the problem from all angles and gives a very fair assessment. Finally he came to the conclusion that -

"Doucet hasn't made terrible mistakes on the job. His faults, taken simply are seemingly small. Taken together, they add up to an ineffectual volunteer: he has been erratic; he has missed work; he hasn't adapted well to the team approach required; he has contributed to tension and reduced work effort among other team members; and his actions have forced - others particularly Gopalkrishnan - to direct precious energy to solving the volunteers' personal problems".

Where the innuendos are concerned I find that they have not been established and I take no account of them.

9. There is a direct conflict between the evidence of the Plaintiff and that of the Defendant and, even though I find that the Report was comprehensive and fair as far as it went, I consider that it was written in haste and that the decision of the Defendant to terminate the Plaintiff should have been given more thought and more care and that he ought to have listened more to what the Plaintiff had to say. It strikes me that the Plaintiff had, and has, a certain amount of right on his side and might, and I only say might, have been able to convince his superiors in Washington of the strength of his case had he been given a better opportunity of doing so. However, does all this amount to "express malice" in law? The most recent case on the point is Horrocks v Lowe (1974) 1 All E R 662 where it was held that even gross and unreasoning prejudice did not of itself amount to malice if the Defendant had an honest belief in the truth of what he said. It was there said at page 669. "In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest" i.e. a positive belief that the conclusions they have reached are true. The law demands no more." In the present case such unreasoning prejudice is not shown and I consider that the Defendant was honest in his belief. The Defendant may not have sought all the possible evidence he could have but he made the effort to interview the most important people like the Chairman of the Housing Committee, Dr Gopalkrishnan and Dr Knutson. Is it then to be said that just because he did not make exhaustive inquiries and interview every possible witness that he acted out of malice? In the same case of Horrocks v Lowe it is said. "Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found." In this case there was no dislike of the Plaintiff by the Defendant nor was there any indignation at the Plaintiffs conduct; it was merely a report on why the Defendant terminated the Plaintiff.

10. Taking everything into account and even being of the opinion that the Defendant acted rather hastily in terminating the Plaintiff without listening exhaustively to his side of the story or seeing his witnesses I find on a balance of probabilities that "express malice" has not been established within the meaning of these words in law and that publication of the Report in both Washington and Bairiki were therefore on occasions of qualified privilege. Thus, I find that that action for damages for defamation fails.

11. I would point out, however, that as the Plaintiff has the right to make corrections in the Records in Washington as he was informed by Rosalind Daniels in her letter of 30th May 1979 as to the procedure for doing this he should avail himself of that opportunity at once as his competence as a marine biologist has not been impugned and thus his choices of future employment would not be jeopardised.

12. I would also say that the terms of the Privacy Act in the United States are such that the Plaintiff in my opinion need have no fears that anything of the Report would be disclosed to future employers unless he were to be employed in a post that required Federal Security Clearance and as a qualified Marine Biologist it is difficult to see how security clearance would ever be needed.

13. I would also suggest, as that is all I can do, that the Peace Corps Head-quarters in Washington might consider a review of the Plaintiff's termination as there is no doubt that many points that came out in evidence in this case were never canvassed in his appeal against termination and that had they been known a different view might have been taken of the matter. It must be remembered that this present case was not and could not be a re-hearing of the appeal in Washington though at times it seemed as if it almost were, and that all I have done here is to decide on whether or not the words in the Report could form the basis of an action for damages for defamation and this I have done and found against the Plaintiff.

14. Even though the Plaintiff has lost his action, I do not consider that he has wasted the Court's time and consider that he had some justification for taking it but I must, nevertheless, award costs against him and this I do in the lowest sum I can, consonant with justice. I order that he pay $200 in costs forthwith to the Defendant.

15. Either party may appeal against this decision within 30 days.