Mwemwenikarawa v Timeon [2011] KIHC 5; High Court Civil Case 132 of 2010 (20 January 2011)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 132 of 2010

Between:

Nabuti Mwemwenikarawa
Plaintiff

And:

Hon Taberannang Timeon as
Publisher of "Boutokaan Te Koaua
Newsletter"
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Taoing Taoaba

Dates of Hearing: 13 December 2010 & 17 January 2011

JUDGMENT
(On the question of Qualified Privilege)

Action for damages for defamation and for an injunction.

Both plaintiff and defendant are Members of Parliament. They are on opposite sides of the House. The plaintiff is at present Leader of the Opposition. The defendant is a Minister.

There is no dispute as to the facts of what was published and when.

The defendant, apart from his public duties, is the registered publisher of the newsletter "Boutokaan te Koaua Newsletter", a newsletter owned by the Boutokaan te Koaua Party, a political party of which the defendant is a member.

In the issue of the Newsletter in July last year these words (for convenience I shall hereafter use the term "article") appeared under the heading "What is Your Responsibility for Your Country as Leader of the Opposition" (all in the Kiribati language):

Who has betrayed Kiribati? The current President with one of his Ministers when they signed the making of some foreigners who had been confirmed by the Court to be of I-Kiribati descent or having been born in Kiribati as clearly stated in the laws to become citizens of Kiribati or was it him who betrayed Kiribati in what he did when he tried to transfer funds from the Insurance in the sum of $3 million, or $50 million from the reserve fund to a Japanese lady?

No one is immune from making mistakes but in gravely offending mistakes, we believe that one ought to do what should be done. The Member of Parliament should apologise to Kiribati and if he is a real man and he has committed a very grave mistake he ought to know what he should do.

From the discussions of the Leader of the Opposition who is a member from North Tarawa it became widespread knowledge that the reason he was not made a Minister was because he competed against the Beretitenti to replace him.

This information is not true, and let you the people of North Tarawa be assured that the real reason why he was not accepted back was because he had done a lot of things which had caused doubts about him when he was a Minister and what he had done before. One of such things was what he did with this Japanese lady.

He was given responsibility and what he did was he was trying to enrich himself with public funds. A request is being asked of the member of Parliament from North Tarawa who is the Leader of the Opposition to make explanations to his people in North Tarawa and Kiribati as a whole and to properly explain about his NEM".

---------

"The discussion about the "Transfer of Funds" and the discussion about the company NEM these two things are related since they all aim at one goal and that clarifies what was attempted to be done. The attempt to transfer the money $3 million, and $50 million in the year 2004, was the result of the connections between the member from North Tarawa, when he was the Minister of Finance and one Japanese lady".

---------

"We thank the staff of Kiribati Insurance Corporation and those responsible for looking after the reserve funds of Kiribati for their good efforts in protecting the monies of the people of Kiribati from the deceitful ways of this Japanese woman which was well known by the then Minister of Finance".

The defendant in his Defence has pleaded qualified privilege. He relies first on the report of a debate in the Maneaba ni Maungatabu on 23 April 2010 and sets the report out in paragraph 4 of the Amended Defence:-

Mr Kabetite Mwetaka: Thank you Chairman, it is true that we are really in a rush because of the limited time given in making a speech but what is of importance is to emphasize the truth which are useful for our member islands who are now listening to the radio.

Mr Chairman, this is in relation to the need of this committee which has been emphasized on the Minister of Finance at that time who has moved this motion of no confidence ... Mr Chairman before me are the papers confirming the existence of a company called Nem Investment Management Company Limited. This committee is asked, because when this company was established, the amount of $3 million was required to be withdrawn from the Kiribati Insurance company and to be deposited to this company. $50 million was also required to be withdrawn from the Kiribati Reserve Fund and to be deposited into this company. And who is the owner of this company? The person who had moved this motion together with his lawyer sitting beside him ....."

"And this is very important Mr Chairman .... these are the things that I could say and which are really important and useful for the people of Kiribati to hear and also useful for those listening, things that have happened in the past and present ....."

Hon Taberannang Timeon:

"Mr Chairman, Parliament proceedings on Friday 26/11/04 shows a motion moved by one of the MP from South Tarawa who was from the opposition, a need to establish a committee. The motion said "That this house is asked that the government establish an enquiry committee on the involvement of the Minister of Finance with the following: i) the Minister of Finance involvement with one pretty Japanese lady regarding the transfer ad use of money for transferring the amount of $3 million from the Kiribati Insurance Company, Kiribati company. Together with the attempt to transfer the amount of $50 million from our money which we have been taking care of, the Reserve Fund, to the account of this lady ..... to Vanuatu Mr Chairman".

"..... So this Nem would be our third Investment company Mr Chairman who would like to overthrow this Government these people, and who are the board member. The man next to him, the MP from South Tarawa who is a clever person and lawyer. It is the cleverness of these people who will lead you people to a pit. This Mr Chairman who want to overthrow the government for their company known as Nem who took $50 million Mr Chairman. This man who was given an envelope Yuniko
Mr Chairman 10 million. It was 10 million Yen and he thought it was $1 million, it was 10 million Yen Mr Chairman. Ad what did some of the opposition called him Mr Chairman. That we almost lost our money which they said it was $3 million from the Insurance, and $50 million from the reserve fund".

Mr Nabuti Mwemwenikarawa: Mr Chairman you will see in the end. It was a mistake, a real mistake what had been done. We did not doubt that. But what was said Mr Chairman some replied, only cabinet and the Minister of Finance, something about the investment Mr Chairman, what else, the $50 million, about myself when I was blamed when I was a Minister of Finance Mr Chairman when I was with these people.

Hon Taberannang Timeon: We are not afraid of the speeches. But we only want to point of order, and you said something about the $50 million and the $30 million belonging to the Insurance and the RERF and you went to the Minister of Finance and you are one of the people who wanted this money to be invested with you. Isn't that the reason you established your company called the NEM Investment Management Company Limited 22 January 2009".

In May 2010 the issue was taken up in "Otan Maurin Kiribati", a newsletter owned by one of the political parties of which the plaintiff was a member. It is set out, by late amendment, in paragraph 4 of the Defence. There is no need to reproduce it in these Reasons.

In paragraph 4 of his Defence the defendant avers:-

..... The Defendant however avers that such publication was qualified privilege in that it covers occasions where the defendant had a duty, or interest to make the communication as it did, the third party had a interest in receiving that communication and there is sufficient interest in privileging the performance of this duty, or the protection of this interest over the reputation of the plaintiff.

Paragraph 5 of the Defence:-

.....the facts that the words were published by the Defendant cannot injure the credit and reputation of the Defendant (sic) since those words, though not exact but bore the same meaning had already been published in Parliament during parliamentary proceedings and later repeated by the newsletter in which the plaintiff was an owner.

Counsel asked me first to consider the question of qualified privilege.

The traditional starting point is the decision of Parke B in Toogood v Spyring (1824-34 All ER Rep. 735 @ 737-738):-

In general an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

And see the discussion by Brennan J in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (182 CLR 211 @ 237 et seq) and also Gatly on Libel and Slander (8th ed) @ 635.

The problem for the defendant is that the article – the words – stands alone as the opinion of the publisher, the defendant. The article does not refer to the parliamentary debate: it does not purport to be a fair and accurate report of the debate. Nor could it. Comparing the article and the report of the debate it obviously is not a fair and accurate report as half admitted ("though not exact") in paragraph 5 of the Defence.

[Both counsel agreed that it is not relevant that the parliamentary proceedings were broadcast live and what was said heard by many persons throughout Kiribati.]

Nor does the article purport to be in answer to what had been published in Otan Maurin Kiribati: makes no reference to Otan Maurin Kiribati.

Ms Taoaba suggested that the readership of the two newsletters is common: they are both read by citizens who are interested in politics. Perhaps so but there is no evidence to support her suggestion.

The article stands alone as the words of the publisher. The publisher had no legal, social or moral duty to publish the article to anyone who had a corresponding duty or interest in receiving it.

The article attracts no privilege.

The defence of qualified privilege fails.

Dated the 20th day of January 2011

THE HON ROBIN MILLHOUSE QC
Chief Justice