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Friendly Islands Satellite Communications (Tongasat) Ltd v Pohiva [2015] TOSC 16; CV64 of 2014 (19 May 2015)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY


CV 64 of 2014


BETWEEN:


FRIENDLY ISLANDS SATELLITE
COMMUNICATIONS (TONGASAT) LIMITED
First Plaintiff


AND :


SEMISI POANESESI PANUVE
Second Plaintiff


AND :


LUCY ANNA 'ILAIU
Third Plaintiff


AND:


LAUCALA POHIVA
First Defendant


AND


MATENI TAPUELUELU
Second Defendant


AND


PAULA MAFI
Third Defendant


AND


'OFA VATIKANI
Fourth Defendant


AND :


MELE TEUSIVI 'AMANAKI
Fifth Defendant


AND:


PUBLIC SERVICE ASSOCIATION
Sixth Defendant


AND:


JOHN DOE
Seventh Defendant


Hearing : 31 March and 1 April, 2015
Appearances : Mr. S.J. Stanton SC and Mr. William C. Edwards for plaintiffs
Dr R.E. Harrison QC, SC for defendants (apart from the seventh defendant)


RULING


[1] The first plaintiff (Tongasat) was the exclusive agent for the Kingdom of Tonga in the management of its orbital slot positions. The second and third plaintiffs were at all material times the Managing Director and Marketing and Finance Directors respectively of Tongasat.

[2] The plaintiffs have commenced this action against seven defendants. They pursue causes of action in defamation, malicious falsehood, conversion and breach of confidentiality.

[3] The first four defendants are involved in one capacity or other with the Tongan newspaper the Kele‟a.

[4] The fifth and sixth defendants are the Tonga Public Service Association and its Secretary-General.

[5] The seventh defendant, John Doe, is a person or persons unknown, named in the proceeding in the expectation that his (or their) identity will in due course become known.

[6] There are a number of interlocutory applications before the Court. The plaintiffs have applied for orders that the first to fifth defendants be required to attend Court and be cross-examined as to the identity or description of John Doe and also for preliminary discovery of documents. The defendants have applied to strike out the plaintiffs‟ amended statement of claim dated 6 February 2015 in whole or in part, for particulars of the amended statement of claim, to discharge or vary interim restraining orders that have been made against them, and to discharge a direction that they file a statement of defense.

[7] To understand these applications it is necessary for me to set out the facts bearing in mind that at this interlocutory stage I do so on the basis of limited material and only to the extent that it is necessary to resolve the applications that are before me. I consider the relevant facts are substantially as follows.

THE FACTS


[8] On 1 February 2013, the Deputy CEO at the Commissioner of Revenue‟s office wrote to the Tax Agent for Tongasat advising that an objection by Tongasat to a 2010/2011 income tax assessment had been disallowed. The result was that Tongasat owed $12,135,941.31 in income tax.

[9] On a date prior to 11 August 2014 the letter of 1 February 2013 was delivered to the offices of the Kele‟a by a person unknown who slipped an envelope containing it under the Kele‟a‟s office door.

[10] On 11 August 2014 a copy of the letter, together with other documents relating to Tongasat and its tax affairs, was separately delivered to the Tonga PSA in the same manner.

[11] The person or persons who delivered the documents to the Kele‟a and the Tonga PSA is unknown to the plaintiffs and to the first to sixth defendants.

[12] There was no sharing of the documents received between the Kele‟a and the Tonga PSA.

The first matter complained of


[13] On 11 August 2014 there were articles published in the Kele‟a on pages 4 and 13 under the headline "Previous Sale of Satellite Slot in exchange of letters with Tax Department". It is alleged that on the

same day Kele‟a published on its website a similar article under the same headline. In their amended statement of claim the plaintiffs label these as the "first matter complained of".


[14] The focus of the article on page 4 of the Kele‟a is past Government decisions and actions and in particular whether it had leased or sold orbital slots. The Commissioner of Revenue‟s letter of 1 February 2013 was referred to in the article as well as being reproduced in full. Its relevance to the subject matter of the article was as showing that a satellite slot had been sold. There was mention of the fact that the Tonga PSA and Mr. „Akilisi Pohiva had taken Court action to challenge that transaction.

[15] The second article in the Kele‟a that day, on page 13, discusses in more detail the content of the letter of 1 February 2013. It notes that Tongasat had unsuccessfully sought a tax exemption on money received from the sale of orbital slots and that "the outstanding tax due for Tongasat remains unchanged at $12,135,941.31". The article also discussed whether orbital slots were sold or leased and concludes by asking whether Tongasat‟s tax remained unpaid.

The second matter complained of


[16] On 18 August 2014, the PSA issued a press release No 14/14 titled "Concerns on Tax Arrears of Tongasat and its Employees". The press release is the plaintiffs‟ "second matter complained of".

[17] The second matter complained of expressed concerns that the Tonga PSA had about the tax arrears of Tongasat with a recommendation for the Ministry of Revenue to conduct an internal compliance audit of "Tongasat‟s income for confirmation of tax due to Government for leasing out the orbital slots that belonged to Tonga". It asserted that it was not fair that small businesses pay their taxes in a timely manner while Tongasat had tax arrears from 2010/2011 in the millions of dollars.

[18] With reference to the letter of 1 February 2013 the press release stated that Tongasat‟s tax arrears were around $12 million and that "Tongasat had sued Government for this income tax charged to them and lost". It was asserted also that not included in the $12 million was PAYE tax as well as tax payable on revenue that it was estimated Tongasat had earned from leasing satellite slots under existing commercial contracts since 2009 totaling approximately $19.5 and that it was not known whether Tongasat had declared this income to the Ministry of Revenue.

[19] The press release also focused on an agreement for the sale of two orbital slots at 134°E and 138°E said to have been negotiated by the Minister of Finance, Mr „Aisake Eke, which it was said would produce taxable income to Tongasat. The press release opined that the agreement should be submitted to Parliament for approval.

[20] The press release contained a prominent picture of Her Royal Highness Princess Pilolevu, and identifies her as the "Chairlady of Tongasat" who had "directed for the sale price of the two orbital slots" and also a picture of Mr „Aisake Eke the Minister of Finance.

The third matter complained of


[21] On 25 August 2014 there appeared in the Kele‟a an article authored by the PSA headed "Pay all your taxes appropriately". This is the plaintiffs‟ "third matter complained of".

[22] The third matter complained of might on one view be regarded as a public spirited attempt to have "rich companies" pay their taxes but its focus is on Tongasat. Tongasat is mentioned five times and no other companies are named. The article also references the letter of 1 February 2013 "from the Department to Tongasat requesting that they pay their tax due 2010/2011 which was T$12m odd tax due" and goes on to make the point that more money may be owed for PAYE and Tongasat‟s "dues on 2011/20012 & 2012/2013?". Tongasat is said to have used the assets of the nation but not "meet their payment" and "That is why PSA suggested to the department that an audit should be done to Tongasat".

The fourth matter complained of


[23] On around 22 January 2015 the PSA was invited by the new Prime Minister, Mr. „Akilisi Pohiva, to speak to Cabinet. Its presentation was on upholding the rule of law as the key to the sustainable socioeconomic development for Tonga.

[24] On 23 January 2015 the PSA issued a further press release No 01/15 describing its presentation to Cabinet which was published both in hard copy and in electronic form on the Tonga PSA‟s Facebook page. This press release is the plaintiffs‟ "fourth matter complained of".

[25] The fourth matter complained of dealt with the broader controversies over Tongasat‟s administration of satellite slots, non-payment of license fees and appropriation of funds received from the People‟s Republic of China. It referred to millions of dollars in lost revenue to the Government of Tonga. It also questions the legality of outright sales of orbital slots. It called for an investigation and the transfer of the Minister of Finance to another portfolio.

THE TERMS OF THE RESTRAINING ORDERS


[26] Before this proceeding was commenced Tongasat (but not the other plaintiffs) filed for a restraining order against the first to fifth defendants. The basis for the application was that the documents published in the Kele‟a on 11 August 2014, which could only refer to the letter of 1 February 2013, was part of Tongasat‟s tax file and the publication of it was said to be a breach of the confidentiality regime which section 57 of the Revenue Services Administration Act (RSA) affords taxation correspondence.[1] On 26 August 2014 Tongasat‟s application for a restraining order was dealt with by Cato. J on an ex parte basis and he issued an order:

...restraining the [first to fifth defendants] from further publishing disseminating and/or referring to or parting with possession of the documents (being confidential tax documentation and information of ... [Tongasat]) including their destruction.


[Tongasat] is to file a Statement of claim within 7 days thereof.


Leave is granted to the [first to fifth defendants] to apply to the Court to rescind amend or vary this order on Notice to the Applicant.


[27] After this proceeding was commenced the plaintiffs sought further urgent injunctive relief. On 12 November 2014 that application came before the Court. It was not fully argued but Cato. J ordered that the fifth defendant, Ms „Amanaki, on behalf of the PSA was to provide written undertakings to this effect:

filed in this proceeding will be treated as confidential to this litigation and are not to be given or allowed to be read by any person other than a party including counsel to this litigation. All documents are confidential to the court until further order.


These orders are interim orders and may be the subject of recission or variation after further hearing on a date yet to be set by the Court.


These orders are made pursuant to section 57 of the Revenue Services and Administration Act 2002.


[28] The undertakings were provided but not within the time the Judge required. For present purposes nothing turns on that.

THE AMENDED CLAIM


[29] The plaintiffs‟ amended statement of claim was filed on 9 February 2015. It contains the following:

they have committed a malicious falsehood in relation to the first, second and third matters complained of.


[29.3] A claim apparently by Tongasat alone (but it is not altogether clear) against the first, fifth and sixth defendants alleging conversion of Tongasat‟s confidential tax records.

[29.4] A claim by all plaintiffs against all defendants alleging

breach of confidentiality through the disclosure of Tongasat‟s tax records.


THE PLAINTIFFS' APPLICATIONS


Application that the defendants be cross-examined


[30] The relevant part of the plaintiffs‟ application, seeks orders:

...that the First through Fifth Respondents attend the Court on such date as the Court may determine to be examined as to the following matters:


(a) the identity and further description of the person or persons who provided them or any one or more of them or to any person on behalf of the Proposed First Defendant [the proprietor of the Kele‟a Newspaper] the documents referred to in the affidavit of Lucy Anna „Ilaiu sworn on 21

August 2014;


(b) the manner and circumstances in which the First through to Fifth Respondents or any other person on behalf of the Proposed First Defendant/First Respondent obtained the documents including person or persons from whom the documents were obtained.

[31] The Supreme Court of Tonga has all the powers for the time being exercised by the High Court of Justice in England and Wales.[2] This Court therefore undoubtedly has the power to order disclosure under what has become known in England as the Norwich Pharmacal jurisdiction.[3] Norwich Pharmacal is authority for the principle that where a person becomes involved in the wrongful act of another that person becomes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer.[4]

[32] The Court‟s power is discretionary and exceptional and an order will never lightly be made and only where the Court is satisfied that it is necessary to do so.[5] The importance of the underlying purpose of rendering assistance by identifying the wrongdoer must always be recognised.6

[33] The exercise of this power does not require that the person against whom an order of disclosure is made should be compelled to submit to cross-examination. Although undoubtedly that could be ordered, usually it will suffice that they provide written disclosure of the details of the identity of the alleged wrongdoer[6] or produce relevant documents for inspection.[7]

[34] I was not referred to any case where, in reliance upon Norwich Pharmacal, cross-examination has been ordered. I was referred to case law where cross-examination has been ordered ancillary to the making of an injunction freezing assets but that is a different sort of case. Even in those cases the courts will not make an order requiring a party to be subjected to cross-examination when there are alternative means of achieving the same ends which are less burdensome.

[35] In my view it would be inappropriate to make the order the plaintiffs are seeking because it is not necessary to do so. As I have said, the underlying purpose of the exercise of the power is the disclosure of the identity of a wrongdoer when that is not known to the person who has been wronged. In this case disclosure has already been made of all the information that the defendants have relevant to the identity of John Doe.

[36] In an affidavit of 31 October 2014 the fifth defendant, Mrs. Mele

„Amanaki, attaches copies of all of the documents received by the Tonga PSA on around 11 August 2014. She describes the circumstances under which they were delivered to the PSA. She deposes that there was no indication of the identity of the person who delivered the documents and that neither she nor the PSA will be able to shed any light on the origins of the documents.


[37] In an affidavit of 4 November 2014 the second defendant, Mr. Mateni Tapueluelu, deposes on behalf of himself and the first, third and fourth defendants, that the Kele‟a had received only the letter of 1 February 2013 and that neither he nor any of the Kele‟a defendants is aware of the identity of the person who delivered the letter and are not able to provide any further information as to the origins of the anonymously delivered envelope.

[38] The plaintiffs argued that cross-examination of the defendants is necessary because the „Amanaki and Tapueluelu affidavits are convenient and self serving. I do not accept that submission. It was also implied in the plaintiffs‟ Counsel‟s submissions that the affidavits were untrue.[8] I feel that particular submission went too far. I have no reason, on what is before me at this time, to disbelieve the evidence of Mrs. „Amanaki and Mr. Tapueluelu or to regard their evidence as implausible.

[39] The plaintiffs have also relied upon a body of case law that has arisen in response to what is known as the „newspaper rule‟ which deals with the circumstances under which the Court will compel the disclosure of the identity of a confidential news media source.[9] I do not need to go into that. The defendants are not relying on the newspaper rule. They have filed affidavits to say that they do not know the identity of John Doe. It is unnecessary to compel them to attend for crossexamination to confirm that which is already in their affidavits.

[40] I have not found it necessary to consider the arguments of the defendants that the plaintiffs are advancing this application for the improper collateral purpose of broad based information gathering or their assertion of personal privilege against self-incrimination.

[41] For the reasons given the plaintiffs‟ application to compel the defendants to attend for cross-examination is dismissed.

Preliminary discovery of documents


[42] The plaintiffs also seek preliminary discovery of documents from the defendants. The discovery sought is limited to documents that identify or describe John Doe. The defendants do not take the position that this Court lacks jurisdiction to make the order sought but say it should be refused on its merits.

[43] I see no justification for making such an order at this stage of the proceeding as there is clearly no need for it. The plaintiffs have already had the disclosure from the defendants that they are seeking. The disclosure is contained in the „Amanaki and Tapueluelu affidavits and the exhibits attached to them. In the absence of evidence that the defendants have, or have had, in their control relevant documents other than those disclosed (the onus being on the plaintiffs to satisfy

the Court of this) the making of an order is unnecessary. There is no such evidence before me.


[44] The plaintiffs‟ application for preliminary discovery of documents is dismissed.

THE DEFENDANTS' APPLICATIONS


Application to strike out the amended statement of claim.


[45] The defendants seek to strike out all of the causes of action and rely specifically upon O.8 R.8(1)(a) and (c) Supreme Court Rules 2007 which provide:

(1) The Court may at any time order that any pleading or part thereof be struck out if:


(a) it discloses no reasonable cause of action or defence, as the case may be; or...

(c) it is unclear, or may otherwise prejudice or delay the fair trial of the action;...


and may order the action to be stayed or dismissed, or judgment to be entered accordingly.


(2) No evidence shall be heard on an application under paragraph (1) (a).


[46] The principles upon which the Court will act are well settled. No party should have his claim denied without a hearing in the ordinary way, except where the claim is so hopeless that it cannot possibly succeed. The Court will exercise its jurisdiction to strike out sparingly and will generally only do so when there is no reason to suppose the plaintiff will be able to remedy deficiencies in its pleading by amendment.[10] The application proceeds on the assumption that the facts pleaded in the statement of claim are true and where the application relies upon O.8 R.8(1)(a) no evidence is to be heard.

THE AMENDED STATEMENT OF CLAIM


[47] The defendants argue that the amended statement of claim as a whole is unclear or may otherwise prejudice or delay a fair trial and apply to strike it out on those grounds. It is an exceptional case where a court would strike out a claim on this ground without giving a plaintiff the opportunity to amend their pleading. That said, it is the case that the plaintiffs‟ amended statement of claim is particularly maladroit for at least all of the following reasons.

[48] I have mentioned the lumping together of causes of action. There are successive publications relied upon by the plaintiffs and not all defendants were involved in all publications. The fifth and sixth defendants were not involved in the first matter complained of. The first, second, third and fourth defendants were not involved in the fourth matter complained of. In defamation, and also in malicious falsehood, each publication is a separate cause of action and must be pleaded as such. It is not satisfactory that all claims are simply lumped into one, followed by a single prayer for relief, as the plaintiffs have done in this case.

[49] In relation to the defamation and malicious falsehood causes of action the words that are complained about are material facts. They should be set out in the amended statement of claim. In some cases it might be enough to describe the words‟ substance or effect but the plaintiffs do not do that. With few exceptions the relevant passages in the first, second, third or fourth matters complained of are not set out or referred to at all in the amended statement of claim. The four publications are simply attached to the amended statement of claim as schedules, which is an unsatisfactory practice that is to be discouraged. It leaves it to the defendants and the Court to search through the publications and guess what words are said to be false or carry the pleaded defamatory meanings. The defendants and the Court are entitled to know, by way of a proper pleading, what particular words or passages are being complained of as being false or having defamatory meanings so that subsequent processes and the trial "can be conducted against a recognizable boundary"[11] I should emphasis that this is not a case where it is possible to read the publications and conveniently find the foundation of the plaintiffs‟ pleadings.[12]

[50] Again with particular reference to the defamation cause of action, where words are not defamatory in their natural and ordinary meaning but by innuendo because of extrinsic facts, the plaintiff must give particulars of those extrinsic facts. The plaintiffs should assert knowledge of those facts to persons to whom the words were published. In this case there are pleadings of true innuendo in paragraphs 17, 20, 21, 24, 25 and 26C of the amended statement of claim but I do not consider that they are true innuendos at all because they do not allege facts extraneous to the publications which if known would impart a particular defamatory meaning to the words as published. They appear to me to be in part alternative defamatory meanings and in part irrelevant material (at least to the existence of a true innuendo).

[51] The alleged defamatory meanings relied upon by the plaintiffs are contained in paragraphs 16, 19, 23 and 26B. They are in some cases convoluted. As an example, in paragraph 19(c) the words "which in substance and in fact was a confidential tax record properly classified as confidential pursuant to section 57 of the Act as pleaded aforesaid and relied upon by the Fifth and Sixth Defendants" are entirely superfluous. In some instances multiple defamatory meanings are contained within a single allegation14 but on other occasions there is no apparent defamatory meaning that I can discern at all. Meanings relied upon in respect of the second matter complained of, in paragraph 19, and the third matter complained of, in paragraph 23, are identical despite the fact that the two publications they relate to are significantly different. There are other examples of inappropriate use of the "cut and paste" function throughout the pleading.[13]

[52] There is throughout the pleading also a failure to identify what kinds of damages are recoverable under the different heads of claim and to particularise the damages that are being sought. There is also a failure to distinguish between categories of damage that are conceptually quite different such as aggravated and exemplary damages. In this regard, see for instance the particulars at paragraph 27. The cause of action in conversion has no prayer for relief at all.

[53] I am keenly aware that there are differences in style and approach between Counsel when it comes to pleadings but taking full account of that the amended statement of claim is unnecessarily prolix. The facts, if not the law, are very straightforward and yet the narrative presented is diffuse. Furthermore, there is much material pleaded that is irrelevant. By way of example, in a pleading for conversion I can see no place for paragraphs 37 to 41 and paragraph 42 makes the same allegation against the fifth defendant twice.

[54] All of this makes the pleading so difficult to understand that I consider the defendants cannot be expected to, and would not presently be able to, provide a targeted response to it. As Eichelbaum J said in Thomson v Westpac Banking Corporation (No 2):[14]

... The object of obtaining crisp admissions or denials, and thus defining the points at issue, is entirely defeated by a lengthy diffuse narrative, which is likely to elicit only a generalised response.


[55] As to the appropriate response to this, I do not consider that I should strike out the claim on this ground but on the other hand it cannot be advanced unless a further statement of claim is filed, which I envisage will be significantly different from what is presently before the Court. I will therefore grant leave for a further amended statement of claim to be filed addressing the points I have made above and also others as will appear later in this ruling.

DEFAMATION


The damages recoverable by a corporation


[56] The defendants argue that Tongasat, being a corporation, cannot sue in defamation for general damages because it has no feelings that can

be injured and whether or not it could recover special damages by way of proved financial loss "that is not the claim it brings at any rate in defamation".


[57] At common law a company can obtain damages for defamation but only in respect of financial loss either shown to have been suffered or shown to have been probable. [15] As the plaintiffs correctly submit in my view, damages to a company‟s trading or business reputation may be suffered not as a loss of income but as a loss of a capital asset.[16] I was also referred to section 16 of the Defamation Act which it was submitted means that in Tonga once defamation is proved the cause of action is complete and proof of special damage is not required, be the plaintiff a natural person or a corporation. The defendants argued to the contrary and submit that section 16 was intended to alter the common law but only to the limited extent that it removed a requirement to prove special damage in an action for slander and then only in the four categories of case set out in section 16(1)(a) to (d). I do not think this submission correctly states the position at common law where it is my understanding that in some instances there was no requirement to prove special damage in slander.

[58] I do not need to venture any further view on section 16 as it is not clear to me that Tongasat is not suing for actual pecuniary loss. The prayer for relief in the amended statement of claims reads "The plaintiff claims damages, including aggravated and exemplary damages, and interest and costs...." I cannot take it from this that Tongasat is only claiming general damages as the defendants contend. Exemplary damages are recoverable in defamation in exceptional cases and there is certainly a claim for those.[17] That is not to say that I consider the pleading is satisfactory as for the reasons I have given already I clearly do not, but its deficiencies in this particular regard can be corrected by amendment and by Tongasat providing proper particulars of the damages that are being sought.20 Tongasat‟s claim in defamation should not be struck out on this basis.

The pleaded imputations


[59] The defendants also invite me to strike out the defamation cause of action on the basis that the words used in the first, second, third and fourth matters complained of were not capable of bearing any of the defamatory meanings pleaded. For reasons that I have already given, and will develop further, the pleadings will need to be substantially amended which will necessarily include a review of the the pleaded defamatory meanings rendering any ruling by me on this aspect of the defendants‟ application moot. It is also a fact that on the state of the pleadings this would be an extremely time consuming exercise that would not reward the effort. I therefore have decided that it would not be appropriate to consider this application at this time.

The second and third plaintiffs


[60] I now turn to consider the position of the second plaintiff and third plaintiff. The second and third plaintiffs are not referred to in any of the four matters complained of. The only officer of Tongasat that is identified in any of the publications is the Chairlady HRH Princess Pilolevu and only in the second matter complained of. The defendants submit that it is completely far-fetched and implausible to allege that the second and third plaintiffs have been defamed. They argue that the critical question is whether it could be deduced by a reasonable reader that the second plaintiff and third plaintiff were not only mentioned by implication in the publications but actually implicated as being involved in the activities under discussion, being principally evasion of tax liabilities of Tongasat. They say the second and third plaintiffs were neither mentioned nor implicated and have no claim.

[61] The plaintiffs contend that the defamatory imputations in the publications include the diversion of money, misappropriation of funds and the failure to pay tax which are all matters of which Tongasat‟s directors are necessarily implicated as they are responsible for Tongasat‟s affairs; the company needing its directors to be able to act. It was also submitted that the directors are effectively the alter ego of the corporation.

[62] A plaintiff must prove a publication of defamatory material of and concerning him. Unless he can satisfy this burden there is no cause of action. Usually this will not be in issue because the plaintiff will be named or described directly by the material in question.[18] If the plaintiff is not identified directly it is permissible for the plaintiff to call in aid the concept of innuendo and point to material outside the words in issue so as to show that while on their face the words do not identify him/her, those hearing or reading them would understand that the plaintiff was being referred to. There is no pleading that the second and third plaintiff‟s rely on innuendo in that sense. 22

[63] I do not accept the plaintiffs‟ submission that imputations against a company of the diversion of money, misappropriation of funds and the failure to pay tax necessarily implicates its directors in those activities. If the directors, then why not the company‟s shareholders or, in this case, its tax agents? I have found in my research no case, and was not referred to any, which supports the plaintiffs‟ argument.

[64] Whether an imputation against a company reflects on an officer or director of the company will be dependent upon the part that the director of officer is alleged to have played in the operations of the company and the extent to which he or she is identified with the activities that are the subject of the action.[19]

[65] In this case the second and third defendants are not named in the first, second, third or fourth matters complained of. The four matters complained of say nothing at all about their involvement in the operations of Tongasat or in the activities described. There is no pleading either that the second and third plaintiffs are the alter ego of Tongasat or vice versa. I therefore consider their claims in defamation are untenable and they are struck out.

MALICIOUS FALSEHOOD


[66] The plaintiffs plead malicious falsehood against all defendants arising out of the first, second and third matters complained of. The kernel of the cause of action is that the defendants falsely and maliciously published in the first, second and third matters complained of that Tongasat owed $12,000,000 in tax arrears. There is no pleading as to what Tongasat‟s actual tax position was other than that it "was not as disclosed." The plaintiffs also allege that the words "„were calculated to cause pecuniary damage to the plaintiffs in their said business". The plaintiffs claim damages for injury to the business standing of Tongasat and reputational injury sustained by the second and third plaintiffs.


The need for pecuniary loss


[67] The defendants seek to strike out Tongasat‟s claim on the ground that it misunderstands the nature of the tort which is concerned with the malicious infliction of pecuniary loss and not loss of reputation. They say the plaintiffs must prove pecuniary loss and it is not sufficient that they plead that the words used "were calculated to cause pecuniary loss". The defendants contend that this is not just a pleading point as the possibility of Tongasat incurring any such loss is implausible when its agency to manage the orbital slots expired in 2009 and there is no allegation that it now carries on any business.

[68] The plaintiffs respond that any deficiencies in the pleading do not warrant striking out what is a claim that is "sound and conventional". I was also referred to an extract from the text in Gatley as authority that a plaintiff need only allege that the false words were calculated to cause pecuniary damage.

[69] I agree with the defendants that the pleading is inadequate and that pecuniary loss must be pleaded. I do not accept the plaintiffs‟ submission that it is sufficient to plead that the words used were calculated to cause loss. The common law is that special damage has to be proved and is the gist of the action.[20] The extract from Gatley that I was referred to for the contrary view relies upon a statutory relaxation of the common law that does not apply to Tonga.

[70] I am not however able to accept the defendants‟ submission that it is implausible that Tongasat has suffered any damage to its business. Whilst there is no specific pleading that Tongasat now carries on any business this is not something that the plaintiffs have conceded and it was submitted to me that "To assert that Tongasat has no business is clearly misconceived". I take Counsel‟s submission in this context at face value. On that basis, whilst again an amendment to the pleading is necessary, it would not be right to strike out the claim of Tongasat on this ground.

The second and third plaintiffs


[71] Too establish a cause of action in malicious falsehood a plaintiff must prove a false statement about himself or his or her business or property, that was made maliciously and that caused damage.[21] In this case the statement that is alleged to have been false concerns Tongasat‟s tax position. The publications say nothing about the second and third plaintiffs. Furthermore, there is no allegation that the second and third plaintiffs have suffered loss as a result of the malicious falsehood other than to their reputations. Injurious falsehood is an economic tort concerned with the malicious infliction of pecuniary loss.[22] It does not protect reputations as such. Damage to reputation is peculiarly within the province of defamation.[23] For these reasons the second and third plaintiffs‟ claim for malicious falsehood is untenable and is struck out.

CONVERSION


Tongasat's possessory right or title


[72] The next cause of action alleges that the first, fifth and sixth defendants converted confidential tax records. Conversion involves the intentional assertion of rights or dominion over goods which is inconsistent with the possessory interest or title in the goods of the plaintiff. Accepting, as I must, that the facts pleaded in the amended statement of claim are true I find that Tongasat has an arguable cause of action. It is pleaded that Tongasat has ownership rights over the confidential tax records, that they were removed from the offices of the Ministry of Revenue and passed into the possession of the first and fifth defendants without its consent, that it has requested their return and the first and fifth defendants have refused to return them. I therefore do not strike out the claim of Tongasat in conversion.

The second and third plaintiffs


[73] There is no pleading that the second and third plaintiff have a right to possession of or title to the tax records. To the contrary, it is pleaded that it is Tongasat that has ownership and rights co-extensive with rights of the Ministry of Revenue and Customs...".[24] In the plaintiffs‟ written submissions it was submitted that it was Tongasat that was entitled to possession of the documents in issue as it constituted its tax file but there was no such submission in support of the second and third plaintiffs‟ claim. I note also that paragraphs 36 and 42 of the amended statement of claim allege that Tongasat has suffered damage. There is no such pleading in respect of the second and third plaintiffs. It follows that in so far as the claim in conversion is brought on behalf of the second and third plaintiffs it is untenable and is struck out.

BREACH OF CONFIDENTIALITY


Equitable grounds


[74] The defendants‟ application to strike out this cause of action proceeded on the understanding that only a statutory basis for claiming confidentiality to the tax documents under section 57 RSA was being asserted. This is not the case as the plaintiffs submit that this cause of action is based on traditional equitable principles and section 57[25]. I understand on that basis the defendants accept that as far as Tongasat is concerned this cause of action cannot be struck out on this application.

The second and third plaintiffs


[75] It is trite that a plaintiff can only sue in respect of a right that he may have to prevent the unauthorised use of confidential information to his detriment. In this case, on the state of the pleading the only party who is entitled to asset any right to confidentiality in the tax documents is Tongasat (or possibly the Ministry of Revenue) and not the second and third plaintiffs. Their claim is untenable in this instance also and is struck out.

REQUEST FOR PARTICULARS AND STATEMENT OF DEFENCE


[76] The defendants have sought further particulars of the amended statement of claim which they say are required to ensure compliance with Order 8 Rule 2 and to fully inform them of the case they have to meet. In light of my other findings it is inevitable that an amended statement of claim will be filed and any request for particulars would at this stage serve no purpose. It also follows from what I have said that the direction that I previously made that the defendants file a statement of defense is discharged.

APPLICATION TO RESCIND OR VARY THE EX PARTE RESTRAINING ORDER


[77] The breach of confidentiality cause of action grounded the applications for the restraining orders. I have set out earlier the restraining orders that were made by Cato. J on 26 August 2014 and 12 November 2014. As those orders were made, in one case, on an ex parte basis and, in the other, under urgency Counsel are agreed that I can consider the matter afresh with the benefits that Cato. J did not have of further evidence and Counsels‟ arguments.

The principles to be applied


[78] The principles that the Court will apply in deciding whether to issue or refuse an interim injunction are well known and I adopt the approach in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd.[26] The purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at the hearing of the suit. In order to secure an injunction a plaintiff must show that there is a serious question to be tried (in the sense that the plaintiff has made out a prima facie case) and that the balance of convenience favours the granting of the injunction. This enquiry requires the Court to look at the impact on the parties of a granting or the refusal of an order. Finally, an assessment of the overall justice of the case is required. If it can be shown that a plaintiff will be adequately compensated in damages and will suffer no irreparable injury if the injunction is not granted that is an important factor against the making of an order. However, the grant of an interim injunction involves the exercise of a discretion and the approach that I have outlined cannot be taken as suggesting a rigid or mechanical approach.

[79] I also note what Lord Diplock said in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 at 406-407:

"...where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing for an application for an interlocutory injunction is incomplete...


It is no part of the court‟s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations".


The threshold


[80] I turn to the threshold question of whether Tongasat has established that there is a serious question to be tried. Tongasat bases its breach of confidentiality claim on section 57 RSA and on equitable principles. The defendants argue that the overriding public interest dictates that the law not protect the confidential information. The extent to which it is necessary for a Court at this stage to examine the legal merits of the arguments will vary from case to case.[27] Whilst I make no final findings, of course, at this interlocutory stage I do not find the plaintiffs‟ reliance upon section 57 compelling. The plaintiffs‟ submissions did not articulate a preferred interpretation of section 57 but it appears that the plaintiffs regard it as a very broad secrecy provision binding tax officers and the public alike and protecting all correspondence and documents provided to any taxation officer or emanating from any taxation officer in connection with the performance of his duties. I do not find support for that in the wording of the section. I read and considered the large number of authorities that the plaintiffs‟ Counsel referred me to on secrecy provisions in taxation and other legislation in other jurisdictions but derived very little assistance from them. What I can say is that the plaintiffs have satisfied me to the extent that I consider there is a serious issue to be tried on the breach of confidentiality claim based on equitable principles notwithstanding the defendants intended reliance upon an iniquity defense.

[81] The more difficult question is where does the balance of convenience lie? I now turn to consider the competing considerations on that issue.

[82] Tongasat relies upon the fact that the restraining orders have persisted for some time and that there was a delay in attempting to discharge them. I do not accept this submission. Given the complexity of the pleadings and the difficulties they raised, combined with the fact that overseas Counsel was engaged I do not think the defendants are guilty of excessive delay.

[83] I consider that I must take into account that it appears, on what is before me, that Tongasat‟s tax documents were removed unlawfully from the offices of the Ministry of Revenue before being passed to the defendants. Such behavior should not be condoned and it might be said that the Court was doing so if the restraining orders are lifted. This is a factor that I take into account but not an important one as there is no suggestion that the defendants were involved in the removal of the documents and the plaintiffs‟ Counsel expressly disavowed any suggestion that the defendants were involved in or guilty of criminal behavior.

[84] As a general proposition, when an injunction is sought to prevent a breach of confidentiality in a private or purely commercial context one might expect that the balance of convenience will usually favor the plaintiff. This is because the harm to the plaintiff caused by disclosure might (subject to there being some evidence on the point) be irreparable or damages difficult to assess. It is also the case that the refusal of an injunction in such cases may deprive a plaintiff for all time of the primary remedy that it is seeking. Although I consider this litigation has a distinctively public flavor to it I accept that these are very important considerations to which I have given full weight in the balancing exercise I am undertaking.

[85] For the defendants, it was argued that this proceeding is a classic "gagging writ" to stifle legitimate public debate of Tongasat‟s taxation affairs and, more broadly, its conduct as an agent of the government of the Kingdom of Tonga in respect of orbital slot management. The defendants submit that the plaintiffs‟ reliance on section 57 RSA as a basis for the breach of confidentiality claim was very weak, if not untenable, and yet it was the basis on which the restraining orders had been made. It was also submitted that as the defendants intend to plead justification in relation to the defamation and malicious falsehood claims, and the defense of iniquity in relation to the breach of confidentiality claim, freedom of speech considerations are engaged which generally require the refusal of injunctive relief restraining defendants from publishing or continuing to publish material concerning the subject matter in question. I was referred to a number of authorities[28] as well as section 7 of the Act of Constitution which enshrines the principle of freedom of the speech and of the press. I am satisfied that as a general principle this Court should only restrain rights of free expression where there are clear and compelling reasons to do so.

[86] The defendants also argue that it is an extraordinary feature of this case that the plaintiffs do not plead that the Commissioner‟s letter did not reflect the true position regarding Tongasat‟s tax position but I do not accept that is correct as there is such a pleading at paragraph 30 of the amended statement of claim. The defendants are on firmer ground with the submission that none of the plaintiffs‟ deponents assert that the published statements derived from the Commissioner‟s letter are untrue.

[87] So far as the Commissioner‟s letter of 1 February 2013 is concerned, the defendants argue that it has already been published in full and it is now a matter of public record. For that reason it is said that there is no sufficient benefit to the plaintiffs to justify a continuing order restraining the defendants from further publishing, disseminating or referring to that particular document regardless of the position the Court takes in relation to the other documents. I do not consider that this is a strong point in the defendants favor for the reason that the publications in question have all been by the defendants. If, as Tongasat alleges, the publications were in breach of its rights the Court should be hesitant of allowing a repetition of the publication simply because of the effect of the earlier breach.[29]

[88] Whilst Tongasat is, I understand, a private corporation it was the exclusive agent of the Government of Tonga in relation to the management of its orbital slots which are clearly very valuable assets of the nation. There is real and genuine public interest in knowing how those assets have been managed and how revenue generated from them has been used. The question, as I see it, is whether this public interest overrides the competing need that Tongasat says it has to protect its confidential tax records. Having taken all the arguments advanced by both sides into account the matter that in my view is decisive in tipping the balance in favor of discharging the restraining orders is that there is almost no evidence before the Court that Tongasat will suffer any harm by the disclosure of the documents in question or that the payment of damages would not be sufficient remedy if it does.

[89] I have studied closely the affidavits of Mrs. Lucy „Ilaiu, Mrs. Helena Tu‟iono and Mr William Edwards. They have very little to say on the issue of the harm that Tongasat will suffer by disclosure. In her affidavit of 21 August 2014 Mrs. Ilaiu deposes that unless the defendants are restrained from using the confidential information Tongasat will suffer "irreparable harm to its commercial reputation and business". That is the high watermark of Tongasat‟s evidence. Mrs. Ilaiu does not say how that harm will occur or what if any business Tongasat now has to protect. Tongasat has failed to satisfy me that it will suffer any significant harm if the restraining orders are lifted that cannot be compensated in damages should it be successful on any of its claims.

[90] Taking all the matters I have mentioned above into consideration I have formed the clear view that the balance of convenience favors discharging the restraining orders. Standing back and looking at the overall justice of the case my view is confirmed by the fact that there will now be considerable delays in having this case determined as a result of the manner in which the plaintiffs‟ claims have been presented. There is no opportunity that the case can be fast tracked. It is unjust in those circumstances that the restraining orders should remain in place on an open ended basis.

[91] For these reasons the interim orders of 26 August 2014 and 12 November 2014 are discharged.

THE RESULT


[92] The orders that I make arising out of this decision are as follows:

compelled to attend for cross examination and preliminary discovery are dismissed.


[92.2] The claims of the second and third plaintiffs against all

defendants are struck out.


[92.3] In relation to Tongasat, I do not strike out any of its claims

but direct that it is to file a further amended statement of claim with 42 days of the date of this ruling addressing the issues that have been identified.


[92.4] The direction that the defendants file a statement of

defense is discharged. In its stead I direct that the defendants shall file a statement of defense to the plaintiffs‟ further amended statement of claim within 28 days of receipt.


[92.5] I make no orders on the defendants‟ application for

particulars at this time.


[92.6] The restraining orders of 26 August 2014 and 12 November 2014 are discharged.

[92.7] I will convene a directions conference immediately upon

receipt of the defendants‟ statement of defense or earlier upon application of either party


Costs


[93] If the parties cannot agree on costs I will receive submissions within 21 days by memoranda.

LORD CHIEF JUSTICE
NUKU'ALOFA: 19 May 2015.

[1] Paragraph 5 of the further affidavit of Lucy Anna Ilaiu dated 22 August 2014.

[2] Section 2, Supreme Court (Amendment) Act 2012.

[3] Norwich Pharmacal Co and ors v Customs and Excise Commissioners [1973] UKHL 6; [1974] A.C. 133.

[4] Ashworth Hospital v MGN Ltd [2002] UKHL 29; [2002] 4 All ER 193, 199-200 per Lord Woolf CJ.

[5] Lord Cross in Norwich Pharmacal at page 199; Woolf C.J in Ashworth Hospital at page 209 and Euro Banking Corp v Fourth Estate [1993] 1 NZLR 559, 566-567. 6 Euro Banking Corp v Fourth Estate (ibid) at 566.

[6] British Steel v Granada Television [1981] A.C. 1096; P v T Ltd [1997] 4 All ER 200; The Rugby Football Union v Consolidated Information Services Limited [2012] UKSC 55.

[7] Norwich Pharmacal; Ashworth Hospital; Banker Trust Co v Shapira [1980] 3 All ER 353.

[8] Page 29 paragraph 95 of the plaintiffs’ submissions of 24 March 2015.

[9] John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; Liu v The Age Company Ltd [2012] NZWSC 12;

[2013] NSWCA 26; [2015] NSWSC 276 and Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400.

[10] Hubback v Wilkinson [1899] 1 Q.B. 94 per Lindley M.R.

[11] Smith A.J in Ayers v Elementary Solutions Ltd and Anor [2014] NZHC 2998 at [29].

[12] B Howard Smith v Truth Weekender Ltd and others (HC, Auckland, CIV 2010-404-843, 12 July 2010). 14 Paragraph 23(d) and 26C as examples.

[13] Paragraphs 20(i) and 24(i) are examples.

[14] (1986) 2 PRNZ 505 (HC) at 508.

[15] News Media v. Finlay [1970] N.Z.L.R. 1089 (CA) per Haslam, J at p.1103; Mount Cook Group Ltd v Johnstone Motors Ltd [1990] 2 NZLR 48 and Palace Films Pty Limited v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136.

[16] Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC and Jameel v Wall Street Journal Europe Sprl (No 2) [2005] QB 914 (CA)

[17] Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81. 20 Lewis v Daily Telegraph Ltd [1963] 1 QB 340, 376 and Niven v Poverty Bay Farmers Meat Co [1917] GLR 118.

[18] Lewis v Daily Telegraph Ltd [1963] 2 W.L.R. 1063 and Jones v Skelton [1963] 1 W.L.R 1362. 22 Morgan v. Odhams Press Ltd [1971] 2 All E.R.1156 and Simon. L.C. in Knupffer v. London Express Newspaper Ltd [1944] UKHL 1; [1944] A.C. 116 at 119.

[19] Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NZWLR 9.

[20] Todd and Others “The Law of Torts in New Zealand” (6th Ed 203) at 15.3.03.

[21] Ibid.

[22] Ballina Shire Council v Ringland [1999] NSWSC 11 and Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 W.L.R. 337, 347.

[23] Todd at 15.3.04.

[24] Paragraph 35(c) of the Amended Statement of Claim.

[25] Attorney-General v Guardian Newspapers (No. 2) [1990]1 A.C. 1, 268.

[26] [1985] 2 NZLR 140 (CA). Compare that to Australian Broadcasting Corporation v Lenah Game Meats

Pty Ltd [2001] 208 CLR 199 which would appear to impose a higher threshold requirement on a plaintiff.

[27] ABC v Lenah Game Meats Pty Limited at 219 per Gleeson CJ.

[28] Bonnard v Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269; McSweeney v Berryman [1980] NZHC 13; [1980] 2 NZLR 168 and Fahey v TV 3 Network Services [1999] 2 NZLR 129.

[29] Euro Banking Corp v Fourth Estate [1993] 1 NZLR 559.

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