Moli v Heston [2001] VUCA 3; Civil Appeal Case 11 of 2000 (27 April 2001)

IN THE COURT OF APPEAL OF

THE REPUBLIC OF VANUATU

Appellate Jurisdiction

CIVIL APPEAL CASE No. 11 of 2000

BETWEEN:

Mr. KALFAU MOLI
of Port-Vila, in the Republic of Vanuatu
Plaintiff

AND:

Mr. BOB HESTON
of Port-Vila in the Republic of Vanuatu
Defendant

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak

Counsels: Mr. Saling Stephens for the appellant
Mr. John Malcolm for the respondent

Hearing date: 23 April 2001
Judgment date: 27 April 2001

JUDGMENT

This is an appeal from the judgment entered against Kalfau Moli for a total of VT8 million on the 27^th September 2000 in the Supreme Court sitting in Port-Vila. The appellant is the owner/publisher and editor of a newspaper called “the Nasara” which is distributed in Vanuatu.

On the 23^rd February 2000, on its front page it carried a sensational story about a meeting which had taken place the previous weekend where family members have been complaining about the Master of a Company who had been sleeping around with female staff. The article did not name the man or the Company but the story, (which was the predominant headline and shaded,) included a photograph which clearly was of TAVA FARM.

The story outlined reports which have been collected by the newspaper and which in the ordinary and natural meaning of the words indicated:

(a) that a white man master was sleeping with female employees;

(b) that unconventional sexual practices were occurring;

(c) that he was breaking up marriages;

(d) generally he was misbehaving.

The allegations are serious and if untruthful and without foundation were a gross and unjustifiable slur on an innocent man.

Although the respondent is not named, there is clear and unequivocal connection established on the basis of the available evidence. The Judge was satisfied that the article related only to the respondent. That finding is not challenged.

The respondent immediately retaliated with vigour and determination.

His solicitor wrote a letter to the appellant noting that the respondent contended that the article referred to him and alleging it was a clear and serious defamation. He indicated that the allegations were totally denied and the lawyer said it was the most scandalous defamatory assertion he had ever seen printed in Vanuatu.

The lawyer continued that he doubted that any retraction or apology could mitigate the damage caused to his client’s reputation. He advised that he was instructed to sue the Editor, the newspaper and its owners for a sum in the vicinity of VT100 million. The evidence suggests that there was no response to his letter.

Two days later Mr. Heston cooperated in the creation of an article which was published on the 26^th February in a competitive Vanuatu paper “the Trading Post”. In this the respondent in his own defence re-iterated his innocence, refuted the various allegations made speculated as to how the story may have come about and indicated that he would be taking Nasara to Court for a VT150 million Vatu. Although no credit is due to the appellant for this, such publication did provide that some balance immediately arose.

The Writ was issued on the 28^th February 2000. It was issued against not only the present appellant as editor but also against him and another as the owners and publishers of the Nasara.

The statement of claim pleaded the article (which had been printed in Bislama) in total. It assented that the natural and ordinary meaning of the article related to Mr. Heston and resulted in the defamation of the plaintiff who had been injured in his-

(a) Personal and professional reputation; and

(b) Had been brought into ridicule, contempt and public odium.

It was alleged that the article was published out of ill-will and for economic advantage. It was further said that the defendant had acted in a calculating manner in contemptuous disregard of the plaintiff’s position and that as a result the plaintiff had suffered general and aggravated damages.

The proceedings further alleged the publication was with flagrant and contemptuous disregard of the plaintiff’s right and reputation and in the circumstances deserved the imposition of exemplary damages.

The plaintiff claimed 50 million Vatu general damages, 50 million Vatu aggravated damages and 50 million Vatu exemplary damages.

There was available to the Supreme Court an affidavit of Patterson Revo of Port-Vila clerk testifying that he had served personally the proceeding on both the defendants on 1^st March 2000.

No action was taken by the defendants within 14 days as required by the Writ.

A request was made for judgment by default. On 11^th April at 9.15am, judgment as to liability was entered, for damages thereafter to be assessed.

There was a further hearing on 23rd June 2000. There was no appearance of the present appellant. Mr. Heston requested a date for hearing on the issue of damages. The Court set the 12^th July at 8.30am and indicated that Mr. Moli was to be notified of that hearing date.

At the hearing on 12^th July, there was no appearance by either of the defendants. The Court heard submissions on the issue of damages from Mr. Malcolm, counsel for Mr. Heston. The Judge adjourned the matter to the 3^rd August and required that the defendants be advised of that date.

At the hearing of 3^rd August Mr. Sugden represented Mr. Moli. Questions were raised as to service and whether the judgment should be set aside. Also issues arose as to what should be done in respect of each defendant. The matter was further adjourned to the 21^st August with the Court requiring any applications to be filed by the 18^th August by the defendants.

On the 25^th August, (steps having been taken), the Court set a timetable and determined that on 21-24 November 2000 there would be a trial for the first defendant on the issue of liability and for the assessment of damages with regard to Mr. Moli. The timetable was full and complete and such as was necessary to have that matter ready for hearing on the allocated date.

There was a further hearing on the 27^th September involving only Mr. Moli and Mr. Heston. The Judge’s record of that hearing is as follows:

“Hearing of 27^th September 2000

Mr. Malcolm for the plaintiff
The defendant Kalfau Moli in person

Malcolm Deft offers apology, retraction.
Wishes to take no further part.

Moli I have officially offered apology and retraction.
This is to be printed. I will carry it on front page.

Malcolm Deft agreed to let me draft it. He will publish.

Ct. Which page and by when

Moli I will carry it on the front page, before 8^th October.

Malcolm Would like judgment to issue

Ct. Anything further deft wishes to say. First case of this type, no previous cases/figure to use.

Moli Agree judgment should issue. Sugden wrote a letter saying he would no longer act. Requested money + placed me in difficult position. I will offer anything. Learnt a lesson from this. Seen Malcolm and discussed this.

M+M Happy for judgment to be sent out by post

Ct. Will within week

Moli Wish to say not neglecting Ct. Notices were served late. Nothing else to say.

Ct. Spoken to Sheriff re. Late service. P+P costs. Judgment to go by hand to defts’ office.”

The judgment under appeal follows from that hearing. It sets out the background to the matter and refers to the affidavits which were filed. It considers the law which is applicable in a case such as this and it noted that there has been an apology although made late in the day. It noted the evidence of the effect on the respondent of the wrong done to him.

The primary Judge summarised the legal position in this way:

“The purposes of an award of damages for defamation are –

(i) consolation for the distress;

(ii) reparation for the harm done to reputation;

(iii) vindication of the plaintiff’s reputation.

The total award must achieve all these purposes.”

There is no challenge to this or any other aspect of the legal analysis of the Judge.

The judgement records the effect of this publication on others closely associated with the respondent and their responses. It noted that there was not a shred of evidence to show that the suggestions were true in the slightest detail. It noted how easy it is for such allegations to be made which are difficult to refute with the constant problem of people believing that “there is no smoke without fire”.

It was noted that the article which had been on the front page, highlighted by shading and would immediately be seen by people in a shop just by being on the counter even if they did not actually buy the newspaper. The Judge noted that the Court did not have any evidence of circulation or distribution figures for the newspaper Nasara, which clearly, should have been provided to the Court.

A matter of importance is that the initial article having referred to female employees at the business at Tava Farm, one of them wrote a letter to the Editor signed by all in which they refuted the suggestion. This letter was never printed and did not receive any acknowledgement from the appellant.

The Judge later noted that there was no evidence to suggest that there has been any attempt made to check the story or ask for information from those involved before publication. The Judge found that this was not a case which involved innuendo or implications as the allegations were clear and unambiguously direct.

He found that there were no mitigating factors apart from the fact that the appellant had not sought to defend on any false basis or run up extra legal costs.

Finally the Judge considered the concept of punitive damages which are available for particularly reprehensible conduct to teach a wrong doer that such torts do not pay. It is an award which is made where the compensation will otherwise be insufficient to adequately punish the defendant. In his view this can be appropriate when a wrong doer knowingly or recklessly publishes defamatory matter with a view to increasing sales or ratings. The Judge found that in the absence of any other explanation such conclusion be drawn here.

He turned to the question of appropriate figures and noted that this was the first case that there has been an award of damages for defamation in Vanuatu. He noted that awards in comparable cases in countries like Australia, New Zealand and elsewhere has to be considered as against the particular social, economic and community situation which exist in this Republic. He noted the criticism which have been made of the level of damages awards generally and the concerns in other country when awards of damage for defamation are compared with damages for other forms of civil wrong.

The judgment then said:

“A figure of VT1 million is clearly inadequate. The figure of VT10 million is probably excessive. A figure for each of the heads of damages can be narrowed by this method.

In my judgment the figures for damages should be as follows:-

Compensation damages &nbbsp; &nsp; &nbbp;&nnbp;& VT5 million

Aggravating damages  p;&nssp;  p; &nbp; &nbp; ;&nbpp; &n sp; VT7 miT7 million

yle="idi-font-style: normal">Punitive damages &n1"> &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; /span>VT8 >VT8 million.

classBodyText2" style=tyle="marg"margin-lein-left:36.0pt;line-height:normal">These figures are not to be totalled. I therefore award the sum of VT 8 million by way of damages in this case.”

Three grounds of appeal were advanced.

First whether there had been proper service of the present appellant in the first place. The affidavit on file deposed to the effect that the document was served personally. It is now contended that it was just left at the office. There is no proper evidence to support this contention and we are satisfied that it was established that it was more likely than not that service had been effected.

Whatever the position could be about the technicalities on the 1^st March, there can be no question but that the appellant, long before this matter reached finality in September 2000, this appellant well and truly knew about what was going on. It makes no sense for an argument now to be mounted about what the position was. It could have been challenged but was not. The reality underlining service has no aspect which causes us concern. This ground of appeal is dismissed.

Secondly it is argued that there was not an adequate opportunity for Mr. Moli properly to be heard. This argument is without substance or foundation. There were two occasions in August when Mr. Moli was represented by counsel. Most importantly there is the hearing of 27^th September the record of which is set out above. The most telling part of that is the reference “Moli agree judgment should issue”.

The fact that Mr. Moli does not like the answer which eventually came out of the process is quite different from the fact that he was not provided with the proper opportunity to be heard. There is no evidential basis for that assertion and that ground of appeal is rejected as well.

The third issue is that the damages awarded were excessive which we acknowledge is a difficult matter. We are dealing with it for the first time in the Republic. Mr. Moli’s position now appears to be that having indicated his willingness to retract and apologise in the most fulsome terms (as had been suggested by the respondent’s solicitor), there should have been no damages or at most only a nominal award of damages.

One of the quirks of this appeal is that on 27^th September 2000 the primary Judge dealt with the matter on the basis that there would be a full total and complete retraction and apology printed on the front page of “the Nasara” as was the case with the original defamation.

In fact this has not occurred and not surprisingly a further seven months later the respondent is not keen to have reactivation about the matter which would inevitably arise with any publication. We nonetheless are of the view that this appeal has to be determined on the basis of the factual scenario as it was presented by these parties at the primary hearing and without reference to the fact that in the intervening time there has been no sensible steps taken to put in place resolution of the outstanding issues.

In our judgment the starting point is to look at the economic situation in this country. We recall that the minimum wage is in the vicinity of 200,000VT per year. Senior and responsible people within the community often earn no more than 1.500,000VT per year.

When one tries to reflect those figures back into comparison with New Zealand or Australia defamation awards (and realise that the levels of remuneration which are perhaps a tenth or even a twentieth of what it might be elsewhere), we are satisfied that a total award in this case of VT8 million is excessive. If translated by reference to the different economic standards in New Zealand or Australia it would create a figure which in those places would clearly be seen as excessive.

In our judgment it is appropriate to look at the issues of compensatory and aggravated damages as one. They can best be coupled as a total. This was a vile allegation made without verification or investigation. It was presented with sensationalism in a weekly newssheet. It was given prominence and highlighting. It could have been anticipated to have been damaging and distressing and it certainly was. It had absolutely no foundation in fact.

It is our judgment that such publication in and of itself calls for a substantial award to compensate for the wrong done to Mr. Heston. While in no way undermining the fundamental concept of freedom of speech, the Courts must indicate to those who are prepared to publish and broadcast unsubstantiated rumour, unfounded gossip and uninvestigated scuttleback that they will face a substantial financial consequence.

In our judgment, allowing for all the aggravating factors a proper starting point would have been in the vicinity of VT5 million. We are, however, of the view that the undertaking to publish (with identical prominence and in the same position) a total retraction, admission of wrongdoing and acknowledgement of the lack of any foundation (even seven months after the events) had a substantial mitigating influence. It meant that within the self same publication the wrong which was done was being brought to a conclusion. The audience which would have learnt of the first publication were now being advised that there was nothing in it and there was real regret and retraction.

We accordingly conclude that a proper sum for compensation in all those circumstances was VT3 million.

There are however matters which in our judgment in the circumstances of this case make it appropriate for an additional award for punitive damages because that award of compensatory and aggravated damages is insufficient to punish the wrong doing in this case. These include:

(a) the fact that the article was published without any investigative activity being undertaken;

(b) that the retraction and apology took some seven months to be available;

(c) that the story having been predicated on the wrongful, immoral and illegal conduct of the respondent towards a group of identifiable women, when those women wrote within a day or two a letter to the appellant disavowing all of that, it was not responded to or published in any way;

(d) that there was no plausible explanation or rational for this publication other than increasing or obtaining market share.

Those factors in our judgment are particularly reprehensible and deserve condign condemnation. They call for and require additional punishment.

Accordingly there will an award of an additional sum of VT2 million by way of punitive damages.

The appeal is accordingly allowed. The award entered in the Supreme Court is set aside. In lieu the appellant is ordered to pay by way of compensatory and aggravating damages the sum of VT3 million and by way of punitive damages an additional sum of VT2 million. The total award will be VT5 million.

There will be no orders as to costs either in this Court or the Supreme Court. In the normal event, the respondent would have been entitled to an award of costs in respect of the initial hearing. We cannot help but conclude that the ridiculously large amount of VT150 million which was claimed lessened the chance of a sensible resolution or compromise between the parties closed to the event.

The appellant has been partially successful in this Court. But we are satisfied that the overall justice of the matter is met if each party meet all their own costs in respect of the entire proceedings.

DATED at PORT-VILA, this 27^th DAY of APRIL, 2001

BY THE COURT

V. LUNABEK CJ
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J
O. SAKSAK J