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Rabuka v Wellington Newspapers Ltd [1992] FJHC 58; Hbc0238d.90s (25 November 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 238 OF 1990

BETWEEN:

SITIVENI L. RABUKA
of Battery Road, Veiuto, Fiji
- Plaintiff

AND

WELLINGTON NEWSPAPERS LTD
of 82 Willis Street, Wellington, New Zealand
- First Defendant

AND

KARL DU FRESNE
of 82 Willis Street, Wellington, New Zealand, Editor
- Second Defendant

Mr. S.J. Stanton: For the Plaintiff
Mr. J.G. Singh: For the Defendants

Dates of Hearing: 30th September 1991, 26th February, 3rd March, 13th November 1992
Date of Ruling: 25th November 1992

RULING

The Plaintiff is at present the Prime Minister of Fiji but at the time relevant to the matter before me was the Commander of the Fiji Military Forces.

The First Defendant is and was at all material times a foreign corporation duly incorporated pursuant to the laws of New Zealand and able to be sued in and by its corporate name.

The Second Defendant is and was at all material times the publisher of "The Dominion" a newspaper published in New Zealand and allegedly distributed throughout the North and South Islands and in the South Pacific including Fiji.

On the 19th of July, 1990 I granted the Plaintiff leave to serve a Writ claiming damages for defamation against the Defendants out of Fiji and in New Zealand. The Writ was duly served on the Defendants who have now entered a conditional Appearance designed so far only "to contest the jurisdiction". The subject matter of the Writ against the Defendants is an article published on or about Monday, 18th of June 1990 in "The Dominion" newspaper containing matter allegedly defamatory of the Plaintiff. It is alleged that the article in the newspaper which was published in New Zealand and in Fiji and elsewhere in the South Pacific was calculated to and has injured the Plaintiff in his credit, reputation and occupation and has held him up to public scandal, odium and contempt.

The application for leave to serve the Writ of Summons in New Zealand was supported by a short affidavit by the Solicitor for the Plaintiff of which paragraphs 2 and 4 are relevant and read as follows:-

"2. Upon instructions received and having the article in particular newspaper in question I am able to say that the Defendants are justly and truly liable for damages in respect of the intended defamation action to be instituted by the Plaintiff and which is the subject of the within action.

4. I am instructed and do verily believe that the Plaintiff has a good cause of action against both the Defendants."
   

On the 26th of October 1990 the Defendants' solicitors filed an acknowledgement of service of the Writ of Summons and on the 30th of October 1990 issued the Summons which is presently before me seeking the following Orders:

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

(b) 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 this matter.

(e) An Order that the Plaintiff pay the costs of this Application.

The Summons is supported by four affidavits, one by Hamish Gavin Turnbull the Secretary of the First Defendant, two affidavits by the Second Defendant who is the Editor of "The Dominion" newspaper and the third by Stuart William Tamarapa of Wellington, New Zealand the Circulation Manager of the First Defendant.

In his affidavit Mr. Turnbull states that the First Defendant does not have any business property or assets in Fiji. It does not have any attorney in Fiji. It does not have any presence in Fiji. Mr. Turnbull also states that the First Defendant is the publisher of "The Dominion" newspaper.

The two affidavits filed by Karl John Du Fresne the Second Defendant state that Mr. Du Fresne is the editor of "The Dominion" newspaper. He has no business property, assets or attorney in Fiji. He also says that no copy of "The Dominion" newspaper of 18th June 1990 was sent to or published by the First Defendant or himself in Fiji. Neither the First Defendant nor Mr. Du Fresne authorisied any republication of the issue of the 18th of June 1990 in Fiji.

Finally Mr. Du Fresne says he has no knowledge of any copy of the issue of "The Dominion" newspaper of the 18th of June 1990 being sent to Fiji and he has no knowledge of whether or if so how the Plaintiff or his solicitor came to have in Fiji a copy of the issue of the 18th of June 1990.

The last affidavit filed on behalf of the Defendant is by Mr. Tamarapa the Circulation Manager of the First Defendant. Mr. Tamarapa states that after making a search of the circulation records of the First Defendant he has discovered that the First Defendant does not have any agent, news vendor or other person authorised in Fiji to sell or distribute "The Dominion".

He further says that no copies of "The Dominion" are sent by the First Defendant to subscribers, agents, news vendors or any other persons in Fiji. Specifically, no copy of "The Dominion" of the 18th of June 1990 was sent by the First Defendant to Fiji.

Two further affidavits have been filed on behalf of the Defendants, one by John Barr Stevenson the New Zealand solicitor for the Defendants and the other by Joan Wiltshire the Manager (Operations) of the New Zealand Immigration Service. These relate to whether or not the Plaintiff ever obtained a visitor's permit to visit New Zealand and state in effect that the Plaintiff has never been refused such a permit to enter New Zealand.

These affidavits were filed in response to an affidavit by the Plaintiff claiming that from May 1987 to July 1991 the Government of New Zealand had refused to issue him a visa to enter New Zealand. Since then however, and as a matter of common knowledge, the Plaintiff has visited New Zealand at least twice, the last in his capacity as the Prime Minister of Fiji, so that this allegation has no relevance to the matter before me and I therefore ignore it.

In reply to the affidavits relating to publication of "The Dominion" in Fiji the Plaintiff relies on three affidavits, the first by his solicitor Vijaya Parmanandam, paragraphs 2 and 4 of which I have quoted above, an affidavit by Hari Shankar and an affidavit by Ratu Meli Saronicava Baleilakeba.

Hari Shankar states that he is the Chief Law Clerk of the solicitor for the Plaintiff. He recalls that sometime in June 1990 his employer asked him to go to the New Zealand Embassy in Fiji to see whether the Embassy kept "The Dominion" newspaper in its reading room for the use of the public and whether the newspaper of the 18th of June was also in the reading room.

Mr. Shankar states that he discovered that "The Dominion" newspaper was in the reading room as was the issue of the 18th of June 1990. He then states that as instructed by his employer he spent another 45 minutes approximately pretending to read other newspapers but in fact watching to see whether members of the public were reading "The Dominion" newspaper and after having observed that only one person read the newspaper Mr. Shankar left the Embassy.

The affidavit of Ratu Meli Saronicava Baleilakeba states that he is a Process Server and Student and part-time clerk who is undertaking a course in the Diploma of Law.

He states that towards the end of June or early July 1990 while in the newspaper room of the University of the South Pacific Library reading newspapers he found an article in "The Dominion" newspaper concerning the Plaintiff. He photocopied the article in the Library and on the following day when he came to the office of the Plaintiff's solicitor to show it to him the Plaintiff's solicitor replied that he already knew about it as he had already received certain instructions from the Plaintiff.

The second affidavit filed by the Second Defendant is in response to the affidavit of Hari Shankar and Ratu Meli Saronicava Baleilakeba. Mr. Du Fresne states that he had no knowledge that any copy or copies of "The Dominion" newspaper were in the New Zealand Embassy in Fiji or in the University of the South Pacific Library and, to the best of his knowledge and belief no other person employed by the First Defendant had such knowledge. Mr. Du Fresne deposes that he did not have any part in the sending or distribution of "The Dominion" to the New Zealand Embassy in Fiji or to the University of the South Pacific Library and, to the best of his knowledge and belief, nor did any other person employed by the Defendant have such knowledge.

These then are the allegations made by the parties up to the present time. The parties have filed written submissions and in addition I have heard oral argument on the question of whether I should discharge my order granting the Plaintiff leave to serve the Writ. 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.

The first objection on behalf of the Defendants is to the admissibility of the evidence of Hari Shankar on the grounds that Mr. Shankar and through him the Plaintiff, through his solicitor violated the premises of the New Zealand Embassy in Fiji.

The Defendants rely on Article 22 of the Vienna Convention on Diplomatic Relations dated 18th April 1961 which provides that the premises of a Diplomatic Mission shall be inviolable. The agents of the receiving State may not enter the premises, except with the consent of the Head of the Mission. Further the receiving State is under a special duty to take all necessary steps to protect the premises of the Mission against any intrusion or damage and to prevent any disturbance of the peace of the Mission or impairment of its dignity.

In my view this submission completely misunderstands the privileges given to Diplomatic Missions by the Vienna Convention on Diplomatic Relations. Article 22 obviously gives inviolability to the premises of the Mission and not to the Defendants. Furthermore I regard as ridiculous the claim that the Mission was being spied upon by the Plaintiff's solicitor or his clerk. In my view the Plaintiff's solicitor or his clerk were simply exercising a right given to them as members of the public by the New Zealand Embassy to go into the Embassy's reading room and read whatever literature or newspaper they might find there. This submission in my view is completely lacking in merit and I reject it.

Next the Defendants submit that no application was made for leave to issue the Writ as required by Order 6 of the Rules of the High Court. Order 6, Rule 6(1) reads as follows:

"No writ which is to be served out of the jurisdiction shall be issued without the leave of the Court:

Provided that if every claim made by a writ is one which by virtue of an enactment the High Court has power to hear and determine, notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provision shall not apply to the writ."

The Defendants submit that the proviso to Order 6, Rule 6 has no application to this case as the jurisdiction in defamation is derived from the inherent jurisdiction of the Court, which may be traced back to early times. I accept that as good law but then the submission continues that there is nothing in the Defamation Act 1978 Chapter 34 or any other enactment which gives the Court jurisdiction in terms of the proviso. In short, so it is said, no Writ relating to a claim for defamation which is to be served outside the jurisdiction may be issued without leave of the Court.

In this case the Plaintiff has not sought any leave to issue the Writ and the Court has made no order for leave to issue. It is submitted that Order 6 is for present purposes in the same form as the English Order 6, Rule 7(1). It is then said that the Annual Practice 1988 (The White Book) page 88 makes it clear that it is necessary in those circumstances to obtain leave to issue and serve. Then the submission sets out the English procedure, which I need not copy here, but from which I shall take certain extracts. It is then argued that the same procedure should be followed in Fiji.

Broadly the procedure in England in the Queens Bench and Chancery Division is that the application is made ex-parte to a Master who, in a clear case himself gives leave or, otherwise refers the matter to a judge who if satisfied grants leave, which is endorsed on the Writ.

The application must be supported by an affidavit made by any person with knowledge of the facts but more usually it is made by the Plaintiff's solicitors.

The contents of the affidavit are then prescribed but, for reasons which will shortly appear, I need not state them here.

The Defendants then say that no Summons or affidavit has been filed for leave to issue and that the affidavit before the Court on the application for leave to serve out of the jurisdiction is defective in that it:

(a) does not establish a good arguable case;

(b) does not make the sub-rule clear; and

(c) is not sufficiently full to constitute a frank affidavit.

In reply the Plaintiff argues that it is misleading and indeed irrelevant for the Defendants to rely on the English Order 6 of the Supreme Court Rules. This is because it is said:

(a) Defamation is and always was within the jurisdiction of this Court at Common Law to try and determine. The foundation for such jurisdiction lies in the Supreme Court Act, Sections 18, 22 and 23 as to practice and procedure.

Section 18 of the Supreme Court Act Cap 13 states:

"The Supreme Court shall, within Fiji, and subject as in this Act mentioned, possess and exercise all the jurisdiction, powers and authorities which are for the time being vested in or capable of being exercised by Her Majesty's High Court of Justice in England."

Section 22 reads:

"(1) The common law, the rules of equity and the statutes of general application which were in force in England at the date when Fiji obtained a local legislature, that is to say, on the second day of January, 1875, shall be in force within Fiji subject to the provisions of section 24 of this Act.

(2) For the removal of doubt, it is hereby declared that the provisions of sections 24 and 25 of the Supreme Court of Judicature Act, 1873, are in force in Fiji notwithstanding that the commencement of that Act was postponed in England until after the said second day of January, 1875."

Section 23 reads:

"Such portions of the practice of the English courts as existed on the said second day of January, 1875, shall be in force in Fiji subject to the provisions of section 24, and except so far as such practice may be inconsistent with any general rules of the Supreme Court relating to practice and procedure."

(b) No where, it is said, does this appear in the Defendants' submissions.

(c) Further it is contended that defamation by Writ and Statement of Claim was a practice and a cause of action respectively known to and utilised by the High Court of Justice and hence capable of sustaining jurisdiction in Fiji in and out of the High Court of Fiji. Furthermore it is submitted sections 8 and 9 of the Judicature Decree 1988 published on the 16th of January 1988 confirm and re-inforce the fact that the High court is a Court of unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. It is desirable to set out sections 8 and 9 here. They read:

"Powers to hear and determine civil and criminal cases.

8. (1) The High Court shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Decree or any other law.

(2) The High Court shall have jurisdiction to hear and determine appeals in both civil and criminal matters from courts subordinate to it as may be conferred on it by this Decree or any other law.

Jurisdiction of High Court with respect to existing laws.

9. (1) Without prejudice to the generality of the provisions of this Decree with respect to the jurisdiction of the High Court, any reference in the existing laws to the words: "the Supreme Court" shall be construed as a reference to the High Court established under this Decree.

(2) For the avoidance of doubt the jurisdiction of the High Court shall include the jurisdiction and powers vested in the Supreme Court under the existing laws."

I find the Plaintiff's submissions on this question most persuasive. It is true as the Defendants submit that there is nothing in the Defamation Act 1978 which gives this Court jurisdiction in terms of the proviso to Order 6, Rule 6, but likewise, there is nothing in the Act which does not give the Court jurisdiction.

The Defamation Act is essentially an Act setting out the nature of the cause of action of defamation and the procedure to be followed in any court on the trial of an action for defamation.

In that situation in my judgment it must have been the intention of the Parliament or those responsible for the passing of the Judicature Decree 1988 to give the High Court unlimited jurisdiction in all matters unless exceptions to particular causes of action were specified. There are no exceptions either in the Supreme Court Act or the Judicature Decree.

Also I consider that if the word "enactment" in the proviso to Order 6, Rule 6 is not meant to include the Judicature Decree and its fore-runners, Rule 6 is meaningless. I therefore reject the Defendants' submission on Order 6 and hold that it was not necessary for the Plaintiff to first obtain leave of this Court before issuing the Writ herein.

The Defendants then submit that in any event leave to serve the Writ out of Fiji should not have been granted. This submission calls into consideration Order 11 of the Rules of this Court.

Order 11, Rule 1(1) deals with service of process out of the jurisdiction. The relevant part of the rule reads:

"... service of a writ out of the jurisdiction is permissible with the leave of the Court if in the action begun by the writ:..........

(f) the claim is founded on a tort and the damage was sustained or resulted from an act committed, within the jurisdiction."

Order 11, Rule 1(2) reads:

"(2) Service of a writ out of the jurisdiction is permissible without the leave of the Court provided that each claim made by the writ is a claim which by virtue of any enactment the High Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction."

The Defendants submit that paragraph (2) does not apply in this case as there is no enactment which gives the High Court jurisdiction to hear a defamation claim notwithstanding that the defendant is not within the jurisdiction.

For the reasons which I have just given on the Defendants' submission on Order 6 I hold that a combination of sections 18, 22 and 23 of the Supreme Court Act and sections 8 and 9 of the Judicature Decree 1988 give this Court jurisdiction to hear the present claim notwithstanding that the Defendants are not within the jurisdiction.

It seems to me however that there is also another reason on which I can reject the Defendants' submissions on Orders 6 and 11.

Counsel for the Defendants referred me to paragraph 193 of Volume 37 of Halsbury's Laws of England, 4th Edition which comments on the English RSC Order 6, r.7(1) proviso and Order 11, r.1(2). The author states that this provision gives effect to the Civil Aviation (Eurocontrol) Act 1962, s.7(3) which it is thought is at present the only relevant statute to which it applies in England. Section 7(3) of that Act states that a Court in any part of the United Kingdom shall have jurisdiction-

(a) to hear and determine a claim for charges payable to the Minister by virtue of regulations made under the Act, notwithstanding that the person against whom the claim is made is not resident within the jurisdiction of the Court;

(b) to hear and determine a claim against the European Organisation for the safety of Air Navigation (referred to as Eurocontrol) for damages in respect of any wrongful act, neglect or default notwithstanding that such act, neglect or default did not take place within the jurisdiction of the Court or that the Organisation is not present within the jurisdiction of the Court.

From the title to the United Kingdom Act I note that one of its objects is to provide for the recovery of charges for services provided for aircraft. One may deduce therefore that the United Kingdom Parliament considered it necessary to provide specifically that the Courts of the United Kingdom shall have jurisdiction to hear claims for such charges incurred obviously by the operators of international and not merely domestically registered aircraft in the United Kingdom.

I observe that the Rules of the Supreme Court of England are not identical in every respect with those of the High Court of Fiji for obvious reasons and that in considering the questions which fall for decision for example in this case this Court should not slavishly follow the English Rules when there are good reasons, including those of common sense, for not so doing. I stand by the opinion I have expressed about Order 6 as it applies to this case, that by its silence on the point the intention of the draftsman of the Defamation Act must have been that any other relevant legislation would where necessary apply to it. I find such legislation in the Supreme Court Act and the Judicature Decree to which I have previously referred.

However the question then is in what circumstances is leave to serve out of the jurisdiction normally given?

In Metall & Rohstoff v. Donaldson Inc. (1981) 3 WLR 563 the Court of Appeal held that the Court would only assume jurisdiction where the claim was founded on a tort and either the damage was sustained within the jurisdiction or the damage resulted from an act committed within the jurisdiction.

At page 582 the Court said:

"It is enough if some significant damage has been sustained in England....... But it would certainly contravene the spirit, and also we think the letter, of the rule if jurisdiction were assumed on the strength of some relatively minor or insignificant act having been committed here, perhaps fortuitously. In our view condition (c) requires the court to look at the tort alleged in a common sense way and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction."

In Consolidated Trust Co. v. Browne [1948] NSWStRp 71; (1948) 49 S.R. (NSW) 86 at 89 Jordan C.J. said:

"If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough ....."

In the circumstances of this case therefore in my view there has been publication of the article in question to three persons namely the Plaintiff's solicitor Vijaya Parmanandam, his Chief Law Clerk Hari Shankar and part-time clerk Ratu Meli Saronicava Baleilakeba.

As the newspaper was found in two places to which the public has access, namely the New Zealand Embassy and the University of the South Pacific Library I consider it a reasonable inference also that probably more than three persons saw the article complained of. In my view also the fact that the newspaper apparently found its way into Fiji without the knowledge of the Defendants is immaterial. It suffices in my judgment if there has been publication in Fiji with or without the knowledge of the Defendants and I am satisfied that there has been such a publication here.

The general rule is that defamation does not depend upon the intention of the Defendant. There are cases dealing with innocent dissemination of defamatory matter for example in the case of distributors of such matter but in my view they do not apply here. In my judgment the question is whether the Defendants ought to have known that copies of "The Dominion" newspaper were available in Fiji and at this stage, prima facie I believe they should have known. I therefore reject this submission by the Defendants.

It is also submitted by the Defendants that the affidavit by the solicitor for the Plaintiff is defective in that it does not establish a good arguable case and is not sufficiently full to constitute a frank affidavit. In my judgment the affidavit of the Plaintiff's solicitor is just sufficient to establish a right for the Plaintiff to commence this action. It must be remembered that the Plaintiff is a prominent citizen of Fiji so that I consider it quite possible that even the circulation of a very few copies of the newspaper in Fiji could cause the Plaintiff serious and irreparable harm.

In Bata v. Bata (1948) W.N. 366 the Court of Appeal held that because copies of a libellous letter were addressed to and received by persons resident in London the libel was published in England and the tort constituted by the libel had been committed within the jurisdiction of the English Courts not withstanding that the letter had been written in Switzerland. The Court said:

"It was the publication of the contents of a defamatory document to a third party which constituted the tort of libel and which alone justified the libelled party in issuing his Writ."

The Courts over the years have emphasised that one of the most important factors in deciding whether leave should be given to serve out of the jurisdiction is whether the Court ought to put a foreigner, who owes no allegiance to the country in which the Plaintiff resides, to the inconvenience and annoyance of being brought to contest his rights in such country. The Courts have said that this is a very serious question and that a Court should be exceedingly careful before it allows a Writ to be served out of the jurisdiction.

In Eyre v. Nationwide News Pty Ltd (1967) NZLR 851 McGregor J. held that prima facie the circulation of twenty-one copies of an Australian periodical in New Zealand would have little effect on the reputation of the Plaintiff who was a former Minister for Defence in New Zealand and who had sought leave to issue a Writ out of New Zealand and in Australia. His Honour said however that such effect might well be of much greater detriment to a person holding public office than to a private individual.

In Kroch v. Rossell (1937) ALL E.R. 725 the Court of Appeal refused leave to serve out of the jurisdiction a Writ claiming damages for defamation against a French and Belgium newspaper on the ground that the Plaintiff, who was a foreigner of no occupation in England had not provided any evidence that he had any reputation in or associated with England. In my opinion this cannot be said of the Plaintiff so that I hold that the mere fact that there has been apparently very limited publication of the article complained of here in Fiji should not debar the Plaintiff from proceeding further.

The final submission of the Defendants is that in their present form the pleadings do not confine the Plaintiff to a cause of action within the jurisdiction and therefore they exceed the jurisdiction of this Court.

Paragraph 4 of the Statement of Claim herein reads:

"In the edition of the said newspaper published on or about Monday 18 June 1990 the Defendants published in New Zealand and in Fiji and elsewhere in the South Pacific of and concerning the Plaintiff the matter set out in the schedule annexed hereto."

In Eyre v. Nationwide News Pty Ltd (supra) the pleading alleged that the newspaper in question, "The Australian" had an extensive circulation throughout all states in the Commonwealth of Australia and in New Zealand. Mr. Justice McGregor held that this pleading was of prime importance in that it alleged that by reason of the publication of the words complained of which was not limited to New Zealand, the Plaintiff had been brought into public scandal and contempt and had been greatly injured in his reputation. His Honour held that it seemed to him that the Plaintiff was there claiming damages in New Zealand for loss of reputation both in New Zealand and Australia. The pleadings did not confine him to the cause of action within the jurisdiction and therefore they exceeded the jurisdiction of the New Zealand High Court.

I am invited by the Defendants to make a similar finding here.

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.

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

JOHN E. BYRNE
J U D G E

HBC0238D.90S