IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL CASE NO. 513 OF 1992

Between:

SHIV PAL BIDESI
s/o Bidesi
Plaintiff

and

JOHN ROSS HOWARD
Defendant

Mr. V. Parmanandam for the plaintiff
Mr. B. R. Sweetman for the defendant

ORDER

In this case the defendant seeks an order striking out the plaintiff's statement of claim and dismissing his action under High Court order 18 rule 18 and the inherent power of this court on the grounds that (1). it discloses no reasonable cause of action; (2). it is frivolous and vexatious and/or; (3). that it is an abuse of the process of the court.

The plaintiff has alleged in his writ of claim that some statements which are defamatory of him were made by the defendant in a letter written to him by the defendant and published by the defendant to the plaintiff's principal abroad, Ms Elizabeth Searle of New Zealand, and to the Hon. Ratu Timoci Vesikula, Deputy Prime Minister and the Minister for Fijian Affairs by sending to them copies of the said letter.

He sets out seven particular imputations which he says are defamatory of him. The defendant has filed an affidavit and a defence in which he admits writing the statements in question but denies that they bear the meanings which the plaintiff attributes to them. The defendant states that although the letter indicates that it was copied to the Minister for Fijian Affairs it was not in fact copied to the Minister for Fijian Affairs. Mr. Parmanandam argues for the plaintiff that taking the defendant's letter at its face the plaintiff had sent a reply to the Minister for Fijian Affairs in the belief that it had been copied to the Minister for Fijian Affairs. Thus the matter had been brought to the notice of the Minister for Fijian Affairs as a result of the contents of the defendant's letter which indicated that it had been copied to the Minister for Fijian Affairs. It will be a question of fact as to whether it was communicated to the Minister for Fijian Affairs and, if so, whether the communication was defamatory. So are some of the other questions that arise in this case.

It is not prudent at this stage for this court even to venture an opinion on the plaintiff's allegations and the defendant's denial not only because the material on which it can be done is so scanty but also because any preliminary expression of view should not prejudice either party's case if the case proceeds to trial.

For instance the plaintiff alleges that the defendant's reference that the plaintiff had "accommodated a lady and her child in the laundry" bears the innuendo "that he was taking advantage of a lady and her child by providing accommodation in return for sexual favours". There has been a general denial by the defendant that it bears any sinister significance. But it is impossible to say at this stage whether the allegation is true and that it bears the meaning which the plaintiff imputes to it without further evidence.

It is also not known as to the effect it was intended to have on the plaintiff's principal abroad vis-à-vis his continued agency of his principal in Fiji. So too is the allegation concerning the plaintiff's attitude towards Fijians and whether it is true and if so it bears the meaning that he was a racist and anti-Fijian. These and some other matters have become contentious issues and cannot be decided without knowing more. It is not possible to decide on the limited material now available to say for instance that if these statements had been made by the defendant's clients themselves and not by their solicitor whether they would have been privileged.

In this situation the authorities cited by Mr. Sweetman do not appear to be very helpful to the defendant. When it is revealed that there are matters which are arguable the case should be allowed to proceed to trial. It seems to me that a plaintiff should not be denied an opportunity to prove his case if he can. It may be relevant to cite the judgment of Sellers, L.J in Wenlock v. Moloney and others (1965) 2 All E.R. 871. He said at p. 874:

"It may well be a case which will fail and what has taken place may well discourage the plaintiff from continuing; but I feel no doubt that the procedure has been wrong and that the plaintiff's action cannot be stifled at this stage."

It is not enough for the defendant to show at this stage that the plaintiff has a weak case. He should go further and show that the plaintiff has no case at all. It seems to me that this is not a case where the plaintiff should be stifled at this stage.

I can do no better than cite a passage from the judgment of Lord Pearson in Drummond-Jackson v. British Medical Association and others (1970) 1 All ER p 1094 at 1103:

"The sole question at this stage is whether it is capable of bearing a meaning defamatory of the plaintiff. If so, the action must proceed, and if it proceeds to trial, the jury or the judge acting as a jury will have to decide the question of fact whether the article does bear a meaning defamatory of the plaintiff. On that question of fact I express no opinion."

I am of the view that this is not a case where the plaintiff should be shut out in limine. I therefore dismiss the defendant's summons with costs. The trial in the action will come on in the usual course.

M. D. Jesuratnam
JUDGE

At Suva
15th June 1993
HBC05130.92S