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Lees Trading Company Ltd v Flour Mills of Fiji Ltd [1995] FJHC 175; Hbc0465d.95s (19 December 1995)

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

ACTION NO. HBC0465 OF 1995

BETWEEN:

LEES TRADING COMPANY LIMITED
Plaintiff

AND:

FLOUR MILLS OF FIJI
1st Defendant

AND:

HARI PUNJA
(f/n Kara Punja) of
Lautoka, Company Director
2nd Defendant

AND:
SANJAY PUNJA (f/n Hari Punja) of
Lautoka, Chief Executive
3rd Defendant

AND:

ASSOCIATED MEDIA LIMITED
4th Defendant

AND:

YASWANT GOUNDER
(f/n not known)
5th Defendant

H.K. Nagin for the Plaintiff
H. Lateef for the 1st, 2nd and 3rd Defendants

Date of Hearing: 30th November 1995
Date of Interlocutory Judgment: 19th December 1995

INTERLOCUTORY JUDGMENT

On 2nd October 1995 the Plaintiff issued a generally endorsed Writ against the Defendants claiming a permanent injunction restraining them from advertising, publishing or causing to be advertised or published in the magazine "The Review" or in any media whatsoever any materials, articles, pictures, words or messages concerning or implying allegations of inferior quality or any harmful effects of flour sold by the Plaintiff. The Writ also claims damages both aggravated and exemplary and an account of profits in relation to the 1st Defendant. There is as yet no Statement of Claim delivered by the Plaintiff. On the date the Writ was issued I granted an ex-parte injunction in favour of the Plaintiff against the Defendants in the terms of the first paragraph of the Indorsement of Claim which I have set out above and gave any party liberty to apply on 72-hours notice. The motion for the injunction was supported by an affidavit by Peter Lee a Director of the Plaintiff company who deposed that the Plaintiff is in the business of selling flour and baking bread, biscuits and cakes for wholesale distribution. Mr. Lee stated that the 1st Defendant is also in the business of selling flour and related products. He further stated:

(i) That the 2nd Defendant is the chairman of the Board of Directors of the 1st Defendant and from time to time is directly and personally involved in the business of the First Defendant.

(ii) That the 3rd Defendant is the Chief Executive of the 1st Defendant.

(iii) That the 4th Defendant owns and publishes the monthly magazine called "The Review" and the 5th Defendant is the publisher and editor of the same.

All these allegations are admitted by the 1st, 2nd and 3rd Defendants, the remaining Defendants having as yet not taken any part in these proceedings.

In paragraph 7 of his affidavit which is the kernel of an application before me to dissolve the injunction Peter Lee states:

"That in the September edition of the 4th Defendant's magazine "The Review" the 1st Defendant placed a full page advertisement on the last page. A copy of this advertisement is annexed hereto and marked with the Letter "A". This advertisement shows or tends to show as follows:

(i) The flour sold by the Plaintiff is not of good quality.

(ii) The flour sold by the Plaintiff has an unpleasant odour.

(iii) The flour sold by the Plaintiff has unnatural additives.

(iv) The flour sold by the Plaintiff is old and stale.

(v) The flour sold by the Plaintiff is contaminated with insects and worms.

(vi) The Consumers in Fiji are warned against flour sold or used by the Plaintiff and advised that only the flour sold by the 1st Defendant is of good quality."

He also deposes that "somewhat similar advertisements were previously placed by the Defendant in the following media:

(i) "The Fiji Times", a daily newspaper circulating in Fiji.

(ii) "Daily Post" a daily newspaper circulating in Fiji.

(iii) "Radio Fiji" a radio station broadcasting throughout Fiji in Hindi, Fijian and English languages.

(iv) "FM 96" an English FM radio station broadcasting in most parts in Fiji.

(v) "Radio Navtarang" a Hindi FM radio station broadcasting in most parts in Fiji."

I was tendered a copy of the September edition of "The Review" magazine. The advertisement complained of is coloured and appears on the back page of the magazine. It consists of three cartoon-type drawings or pictures showing what appears to be a young Fijian woman stretching towards a shelf in a supermarket or store. The first picture shows the young woman with one foot on the rung of a food trolley stretching across the trolley to the top shelf of a sales fixture and attempting to take down one of four purple packets the centrepiece of each of which is white with some black indecipherable print thereon.

Underneath this picture is the caption "In life we take risks to get the best!"

The second picture in descending order on the page shows what can be presumed to be the same woman holding the same purple packet with the word `FLOUR' on it in capital letters. The packet has been opened - from it rising almost perpendicularly are four wavy lines which it is conceded by the Defendants are meant to represent offensive odours emanating from the packet. There also appears to be what is also conceded a worm-like creature in the open packet. The face of the young woman is also shown looking at the packet with an obvious expression of disappointment or concern on her face. This picture appears above the caption "And sometimes instead of the best we get nasty surprises."

The third and last picture shows the same woman this time with a smile on her face holding another packet, this time coloured white with purple surrounds and with the initials FMF the emblem of the 1st Defendant at the top of the packet. In capital letters at the bottom is the word `FLOUR'.

Underneath these three drawings there appears in capital letters the following statement:

"BUT WHEN YOU BUY FMF PRODUCTS YOU CAN BE SURE THAT YOU ARE GETTING THE BEST. OUR PROMISE OF QUALITY ENSURES THIS AND THE ISO9002 CERTIFICATION FURTHER GUARANTEES IT!"

At the bottom of the advertisement there appears the emblem of the 1st Defendant and underneath the words in display "A PROMISE OF QUALITY"

The Plaintiff claims that the publication of this advertisement is causing irreparable damage to its business.

On the 11th of October 1995 the 1st, 2nd and 3rd Defendants issued a motion for an order that the ex-parte injunction which I granted the Plaintiff be dissolved. The motion is supported by an affidavit sworn by Sanjay Punja the 3rd Defendant who is the Director and Chief Executive of the 1st Defendant.

Mr. Punja states that the 1st Defendant is in the business of manufacturing, exporting and wholesaling flour and flour related products. On behalf of the Defendants he denies the allegations made in paragraph 7 of the Plaintiff's first affidavit and in particular states that at no place in the advertisement is the Plaintiff named or imported flour mentioned. I interpolate here that the Plaintiff makes no allegation about imported flour.

Mr. Punja comments on certain other paragraphs of the Plaintiff's first affidavit which relate to previous proceedings in this Court before me in 1992 and makes certain other allegations none of which I consider relevant to the present application.

On the 30th of November I heard argument from counsel on the question of whether the injunction should be dissolved. At the conclusion of argument I gave the Plaintiff leave to file a supplementary affidavit stating the colour of the packets in which its flour is sold and the parts of Fiji in which it is sold. This affidavit was sworn by Edmund Lee a Director of the Plaintiff on behalf of the Plaintiff on the 8th of December 1995.

Mr. Lee deposes that the Plaintiff sells flour all over Fiji and also re-exports to other island states.

He says the Plaintiff sells its flour in 50kg and 25kg bags and the Plaintiff's solicitors have now sent to the Court for my inspection samples of the bags concerned.

He further deposes that some of the flour sold by the company to shopkeepers is repacked by them in smaller bags but I have upheld an objection by counsel for the Defendants to this paragraph on the ground that it is hearsay.

In a moment I shall discuss the submissions made to me by counsel but before doing so I shall describe the sample bags submitted on behalf of the Plaintiff. Two of these are white fibre-type, the first with an emblem in the form of a small cross with pink writing in the form of block letters thereon. In the top portion of the white bag in the centrepiece the word "ROXAL" appears and underneath the emblem appear in capital letters the following words in pink print:

"STANDARD
FLOUR
50 KG NET
ROXAL FOODS CO
16 LEONIDAS ST
LAUTOKA
FIJI"

The bottom portion of the bag is in the form of a shortened cross with beams extending right across the bag.

The second bag is also white and bears similar wording to that of the first bag but this time in green print, also in capital letters.

The third bag tendered by the Plaintiff is altogether different in design and material from the first two. It is brown fibre on the outside but the inside is lined in heavy brown paper. In the right front top portion of this bag appear the words in capital letters in red print "OPEN FROM HERE" with an arrow pointing to the right hand top corner of the bag. In the middle portion of the top half of the bag there is again an emblem enclosed in a border of straight and curved red lines the latter in the form of a slight oval shape.

In this emblem appear the words in large capital letters "ROXAL BRAND". Underneath this emblem appear in heavy capital letters on two lines the words "PURE NORMAL FLOUR".

In the middle lower part of the bag appear these words again in red capital letters:

"ROXAL FOODS
46 RAVOUVOU ST
LAUTOKA, FIJI

NET. 25 kg"

I pass now to the submissions made to me. On behalf of the Defendants Mr. Lateef submitted, and I agree, that the burden of the Plaintiff's complaint against the Defendants lies in paragraph 7 of the Plaintiff's first affidavit. As to this Mr. Lateef says:

(i) No where does the advertisement make any reference to the Plaintiff or to the quality of flour sold by the Plaintiff.

(ii) The wavy semi-perpendicular lines are meant to represent an unpleasant odour but the advertisement makes no reference to the Plaintiff nor would any reasonable people conclude that the Defendants are referring to the Plaintiff's flour.

(iii) No sensible person would think that the Defendants are asserting that the flour sold by the Plaintiff contains unnatural additives.

(iv) No reasonable person can infer that the flour sold by the Plaintiff is old and stale.

(v) Although the Defendants concede that the second picture shows some worms no one can infer that the Defendant is positively asserting that the flour is that of the Plaintiff and is bad.

(vi) The Defendant says the allegation that the advertisement gives a warning to consumers in Fiji as claimed in paragraph 7(vi) of the Plaintiff's affidavit is pure speculation and that the advertisement is simply an exercise by the Defendant of its right to advertise freely.

In respect of these submissions Mr. Nagin for the Plaintiff submits essentially that all the allegations made by Peter Lee have been made out so far. He says that because the Plaintiff makes bread, biscuits and cakes the potential for damage is great because all the Plaintiff's products are affected by this.

In previous proceedings between these parties in August 1992 concerning another advertisement by the 1st Defendant to which the Plaintiff objected and which the Plaintiff claimed was defamatory I rejected this claim and remarked that the Plaintiff and his Co-Plaintiff Robert Lee had shown themselves to be unduly sensitive.

In the present application Mr. Nagin concedes that the advertisement in question in my earlier judgment was not defamatory but says the present advertisement is defamatory. He says that because the advertisement here is in the form of a cartoon even children and uneducated people would think that the Plaintiff's flour was contaminated so that when they went to a shop to purchase flour they would choose FMF flour.

Mr. Nagin also referred me to Sections 54 and 57 of the Fair Trading Decree 1992. Section 54 forbids any person in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to deceive.

Section 57 makes it an offence for any person to promote any business or trade interest by publishing or causing to publish any advertisement containing a false or misleading statement of fact.

Counsel submits that the advertisement of the Defendant comes within these two sections. The test of whether any advertisement or published material is defamatory has been stated in various ways by various Courts.

In Morgan v. Odhams Press Ltd. (1971) 1 WLR 1239 it was held that a defamatory statement is not accountable unless published "of and concerning" the Plaintiff; the Plaintiff need not be specifically mentioned or identified so long as the matter complained of reasonably implicates him.

The test for identification is: Would a sensible reader of the publication reasonably identify the Plaintiff as a person defamed?

In that case at p.1264 Lord Donovan, although in dissent on the facts, said:

"The plaintiff must prove that the words of the article would convey a defamatory meaning concerning himself to a reasonable person possessed of knowledge of the extrinsic facts. This requirement postulates (as the appellant expressly accepted) not merely a reasonable person but also a reasonable conclusion. Mere conjecture is not enough."

I take that statement also to be the law in Fiji.

In another case Consolidated Trust Co. v. Browne [1948] NSWStRp 71; (1948) 49 S.R. (NSW) 86 at 89 Jordan C.J. put the matter as follows:

"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 .... If, however, the matter is not ex facie defamatory, or does not refer by name to a person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances."

At the conclusion of the argument in this case I expressed the tentative view that it seemed to me at best this was a borderline case. Having considered the matter further and particularly having seen the bags in which the Plaintiff's product is sold I am now satisfied that this is not a borderline case but rather the Plaintiff has not established any case to warrant continuation of the injunction. There is not the slightest resemblance to the packets or bags depicted in the first two pictures of the cartoon by the bags now tendered by the Plaintiff.

I am not satisfied on this material that the ordinary reasonable person looking at the advertisement would conclude that the bags or packets shown were those of the Plaintiff.

There is a further reason why I will also dissolve the injunction and that is that I consider the Plaintiff has attempted to mislead the Court by not stating when it applied for the injunction that the Plaintiff did not sell its flour in packets or bags of the shape and colour depicted in the advertisement.

Of the numerous cases requiring utmost faith and frankness by any person applying ex-parte for an order it suffices to quote the remarks of Isaacs J. in Thomas A Edison Limited v. Bullock [1912] HCA 72; (1912) 15 CLR 679 at 682:

"Uberrima fides is required; and the party inducing the court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. ..."

If the Plaintiff has suffered any damage and so far it has not condescended to particulars I am further satisfied that damages will be an adequate remedy should this case later proceed to trial.

The order of the Court is that the ex-parte injunction granted to the Plaintiff by this Court on the 2nd of October 1995 is dissolved. The Plaintiff is to pay the Defendants' costs.

JOHN E. BYRNE
JUDGE

Legislation and authorities referred to in judgment:

Fair Trading Decree 1992.
Consolidated Trust Co. v. Browne [1948] NSWStRp 71; (1948) 49 S.R. (NSW) 86 at 89.
Action No. 116 of 1992 Lees Trading Company Limited and Another v. Flour Mills of Fiji Limited and Others - unreported judgment of Byrne J. of 31st August 1992.
Morgan v. Odhams Press Ltd. (1971) 1 WLR 1239 specially at 1254.
Thomas A Edison Limited v. Bullock [1912] HCA 72; (1912) 15 CLR 679 at 682.

The following additional case was mentioned in argument:

Re Southdowns Packers Pty Ltd (1984) 2 Qd. R559

HBC0465D.95S