Tapueluelu v Vaipulu [2015] TOSC 29; AM 24 of 2012 (1 September 2015)

IN THE SUPREME COURT OF TONGA
APPEALLATE JURISDICTION AM 24 of 2012
NUKU’ALOFA REGISTRY

[MC, CV 55 of 2012]

BETWEEN :

LAUCALA TAPUELUELU
First Appellant

MATENI TAPUELUELU
Second Appellant

NUSIPEPA KELE’A
Third Appellant

AND

SAMIU VAIPULU
Respondent

Counsel : Mr. ‘O. Pouono for the appellants.
Mr. W. Edwards for the respondent.

Hearing : 21 July 2015
Ruling : 1 September 2015.

RULING

[1] This is an appeal from a decision of Magistrate Tatafu dated 1 June 2012 in which he held that the appellants had defamed the respondent in an article published in the Kele‟a newspaper on 16 January 2012.

The Magistrate awarded the respondent damages of $10,000 and $5,348.50 costs.

Procedural matters

[2] The original notice of appeal failed to properly particularise the grounds of appeal. The appellants subsequently filed a document headed „Better Particulars of General Grounds of Appeal‟ (“the appeal document”). The appellants adopted a scatter gun approach stating 13 grounds of appeal with further grounds to be advanced at the “prosecution of this appeal”. In reality there are more than 13 grounds of appeal advanced in the appeal document because some grounds contain a number of complaints.

[3] When the case was to be heard on 21 July 2015, Mr. Pouono, who was engaged to represent the appellants at a late stage, and Mr. Edwards, for the respondent, appeared before me in Chambers. Mr. Pouono advised me that he could not add anything to the matters set out in the appeal document and the appellants did not want to advance any submissions on the appeal. He requested that I deal with the appeal on the papers. Mr. Edwards initially expressed surprise and concern at that approach but in the event agreed to Mr. Pouono‟s request. The papers included a comprehensive appeal booklet prepared by Mr. Edwards (for which the Court is most grateful) and Mr. Edwards‟ written submissions.

[4] Having considered the papers I discovered that in his written submissions Mr. Edwards had, in error, not addressed all the grounds of appeal. I was also not satisfied that the appellants had provided me with all of the information that I required to consider each of the grounds of appeal they had advanced. In a minute of 6 August 2015 I requested that Counsel provide me with further documents and made timetabling orders giving them the opportunity to file further submissions. Mr. Edwards provided me with the documents requested on 14 August 2015 and filed further submissions on 17 August 2015. The appellants did not respond to the minute or to Mr. Edwards‟ further submissions nor have they given any indication of a desire to do so.

The basis for the claim

[5] On 16 January 2012 the first appellant was the publisher of the Kele‟a newspaper and the second appellant was the editor of the newspaper as well as being the author of the article that is the subject of this litigation. The third appellant is the newspaper, which is published in Tonga, New Zealand and Australia. The respondent was then the Minister of Works and the Deputy Prime Minster of Tonga.

[6] An article was published in the Kele‟a on 16 January 2012 which the respondent considered defamed him. The Magistrate recorded in his judgment that the headline of the article read “Vaipulu and Nuku exploits the benefit from $80million loan granted for road renovations” and that in the body of the article it stated as follows:

The best of the opportunities for roads renovations benefits two peopleformer Minister of Works, Noble Nuku; who was involved in the negotiations of the contract for the $80 million loan and the Deputy Prime Minister, Saimu Vaipulu. They own a quarry and they are paid for the gravels used for road renovations in Tongatapu from East to West. They are likely to receive millions.

[7] Broadly, it was alleged in the statement of claim that the article defamed the respondent because it accused him of having been dishonest and misusing his position in Government to allocate opportunities for road reconstruction works in Tonga and thereby personally profit from an $80 million loan obtained by the Government to undertake such works. It was also alleged in the statement of claim that the content of the article was untrue as the respondent did not own a quarry or any share in a quarry, had not received any money from the road reconstruction works and had not used his Ministerial position to obtain any benefit from the road reconstruction works.

[8] At the hearing before the Magistrate the appellants argued that the article was not defamatory of the respondent or, if it was, that the appellants had defenses of qualified privilege and fair comment under sections 10 and 12 of the Defamation Act. The Magistrate rejected all of those defenses.

The grounds of appeal

[9] As I have said, the appellants advanced numerous grounds of appeal. It is not satisfactory that the appellants did not present any arguments to the Court in support of the appeal, leaving it to the Court and the respondent to do their work for them and investigate, research and address each individual ground of appeal advanced. Not only is this a waste of precious judicial resources but it will, no doubt, have substantially increased the costs of the respondent.

[10] Having considered all of the grounds of appeal I do not propose to deal with them seriatim. The grounds were not always presented in the appeal document in a logical fashion and in some cases are repetitive. All grounds of appeal have been considered and are addressed under the headings below.

Standard of proof

[11] It is alleged that the Magistrate was wrong to apply the ordinary civil standard of proof on the balance of probabilities and that a higher standard was required because the nature of the claim was extremely serious and involved a substantial amount of money. The appellants rely on Halsbury's Laws of England (4th Ed) at paragraph 92 and Manu v Haidas & Editor of the Tonga Chronicle [1990] Tonga LR 7. The Magistrate was correct to require the respondent to prove his case to the ordinary civil standard. The authorities the appellants rely on are concerned with the particular circumstance where the defendant makes serious defamatory allegations against the plaintiff and pleads the defense of truth. A higher degree of probability may be required to establish the defense, reflecting the serious nature of the defamatory allegations. The standard of proof does not change. This principle does not assist the appellants at all. This ground of appeal fails.

Failure to consider the second appellant’s evidence

[12] The next ground of appeal is that the Magistrate failed to consider or give any weight to the evidence of the second appellant. Mr. Tapueluelu was the only witness for the appellants. The Magistrate clearly considered Mr. Tapueluelu‟s evidence and referred to it throughout his judgment. See for instance paragraphs 8 and 9 of the judgment. Having considered the evidence of Mr. Tapueluelu the Magistrate was under no obligation to accept it but, in any event, the appellants have not identified in what respects Mr. Tapueluelu‟s evidence was not accepted or given appropriate weight, why it should have been given more weight and how that failure makes the judgment under appeal unsound. I can find nothing in the judgment that supports this ground of appeal.

The Magistrate did not satisfy himself that the alleged statements were capable of being defamatory

[13] The next ground of appeal is that the Magistrate did not satisfy himself that the statements in the article were capable of being defamatory. This is clearly incorrect. The Magistrate referred to the definition of „defamation‟ in the Defamation Act and applied that definition to the words used in the article to find that the words defamed the respondent as they meant that the respondent had dishonestly obtained money from the Government loan and used his power as a Minister to obtain the benefit of the loan money. See for example paragraph 10 of the judgment. In any event, having considered the article in full it is quite clear to me that the words used were defamatory of the respondent‟s character. It is also clear from the evidence called by the respondent that the defamatory meanings were well understood by readers of the paper.

The defense of fair comment

[14] This ground of appeal is self-contradictory. It is put in this way in the appeal document. “That the defense of fair comment failed because the alleged statement is a statement of fact and also false without giving any reason for rejecting this defense”. As is acknowledged within the ground of appeal, the Magistrate did give reasons for rejecting this defense. They included that the statements made in the article, that the respondent owned a quarry and had received money from the sale of rock for the road reconstruction work, were presented as statements of fact and were untrue.

[15] The defense of fair comment, under section 12 Defamation Act, requires “fair comments on facts truly stated...”. It is a defense concerned with the protection of comment not facts. See Reynolds v Times Newspapers [1999] UKHL 45; [1999] 4 All ER 609, 615 per Lord Nicholls.

[16] In another ground of appeal it is alleged that the Magistrate was wrong to find that the article contained statements of fact rather than comment. In some cases there may be some doubt whether a statement is one of fact or comment. This is not such a case. A comment is the subjective expression of opinion usually in the form of a criticism, deduction, inference, or conclusion incapable of proof. The allegations that the respondent owned a quarry and had been paid for rock used for the road reconstruction works are clearly statements of fact not comment. They are declarative of circumstances and events that the appellants alleged existed or had occurred. But in any event, if the article did not indicate with reasonable clarity that what were being advanced were only comments and not statements of fact the appellants will not be protected by the defense of fair comment. See Andrews v Chapman [1853] EngR 280; (1853) 3 C & K 286 and London Arts v Littler [1968] EWCA Civ 3; [1969] 2 QB. 375. (C.A.). The defense of fair comment was never open to the appellants. The Magistrate was correct to reject this defense.

The defense of qualified privilege.

[17] The appellants advanced a number of grounds challenging the Magistrate‟s rejection of the defense of qualified privilege.

[18] Section 10 of the Defamation Act provides:

No ....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 communications was actuated by anger, ill-will or other improper motive.

[19] It must be said that there were errors in the Magistrate‟s approach to this defense. He was wrong in his understanding that the defense of qualified privilege was not available if the defamatory allegation was a statement of fact (paragraph 7 of the judgment) and in so far as he found that the appellants‟ carried the burden to establish an absence of ill-will (paragraph 8 of the judgment). See section 10 Defamation Act, Reynolds (supra) at page 657 per Lord Hobhouse and Tu’i’onetoa v Pohiva [2001] Tonga LR 54, 56. Notwithstanding these errors the defense of qualified privilege was correctly rejected for the reasons that follow.

[20] The Court of Appeal in Tu’i’onetoa v Pohiva [2001] TOCA 1 held that section 10 (which sets out the requirements of the defense of qualified privilege) and section 11 (which deals with the functions of the judge in relation to alleged privileged statements) of the Defamation Act were intended to express the common law. For present purposes section 11 has no direct relevance.

[21] As Mr. Edwards points out in his submissions, the Courts have traditionally been reluctant to recognise this defense to protect the news media for what may be described as investigative reporting Truth (NZ) Limited v Holloway [1960] NZLR 69 and Templeton v Jones [1984] NZCA 14; [1984] 1 NZLR 448. This has been because it has been thought that the public have no interest beyond idle curiosity in knowing the information or that the media has no duty to distribute “rumour and inaccurate information”. See Todd „The Law of Torts in New Zealand‟ 3rd Ed at page 868-869. However, in recent times the Courts throughout the Commonwealth have to one extent or other recognised an obligation of the “press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information.” Baroness Hale in Jameel v Wall Street Journal [2006] UKHL 44; [2006] 4 All ER 1279, 1321 at paragraph 146. See for instance in New Zealand in relation to the protection afforded to political statements in Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 and the developments in England starting with Reynolds (supra) and Bonnick v Morris [2002] UKPC 31 and Jameel (supra) as examples. There is no reason why these developments overseas should not inform the development of the law of defamation in Tonga in so far as they are consistent with the Defamation Act and Tonga‟s local conditions. I agree with the words of Lord Scott in Jameel at page 1317 and paragraph 135 where he said:

“The „interest‟ and „duty‟ [traditionally required to establish qualified privilege] and the criteria for establishing their existence do no more.....than give expression in a particular journalistic context to the principle.....that qualified privilege arises where „the circumstances under which the libel was written ...were such as to render it justifiable.”

[22] With this in mind it should be recognised that publications by the media to the public at large should be protected by privilege provided the following conditions are satisfied. First the subject matter of the article must be of real public interest. As Baroness Hale colorfully put it in Jameel at page 1321 paragraph 147:

“This is as we all know, very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers‟ wives and girlfriends interests large sections of the public but noone could claim any real pubic interest in our being told all about it. It is also different from the test suggested by Mr Robertson QC,...of whether the information is „newsworthy‟. This is too subjective a test, based on the target audience, inclinations and interests of the particular publication. There must be some real public interest in having this information in the public domain. But this is less than a test of the public „need to know‟, which would be far too limited”.

[23] If the article, as a whole, is concerned with a matter of public interest the next question is whether the inclusion of the defamatory material was justifiable. As Lord Hoffmann said in Jameel at page 1296 paragraph 51:

“The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no useful public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element of the article”.

[24] If the publication passes the public interest test the second inquiry is whether the steps taken to gather and publish the information were responsible and fair. Lord Nicholls in Bonnick v Morris [2002] UKPC 31 at [23] said as follows:

“Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.”

[25] Baroness Hale in Jameel at page 1322 paragraph 149 put it this way:

“... the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think reliable, that the publisher himself believed the information to be true, and that he had done what he could to check it. We are frequently told that "fact checking" has gone out of fashion with the media. But a publisher who is to avoid the risk of liability if the information cannot later be proved to be true would be well-advised to do it. Part of this is, of course, taking reasonable steps to contact the people named for their comments. The requirements in "reportage" cases, where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well-advised to make this clear. In any case, the tone in which the information is conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on.”

[26] In Reynolds (supra) Lord Nicholls, at page 627, set out a nonexhaustive list of factors that the Court may take into account in considering whether allegations made in the Press attract qualified privilege. Relevantly, these included the seriousness of the allegation, the nature of the information and the extent to which the subject matter was a matter of public concern, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment had been sought from the plaintiff; whether the article contained the gist of the plaintiff‟s side of the story; the tone of the article and the circumstances of publication.

[27] Applying these principles to the facts of this case the defense of qualified privilege was not available to the appellants. This is because, even if one assumes that the subject matter of the article was of real public interest, the appellants failed to take the steps a responsible journalist would take to try and ensure that the allegations it published against the respondent were accurate and fit for publication. In those circumstances they did not have any relevant duty or interest to publish, and their readers no interest to read, the allegations.

[28] The allegations made in the article against the respondent were very serious. They were that the respondent had used his Ministerial position dishonestly and that he would make millions from his dishonest practices. Mr. Tapueluelu's evidence was that the article was based on what he described as a Parliamentary Resolution. See for example page 35 of the transcript and page 120 of the Appeal Booklet. The status of this document was never established by the appellants. There is nothing to suggest that it was ever produced or sanctioned by Parliament. It appears to be no more than a draft for submission by People‟s Representatives in Opposition to the Government. There was no evidence either that it was ever tabled or debated in Parliament. I agree with Mr. Edwards that on the state of the evidence it is totally misleading for the appellants to have presented this as a Parliamentary Resolution. Mr. Tapueluelu could not have reasonably considered that the resolution was reliable and the Magistrate was correct to be critical of Mr. Tapueluelu‟s reliance upon the document.

[29] Regardless of the document‟s status, its content provides no foundation for the allegations made by the appellants that the respondent had benefited from the sale of rock for the road reconstruction works for which he would “make millions”. The only part of the document that refers to the respondent asks that the Legislative Assembly be provided with information as to how much had been paid out “for rocks used in the road project from Lord Nuku‟s and the Deputy PM Samiu Vaipulu‟s quarries respectively”. There is no statement that such payments had been made and, if so, in what amount. As it was, Mr. Vaipulu had no quarry and had received no payments.

[30] There were simple steps that the appellants could have taken to check their facts. They could have inspected public records to see if Mr. Vaipulu owned a quarry, they could have visited the quarries or they could have made enquires of the respondent or others in the industry. They did none of that. There were in fact no efforts made by the appellants to confirm that the statements made in the article were accurate before publication nor any request made of the respondent to comment on the allegations. Mr. Tapueluelu acknowledged that he had no proof of the allegations and relied only upon the resolution. See for instance page 39 of the transcript. At page 48 of the transcript Mr. Tapueluelu stated “Yes, I did not carry out any research.

Maybe after this I will conduct a proper research”.

[31] Furthermore, there was no urgency about the publication of the article to justify the failure by the appellants to check their facts. The resolution, upon which Mr. Tapueluelu so completely relied, was dated 13 June 2011 and the article was published 6 months later on 16 January 2012.

[32] In addition, Mr. Tapueluelu acknowledged in cross-examination that Lord Nuku had told other quarry owners seeking to get a share of the road works that his quarry was being used for road construction work but that “no one else had the contractual opportunity”. See page 42 of the transcript and 127 of the Appeal Booklet. In those circumstances the appellants were on notice that the allegations they intended to publish were not correct and yet they went ahead and published in any event.

[33] As a further reason for rejecting this defense, section 10 provides that the defense is not available if the communication in question is actuated by anger, ill-will or other improper motive. The onus is upon the plaintiff. The Court of Appeal in Tu’i’onetoa v Pohiva (supra) at paragraph 22 noted, with apparent approval, the view expressed by Lord Diplock in Horrocks v Lowe [1975] AC 135 that a defendant will be held to have acted with malice if it has been proved that the defendant did not honestly believe that what he said was true or was indifferent to its truth or falsity. In this case the Magistrate found that Mr. Tapueluelu was “ignorant” when he wrote the article and that “he did not have a good heart”. That is strongly suggestive of a finding of malice.

[34] There was ample evidence that Mr. Tapueluelu was actuated by malice in the sense that he was entirely indifferent to whether the allegations he was making against the respondent were true or false. The remark he made to which I have referred in paragraph 30 above, that he might (well after publication) carry out some proper research, is but one of many indications of this throughout the transcript. Other examples include his acknowledgement that he did not investigate the resolution at all (page 36 of the transcript), he made no investigations whether the respondent owned a quarry (page 36 and 37 of the transcript), that he had no proof that the respondent sold any gravel apart from the resolution (page 40 of the transcript) and that he did not know anything apart from what was in the resolution (page 40 of the transcript).

[35] The defense of qualified privilege was rightly rejected by the Magistrate albeit for different reasons than I have set out.

The Magistrate failed to consider the whole article

[36] This ground of appeal alleges that the Magistrate construed the alleged defamatory statements in isolation set apart from the whole article such that “it would completely lost the tenor, meaning and temporal [sic] of the article”. It is certainly correct that the Court must consider the whole context in deciding whether the words complained of are defamatory. See Broadcasting Corporation of New Zealand v Crush [1988] NZCA 271; [1988] 2 NZLR 234, 238. The appellants advanced no arguments that when read in context other parts of the article, not referred to by the Magistrate, modify or qualify the words which were clearly defamatory. Having considered the article as a whole myself, I find that they do not do so. There is no merit in this argument.

The evidence of the respondent’s witnesses

[37] The appellants challenge the Magistrate‟s reliance on the evidence of the witnesses called by the respondent who were Samisoni Fakaanga, Sisi Vaipulu and „Amini Vaipulu.

[38] An appellate court should not interfere with findings of fact of a court of first instance unless they are shown to be plainly wrong. McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. The reasons given for this principle include the expertise of the trial judge in determining what facts are relevant to the legal issues to be decided and what those facts are if they are disputed, that trials are not be regarded as dress rehearsals for appeal, that the duplication of the trial judge‟s role is a waste of resources which will seldom produce a different outcome in an individual case and that in making his decision the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be „island hopping‟. Lewison L.J. in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 at para [114].

[39] In respect of the witness Samisoni Fakaanga the appellants assert that his evidence of having attended a faikava of twelve men where there was a "vibrant" discussion about the respondent and him "getting the road construction fund and the incompetency of people within the Government" was against the weight of the evidence. The Magistrate referred to Mr. Fakaanga‟s evidence at paragraph 4a of the judgment. The findings he actually made are not as the appellants assert in the appeal document. The Magistrate found there had been a "lively" (not vibrant) discussion at the faikava that the "people in Government are unfit" (not incompetent). These findings were plainly open to the Magistrate on the evidence. Mr. Fakaanga was cross-examined by the appellants‟ counsel but it was not put to him that the faikava or the discussions he described had not occurred. It has not been shown, by a considerable margin, that the findings of the Magistrate were plainly wrong and there is no reason to interfere with them.

[40] A number of other matters are advanced of a general nature such as that Sisi Vaipulu and „Amini Vaipulu are the children of the respondent and their evidence was not independent or corroborated and was "substantially emotional, hearsay and heavily subject to fabrication.." It was also asserted that Mr. Fakaanga was a kava mate of the respondent and was evasive in giving evidence. There is no merit in any of this. The evidence of all these witnesses did not require corroboration and was clear and cogent. There was nothing in what they said that would lead one to doubt their honesty or recollection. It was a salient feature of the appellants‟ defense that none of these witnesses were subject to any significant cross-examination and it must be taken that their evidence was largely, if not entirely, accepted by the appellants. Browne v. Dunn (1893) 6 R. 67, H.L. Mr. Fakaanga was asked just ten questions in cross-examination and Sisi Vaipulu and „Amini Vaipulu were each asked just one question. Having failed to challenge the evidence of these witnesses it is not now open to the appellants to argue on appeal that the Magistrate should not have accepted it.

Damages

[41] It is submitted that the award made in favor of the respondent was excessive and that he was entitled to a nominal award only. Rather paradoxically, in light of the appellants‟ position that the defence of qualified privilege should have been accepted, the appellants argue that the article would have minimal affect "apart from gossips among the public about speculations about unbalanced distribution of the benefits by the authorities in regards of 80 million dollars for road constructions."

[42] The evidence called by the respondent as to the damage to his character was significant and compelling and was not challenged by the appellants.

[43] An appeal court should only interfere with damages awarded by a first instance Judge were the Judge clearly acted on wrong principle or the award is so extremely high or low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. Kingdom of Tonga v Lolohea [2009] TOCA 20 at paragraph 11 referring to Flint v Lovell [1935] 1 K.B 354, 360. No submissions were presented to me that the Magistrate proceeded on wrong principle and the award is consistent, and in some cases less than, awards made in other comparable cases. See for instance Edwards v Moala [1999] TOSC 52, Pohiva v Solomon [2009] Tonga LR 253, Pohiva v Edwards [2015] TOCA 2; AC 10/2012 and Leong v Fusimalohi [2012] TOSC 45. It has not been shown that the damages award was inappropriate.

Costs

[44] The final ground of appeal is that the appellants were not given the chance to object to the respondent‟s claim for costs. There is no evidence to support this ground. In any event, I note that the judgment was delivered on 1 June 2012 and the respondent‟s bill of costs was submitted on 18 May 2012 providing the appellants with plenty of time to file any objection. Furthermore, it has not been suggested that the costs claimed were in any respect unreasonable.

This ground of appeal fails also.

Result

[45] The appeal is dismissed.
[46] The respondent is entitled to his costs on the appeal which are to be fixed by the Registrar if not agreed.

O.G. Paulsen
LORD CHIEF JUSTICE
NUKU'ALOFA: 1 September 2015.