Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Lasalosi v Hausia [2000] TOLawRp 40; [2000] Tonga LR 415 (28 November 2000)

IN THE SUPREME COURT OF TONGA

Lasalosi

v

Hausia

Supreme Court, Nuku'alofa
Ford J
C 16/00

31 October 2000; 28 November 2000

Tort — defamation — can be publication to one person only

Defamation — damages — limited to action pleaded — reduced

The respondent, Kanongata'a Hausia, was the builder and owner of the Hideaway Resort on the island of 'Eua. The respondent claimed that Pita (his employee) had told him that he (Pita) had been told by Vika Lasalosi (the appellant) that "Taina" (who was Vika's sister) had told her (Vika) the story that the resort was financed out of selling marijuana. In 2000 the respondent brought an action in defamation against the appellant which was heard in the Magistrates' Court at 'Eua on 27 March. The respondent succeeded and was awarded damages in the sum of $500 plus court costs. The appellant appealed against the decision. Her grounds were that the Magistrate erred in fact and in law and that the learned Magistrate's decision was against the weight of the evidence.

Held:

1. The first ground of appeal was that the Magistrate erred in law in not giving the appellant (who was not legally represented) the opportunity to make a closing address in her defence. The court found no basis for this ground in the official transcript.

2. The second and third grounds of appeal were that the Magistrate erred in law and in fact in concluding that the respondent had proved his claim and the Magistrate's decision was against the weight of evidence. The court found no basis for interfering with the Magistrate's decision.

3. On the ground that the damages awarded were excessive the court held that the appellant was being made to pay for telling the story to the police and for spreading the rumours when these matters were not pleaded, proved, or even put to the appellant in evidence. The only evidence of publication of the drug story was to Pita and if damages were going to be awarded, then they had to be assessed on that basis.

4. Publication of a defamatory statement to one person only does give rise to a recognised cause of action, even if that person disbelieved the statement.

5. The damages award needed to be commensurate with the extent of the publication. The damages award was excessive having regard to the extent of the publication. The appeal was allowed and the judgment of the learned Magistrate was varied by substituting an award of $100. The court fee fixed at $21 remained.

Cases considered:

Bekker v Wrack [1937] NZGazLawRp 75; [1937] NZLR 549

Cocker v Police Department (Supreme Court, Cr App 1251/98, 5 March 1999, Ward CJ)

Hough v London Express Newspaper Ltd [1940] 2 KB 507; [1940] 3 All ER 31 (CA)

Morgan v Odhams Press Ltd [1971] 2 All ER 1156 (HL)

Piukana v Akeripa (Supreme Court, C App 47/99, 3 March 1999, Finnigan J)

Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582

Statutes considered:

Defamation Act (Cap 33)

Magistrates' Courts Act (Cap 11)

Counsel for appellant: Mr Tu'utafaiva
Counsel for respondent: Mr Kengike

Judgment

The respondent, Kanongata'a Hausia, is the builder and owner of the Hideaway Resort on the island of 'Eua. The resort was opened to the public in August 1999.

Earlier this year the respondent brought an action in defamation against the appellant, Vika Lasalosi, which was heard in the Magistrates' Court at 'Eua on 27 March. The respondent succeeded and was awarded damages in the sum of T$500.00 plus court costs. The appellant appeals against the decision. Her grounds are that the Magistrate erred in fact and in law and that the learned Magistrate's decision is against the weight of the evidence.

The respondent's case in the Magistrates' Court was that in about October 1999 at the "Maxi hall" at Futu the appellant had told one of the respondent's employees, Pita Kengike, that the Hideaway resort belonged to the respondent and Senituli Manu's sons and it was alleged that she then went on to say, "they'll come to the opening of the resort because they are shareholders and they deal in marijuana together ... and that is how the Hideaway was built from dealing in marijuana". (Why the opening of the resort was referred to in the future tense when the evidence shows that it had been opened in August 1999, is not clear from the record).

The respondent gave evidence and said that Pita had told him that he (Pita) had been told by Vika that "Taina" (who is apparently Vika's sister) had told her (Vika) the story that the resort was financed out of selling marijuana.

This hearsay evidence seemed to go unchallenged. The respondent went on to explain how he had frequent visits from the police and they had told him of the rumours that he was dealing in marijuana on the island and he said that he was very upset by the stories and they damaged his reputation. He said that the appellant had telephoned him and had come to see him at some stage and she had denied that she had told anyone the story and she had said that, in fact, it was his own employee, Pita Kengike, who had told her the story.

Pita Kengike who works as a plumber at the Hideaway, gave evidence. He said that it had been the appellant who had called him over one day at Maxi's nightclub (on a date unspecified) and that she had told him the story about the respondent's involvement with drugs. Pita's wife, Valenisia Kengike also gave evidence for the respondent.

The appellant, who was not legally represented, gave evidence. She denied that she had made the allegation to Pita. She said that it was Pita, in fact, who had told her the story. She also called her neighbour Selu Paui and she said that she was with the appellant when Pita made the allegations to them both that Mr Hausia and one of Senituli Manu's sons dealt in marijuana.

So, there was a sharp conflict in the evidence. Each side, as it were, blamed the other. The Magistrate had to weigh up this conflict in the evidence and make a decision on credibility. He did that. He found against the appellant.

This Court will not interfere with a Magistrate's finding on the facts unless it is plainly unsound. The governing principle was well summed up in the head note in Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582:

"When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to this opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound.

The appellate court is, however, free to reverse his conclusions if the grounds given by him therefore are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he had not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved."

The first ground of appeal is that the Magistrate erred in law in not giving the appellant the opportunity to make a closing address in her defence.

The official transcript of the evidence provides no basis for this ground of appeal. On the contrary, the record shows that the Magistrate went out of his way to assist the appellant who was conducting her own defence. He said:

"This is that time for you the defendant to give submissions and I will help you because you don't have any lawyer. You will give submissions emphasising the weight of the evidence you called. Do you want to make your submission." The transcript records the appellant's answer as follows: "No, your worship. That is all my witnesses." Counsel for the appellant queried the accuracy of the transcript before the court but it is consistent with the court clerk's hand written notes and so I reject this ground of appeal.

The second and third grounds of appeal were dealt with together. They were that the Magistrate erred in law and in fact in concluding that the respondent had proved his claim and the Magistrate's decision was against the weight of evidence.

Under this head, counsel looked at the different elements needed to be established to prove a claim in defamation and in relation to this case he focussed attention on the finding by the Magistrate that, prior to the hearing, the appellant had approached the police prosecutor in 'Eua for advice on how to conduct her own case and the police prosecutor had then planned with the appellant and her witness, Selu, that they should put the blame on Pita. Evidence along these lines had been given by Pita's wife, Valenisia, who the Magistrate described as an "important witness".

Counsel for the appellant said that it was very unlikely that a police prosecutor would concoct a plan for a party to tell lies in Court and, in any event, that proposition had never been put to the appellant in cross-examination and so she had not been given an opportunity to respond to the allegation. In fairness to counsel for the appellant, however, who had not been counsel at the Magistrates' Court hearing, when he carefully examined the Court translation again he conceded that the proposition had, in fact, been put to the appellant and she had given a response so counsel did not pursue the particular point any further. He did, however, criticise the accuracy of the transcript in that it recorded the answers given in cross-examination but not the questions. Counsel is correct, the standard of the transcripts coming before this Court from the Magistrates' Courts leaves much to be desired.

Under section 77 (c) of the Magistrates' Courts Act, the clerk is required to forward to the Registrar of the Supreme Court with any notice of appeal a "correct transcript" of the proceedings. Whilst it may not be essential to have a record of questions asked of a witness in his evidence-in-chief it is very important that the clerk should record both the questions and the answers during cross-examination. If the clerk has difficulties keeping up with an exchange between counsel and the witness then he should immediately make that known to the presiding Magistrate. Chief Justice Ward was referring to this situation in Cocker v Police Department (Supreme Court, Cr App 1251/98, 5 March 1999, Ward CJ) when he said:

"I am well aware of the difficulties faced by the clerk in the Magistrates' Court when taking the record but he must ensure that it is accurate. If, for any reason, he is unable to record the proceedings accurately, he must point that out to the magistrate and ask him to allow a break or at least to pause long enough to allow him to catch up."

In the present case, however, I do not consider that the transcript is so defective that an injustice has resulted.

Although the finding that the appellant had planned with the police prosecutor to put the blame on Pita does seem rather extraordinary, the magistrate did see and hear the witnesses and this "plan theory" was put to the appellant in cross-examination and she was given the opportunity to respond. In other words, the Magistrate made a finding of credibility against the appellant which may seem harsh, but it was a finding that was open to him on the evidence and this Court is not going to interfere.

The appellant's next ground of appeal was that the award of T$500 to the respondent was excessive in the circumstances of the case because there was no evidence that the respondent had suffered any damage to his reputation as a result of the one utterance made by Pita to Vika.

Counsel referred to section 2(1) of the Defamation Act which reads:

"Defamation of character consists in speaking or in writing, printing or otherwise putting into visible form any matter damaging the reputation of another or exposing another to hatred, contempt or ridicule or causing him to be shunned."

and he submitted that this provision required proof of actual damage. Turning to the evidence, counsel argued that even if it is accepted that the appellant made the statement to Pita that was a statement made to one person only and there is no evidence to show that Pita believed it or thought any the less of the respondent because of it.

The appellant noted that the summons issued by the respondent made the allegation that the appellant had told the marijuana story to only the one person, namely, Pita. That was the extent of the alleged publication of the defamatory remarks made against the appellant. It was not alleged that it was the appellant who had told the police. It was not alleged that it was the appellant who had been spreading the rumour to others around the island. There was only the one alleged publication by the appellant, namely, the publication to Pita.

The appellant submitted that when one looks at the evidence to see how Pita reacted when he was told the story by the appellant it is apparent that Pita said nothing to indicate that it made any impression on him or that he believed the story or took it seriously. The appellant said that the evidence, in fact, showed that it was regarded as a joke and Counsel pointed to a passage in the respondent's evidence in-chief where, in speaking about the drug rumour, the respondent said: "my staff usually made a joke of it saying, look at the dealer driving by."

When counsel for the respondent made his submissions in this Court in response, he referred to the respondent's evidence about the frequent visits of the police to the resort and he said that while it was true that there was no evidence that the appellant had passed the information on to the police, she had been working together with the police prosecutor to "plan her case" - the inference the court was supposed to take from that submission, no doubt, being that the appellant must have passed the story on to the police.

But, as counsel himself conceded, there is no evidence of that; the proposition was never put to the appellant and it was not pleaded as part of the respondent's claim.

I consider that there is some substance to the points made by the appellant. Applying the balance of probabilities test, from my perusal of the transcript and the decision, it is difficult to avoid the conclusion that in being ordered to pay such a substantial part of the respondent's claim as damages, the appellant was effectively being punished by the Court for passing the story onto the police and for spreading the rumour generally around 'Eua when that was never part of the respondent's claim.

In his closing address in the Magistrates' Court, counsel for the respondent said:

"The plaintiff said that the police have frequently visited his premises because of what was said."

In his decision, the learned Magistrate seems to have picked this point up and relied on it. He said:

"Mr Hausia said that he was upset about the police frequently searching his place because of the rumours."

Further on, the Magistrate said, when listing the elements involved in establishing the defamation claim, he had to look at, "if there were any such rumours did it defame the plaintiff."

It is apparent to me from these passages that the appellant was being made to pay for telling the story to the police and for spreading the rumours when these matters were not pleaded, proved, or even put to the appellant in evidence. The only evidence of publication of the drug story was to Pita and if damages are going to be awarded, then they have to be assessed on that basis.

In Bekker v Wrack [1937] NZGazLawRp 75; [1937] NZLR 549, the plaintiff, who had claimed $400 damages against the defendant for alleging she was an abortionist and unchaste, recovered from a jury an award of only one farthing. The trial judge ordered a new trial and the defendant appealed to the Court of Appeal against that decision. The appeal was allowed and the order for a new trial was set aside on the grounds that the verdict was explainable in that the respondent had suffered no damages as the two persons to whom the slanders were published did not believe them.

In Piukana v Akeripa (Supreme Court, C App 47/99, 3 March 1999, Finnigan J), Finnigan J was dealing with a case where the defendant had told another person that the female plaintiff had been caught with a man in the bedroom of the soccer team's house. The plaintiff sued and recovered $200. The defendant successfully appealed. Finnigan J concluded that as there was no evidence from any witness that the defendant statement had made the plaintiff an object of general ridicule and there was no evidence that anybody other than the one person had heard what the defendant had said, he would allow the appeal and set aside the judgment.

There are obvious similarities in the present case.

The question then is whether a plaintiff has an actionable cause of action in defamation under section 2(1) of the Defamation Act when the publication is made to one person only and the evidence, on the balance of probabilities, is that the person disbelieved the allegation.

Piukana v Akeripa would seem to indicate that in such circumstances a plaintiff cannot succeed and any award should be set aside. Bekker v Wrack on the other had, would suggest that a plaintiff still has a cause of action and the proper course is to allow the award to stand with the extent of the publication being reflected in the damages award.

In Hough v London Express Newspaper Ltd [1940] 2 KB 507; [1940] 3 All ER 31 (CA) at 35 Goddard, L said:

"If words which impute discreditable conduct to my friend are used, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue."

That dictum was approved by the House of Lords in Morgan v Odhams Press Ltd [1971] 2 All ER 1156. The relevant extract from the headnote to their Lordship's speeches in that case states:

"The contention that, if defamatory words concerning A are published to B who utterly disbelieves them, A would have no cause of action is fallacious. Apart from any question affecting the measure of damages, A's rights would be unaffected by the circumstance that B in fact disbelieved the words"

Lord Reid, in his speech was even more emphatic (page 1163):

"One other matter I must mention at this stage. One of the witnesses thought that the article referred to the plaintiff but completely disbelieved it; he thought it was rubbish. It was argued that he must be left out of account because no tort is committed by making a defamatory statement about X to a person who utterly disbelieved it.

That is plainly wrong. It is true that X's reputation is not diminished but the person defamed suffers annoyance or worse when he learns that a defamatory statement has been published about him. There may be no clear authority that publishing a defamatory statement is a tort whether it is believed or disbelieved. But very often there is no authority for an obvious proposition: no one has had the hardihood to dispute it."

From my review of the authorities I have concluded that publication of a defamatory statement to one person only does give rise to a recognised cause of action, even if that person disbelieves the statement.

Lord Reid said that in such a situation it could not be said that the plaintiff's reputation had been diminished and damage to one's reputation is one of the elements in the definition of defamation in the Defamation Act, but the definition of defamation includes more than damage to reputation; it includes such things as ridicule and the respondent's evidence in this case indicates that he was exposed to a certain amount of ridicule from his staff and Pita, of course, was one of the respondent's staff members.

Whether it was Pita who had passed the story on to the others on the staff and if so, whether the appellant could then be, held liable for the republication or repetition by Pita, as being the natural and probable consequence of her initial publication, is not something which the Magistrate made any finding on. He did not have to, of course, because republication was not pleaded. Even without that, however I am satisfied that the respondent had a valid cause of action and he was entitled to recover for the slander.

That then brings me to the issue of damages. The amount awarded against the appellant is not a large amount having regard to some of the recent awards in defamation cases in the Kingdom but weighed against the amount claimed of T$600, it is indeed a significant award and if, as I have concluded, it was based on the misconception that the respondent was entitled to recover against the appellant for all the damages resulting from publication of the story to the police and others on the Island then the award is clearly excessive.

Having said that, I am not disposed simply to award a nominal sum like the farthing awarded by the jury in the Bekker case. The defamation was a serious one and if it had been widely published it would have entitled the respondent to recover significant damages.

I see the respondent's situation being in many ways akin to the type of the case the learned authors of Gatley refer to (8th ed, Para 887) when they say:

"For all this, there are occasions where a man has been defamed publicly or in a quarter in which his reputation is important to him, or damaging rumours have been widely circulated of him, and an action for defamation may be the only way of clearing his name. It was a long tradition in English public life that a person in such a position should bring an action to clear his name where possible, and failure to do so might be taken as a tacit admission of the charges made."

In the present case the respondent took decisive steps to try and stop the circulation of the rumours. He does not plead that the appellant was the source of the rumour but he sued her as one who he proved told someone else the story and he has been successful. To that extent he has cleared his name but the damages award needs to be commensurate with the extent of the publication and, I believe, that that is where the judgment under appeal is wrong. The damages award is excessive having regard to the extent of the publication.

I, therefore, allow the appeal and I vary the judgment of the learned Magistrate by deleting the award of T$500 damages and substituting therefore an award of T$100. The court fee fixed at T$21 is to remain.

The award is to be paid within 14 days of the date of delivery of this judgment failing which it will attract interest at the rate of 10% per annum as from the date of this judgment. The court fee is also to be paid within 14 days from the date of judgment.

Although the appellant has been successful in this appeal I consider that the justice of the case will best be served by my making no award of costs and I, therefore, decline to do so.