IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 821/00

Edwards

v

Simiki anor

Ward CJ 
11 March 2002 

Defamation – defence of privilege – defence allowed

The first defendant called a public meeting of all Tongan shopkeepers and any other interested people as a result of increasing concern at the number of Chinese owned shops and their ability to undercut prices in the Tongan owned shops even for the same items. As a result the formation of an Association was mooted and a committee and officers elected. The first defendant was the chairman and the second defendant the assistant secretary and, later, secretary. At that meeting a number of concerns were aired and it was suggested that the committee should draft a petition to present to His Majesty and Parliament. Following various further meetings a draft was completed and a further public meeting called. That meeting took place on 4 September 2000 and the draft of the proposed petition was read out. It gave rise to various comments and suggestions as a result of which the committee decided to take legal advice from two separate law practitioners and also deleted some of the complaints from the earlier draft. A further, and final, meeting was called on Wednesday, 13 September 2000. At that meeting the first defendant opened the meeting with a prayer and a short welcoming address after which she asked the second defendant to read out the petition. She told those assembled there that they would have an opportunity to make any comments or suggestions but should wait until they had heard the whole petition through. There were a number of comments made but none that resulted in any amendment to the draft. When the meeting concluded, the petition was placed on a table and the people invited to sign if they agreed and a number clearly did so. Some of the shopkeepers also took a copy with them to display in their shops for other people to sign. When asked about the petition, those shopkeepers explained what it was and invited the interested person to sign only when they had read it through and agreed with its contents. Many of the eventual one thousand signatures were added in those shops. Five days later all the petitions were returned and, on Tuesday, 19 September 2000, one copy with all the signatures attached was presented at the Palace office addressed as a petition to the Prince Regent, the King being abroad at the time. The defendants had no more to do with the petition and simply waited for any response from the Palace. The petition included various complaints levelled at a number of government departments including Police and Immigration, Inland Revenue and the Ministries of Finance and Labour. Included in those were two specific allegations of serious impropriety against the Minister of Police personally. No other individual was singled out in that way. The plaintiff brought an action for defamation. The first ground of defence was that those comments were absolutely privileged under section 9 of the Defamation Act (Cap 33) and the second ground was that they were protected by qualified privilege under section 10. 

Held: 

1. The court must decide what was the true intention of making and reading out the document. The court was satisfied that it was a genuine petition and therefore ruled that the statements made by the defendants at the meeting on 13 September 2000 were absolutely privileged under section 9 of the Defamation Act. Judgment was for the defendants and the claim was dismissed. 

2. The court was satisfied that those to whom the defendants were communicating the petition were covered by the terms of section 10 as people with an interest in hearing it. Equally, the court was satisfied the defendants were communicating the contents of that petition in discharge of a moral or social duty. 

3. The only thing that would negate the protection was if the comments were not made bona fide or were actuated by anger, ill-will, or other improper motive. That would lift the protection of the section but that was a matter for the jury and would depend on their finding. 

Cases considered: 
Hunter v Chief Constable of West Midlands [1982] AC 529 
R v Simiki [2001] Tonga LR 320 

Statute considered: 
Defamation Act (Cap 33) 

Mr Clive Edwards in person 
Counsel for first defendant : Mr Tu'utafaiva 
Counsel for second defendant : Mr Fakahua 

Judgment

This is an action for defamation. The plaintiff is the Minister of Police. His portfolio, at the relevant time, included the Immigration Department. The defendants were, at that time, shopkeepers and, indeed, the first defendant still is. 

As a result of increasing concern at the number of Chinese owned shops and their ability to undercut prices in the Tongan owned shops even for the same items, the first defendant called a public meeting of all Tongan shopkeepers and any other interested people. As a result the formation of an Association was mooted and a committee and officers elected. The first defendant was the chairman and the second defendant the assistant secretary and, later, secretary. 

At that meeting it appears a number of concerns were aired and it was suggested that the committee should draft a petition to present to His Majesty and Parliament. Following various further meetings a draft was completed and a further public meeting called. That meeting took place on 4 September 2000 and the draft of the proposed petition was read out. It gave rise to various comments and suggestions as a result of which the committee decided to take legal advice from two separate law practitioners and also deleted some of the complaints from the earlier draft. 

A further, and final, meeting was called on the Wednesday, 13 September 2000. At that meeting the first defendant opened the meeting with a prayer and a short welcoming address after which she asked the second defendant to read out the petition. She told those assembled there that they would have an opportunity to make any comments or suggestions but should wait until they had heard the whole petition through. 

There were a number of comments made but none that resulted in any amendment to the draft. When the meeting concluded, the petition was placed on a table and the people invited to sign if they agreed and a number clearly did so. Some of the shopkeepers also took a copy with them to display in their shops for other people to sign. On the evidence, I am satisfied that, when asked about the petition, those shopkeepers explained what it was and invited the interested person to sign only when they had read it through and agreed with its contents. Undoubtedly many of the eventual, approximately, one thousand signatures must have been added in those shops. 

Five days later all the petitions were returned and, on Tuesday, 19 September 2000, one copy with all the signatures attached was presented at the Palace office addressed as a petition to the Prince Regent, the King being abroad at the time. The evidence is that the defendants had no more to do with the petition and simply waited for any response from the Palace. 

The petition includes various complaints levelled at a number of government departments including Police and Immigration, Inland Revenue and the Ministries of Finance and Labour. Included in those were two specific allegations of serious impropriety against the Minister of Police personally. No other individual was singled out in that way. 

The claim of defamation is based on those passages, which were part of the whole petition read out by the second defendant at the invitation of the first during the meeting on 13 September together with the additional comment by the first defendant, in response to an enquiry from the floor of the meeting, that they had good evidence for the allegations in the petition. 

The first ground of defence was that these comments were absolutely privileged under section 9 of the Defamation Act Cap 33 and the second ground was that they were protected by qualified privilege under section 10 of the same Act. 

It should be mentioned that it was agreed with counsel that the jury should still be asked to deal with the other issues raised including the issue of motive in relation to qualified privilege. I shall give this ruling after they have given their decision. 

The defence under section 9 

Section 9 provides: 

"9. No Criminal or civil proceedings for defamation of character shall be maintainable in respect of any matter stated -

(a) in any petition to the King or Legislative Assembly; 

(b) in the course of proceedings in the Legislative Assembly; 

(c) in the course of judicial proceedings before any Court having jurisdiction in the Kingdom; or 

(d) in any communication made in pursuance of his official duty by any official of the Government to the Privy Council, the Cabinet or another Government official." 

There has already been a criminal case against the same defendants for criminal defamation. In that case I ruled that the statements were privileged under section 9 and directed the jury to return a verdict of not guilty. The defence ask the court to find that there is a question of issue estoppel raised here.

I accept that the courts in England have refused to allow a civil action where the purpose is to mount a collateral attack on a criminal case in which the same issue has been ruled upon against them; Hunter v Chief Constable of West Midlands [1982] AC 529; but I am far from satisfied that issue estoppel applies as a doctrine in the courts in Tonga. In Hunter's case the remedy was to seek to have the action struck out as an abuse of process and I consider that would have been the appropriate course in the present case. 

Having said that, I do not consider this is such a collateral attack neither do I consider it satisfies the accepted requirements to establish a case of issue estoppel if such a doctrine has a place here. 

The parties are not the same. Mr Tu'utafaiva suggests that as the present plaintiff was the complainant in the criminal trial, the parties are effectively the same. I cannot accept that. One effect of such a finding would be that an acquittal in criminal proceedings would effectively block a large proportion of subsequent civil claims and I cannot accept that is, or should be, the position in Tonga. 

Neither do I accept that the issues are sufficiently the same in the two cases. The evidence in the present case has been more extensive than that adduced at the criminal trial and has ranged over different aspects of the events of that time. 

Mr Tu'utafaiva also argues that this court is bound by its earlier decision on the grounds of res judicata. Whilst I accept such a defence is available here, I cannot agree that it applies in this case for similar reasons to those I have stated with regard to issue estoppel. I would also have expected such a defence to have been pleaded, which it was not. 

The plaintiff, Mr Edwards, points to a passage in my earlier judgment, (R v Simiki [2001] Tonga LR 320 at 324) where I said: 

"I accept there must be some limit to the privilege under section 9. Clearly the privilege under that section cannot be used as a defence to charges over statements made in weeks of meetings under the claim that the meetings will eventually give rise to a petition." 

He asks the court to find that the allegations against himself had been raised in the two previous public meetings and a number of meetings between members of the public and the committee. He suggests also that the main meetings should have been private, closed meetings. Some of the people present did not sign the petition including both the defendants. In this case, he asks, how can they say these passages were part of a petition when they never adopted it themselves by adding their signatures and, in any event, he suggests that, until the petition is signed, it is not a petition. 

I do not consider I need to go into this in great detail. I see no reason to diverge from my previous reasoning in the criminal trial. 

I am satisfied that the document read out at the meeting of 13 September was a petition to the King. I also accept that the contents were read out solely to allow those present to decide for themselves whether to sign or not. If there had been no petition as a result of the meetings or if I had considered this was a cover for some other purpose, then I would not accept the statements were privileged but the evidence as a whole points conclusively to the fact that this was the final reading of a petition that was subsequently adopted by a number of people and submitted to the Prince Regent. I believe the court must decide what was the true intention of making and reading out the document. If it is proved that it was intended to be and did become a petition to His Majesty, then it must be protected during a meeting with the people who have asked for it when that meeting is to explain its nature and contents in order to allow them to decide whether to associate themselves with it by adding their signatures. 

Mr Edwards refers to the earlier meetings at which he suggests the same passages were read. However, this case is about the single reading at the meeting on 13 September. That is the only defamation about which this claim is brought. I do not consider the court is entitled to consider other publications of the same matter which have not been included in the claim. I would add only one qualification; that the earlier statements will be relevant to the court's decision about the motive and true intention of the makers of the statement when deciding if it was, indeed, a genuine petition. 

As I have already stated, I am satisfied that this was a genuine petition and, in reaching that decision, I considered the whole history of the events before and after the presentation of the petition on 19 September 2000. 

I should, however, refer to one specific aspect of the evidence of subsequent events. It was suggested to the defendants that the contents of the petition had been published in a newspaper. The defendants denied having ever seen such a report and there was no evidence called to prove that publication. However, even if such a publication had been proved, unless it is established that it was published by the defendants, that does nothing to remove the protection of the section. In such a case, of course, it would be a separate defamation and would give rise to a fresh cause of action in the same way that the malicious repetition, outside the Legislative Assembly, of statements privileged under section 9(b) would be actionable without affecting the privilege attached to the original utterance. 

The decision whether or not these statements were made under the circumstances in section 9 is for the judge and, by section 11(2) if he finds it was, he shall enter judgment for the defendant. I do so find and therefore rule that the statements made by the defendants at the meeting on 13 September 2000 were absolutely privileged under section 9 of the Defamation Act. There must be judgment for the defendants and the claim dismissed. 

The defence under section 10 

Section 10 reads:

"10. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such communication is made has an interest in hearing it unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive."

By section 11, it is for the judge to decide whether the communication was made in any of the circumstances set out. Should he do so, subsection (3) continues, "then if there is no evidence that the defendant was actuated by anger, ill-will or other improper motive the judge shall direct a verdict for the defendant." 

The evidence in this case is that these meetings were called for the purpose of addressing the dissatisfaction of the Tongan shop owners. Whether that dissatisfaction was justified or whether it was, as the plaintiff has suggested, simply a failure to accept that the Tongan shops were losing trade because the Chinese were more competitive, does not need to be determined. I am satisfied on the evidence that the concern and the reasons for the meetings was genuine. 

The announcements calling the meetings were addressed to shopkeepers and anyone else interested in the problem. There is no evidence that there was any attempt to call others beyond that or that the meetings included others. I do not consider that there has been any challenge to the fact that the defendants were persons with an interest in the matter that was contained in the petition. I am satisfied on the evidence that those to whom they were communicating it were covered by the terms of section 10 as people with an interest in hearing it. Equally, I am satisfied the defendants were communicating the contents of that petition in discharge of a moral or social duty. 

That will apply to the petition as a whole. It is true that the words complained of in this case form a unique part of that petition because they are the only passages that make a direct personal attack on an individual as opposed to the general attacks on government departments. However, I do not consider that takes them outside the scope of the protection. The communication that is protected is protected because of the manner in which it is communicated and the purpose of the communication not because the contents. That protection will apply to the whole of the communication. 

The only thing that will negate the protection is if the comments were not made bona fide or were actuated by anger ill-will or other improper motive. That would lift the protection of the section but that is a matter for the jury and will depend on their finding.