IN THE COURT OF APPEAL OF KIRIBATI
CIVIL JURISDICTION

CIVIL APPEAL NO. 1 of 1997

BETWEEN
TAOMATI IUTA
Appellant

AND

TEBURORO TITO
TEETA KAMORIKI
KABORI TEKEN
TEWAREKA TENTOA
Respondents

Date of Hearing: 4 March 1998
Delivery of judgment: 9 March 1998

Mr B Berina for the Appellant
Mr. D Sim for 1st Respondent
Mr D Lambourne for 2nd & 3rd Respondents
Mr I Read for 4th Respondent

JUDGMENT OF THE COURT
(Gibbs V.P, Connolly and Ryan JJ.A)

On 28 October 1994 the Appellant commenced an action against the four Respondents claiming damages for defamation a and an injunction restraining further publication of the alleged defamatory matter. He delivered a Statement of Claim on 1 April 1996 but that Statement of Claim was, on 11 October 1996, struck out by Mr Commissioner Suttill as embarrassing and prejudicial to a fair trial of the action. A second Statement of Claim was delivered on 28 October 1996. On 9 April 1997 the learned Chief justice held that the second Statement of Claim also was embarrassing and prejudicial to a fair trial of the action and further, that it was an abuse of process. He ordered that it be struck out and refused leave to amend. He dismissed the Appellant's action. The present appeal is brought from that decision.

The Appellant is a member of the Maneaba ni Maungatabu, from the Island of Beru and was until May 1994 the Kaul-oman-ni-Beretitenti (Vice -President) of Kiribati. The First Respondent is the present Beretitenti and the Fourth Respondent is the present Vice-President of Kiribati. In May 1994 the Maneaba ni Maungatabu was dissolved and an election was held. The alleged defamation was published in the course of that election campaign. The Appellant alleges that on or about 30 May 1994, at a meeting held in the maneaba of the Kiribati National Youth Council at Bairiki, the First Respondent uttered words which included the assertion that the Beretitenti and Ministers had wrongly taken or stolen, public moneys. It is further alleged that the speech of the First Respondent was recorded on a video film made by the Second Respondent and that the second Respondent made and sold out for hire copies of the video film, that the Third Respondent exhibited or caused to be exhibited the video film at Beru and that the Fourth Respondent exhibited or caused to be exhibited the video film at Kiritimati and other islands in the Line Group.

In the first Statement of Claim the speech of the First Respondent as, translated into English was set out at length in paragraph 6 - it occupies more than five pages of the Statement of Claim. That Statement of Claim went on in paragraph 7 to set out 22 different defamatory meanings which the words were said to bear but did not relate any of those meanings to any particular words in the long speech of the First Respondent. Mr Commissioner Suttill held that the first Statement of Claim was objectionable in two respects. First, he held that paragraph 6 was embarrassing. He did so in reliance on the decision on D.D.S.A. Pharmaceuticals Ltd -v Times Newspapers Ltd [1973] QB 21 where it was held that where the subject matter of an action for defamation was a long article, the Plaintiffs must specify the particular passages said to be defamatory of them and that to throw the whole article at the defence and the Court was embarrassing.

He similarly held that paragraph 7 was embarrassing, because it was clear that all the words in paragraph 6 do not have all of the meanings set out in paragraph 7, and the first Respondent was "expected to pick over paragraph 7 (after picking over paragraph 6) and indulge in some sort of mix-and-match exercise to arrive at what may possibly be the plaintiff's complaint".

He made two further observations, although he did not base his decision on them. First, the First Respondent was alleged to have published the words complained of "in reply to queries raised by those present"; but the pleading did not set out the questions asked. Secondly, the Statement of Claim stated that the words published had been translated, but did not set out the words of the First Respondent in the language used by him.

The second Statement of Claim conformed to the two requirements suggested in the concluding observations of Commissioner Suttill. In paragraphs 6 and 7 respectively it set out in I-Kiribati and English the words used by the First Respondent, and also the words used by the persons who raised the queries to which the First Respondent replied. It may be remarked, in passing, that Commissioner Suttill was wrong in thinking that it was necessary to set out the words of the queries in the present case; it is only when an answer cannot be understood without knowing the question to which it replied that it is essential to set out the words of the question. The second Statement of Claim did not however meet the two principal objections raised by the Commissioner An attempt was made to satisfy the first of those objections, by reducing the alleged defamatory material from more than five pages to almost three. Some unnecessary material is still included, but no serious objection is, or could be, taken to the pleading on that account alone. However paragraph 9, which takes the place of paragraph 7 of the first Statement of Claim, and sets out the meanings which the words of the first Respondent are said to bear, still fails to relate any of those meanings to particular words. It does reduce the number of those meanings- true innuendos-to 12.

When the matter came before the learned Chief justice, counsel for the Appellant did not oppose the application to strike out the second Statement of Claim. He produced the draft of a third, proposed, Statement of Claim, which he sought leave to file. In this proposed Statement of Claim, paragraph 9 does relate particular meanings to particular words, but it commences with the words, "In their natural and ordinary meaning the words of the first Defendant meant and were understood to mean that". Then follow each innuendo, and the words said to bear that meaning.

The learned Chief justice, in holding that the filling of the second Statement of Claim was an abuse of process, said that Commissioner Suttill had clearly and unambiguously described the nature of the defect in the first Statement of Claim, and that the Appellant had thereupon proceeded to file another Statement of Claim which was precisely the same sort of pleading that had been struck out only 17 days before. He drew the inference that the Appellant had chosen completely to ignore Commissioner Suttill's decision. He gave this as one reason for refusing leave to amend the Statement of Claim. Further he held that an amendment could not be granted without injustice to the Respondents, who had been facing a large claim for damages for over three years, and who would be undergoing hardship with a claim for $500,000 hanging over their heads. In addition this would, he said, be a major source of distraction to the First and Fourth Respondents whose positions are of national importance.

It is to be noted that the learned Chief justice rejected the argument that the First Respondent could rely on delay, and further that he did not agree with the submission that the proposed amended Statement of Claim suffered from the same defect as the previous ones.

There is no doubt that the court has a discretion to stay proceedings to prevent an abuse of its process. There are no fixed categories of the kinds of circumstances in which the Court should exercise this power, but it. may do so where there has been an abuse of procedure which results in manifest unfairness to a party to the litigation or would otherwise bring the administration of justice into disrepute: Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529. Where there has been a failure to comply with an order of the Court, a pleading will be struck out only if the conduct of the party who failed to comply was contumelious and intentional: Re Jokai Tea Holdings Ltd [1993] 1 All E.R 630; Grand Metropolitan Nominee (No. 2) Co. Ltd v Evans [1993] 1 All E.R. 642. Those cases provide a useful guide when a stay of proceedings is sought in a case such as the present.

In the present case, the Commissioner made no order with which the Appellant failed to comply. The filing of the second Statement of Claim in a form which did not fully meet Commissioner Suttill's objections cannot possibly be regarded as an intentional and contumelious disregard of his judgment, having regard to the facts, already mentioned, that it obviously met some of' those objections and endeavoured to meet others. The proper conclusion is that the failure was due to inadvertence and did not constitute an abuse of the process of the Court.

The second ground on which the Chief Justice based his decision was that the Respondents have suffered hardship from having this large claim hanging over their heads. That, however, is an unfortunate incident of any litigation, and is no reason to deny legal redress to a plaintiff. The fact that two of the Respondents occupy high offices and had grave public responsibilities cannot give them special rights in legal proceedings' against them.

The question in controversy (as to which of course we express no opinion) can be determined if the Statement of Claim is amended, and an amendment can be allowed without any injustice which would not be rectified by the order for costs made by the Chief Justice.

The only objection now raised to the form of the proposed Statement of Claim is to the preliminary words of paragraph 9. That objection can be met if those words are amended to read: "In their natural and ordinary meaning the following words of the first Defendant meant and were understood to mean respectively as follows".

For these reasons the Court orders as follows:

Appeal allowed with no order as to costs.

Order of the learned Chief Justice set aside, and in lieu thereof order:

1. Statement of Claim dated 28th October 1996 struck out as embarrassing.

2. Leave to file within 14 days a further Statement of Claim, in the form contained in the Appeal Book at pages 23-36, but with paragraph 9 amended as indicated in this judgment.

3. The Plaintiff to pay the First Defendant's costs of the two applications in the High Court fixed at $300.

Vice President: GibbsV.P
Judge of Appeal: Conolly
Judge of Appeal: Ryan JJ.A