Pale v Pohiva [2006] TOLawRp 13; [2006] Tonga LR 148 (31 May 2006)

IN THE SUPREME COURT OF TONGA

Pale

v

Pohiva anors

Supreme Court, Nuku'alofa
Webster CJ
CV 411/2006

31 May 2006; 31 May 2006

Practice and procedure – interim injunction – restraint of publication – court balanced free speech with defamation principles – application refused

The plaintiff sought an ex parte interlocutory injunction to restrain the defendants from repeating an alleged defamation of the plaintiff. Submissions were heard in chambers. The plaintiff had given no undertaking as to damages and no English translations of the alleged defamatory passages were appended as part of the plaintiff's affidavit. Although translations were incorporated in the statement of claim, they were not evidence as they would have been if appended to a sworn affidavit. The decision dealt with the principles applicable to the grant of interim injunctions to restrain publication of defamatory statements.

Held:

1. There should in general be no prior restraint on publication, though those who publish in possible breach of implied limitations do so at their peril and may find themselves liable to sanctions after the event if they have overstepped the mark -- Taione v Lali Media Group Ltd & Ors [2005] Tonga LR 67. The prior restraint of publication, though occasionally necessary in serious cases, was a drastic interference with freedom of speech and should only be ordered where there was a substantial risk of grave injustice -- Attorney-General v BBC [1980] 3 All ER 161, 183.

2. A clear case had not been made out that this was an exceptional case where it was appropriate to restrict the right of free speech nor was the Court satisfied that there was a substantial risk of grave injustice or clear and compelling reasons or exceptional circumstances so as to justify an injunction. The application was refused.

Cases considered:

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 (HL)

Attorney-General v BBC [1980] 3 All ER 161 (HL)

Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406

Bestobell Paints Ltd v Bigg [1975] FSR 421

Bonnard v Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269

Church of Scientology v Readers Digest [1980] 1 NSWLR 344,350A

Coulson v Coulson [1887] 3 TLR 846

Harakas v Baltic Mercantile and Shipping Exchanges Ltd [1982] 1 WLR 959; [1982] 2 All ER 701 (CA)

Hector v Attorney-General of Antigua [1990] 2 All ER 103 (PC)

Hodgson v Stiassny & Ors NZ High Court CIV 2005-404-1808, 5.5.05

Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129

New York Times Co v United States [1971] USSC 145; 403 US 713, 91 SCt 2140, 29 L Ed 2d 822 (1971)

New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1988] NZCA 338; [1989] 1 NZLR 4

Paseka v Langi & Ors [1989] Tonga LR 1 (LC)

Pride of Derby v British Celanese Ltd [1953] 1 Ch 149

Primary Produce Exports Ltd v Lauti & Ors [1995] Tonga LR 162

Redland Bricks Ltd v Morris [1970] AC 652

Roseneath Holdings Limited v Grieve [2003] NZCA 302; [2004] 2 NZLR 168

Taione v Lali Media Group Ltd & Ors [2005] Tonga LR 67

Tonga Development Bank v Pohiva [1992] Tonga LR 71

Touliki Trading Enterprises Ltd v Procorp Ltd [1999] Tonga LR 216

TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129

Statutes considered:

Human Rights Act 1998 (UK)

New Zealand Bill of Rights Act 1990 (NZ)

Counsel for plaintiff: Mr Taumoepeau

Expanded Transcript of Oral Decision given in Chambers

This was an ex parte application for an interlocutory injunction to restrain the Defendants from repeating their alleged defamation of the Plaintiff. I heard submissions in support of the application from Mr Taumoepeau in chambers.

The principles on which the Court will grant an injunction in a defamation case are different to those applicable to injunctions in ordinary cases, such as those submitted by Mr Taumoepeau. As stated succinctly in the White Book 1997 at para 29/1/4:

'(1) Defamation - The Court will not ordinarily restrain publication of a defamatory statement whether relating to the plaintiff personally or to his trade which the defendant genuinely intends to justify at the trial, since to do so would interfere with freedom of speech; but the Court will restrain the publication of obvious lies; Bestobell Paints Ltd v Bigg [1975] FSR 421 where the cases are reviewed; Harakas v Baltic Mercantile and Shipping Exchanges Ltd [1982] 1 WLR 959; [1982] 2 All ER 701 (CA).'

Halsbury's Laws (4th Ed) Vol 28 (Libel and Slander) para 167 also states:

'167. Exercise of jurisdiction.

Because of the court's reluctance to fetter free speech and because the questions that arise during the proceedings, such as whether 80 the meaning is defamatory, whether justification or fair comment are applicable and as to malice, are generally for the jury, interlocutory injunctions are granted less readily in defamation proceedings than in other matters and according to different principles. An injunction will be granted only if the plaintiff can satisfy the court that any jury would say that the matter complained of was libellous and where, if it did not so find, the court would set aside its verdict as unreasonable.'

In Gatley on Libel and Slander (10th Ed) it is stated:

'25.2 Delicate nature of jurisdiction.

The jurisdiction to grant interim injunctions to restrain publication of defamatory statements is 'of a delicate nature', which 'ought only to be exercised in the clearest cases'. That was stated by Lord Esher MR in Coulson v Coulson [1887] 3 TLR 846 and it encapsulates the general approach of the court. The reluctance to grant peremptory injunctions is rooted in the importance attached to the right of free speech –

'The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions':

Lord Coleridge in Bonnard v Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269,284.''

Lord Coleridge further explained there:

'The right of free speech is one which it is for the public interest that individuals should possess and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed ...'

This statement of the law has been endorsed and applied consistently since 1891: Gatley para 25.6.

The procedure in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 (HL) is inappropriate in defamation cases: Gatley para 25.2.

Gatley at para 25.2 Note 7 states that the authoritative statement of Hunt J in Church of Scientology v Readers Digest [1980] 1 NSWLR 344,350A could also be regarded as a succinct summary of English law:

'I accept as settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable, that there is no real ground for supposing that the defendant may succeed on any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages. In particular questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public concern.'

More recently in Hodgson v Stiassny & Ors NZ High Court CIV 2005-404-1808, 5.5.05 it was stated:

'[35] The parties are generally agreed on the applicable principles, in particular that the threshold for an injunction to restrain defamatory material is higher than that normally applicable for injunctive relief as set out in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129. (See, for a recent discussion of the Klissers' principles, Roseneath Holdings Limited v Grieve [2003] NZCA 302; [2004] 2 NZLR 168.)

[36] The approach to be taken to an injunction in a case like the present was discussed by the Court of Appeal in New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1988] NZCA 338; [1989] 1 NZLR 4. In that case, Cooke P observed that when justification is to be relied on as a defence, an injunction will not be granted 'except in cases where the statement is obviously untruthful and libellous.' (at 7). In that case, the Court could not conclude on affidavit evidence that the material was 'obviously untruthful and libellous' or that 'there is no reasonable foundation for the defence of justification.' (at 7). There, a significant opportunity to comment was given and advantage was taken of it. (I do not consider Mr Siemer's offer to allow the plaintiffs to put their side of the story on the website equates to the opportunity to comment in issue in the New Zealand Mortgage Guarantee case.)

[37] Similarly, Cooke P in Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 referred to the effect of the principle of freedom of expression, as reinforced by s 14 of the New Zealand Bill of Rights Act 1990. That principle meant that the jurisdiction to grant an injunction in these cases should be 'exercised only for clear and compelling reasons.' Cooke P continued:

'It must be shown that defamation for which there is no reasonable possibility of a legal defence is likely to be published.' (at 407)

[38] As Cooke P observed, this requires a factual analysis and the assessment in a particular case will turn on the particular facts. Those facts 'may be such that the duty of the Court to restrain unlawfulness comes into force.' It was envisaged that cases in which either an injunction or an order for production of a script would be justified would be 'exceptional' (at 408).

[39] The notion that the circumstances must be exceptional to justify an injunction rather than 'leaving the complainant with his or her remedy in damages' was reiterated by the Court of Appeal in TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 at 132.

[40] Richardson P in Fahey also noted that the same principle, that of requiring clear and compelling reasons, applies also to the case of successive defamations. (See also the discussion of the higher threshold in Todd, The Law of Torts in New Zealand (3 ed at 16.6).)'

Here in Tonga, in Taione v Lali Media Group Ltd & Ors [2005] Tonga LR 67, I 180 referred (at p 77) to the importance of there being no prior restraint on publication:

'The first aspect is that there should in general be no prior restraint on publication, though those who publish in possible breach of implied limitations do so at their peril and may find themselves liable to sanctions after the event if they have overstepped the mark. Authorities for that were set out at some length by Dalgety J in Kingdom of Tonga v Pohiva at 44-45'

As Dalgety J said, the guiding principle was put thus by Lord Scarman in Attorney-General v BBC [1980] 3 All ER 161,183 (HL) –

'But the prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice.'

I also referred (at p 29) to the Pentagon Papers case (New York Times Co v United States [1971] USSC 145; 403 US 713, 91 SCt 2140, 29 L Ed 2d 822 (1971), where the US Supreme Court said in relation to the First Amendment (which provides that 'Congress shall make no law ... abridging the freedom of speech, or of the press, ...') that:

'Any system of prior restraints of expression comes to the US Supreme Court bearing a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint.'

I also referred there (at p 39) to Hector v Attorney-General of Antigua [1990] 2 All ER 103,106 (PC):

' ... it would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based.'

Finally in that case (at p 41) I made it clear that the Press must also exercise responsibility and must take the consequences if what it publishes turns out to be unlawful:

'To repeat what I have said already, free speech means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth, ie freedom governed by law. It is equally important that freedom of the Press does not mean that a newspaper has licence to publish what it wants, when it wants, about whom it wants, and how it wants in any improper, mischievous or illegal manner: it is not limitless.

This decision must not be taken as authority for a newspaper to publish anything it wishes, eg however pornographic, or untruthfully subversive, or race-hatred inspiring. If a newspaper publishes material which is improper, mischievous, or illegal, it must take the consequences if the result is illegal.'

In addition a claimant who does not know precisely what words the defendant intends to publish is in some difficulty in establishing the imminent publication of plainly defamatory statements: Gatley para 25.4.

While Clause 7(1) of the Constitution provides:

'Freedom of the press

7. (1) It shall be lawful for all people to speak write and print their opinions and no law shall ever be enacted to restrict this liberty. There shall be freedom of speech and of the press for ever but nothing in this clause shall be held to outweigh the law of defamation, official secrets or the laws for the protection of the King and the Royal Family.'

it is therefore clear from all the authorities referred to above that the law of defamation is not outweighed by that provision in the Constitution, but in itself the law of defamation respects freedom of expression.

All these cases are based on the principle of the importance of free speech, together with the difficulty in determining before the full trial of whether or not any particular statement is or is not defamatory.

In this case, on the Plaintiff's affidavit I was unable to be satisfied that a clear case was made out that this was an exceptional case where it was appropriate to restrict the right of free speech, particularly as I was in no position to judge whether the alleged defamatory statements are true or not, or whether they are unarguably defamatory. I was not satisfied that there was a substantial risk of grave injustice. The affidavit did not set out convincing grounds why the Plaintiff feared further defamatory statements or evidence of an intention to repeat or publish the defamatory statement, and did not specify with any accuracy what these would say or that they were imminent. I therefore did not find that defamation for which there is no reasonable possibility of a legal defence is likely to be published, nor that there were clear and compelling reasons or exceptional circumstances so as to justify an injunction. I therefore exercise the Court's discretion by refusing the application.

In the United Kingdom there is a procedural requirement imposed by section 12(2) of the Human Rights Act 1998 that the person against whom the injunction is sought must be present or represented at the application, or notified about it, unless there are good reasons for not doing so. That does not apply as law in Tonga, but it appears to me an important procedural safeguard and, if I had been considering granting the injunction, I would have wanted to give the Defendants an opportunity of being heard first.

While in the event it did not affect my decision, I also noted that the Plaintiff gave no undertaking as to damages (which is still necessary in such cases – Halsbury para 167); and that no English translations of the alleged defamatory passages were appended as part of the Plaintiff's affidavit. Although translations were incorporated in the Statement of Claim, they were not evidence, as they would have been if duly appended to a sworn affidavit. A Plaintiff seeking discretionary relief from the Court must come with an application which is complete in all respects.

I was referred by Counsel for the Plaintiff to the following cases, but they all relate to applications for interlocutory injunctions in other types of cases:

Redland Bricks Ltd v Morris [1970] AC 652,664 per Lord Upjohn;

Pride of Derby v British Celanese Ltd [1953] 1 Ch 149,181 per Evershed MR;

Paseka v Langi & Ors [1989] Tonga LR 1 (LC);

Tonga Development Bank v Pohiva [1992] Tonga LR 71;

Primary Produce Exports Ltd v Lauti & Ors [1995] Tonga LR 162;

Touliki Trading Enterprises Ltd v Procorp Ltd [1999] Tonga LR 216.

However, as special considerations apply in defamation cases, these authorities are not applicable in this case.