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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No. 149 of 2003
BETWEEN:
Mr. MARC NEIL JONES
First Plaintiff
AND:
DAILY POST NEWSPAPER
Second Claimant
AND:
CHRISTOPHE EMELEE
Respondent
Mr. Juris Ozols for the claimants
Mr. Felix Laumae for the Respondent
Date of hearing: 16 September 2003
Date of judgment: 25 September 2003
JUDGMENT
Before me is a claim for judicial review dated and filed on 10 September 2003. The first claimant is Mr. Marc Neil Jones of Port-Vila, Vanuatu, the publisher and part owner of the second claimant, Daily Post Newspaper. The respondent is, Mr. Christopher Emelee, of Port-Vila, Chairman of the Board of Vanuatu Maritime Authority (V.M.A.).
The claimants claim a quashing Order that the Orders made by the learned Magistrate Boe in Civil Case No. 189 of 2003 restraining the first and second defendants from publishing various items made on the 8th day of September 2003 be quashed.
The grounds of the claim are contained in the claim.
The claimants relied on a sworn statement of the first claimant dated 10 September 2003 filed before the Magistrate’s Court in CC 189 of 2003 in support of the claim. The claimants applied for the Court to hear the claim on the basis of urgency.
This claim for judicial review is issued on the basis of the Civil Procedure Rules 2002 – Part 17.
On 10 September 2003, upon hearing both counsels and upon reading the first claimant’s statement, the Court made interlocutory Orders to the following effect:
“1. There is urgency to deal and hear the application for judicial review in CC 149 of 2003 and as such the time requirements set under the rules are abridged.
The respondent filed his response to the claim on 15 September 2003 and applied for the claim to be struck out on the grounds as set out in his response/defence.
The respondent relied on his sworn statement dated 5 September 2003 filed before the Magistrate’s Court in CC 189 of 2003 in support of his defence.
The claim for judicial review arises out of a series of restraining Orders issued by the Magistrate’s Court on 8 September 2003. Those Orders are set out below:
“1. That first and second respondents forthwith restrained from publishing in their newspaper any news and letters on matters, action and decision taken collectively by applicant as Chairman of the Board of Vanuatu Maritime Authority and his members which are now under investigation and pending before the Court.
4. Police be serve with the copy of this Order fro enforcement.
5. Cost in the cause.”
Before the learned Magistrate made Orders of 8 September 2003 which are now challenged, the following events occurred:
It is common ground that on 8 September 2003 no substantive claim was filed by the claimant (Mr. C. Emelee) before the Magistrate’s Court. It is also common ground that the learned Magistrate issued the restraining Orders of 8 September 2003 on the basis of the claim(s) filed and pending before the Supreme Court in CC 104 of 2003 and CC 139 of 2003 and pending case management conference hearing.
I now turn to the grounds of the claim. The claimants challenge the Magistrate’s Court Orders of 8 September 2003 on six (6) grounds. I will deal with each of them in turn.
The first ground
The claimants say that in so far as the Supreme Court has jurisdiction over Civil Case No. 139 of 2003, the Magistrate erred in making interlocutory Orders in respect of the matters arising from that Supreme Court proceedings.
It is contended on behalf of the respondent that the Magistrate is right in granting the restraining Orders. It is also said that the Magistrate has jurisdiction to give Orders to maintain the status quo between the parties whether the matter is pending before the Supreme Court or the Magistrate’s Court. There is likely that violence will occur if action complained of is not stopped. It is further argued on behalf of the respondent that the rule does not say that when a matter is before the Supreme Court one has to apply for interlocutory Orders in the Supreme Court.
The contentions advanced on behalf of the respondent are baseless and reflect the respondent’s counsel wrongful apprehension of the law.
An injunction (be it of interim, interlocutory or permanent nature) is not a cause of action (like a tort or a breach of contract) but a remedy (like damages). The overriding requirement is that an applicant must have a cause of action in law entitling him to substantive relief. The rule, thus, is that an injunction must be ancillary to a substantive cause of action.
All Courts (including Magistrate’s Courts) have jurisdiction to grant injunction but must be within their respective jurisdiction and as ancillary to substantive relief. An interlocutory injunction must be ancillary to a substantive claim made in the action. A court must refuse to hear a claim for injunction which has no jurisdiction to grant even if the defendant does not take any objection himself.
In the present case, there was no substantive claim filed before the Magistrate’s Court nor a case about to be filed before the Magistrate’s Court warranting the learned Magistrate to grant the interlocutory injunctive relief on 8 September 2003.
The only matters referred by the respondent’s counsel before the Magistrate was the Supreme Court Civil Case No. 139 of 2003.
The claimants are correct, the learned Magistrate is not entitled to exercise the jurisdiction of the Supreme Court.
The Magistrate has no jurisdiction to issue interlocutory Orders on substantive claim that are pending before the Supreme Court. The first ground of the claim stands.
The second ground
In the second ground, the claimants say that if the Magistrate understood himself to be making an interlocutory Order before a proceeding is started pursuant to Order 7.5 of the Civil Procedure Rules, the Magistrate erred in fact and in law and that the documents before the Court failed to show that the applicant had any serious question to be tried or that he would be seriously disadvantaged if the Order was not granted. It is also said the Magistrate further misdirected himself by finding to order Mr. Emelee to file any substantive claim in proceedings CC No. 189 of 2003.
The respondent denied the second ground of the claim and contended that the balance of convenience lies in favour of granting the interlocutory Orders.
On 8 September 2003, there was no substantive claim filed before the Magistrate’s Court.
Rule 7.5 of the Civil Procedure Rules 2002 provide as follows:
“Application for interlocutory order before a proceeding is started
7.5 (1) A person may apply for an interlocutory order before a proceeding has started if:
(a) the applicant has a serious question to be tried; and
(b) the applicant would be seriously disadvantaged if the order is not granted.
(2) The application must:
(a) set out the substance of the applicant’s claim; and
(b) have a brief statement of the evidence on which the applicant will rely; and
(c) set out the reasons why the applicant would be disadvantaged if the order is not made; and
(d) have with it a sworn statement in support of the application.
(3) The court may make the order if it is satisfied that:
(a) the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed; and
(b) the applicant would be seriously disadvantaged if the order is not made.
(4) When making the order, the court may also order that the applicant file a claim by the time stated in the order.”
On the face of the Orders of 8 September 2003, the learned Magistrate failed to order Mr. Emelee to file any substantive claim in the Magistrate’s Court Civil Case No.189 of 2003, when the interlocutory Orders were granted. The Magistrate failed to satisfy himself that there was a serious question to be tried on the strength of the documents of the then applicant/now respondent in this case. The balance of convenience can be of use only if the Magistrate applied his mind on whether there is an arguable case to be tried and if he is not satisfied whether there is adequacy for damages, and if he is not so satisfied, then, he can consider the balance of convenience. The approach of the Courts to interlocutory applications inter partes for prohibitory injunctions is laid down in the case of American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; (1975) A.C. 396, which is adopted and applied by Vanuatu Courts in various cases. For the present purpose, the claimants are correct and the ground two of the claim must stand.
The third ground
On the third ground of the claim, the claimants say that the Magistrate erred in making orders which neither enforce any legal right that the claimant might be able to assert in Court nor does it identify any apprehended breach of the law that the Courts might otherwise have a legitimate interest in seeking to prevent.
The respondent says the Court has right to step in to stop and enforce the rights under the law and Constitution.
Again whatever the value of the submission of the respondent under ground 3, it is baseless. There is no cause of action to substantiate the injunctive relief sought and granted on 8 September 2003 before the Magistrate’s Court. The claimants are correct to say that the Magistrate erred in making Orders which neither enforce any legal right that the claimant might be able to assert in Court nor does it identify any apprehended breach of the law that the Courts might otherwise have a legitimate interest in seeking to prevent. Ground 3 of the claim stands.
The fourth ground
The fourth ground of the claim is that the Orders made by the Magistrate are ambiguous and fail to properly refer to either of the cases currently before the Supreme Court or give any effect to ensuring the proper administration of justice in these cases.
The respondent denied ground 4 of the claim and says the Orders issued by the Magistrate on 8 September 2003 are clear and are not ambiguous.
Whatever the view or position to take, during the hearing, counsel for the respondent acknowledged the ambiguity of the Magistrate’s Court of 8 September 2003 when he suggested that the claimants cannot make reporting on some of the matters under investigation, as they are not spelt out clearly in the Orders under challenge. Further on the face of the Orders, they fail to properly refer to either of the cases currently before the Supreme Court. On the face of the Orders, they are ambiguous. Ground 4 of the claim stands.
The fifth ground
The claimants say in the fifth ground of the claim that the Magistrate, in making Order 2 misapprehended the law in stating that the second claimant had a duty under the law to publish both side of a story and had failed to do so in this case thus justifying an Order in the terms in which it was made.
The respondent denied ground 5 of the claim and says that a journalist has a duty to undertake investigative activity to publish a balance report to avoid defaming people.
The submission of the respondent in ground 5 does not help much. On the face of the Orders of 8 September 2003 under challenge, Order 2 seems to be in the nature of a permanent injunction restraining the first and second respondents (now claimants in CC 149 of 2003) from publishing any insulting news and letters aiming at attacking the family life and any news aimed at attacking the applicant. If that is what Order 2 is intended to do, then, it is quite wrong in law.
In defamation actions, the law is that at the trial of an action for libel, or slander actionable per se, after the Court on hearing evidence have found in favour of the claimant, the Court may grant a perpetual injunction restraining publication of the words complained of or any similar matter, provided that there is reason to apprehend further publication by the defendant.
In the present case, there was no substantive claim filed before the Magistrate’s Court on 8 September 2003. There was no trial hearing in which the learned Magistrate made findings of facts in favour of the then claimant (now respondent), Mr. Emelee. It is wrong for the Magistrate to issue an injunction of permanent nature against the second respondent (now second claimant) as he did in Order 2 of the Orders of 8 September 2003.
There is no doubt that there is jurisdiction for a Court to grant an interlocutory injunction to restrain publication of alleged defamatory matter, whether a libel or a slander per se, until trial or further order.
However, because freedom of speech is so fundamental in any democratic society, like Vanuatu, the attitude of the Courts must be one of caution. In effect, even if it is thought that the publication defames the claimants, there are several defences open to the defendants at trial which are capable of defeating the action, and the decision in any event is one for the Magistrate or Judge as a trier of fact.
The following is adopted from the book of David Bean on Injunctions 3rd Edition, it summarises (at page 47) the position with persuasive authorities for guidance:
“An interlocutory injunction will be refused in the following circumstances:
(i) if the defendant swears an affidavit indicating an intention to plead justification (Bonnard v. Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269); this includes cases where the defendant intends to justify the ‘sting’ of the allegations even though he cannot prove the precise facts stated (Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412);
(ii) if the defendant intends to plead fair comment on a matter of public interest (Fraser v. Evans [1969] 1 QB 349 at 360, per Lord Denning MR);
(iii) if the publication is prima facie privileged and (in any case of qualified privilege) there is no ‘absolute overwhelming’ evidence of malice (Quartz Hill case, above; Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 WLR 958; Herbage v Pressdram Ltd [1984] 2 All ER 769);
(iv) If the decision at the hearing may turn upon the question of the general character of the plaintiff (Bonnard v Perryman, above).
In addition, as for a perpetual injunction, there must be reason to apprehend further publication and, if it is required, there must be proof of special damage.
...
The rule in Bonnard v Perryman as to the defence of justification is unaffected by the American Cyanamid case. Freedom of speech is so important that if a person is only saying or repeating what he honestly believes to be true, an interlocutory injunction will not be granted against him (J Trevor & Sons v Solomon (1977) 248 EG 779). The same rule applies to cases of injurious falsehood (‘trade libel’) as the defamation (Bestobell Paints Ltd v. Bigg [1975] FSR 421). It does not apply to cases where the tort alleged is conspiracy to injure the plaintiff’s interests; but where an interlocutory injunction application is made in such a case the court will scrutinize it carefully to ensure that the allegations of conspiracy is not simply an attempt to circumvent the defence of justification in Bonnard v Perryman.... In such a case the public interest in freedom of speech is one of the most important factors to be taken into account....”
The sixth ground
The claimants say in ground six of the claim that the Magistrate failed to take account of the claimants’ constitutional rights and his orders amount to an infringement of those rights.
The respondent denies ground six (6). It is said that the order does not infringe the first and second defendants’ constitutional right. The order does not stop the first and second claimants from publishing.
As to ground six of the claim, the claimants fail to specify their particular constitutional rights infringed and how they are infringed. Finally the claimants must show how the granting of the Orders by the learned Magistrate on 8 September 2003 amounted to an infringement of their constitutional rights. They fail to do so in the present case. The last ground of the claim cannot stand and must fail.
Despite the fact that ground six of the claim fails the claimants are entitled to the remedy they seek in their claim.
On the basis of the above reasons, the Court makes the following Orders:
DATED at Port-Vila this 25th day of September 2003
BY THE COURT
Vincent LUNABEK
Chief Justice
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