IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
M. 395/81

BETWEEN

LEONARD JAMES STAPLES
Appellant

AND

NGAPOKO BERTRAM
First Respondent

AND

MICHAEL CRAWFORD MITCHELL
Second Respondent

Counsel: Appellant in person
R McLaren for Respondents

Hearing: 16 October 1981
Judgment: 23 October 1981

JUDGMENT OF PRICHARD, J

On 10 April 1980, the appellant commenced as action in the High Court of the Cook Islands against Mrs Ngapoko Bertram of Rarotonga claiming the sum of $100,000 as damages for defamation. Mrs Bertram is (or was at the relevant time), employed by the Department of Education as a secretary to the Minister of Education and as part time teacher. Before the action came to trial, the Advocate-General, representing the Department of Education, was joined as a second defendant, the appellant claiming that the Department was vicariously responsible for the allegedly defamatory statements made by its employee. The action was heard in the High Court at Rarotonga by the Chief Justice on 1 and 10 September 1980. Judgement was given against the appellant with costs, eventually fixed by the Chief Justice at $2,500. The appellant now appeals against the judgement and against the award of costs.

The defamatory statement alleged to have been made by Mrs Bertram is as follows:-

"... that the Staples' first child was killed by Mr Staples who drowned her ..."

The allegation was that Mrs Bertram had said this in hearing of a group of her students at Titikaveka College on 4 March 1980. If she did say this, the statement was beyond all question completely untrue. In 1968 Mr Staples who was then residing on Lord Howe Island, had actually been charged in the Australian Courts with having caused the death of his infant daughter; it was then established by irrefutable medical evidence at the preliminary enquiry that the child had died of natural causes and that her death was not attributable to any act of the appellant.

When the present action was commenced, originally against Mrs Bertram only, notice of intention to defend was filed on Mrs Bertram's behalf by the Advocate-General. From this circumstance, Mr Staples might be forgiven for inferring that the Advocate-General was acting in Mrs Bertram's defence on instructions from the Government or the Department of Education. He then applied, successfully (although not necessarily wisely), to have the Advocate-General (representing the Department) joined as a second defendant. He alleged that at the material time, Mrs Bertram was the servant or agent of the Department and that the statement complained of was published by Mrs Bertram in the course of her employment.

Mrs Bertram's defence was a denial of having made a statement in the terms alleged. She admitted in evidence that she had said to a group of girls at the collage that Mr Staples' daughter had been drowned. She denied saying that the girl had been drowned by Mr Staples.

Evidence was given by three teenage girls, all members of Mrs Bertram's typing class, that at the commencement of the lunch break on 4 March 1980, there were four girls in the classroom packing up their typing material. Mrs Bertram then told one of their number, MATAMARU NGAPARE, in the hearing of others, that Mr Staples had drowned his daughter. A fourth girl; Doreen by name, was not called. She was in New Zealand at the time of the hearing. In their evidence in chief, all three girls, MATAMARU NGAPARE, TAMARA POUPPUARE and TERE TANGIMAMA, said more or less the same thing: that Mrs Bertram had said that Mr Staples had drowned his daughter.

The oldest girl, TERE TANGIMAMA (18), gave the most explicit account of what Mrs Bertram had said. Her evidence was that Mrs Bertram spoke in Maori, the words being translated as follows:-

"Len drowned the baby in a tub. Len held the baby's feet and dunked the baby in the tub".

The others (both aged 16) did not purport to report Mrs Bertram's exact words but both said in evidence that Mrs Bertram said that Mr Staples had drowned the baby.

Mr Mitchell's cross-examination was mainly directed to obtaining admissions from the witnesses that they had previously made statements to him inconsistent with their evidence. He put it to each witness in turn that he had interviewed the witness on 17 April 1980 and she had then stated that all Mrs Bertram had said was that Mr Staples' daughter had died - not that she had been drowned or that Mr Staples had caused her death. With the exception of MATAMARU NGAPARE, the girls admitted that this was so - saying that they had "forgotten" at the time to mention those matters. MATAMARU NGAPARE admitted to having signed a document, which was later produced by Mrs TEONE who acted as interpreter for Mr Mitchell at the time of his interviews. Mrs TEONE is a teacher at the school. She gave evidence that the girls had understood Mr Mitchell's questions. She gave no evidence as to the content of the previous statements of any of the girls except that in the case of MATAMARU NGAPARE, she produced a short document written in English - presumably by Mrs TEONE - and signed by MATAMARU NGAPARE which reads as follows:-

"She said Leilani had a sister who had died.
Drowning not mentioned.
P.I.M. not mentioned.
Father not mentioned.
I spoke to Leilani - I said her sister had died.
I did not mention her father.
That is all that I said.
(signed MATAMARU NGAPARE)
17.4.80"

Despite being confronted in this way by their previous statements, all three girls maintained that their evidence was true.

There was another witness, a girl named NGATUNANE TAUFI, called by the defence, apparently to discredit the evidence of MATAMARU NGAPARE. This girl said that one day, presumably the day in question, she had a conversation with MATAMARU NGAPARE outside the room and that MATAMARU then said only that Mr Staples had a daughter who was drowned. If the evidence was intended to discredit MATAMARU NGAPARE's evidence, it should have been put to MATAMARU in cross-examination; it was not so put to her and, in any event, is of no real consequence.

Mr Staples has a daughter LEILANI, who also attends Titikaveka College. At the relevant time, she was in the same class as the girls who gave evidence. It seems that one of Mrs Bertram's typing-room audience, MATAMARU NGAPARE, lost no time in telling LEILANI that Mrs Bertram had been talking about the death of her sister. Later that afternoon, LEILANI reported the matter to her parents. As a result, Mr & Mrs Staples went to see the girls that same afternoon and made an appointment to see the Principal of the school on the following morning. They in fact saw Mr Donnelly, the Assistant Principal. Mrs Bertram, who had been diligently forewarned by MATAMARU that the Staples were coming to the school, was brought into the room. Mrs Bertram admitted to having told MATAMARU that the Staples had a child "dead drowned" but denied having said that Mr Staples was responsible for the child's death. She apologised for having made the remark about the child and agreed to give a written apology. In the course of the discussion, Mrs Bertram said that she had obtained her information from reading something in the "Pacific Islands Monthly". If so, she must have been referring to items published in 1968 at the time when Mr Staples was actually (but wrongly) suspected of having caused his daughter's death on Lord Howe Island. At the time of that publication, MATAMARU would have been of about four years of age. I observe (in parenthesis) that it seems unlikely that she had knowledge which enabled her to embroider Mrs Bertram's comparatively harmless remark (as the defence suggests she had) unless it was because of something conveyed to her by Mrs Bertram. Be that as it may, it was Mrs Bertram's evidence that she said nothing except that Mr Staples' daughter had been "dead drowned". The promised written apology was not forthcoming and this action was commenced.

The issue turned on a pure question of credibility. The Chief Justice found that it was not proven, on the balance of probabilities, that the words complained of had been uttered by Mrs Bertram. He gave judgment for the defendants accordingly.

It is clear from the judgment that the Chief Justice was rightly concerned by the fact that all three witnesses to the conversation had apparently failed to state (when interviewed by Mr Mitchell) that there had been any reference by Mrs Bertram to Mr Staples' alleged responsibility for his daughter's death.

Mr Staples, who conducted his appeal in person, referred to the fact that it is customary for Polynesians, when questioned by persons who have some apparent authority, to give answers which they think will meet with the questioner's approval. I have no doubt that this is so, and there is much force in Mr Staples' submission that when the girls were interviewed by Mr Mitchell, they did not tell the whole truth for that reason. In this context, I note that the statements obtained by Mr Mitchell are not consistently (sic) with Mrs Bertram's evidence - she says she said the girl was drowned: the statements made to Mr Mitchell was to the effect that no cause of death whatsoever was mentioned. So that, if Mrs Bertram's evidence is true, the statements obtained by Mr Mitchell are, in one respect at least, not the whole truth. It is, I think, unfortunate that the Advocate-General conducted these pre-trial interviews of the plaintiff's witnesses in person, although I can well understand his desire to obtain, at first hand, the girls' account of the matter.

The Chief Justice had the advantage, which I have not, of seeing and hearing the girls when they gave their evidence: he had to determine the issue of credibility on the evidence of three teenage girls. His conclusion that he could not safely regard the case as satisfactorily proved by their evidence is one with which I could not possibly interfere. The appeal against the judgment must therefore be dismissed.

Mr Staples appeals also against the award of $2,500 costs in favour of the defendants. This sum represents half the scale costs, on a party and party basis provided by the Rules. Nevertheless, it is a very substantive sum, having regard to the facts that the hearing involved only a day and a half in Court and that only a simple question of fact was involved. In dealing with this matter, the learned Chief Justice rightly referred to his wide discretion as to costs and to the principle that a successful party is not to be deprived of his right to costs except for good cause. He observed that the sole issue was one of credibility and said that, this being so, had the defendants applied at the conclusion of the plaintiffs case, the trial could have been disposed of then. This, he said, was the only factor he felt he could take into consideration in the plaintiffs favour as a basis for reducing the costs, as he did, to half the prescribed scale.

With respect, it seems to me that this overlooks what I regard as the salient matter to be taken into account. A dictum frequently cited in relation to the judicial discretion in the matter of costs is that of Atkin, L.J. in Ritter v Godfrey (1920) 2 K.B. 47 as follows:-

"In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains."

On her own admission, Mrs Bertram was guilty of the most unprofessional, if not irresponsible, conduct in discussing with one of her students, in the hearing of several others, something which she had learned from a news item in a back number of the Pacific Island Monthly and which affected the family of another student at the college. However it came about that the conversation was relayed to Mr & Mrs Staples in the form in which they heard it - the fact remains that the situation should never have arisen, and never would have arisen had Mrs Bertram not abused her position of trust and confidence as a teacher. The damage having been done, and a most serious defamatory statement being now at large in the small community in which the family lives, Mr Staples had every justification for attempting to defend his reputation in the only manner he could see open to him. It is unfortunate that he elected to claim such a large sum by way of damages and also that he chose to join in the second defendant as he did. But his reasons, on both counts, are quite understandable. The Advocate-General had already been briefed for the defence when he was joined as a second defendant so that his appearance in the latter capacity involved little, if any, additional work.

It would be wrong to interfere with the exercise of a judicial discretion in the Court below if I were not satisfied that the discretion was exercised on some wrong principle or without regard to the relevant considerations. In all the circumstances of this case, it seems to me that the discretion was exercised without any regard to the matters to which I have just referred. In my view, these matters are distinctly relevant and amount to a substantial and good cause for not allowing costs to the defendants, despite their success in the Court below. Accordingly, the appeal is allowed to this extent: the award of costs is set aside, so that the parties will be responsible for their own costs. Mr McLaren rightly, in my view, did not seek costs on the appeal. Although the appeal has, to some extent, been successful, I think it appropriate that there be no costs allowed on the appeal.

PRICHARD J

Solicitors:
Appellant appeared in person;
Messrs Clarke Ingram & Co., Rarotonga, Solicitors for Respondents.