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Wellington Newspapers v Rabuka [1994] FJCA 14; Abu0004j.93s (22 March 1994)

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 4 OF 1993
(High Court Civil Action No. 238 of 1990)

BETWEEN:

WELLINGTON NEWSPAPERS LIMITED
KARL DU FRESNE
APPELLANTS

AND:

SITIVENI RABUKA
RESPONDENT

Mr B. Sweetman for for the Appellants
Mr A.M. Rabo for the Respondent

Date of Hearing: 21st February, 1994
Date of Delivery of Judgment: 22nd March, 1994

JUDGMENT

This is an Appeal brought before this Court pursuant to leave given on 22 January 1993 to the Appellants to appeal against the Judgment and Order of the Honourable Mr Justice John E. Byrne on 25 November 1992. That Order dismissed a Summons dated and issued on 30 October 1990, brought by the Appellants (Applicants) seeking inter alia to set aside an Order made ex parte by His Lordship granting leave to the Respondent (the Plaintiff in Action No. 238 of 1990) to serve a Writ of Summons and Statement of Claim together with an Acknowledgment of Service, on the Appellants, out of the jurisdiction of the Court. That Order further "ordered that the time for Entry of Appearance by both the Defendants be 42 days after service of the said notice".

References appear in the material submitted on behalf of the Appellants to their having entered a Conditional Appearance to the Writ. His Lordship made a similar statement in his Reasons for Judgment, wherein he said "the Defendants ........ have now entered a Conditional Appearance designed so far only "to contest the jurisdiction"."

It is therefore appropriate to draw attention to their Acknowledgment of Service of the Writ of Summons filed by their Solicitors dated 26 October 1990 and filed 27 October 1990.

It contains the following paragraphs (which are adapted from the customary pro forma):-

"1. Service of the Writ is hereby acknowledged by the 1st and 2nd Defendants.

2. The Defendants do intend to apply for a stay of execution against any judgment entered by the Plaintiff.

3. The Defendants do intend to contest the proceedings.

4. The Defendants do not intend to apply for the transfer of this action to the High Court at any other place."

O.12 of the High Court Rules of Fiji substantially follows the English O.12 as amended in 1979 and 1982. The use of Conditional Appearances, and their usefulness in meeting an argument based on waiver of antecedent irregularities, is now a thing of the past. Our O.12 R.7 deals with the matter. The Appellants as Defendants complied with O.12 and all relevant questions were properly before the Court.

It is perhaps marginally relevant that the Writ of Summons itself contains no express reference to, or any notice of, any mention to serve it out of the jurisdiction, save what might be inferred from the addresses of the Defendants. The contemporaneous issue of the Writ and the Summons to serve outside the jurisdiction is, as we shall discuss later, of some importance.

Likewise it is appropriate at this stage to set out in full the Orders sought by the Defendants in their Summons. They were:-

"(a) A declaration that the purported issue and service of the Writ and other documents is a nullity.

(b) An Order that the Order granting Leave to serve the proceedings outside Fiji be set aside.

(c) An Order setting aside the Writ and service of the Writ on the Defendants.

(d) A declaration that in the circumstances of the case the Court has no jurisdiction over the Defendants in respect of the relief claimed.

(e) An Order that the costs of this Application be paid by the Plaintiff."

The application was stated to be made in reliance upon Order 6 Rule 6, Order 11 and Order 12 of the High Court Rules.

His Lordship's "Ruling" (as he referred to it), from which he made his Order dismissing the Defendants' Summons, is to be found at pp.93 to 112 of the Record Book.

In view of certain events that have occurred we may say that we have some sympathy for the learned Judge. The amount of material before him, and now before this Court, on a relatively short point with virtually no dispute on the facts, has occupied a great deal of Court time and expense. His Lordship's frustration at one point led him to observe:-

"I must say at the outset that I find certain parts of the Plaintiff's written submissions far from clear in the language used and, at times, difficult to understand the argument purported to be addressed to the Court. I mention it here in the hope that in the future Counsel and Solicitors drawing submissions will use as far as possible simple and unconvoluted language to express themselves. In so doing they will make the task of the Judge, let alone their opponent much easier. That said, I now turn to the submissions made to me."

This Court appreciates receiving in all cases full, precise and relevant submissions. A client's case is not advanced necessarily by the mass of paper and prolix statements.

As we shall see later, these applications and this Appeal would have been of much shorter duration had it been at the commencement confined to the real issues involved in the Action.

We shall endeavour now to state precisely those of the relevant facts and issues that are necessary for our decision.

(a) The First Defendant (Appellant) at all relevant times published a daily newspaper, "The Dominion", in Wellington, New Zealand, and the Second Defendant was its Editor.

(b) It did so on or about 18 June 1990; that day's newspaper contained a long article headed "Shameful Hypocrisy over Fiji."

(c) The Plaintiff says that the article contained matter defamatory of him and there is little doubt it did. What defences (if any) are open to the Defendants is another matter.

(d) On 10 July 1990 the Plaintiff issued the Writ of Summons indorsed with a Statement of Claim against both Defendants claiming damages in the sum of $1,000,000.00, interest and costs.

(e) On the same date and no doubt contemporaneously therewith, the Plaintiff sought leave ex parte to serve the Writ and Statement of Claim upon the Defendants, the formal Order sought being "For Leave to serve the Writ of Summons in the within Action on the Defendants .... out of the jurisdiction ...."

(f) The Plaintiff, before doing so, did not seek the leave of the Court to issue the Writ.

(g) The Defendants delivered their Acknowledgment of Service as set out above.

(h) The Defendants on 30 October 1990 issued their Summons (as above recited).

(i) The learned judge dismissed the Summons on 25 November 1992 after having heard argument from Counsel on behalf of all parties on 30 September 1991, 26 February, 3 March and 13 November 1992.

(j) The grounds of appeal against this order are:-

"1. The learned Judge erred in fact and in law in dismissing the Appellant's Summons.

2. The learned Judge erred in fact and in law in failing to hold that the issue of the Writ and other documents was a nullity.

3. The learned Judge erred in fact and in law in holding that the Court had jurisdiction over the Appellants in respect of the relief claimed.

4. The learned Judge erred in law in holding that it was not necessary for the Respondent to first obtain the leave of the Court before issuing the Writ.

5. The learned Judge erred in law in his interpretation of Order 6 Rule 6(1) and Order 11 Rule 1(ii) of the High Court Rules."

(k) On pg. 19 of His Lordship's Ruling he recorded this concession by Counsel for the Plaintiff:-

"Counsel for the Plaintiff informed me that the Plaintiff is seeking damages for defamation only in respect of the publication of the newspaper in Fiji."

The precise time at which this concession was made does not appear from the "Judge's Notes of Argument" made by His Lordship on the final day during closing addresses.

(l) Whilst, on the face of the Statement of Claim, damages may well have been sought also for the publication in New Zealand at least, no attempt to confine the damages to the publication in Fiji was made in the supporting Affidavit of the Plaintiff's Solicitor sworn on 6 July 1990. No such application to amend the Statement of Claim was made until the hearing of the Appeal before this Court and then only after it was strongly suggested by the Court itself.

(m) The evidence before His Lordship shows that, whilst the newspaper is printed in New Zealand, the First Defendant did not itself promote its sale, distribution or delivery to Fiji.

(n) No attempt was made by the Defendants to refute the allegation in the Statement of Claim that The Dominion was published in New Zealand and distributed through the North and South Islands and in the South Pacific.

(o) Publication of the newspaper which contained the article did occur in at least two places in Fiji, one in the reading room for the use of the public at the New Zealand Embassy in Suva "sometime in June 1990" but on or after 18 June 1990, and the other in the newspaper room of the University of the South Pacific Library towards the end of June or early July 1990.

(p) The Plaintiff was formerly Major General Rabuka, Commander of the Armed Forces in Fiji, the leader of two "Military Coups" in Fiji in 1987 which led to dramatic changes in the Constitution of Fiji, and, according to the Statement of Claim, at the date of the publication in question held the position of Commander of the Fiji Military Forces of the Republic of Fiji.

The amendment to the Statement of Claim was sought under circumstances which we feel we should deal with at some length.

During argument before us, Mr. Sweetman for the Appellants drew our attention to paragraph 1.6 of the Skeleton Argument of Appellants, filed on 7 February 1994. It reads:-

"The concession that damages are sought only for defamation in Fiji (page 111) alleviates, to some degree, the concern of the Defendants arising from the wide wording in the Statement of Claim."

Page 111 of the Record of Appeal is the penultimate page of His Lordship's Ruling.

The relevant portion of the Ruling is as follows:-

"Counsel for the Plaintiff informed me that the Plaintiff is seeking damages for defamation only in respect of the publication of the newspaper in Fiji. In Eyre's case McGregor J. was not persuaded by the fact that Counsel for the Plaintiff had offered to give an undertaking that proceedings would not be commenced in Australia. Each case has to be decided on its own facts. In Eyre the Judge mentioned that the material placed before the Court on the ex-parte application was somewhat misleading and he stressed the necessity for full disclosure on an ex-parte application. The Statement of Claim in Eyre's case alleged extensive publication in New Zealand but when the matter came before McGregor J. the parties agreed that this was limited to twenty-one copies.

In my judgment no such criticism can be levelled at the Plaintiff in the instant case. I see no attempt by him to mislead the Court as to the number of copies of the Defendants' paper found in Fiji so that the matter which must be seen to have influenced McGregor J. to some extent can not be said to be true of this case.

Furthermore my interpretation of paragraph 4 of the Statement of Claim in this action is that it is simply narration of the fact of publication of the newspaper in New Zealand, Fiji and other parts of the South Pacific. I do not read it as an assertion of the right of this Court to hear and determine a claim for damages arising in countries other than Fiji."

He concluded the Ruling by stating:-

"I therefore dismiss the Summons of the 30th of October 1990 and order that the Defendants pay the Plaintiff's costs thereof."

The timing of this "concession" is important for several reasons, not the least its effect on liability for costs. Looking at the Ruling, its length and the passages set out above, we wrongly assumed that it was a very late concession, made during the argument of the Plaintiff in the proceedings before His Lordship. We were in error. Regrettably we did not seek clarification from Counsel at the Appeal.

In our view, paragraphs 2, 4, and 6 of the Statement of Claim in its original form, clearly indicated that the Action was one for damages for defamation of the Plaintiff due to the publication of the defamatory matter "in New Zealand and in Fiji and elsewhere in the South Pacific." We do not agree with His Lordship's description of paragraph 4 as "Simply Narration", the more so having regard to the absence of any plea in paragraph 6 confining the claim to damages suffered in Fiji only.

Our interest in tracing the course of this so called concession was heightened by the learned Judge's having referred to the above passage quoted from Eyre's case. According to His Lordship's Ruling the so called concession he is referring to is contained in a statement (oral or written we do not know) from Counsel for the Plaintiff; when it was made or in what circumstances the Record is silent.

We may say that in his submissions to us Mr Sweetman was by no means convinced that the "concession" he referred to necessarily bound the Plaintiff to so confine his Action. He stressed the absence of any application to amend the Statement of Claim. If the only evidence pre-trial of this "concession" was contained in paragraph 11.0 of the "Submission of Statement M. Rabuka" (sic), dated 24 February 1992 and filed on 26 February 1992 and in particular in the last six lines thereof, then he might have been justified in acting cautiously. His doubts, if any, would not have been allayed if he had had regard to what we believe to be the Judge's note on the Court Record against this paragraph (at p.78 of the Record), namely the word "Yes" with a line drawn through it and the word "No" alongside it. That is an accurate reproduction of the Official Court file. Regrettably the original documents which make up the Record in this case have many markings and annotations made by His Lordship. From the view point of the Court of Appeal this is an unfortunate practice. No doubt copies of documents for this purpose could have been made available to him which he could have annotated as he wished.

The situation became even more unsatisfactory when we turned to the Reply of the Defendants filed on 3 March 1992, but undated save for the figures "1992". The document appears at pgs. 66 and 67 of the Record. Paragraph 5, which purports to answer the so called concession in paragraph 11 of the Plaintiff's submission, reads:-

5. AT the end of paragraph 11 of his submission the Plaintiff states, after citing an extract from Eyre's case:

"Here it is, with respect, submitted that no such extension of the pleadings is sought to refer to the loss of reputation in New Zealand, but territorially Fiji is all that is relied upon."

Such a submission made by the Plaintiff is quite contrary to the above extracts from the Statement of Claim as there is a claim relating to publication in New Zealand and the damages claimed appear to include a New Zealand element.

All of this demonstrates that by February/March 1992 doubts were beginning to surface as to just what was the extent of the Plaintiff's claim. Neither party moved to seek clarification nor, if necessary, amendment of the Statement of Claim. No exchange of correspondence ensued.

In the events which have happened, the Defendants in March 1992 certainly put the Plaintiff on notice that they were concerned to have the Action clearly and properly confined to damages for the alleged publication in Fiji. If the Plaintiff was, like Mr. Micawber, "waiting for something to turn up", then it must be at his expense for extra costs incurred. The Plaintiff alone could seek an amendment of his Statement of Claim.

If this remedy sought by the Plaintiff was always limited to damages resulting from publication in Fiji only (as his Counsel appears to have asserted before the Judge), then he should have forthwith amended the Statement of Claim in the matter, as he eventually did during the hearing of the Appeal.

This amendment occurred in the following circumstances.

Upon Mr Sweetman's adverting to paragraph 1.6 of the Appellants' Skeleton Argument and upon his questioning the limits of the "concession", the Court questioned why the Statement of Claim had not been long ago amended to present the true nature of the claim. Mr Rabo, Counsel for the Plaintiff (but not the Counsel involved in the hearing of the proceedings under appeal), quite properly sought the Court's leave to amend. There were two typographical amendments and because we expect all amendments to be made with alacrity, we set them out precisely.

This Court ordered that the Plaintiff have leave to amend paragraph 5 by substituting the figure "4" for the figure "3", by substituting the letter "m" for "n" in the word "imputations" in the third line, and to amend paragraph 6 by adding the words "in Fiji" after the word "publication" in the first line and before the word "of" and by substituting the figure "4" for the figure "3" in the second line thereof.

Mr Sweetman raised no objection subject to the question of costs, and to Counsel restricting all his arguments to ones based on the amended Statement of Claim having always been in the amended form.

As can be seen, this Court and Counsel before it were anxious to have this Court dispose finally of the application. Since the limitation period had not expired, no one sought to present technical arguments such as, "how do you amend a document that is a nullity". Therefore, we now approach this Appeal as though it was always from the refusal of an application to set aside the Statement of Claim as amended. Without doubt the inclusion of claims for damages based on happenings outside the jurisdiction would raise quite different additional considerations.

O.6 R.6 of the High Court Rules provides that no Writ shall be served out of the jurisdiction without the leave of the Court subject to a proviso that this does not apply if a claim is "one which by virtue of an enactment the High Court has power to hear etc."

O.2 R.1 deals with the Rules etc. as follows:-

"(1) Where, in beginning or purporting to begin any proceedings, ...... there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, ..... or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings ......"

Faced with this Order (which had not been referred to at any time through the history of these proceedings), and with the amendment of the Statement of Claim, Mr Sweetman forewent his plea that the issue of the Writ was a nullity and invalid. The contemporaneous filing of the Writ of Summons indorsed with the Statement of Claim with the Summons for leave to serve the Writ out of the jurisdiction would make this a fortiori a case for waiver of any non-compliance. Certainly we do not find it a case which merits a close examination of the meaning of "enactment" in O.6 R.6. We would content ourselves with leaning towards the "English" approach as dealt with in the White Book at the time when their rules and ours were substantially the same, as being more persuasive than the arguments advanced before us.

As to the content of the material before the Court, we are of the view that it brings the case within O.11 R.1(f) (tort and damage sustained within the jurisdiction) and that there was an adequate compliance with O.11 R.2.

Finally on the question of discretion, we are in no doubt that the publication in Fiji, as referred to earlier in our Judgment, was adequate to satisfy this Court that an Order to serve the Writ out of the jurisdiction was amply justified. As the matter has yet to be tried, we say no more than that.

The Appeal therefore is not allowed and must be dismissed. We order that for purposes hereafter, the Writ of Summons and the indorsed Statement of Claim, when amended, shall be deemed to have been validly issued and leave is hereby granted to serve the Writ of Summons and the amended Statement of Claim out of the jurisdiction. In the unfortunate circumstances of this Action and Appeal, we feel that service of the amended Writ and Statement of Claim should be effected as soon as possible on the Defendants or such of them as can be served, unless their Solicitors accept service.

Additional procedural matters (if any) are referred to the Registrar.

In the circumstances of this case, we give leave to either party to apply.

We have carefully considered the question of costs of all proceedings before Byrne J. and this Court and are of the view that there should be no Order for the payment of costs in any of the applications to date nor in this Appeal.

Sir Moti Tikaram
Acting President Fiji Court of Appeal

Sir Edward Williams
Judge of Appeal

Mr. Justice Ian R. Thompson
Judge of Appeal

Abu0004j.93s