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Vere v Chairman of Disciplined Services Commission [2001] FJHC 237; HBC348.2000 (5 October 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 348 OF 2000

BETWEEN:

NAIPOTE VERE
Plaintiff

AND :

CHAIRMAN OF DISCIPLINED
SERVICES COMMISSION
First Defendant

ATTORNEY-GENERAL
Second Defendant

THE FIJI TIMES LIMITED
Third Defendant

K. Vuataki for the Plaintiff
W. Calanchini for the First and Second Defendants
F. Haniff for the Third Defendant

Dates of Hearing: 13th November 2000, 12th January 2001

Date of Ruling : 5th October 2001

RULING

On the 24th of August 2000 the Plaintiff issued a Writ with a Statement of Claim annexed to it. The Statement of Claim reads as follows:

1. The Plaintiff is a barrister and solicitor and a former Police Inspector. The First Defendant is the Chairman of a constitutionally elected body and the Second Defendant is a Public Officer whilst the Third Defendant is a publishing company.
   
2. On or about the 15th of April 1998 the Plaintiff who was a Police Officer and employed by the Fiji Police Force lodged an official complaint against the Commissioner of Police Mr. Isikia Rabici Savua (hereinafter to be referred to as the Commissioner).
   
3. As a result of the Plaintiff’s complaint, the Commissioner was investigated for a total of 19 complaints and all files were sent to the Director of Public Prosecution for direction.
   
4. On or about the 4th day of December 1998, in a letter addressed to the Third Defendant, the First Defendant falsely and maliciously wrote and published of an concerning the Plaintiff the following words: “So far, all allegations made against the Commissioner are vexatious and not supported by evidence. It is manifestly clear that the majority of these incidents have no substance. The Commission has accordingly directed that the investigations be brought to a close.”
   
5. The words in paragraph 4 above were published by the Third Defendant on Friday the 4th day of December 1998 and were widely circulated in Fiji.
   
6. By the words complained of in their natural and ordinary meaning the First Defendant meant and was understood to mean that the Plaintiff had no or no adequate grounds for complaint against the Commissioner and/or that he was insincere in making such complaints and/or that his object in making the complaint was solely to cause annoyance, inconvenience and distress to the Commissioner and/or damage the Commissioner’s reputation.
   
7. The First Defendant sent the letter by an envelope addressed to the Third Defendant. The First Defendant well knew at the time he sent the letter that it was likely in the ordinary course of business to be opened and read by some person or persons in the employment of the Third Defendant. Furthermore, he well knew that it was likely to be widely read by members of the public if published in the Third Defendant’s daily news papers.
   
8. By reason of the premises the Plaintiff has been severely injured in his credit and reputation and has been brought into scandal, odium and contempt and had caused him to resign from the Fiji Police Force where he had been employed for 32 years.
   

And the Plaintiff claims:

1. Damages for libel.
   
2. An injunction restraining the Defendants by themselves, their servants or agents or otherwise from further publishing the said or any similar libel of and concerning the Plaintiff.
   

On the 14th of September 2000 the First and Second Defendants issued a Summons seeking an order under Order 18 Rule 18(1)(a) of the High Court Rules for an Order that the Statement of Claim be struck out on the grounds that it discloses no reasonable cause of action.

On the 21st of September 2000 the Third Defendant delivered a Statement of Defence which so far as relevant denies that the words referred to in paragraph 4 of the Statement of Claim were published in The Fiji Times on Friday 4th December 1998 and also denies the allegation in paragraphs 7 and 8 of the Statement of Claim.

It does not plead to paragraph 6 of the Statement of Claim.

On the 13th of October 2000 the Third Defendant issued its own Summons supporting that of the other Defendants and alleging that the Statement of Claim discloses no reasonable cause of action against the Third Defendant. The First and Second Defendants base their application on the fact that paragraph 4 of the Statement of Claim makes no reference to the Plaintiff. They say that although paragraph 2 of the Statement of Claim alleges that the Plaintiff made complaints about the Commissioner of Police, he has not established that the words impugned in paragraph 4 refer to any complaints made by the Plaintiff.

They submit that the words in paragraph 4 can be read as referring to complaints about the Commissioner either made by persons other than the Plaintiff or complaints made by persons including the Plaintiff or complaints made by the Plaintiff alone.

The First and Second Defendants contend that when attributing their usual and ordinary meaning to the words complained of they are not capable of bearing the meanings alleged by the Plaintiff in his Statement of Claim and they submit that the ordinary man would not regard them as referring to the Plaintiff.

They further say that the words used in the letter written by the Chairman of the Disciplined Services Commission do no more than indicate that after its investigations the Commission considered that there was insufficient evidence to substantiate the allegations made against the Commissioner and, if that is so, do not give rise to any defamatory imputation whereby the Plaintiff will be held in contempt, scorn or ridicule nor lead to his exclusion from society.

The Third Defendant supports the submissions of the First and Second Defendants and seeks an order that the Statement of Claim be struck out.

THE LAW

It is trite law that in order to succeed in an action for defamation it is necessary for the Plaintiff to prove that the words were published of him. In Sadgrove v. Hole [1901] UKLawRpKQB 42; (1901) 2 K.B. 1 A.L. Smith M.R, at page 4 stated:

“The plaintiff in order to succeed in the action must prove a publication of and concerning him of the libellous matter, and if he does not satisfy the onus of proof which is on him in this respect, there is no cause of action.”

The test to determine whether the words could have referred of the Plaintiff was stated in Knupffer v. London Express Newspaper [1944] UKHL 1; (1944) AC 116 by Viscount Simon L.C. at page 124 to be as follows:

“There are two questions involved in an attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer him.”

In Bruce v. Odhams Press Limited (1936) 1 K.B. 697 Greer L.J. said at p.705:

“Defamatory statements which are in the air, as it were, and do not appear by their words to refer to the plaintiff, have got to be made referable to the plaintiff by reasons of special facts and circumstances which show that the words can be reasonably construed as relating to the plaintiff.”

At p.708 Slesser L.J. said:

“In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libellous matter: see per A.L. Smith M.R., in Sadgrove v. Hole.”.

Whether any pleading should be struck out as disclosing no cause of action depends purely and simply on only the allegations in the pleadings - Drummond-Jackson v. British Medical Association & Others (1970) ALL E.R. 1094, a case which is probably now engraved on the minds of all lawyers practising in the Courts. Thus despite the suggestion of the Plaintiff/Respondent in his submissions that the Court should consider evidence annexed to the submissions the Court simply cannot consider such evidence. It comes as it were from the Bar Table and as I said in my judgment in
HBC414 of 2000 - Emosi Vunisa v. The Director of Lands and Others delivered on the 4th of October 2001 at page 13:

“Rule 18 prohibits the tendering of any evidence in support of any party attempting to strike out or amend any pleading which is alleged to disclose no reasonable cause of action or defence. The purpose of the Rule is clear. It allows argument on the law only without permitting the Court to consider any evidence in support of an application to strike out. I therefore reject this submission.”

All that said however, under Order 20 Rule 3 of the High Court Rules a party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are closed. Thus I am prepared to extend what may be termed perhaps a life line to the Plaintiff at this very early stage of the action and give him leave to amend his Statement of Claim to see whether the amended pleadings comply with the law on defamation. I therefore make that order and direct that costs be in the cause. The Amended Statement of Claim is to be delivered within 14 days from the delivery of this judgment and the amended pleadings are then to be in accordance with the Rules.

JOHN E. BYRNE
JUDGE