Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Orme v Schutz [1979] KIHC 31; 1979 KILR 102 (24 October 1979)

[1979] KIHC 31; [1979] KILR 102

HIGH COURT OF THE KIRIBATI

Civil Case No 4 of 1979

BRIAN STEWART ORME
(Managing Director of Compass Rose Enterprises)

v

(1) CAPTAIN WILLY SCHUTZ
(2) THE ATTORNEY GENERAL
(on behalf of the Government of Kiribati)

(O'BRIEN QUINN C.J.)

Betio: 20th August, 16th, 17th, 22nd, 23rd and 24th October 1979

Civil law - unlawful interference in business - libel - damages - failure to issue Certificate of Seaworthiness - failure to issue a Trading Licence - did defendants do anything illegal or u lawful - essential ingredient of unlawfulness absent - reflection on character of plaintiff as a businessman - public or private duty - privileged occasion - malice - communication irrelevant - information volunteered - part of letter written on occasion of qualified privilege - remainder of letter outside scope of qualified privilege - limited publication - damage suffered not great - nominal damages awarded - costs.

The plaintiff, the owner of a ship "Tinapili" claimed that the first defendant, the Marine Superintendent, and the servant or agent of the second defendant, had unlawfully interfered with his business by not issuing him with a Certificate of Seaworthiness in respect of "Tinapili", in not granting him a Trading Licence in respect of the ship and in otherwise interfering with his business by advising people not to use "Tinapili". The plaintiff also claimed that the first defendant, in his personal capacity, wrote a letter to the Copra Society which was negotiating a joint-venture with the plaintiff making certain remarks which were defamatory of the plaintiff in his business. The plaintiff claimed damages. The defendants argued that there was no interference and certainly no unlawful interference in the plaintiffs business and that the letter written by the defendant was written on an occasion of qualified privilege.

Authorities referred to:

Clerk and Lindsell on Torts, 14th Edition, pghs 808, 1744

Shipping Ordinance (Cap 89) Section 10A (1)

Shipping Regulations (Under Cap 89) Regulations 18 and 20

Gatley on Libel and Slander, 7th Edition pghs 442, 476, 1266, 1269

English and Scottish Co-operative v Odhams (1940) 1 K.B. 429 at 461 C.C.A.

Ratcliffe v Evans [1877] UKLawRpKQB 69; (1892) 2 Q.B.D. 524

Macintosh v Dun (1908) A.C. @ 399

Greenlands v Wilmshurst (1913) 3 K.B. at 535 and 536

Nevill v Fine Art Co [1895] UKLawRpKQB 61; (1895) 2 Q.B. 156 at 170 and 171

Adam v Ward (1917) A.C. at 318

The Plaintiff in person
C. J. Lynch, Attorney General, for both Defendants

O'BRIEN QUINN C.J.:-

This is a claim by Plaintiff against the first Defendant, who is the servant or agent of the second Defendant, for damages in the sum of $45000 for the unlawful interference in the business of the Plaintiff, and for damages in the sum of $ 10,000 for defamation of the Plaintiff's character by the first Defendant.

2. The interference in the business of the Plaintiff by the first Defendant was alleged to be the failure of the first Defendant to issue a Certificate of Seaworthiness in respect of the Plaintiff's ship, M.V. Tinapili, the advice or instructions given by the first Defendant to various people and concerns not to ship goods on the M.V. Tinapili, the writing of a letter by the first Defendant to the Copra Society commenting adversely on a ship known as the M.V. Komaiwai, and on the Plaintiff's business character and immigration statutes and the instructions given by the first Defendant that the berthing of the Plaintiff's vessel, M.V. Tinapili, at Betio wharf should not be allowed unless a written application for permission were first made.

3. The defamation complained of by the Plaintiff consisted of certain words used by the first Defendant regarding the Plaintiff in a letter written by the first Defendant to the Copra Society which words were written in Gilbertese and were variously translated to mean "there are a lot of things which make me suspicious in the way he carries out his business as well as his permit to stay in Kiribati", "there are various things which are presently doubtful with regard to the status of his business and his entitlement to remain in the Gilberts" and "there are doubts in his business and his being granted permission to stay in Kiribati" followed by other words insinuating that it would b throwing money away to deal with the Plaintiff.

4. The Plaintiff's evidence was to the effect that when he was notified by the first Defendant that the Certificate of Seaworthiness in respect of the M.V. Tinapili had expired on 29th March 1979 and that the Trading Licence for the M.V. Tinapili would expire on 7th April 1979, he made efforts to get these documents from the first Defendant who was, and is, the Marine Superintendent but failed as the first Defendant was never in his office. The Plaintiff also said that he had to solicit the good offices of the Minister of Trade and Communications in an endeavour to get the required Certificate and Licence and that eventually he received a letter from the Marine Superintendent dated 31st May 1979 to the effect that the Certificate of Seaworthiness was ready for collection and that the Marine Superintendent was prepared to issue a trading licence in respect of the M.V. Tinapili when certain formal information regarding the ship and appropriate papers were furnished. The Plaintiff said that, on receipt of the letter of 31st May 1979 he went to the office of the Marine Superintendent who refused to give him the Certificate of Seaworthiness or the Trading Licence. Whereupon the Plaintiff, as he said in his evidence, went to the Ministry and, together with the Secretary to the Ministry, returned to the Marine Superintendent's Office where, in the presence of the Secretary, the Marine Superintendent again refused to hand over the Certificate of Seaworthiness and the Trading Licence. The Plaintiff, not having received either document, felt obliged to take Court action, which he did and served the Writ of Summons on the first Defendant on 24th July 1979 and on the second Defendant on 25th July 1979. On 24th July 1979 shortly after the Writ of Summons was served on the first Defendant the Plaintiff said that he was given the Certificate of Seaworthiness and the Trading Licence by the first Defendant.

5. On the claim for defamation of character the Plaintiff gave evidence to the effect that he had seen a copy of the letter written by the first Defendant to the Copra Society shortly after it was written on 25th May 1979 and that he considered that the contents were false, interfered with his business and that certain words were defamatory of him in his business by saying that he had a doubtful character and that his immigration status was not sound. He stated in evidence that he raised the matter immediately with the first Defendant who promised to rectify the situation before a meeting to be held by the Copra Society but that while the first Defendant did write a letter, dated 6th June 1979, to the Copra Society, the Plaintiff considered that it was not sufficient to rectify the impression caused by the first letter and that it was written too late for the meeting.

6. Evidence was called by the Plaintiff to support particular that of the alleged interference by the first Defendant with his business. Employees and an adviser of the Cooperative Federation and the General Manager of the Shipping Corporation who was also the General Manager of the Federation were called as was the Secretary to the Ministry of Trade and Communications at the times in question. Also called was Mr R W Rostrom, a Marine Engineer, who had carried out a survey on the M.V. Tinapili at the request of the Plaintiff, and the Plaintiff's accountant.

7. In reply, the Attorney-General called the first Defendant to give evidence and the Deputy Secretary of the Copra Society who had first written to the Registrar of Cooperative Societies on 18th April 1979 and copied his letter to the first Defendant.

8. The first Defendant's evidence was to the effect that he had received the statutory formal written application for a survey prior to the issue of a Certificate of Seaworthiness from the Master of the M.V. Tinapili on 9th May 1979, that he had arranged a survey of the vessel by three different surveyors, i.e. an engineering, a marine and a hull survey, had issued the Certificate of Seaworthiness on 25th May 1979 and had written to the Plaintiff on 31st May 1979 informing him that the Certificate of Seaworthiness was ready for collection at his office. With regard to the Trading Licence, the first Defendant said that there was no statutory form of application required but that a written application setting out the details was the normal practice. He said that no written application was made to him but that, in any event, he could not issue a Trading Licence unless and until the Minister for Trade and Communications issue an Exemption Order in respect of the M.V. Tinapili which had not got a sufficiently qualified Master or Engineer on board. The Marine Superintended said that he had requested the issue of an Exemption Order by the Minister but it was not issued until 24th July 1979 when he, immediately, issued a Trading Licence to the Plaintiff on the same day. With regard to the alleged Defamation the first Defendant said in evidence that the letter which he wrote to the Copra Society was in reply to the letter written by the Deputy Secretary of the Copra Society to the Registrar of Cooperative Societies on 18th April 1979 and copied to the Marine Superintendent which letter was, in effect, a request for information and advice on the question of the joint venture proposed between Compass Rose Enterprises, the M.V. Komaiwai and the Copra Society. The first Defendant considered that he had a duty to advise the Copra Society on what he knew about the M.V. Komaiwai and to advise it to make further enquiries and also to state his views on the Plaintiff (who was not mentioned by name but who was sufficiently identified in the letter, which point was not denied or questioned in Court).

In other words, the first Defendant's defences on the Defamation action were Privilege and, to some extent, justification.

9. Under cross-examination by the Plaintiff the first Defendant said that he had got his information about the M.V. Komaiwai from a non-nautical source and that he based his opinion express d of the Plaintiff on the fact that the Plaintiff had sailed the M.V. Tinapili without a Certificate of Seaworthiness and a Trading Licence and that as he, the first Defendant, had been a member of the Civil Status Tribunal which dealt with "belonger status" and had contacted the Immigration authorities about the Plaintiffs immigration status, but that throughout the letter he was merely indicating to the Copra Society that they should make investigations themselves into the matters raised by him in the letter. The first Defendant also relied upon the fact that the second letter to the Copra Society dated 6th June 1979 again stated that the purpose of the first letter was so that the Society could "seek for a more true story" and "to seek for true information."

10. There are, as I have said earlier, two grounds of action in this case. The first is for damages for unlawful interference by the Defendants in the business of the Plaintiff and the second is for damages against the first Defendant for defamation of character.

11. I will first of all deal with the action for alleged unlawful interference. According to one of the leading authorities on Torts, Clerk and Lindsell, 14th Edition, at paragraph 808 "There exists a tort of uncertain ambit which consists of on person using unlawful means with the object and effect of causing damage to another". Such "interference with business" does not require proof that existing contracts have been broken or interfered with; but the cause of action exists only when the defendant has brought about the damage by use of unlawful means. Damage is clearly essential to the cause of action and such damage must be shown to have been, or to be about to be, caused by the unlawful interference.

12. In this present case the plaintiff claims that the actions of the first Defendant in not granting him a Certificate of Seaworthiness and, when it was made out, in not giving it to him, in not granting him a Trading Licence, in advising shippers, notably the Cooperative Federation and the Abemama Boboti, not to ship goods on the M.V. Tinapili, in not permitting the M.V. Tinapili to berth at Betio wharf without written permission, and in writing to the Copra Society giving false or misleading information regarding the M.V. Komaiwai and attacking the Plaintiff's character, unlawfully interfered with his business and that he suffered loss of business and the loss of the joint venture with the Copra Society thereby.

13. The first point which I must decide is whether the Plaintiff or the first Defendant is telling the truth and the second point is: were the actions of the first Defendant unlawful?

14. There is not doubt and I find as a fact that the first Defendant had the legal power to grant both the Certificate of Seaworthiness and the Trading Licence, and these points have not been disputed. There is also no doubt that the first Defendant could not issue the Trading Licence unless and until there was, in existence, an Exemption Order under section 10A(1) of the Shipping Ordinance made by the Minister. There is no doubt that, in order to get a Certificate of Seaworthiness, a written application in the proper form had to be made to the Marine Superintendent for a survey (Regulations 18 and 20 of the Shipping Regulations). Further, there is no doubt that the Plaintiff never completed the said form for a survey even though, on 8th May 1979 by letter MS 6/51, the first Defendant had written to him sending him a "sample prescribed form" and informing him that the fee would be $20. Further, there is no doubt that on 9th May 1979 the Master of the M.V. Tinapili completed the prescribed form and paid the $20. Again, there is no doubt that, upon receipt of the said form, the first Defendant caused the M.V. Tinapili to be surveyed and that on 25th May 1979 a Certificate of Seaworthiness was lawfully drawn up and signed by the first Defendant. There is no doubt either that the first Defendant wrote to the Plaintiff on 31st May 1979 informing him that the Certificate of Seaworthiness was ready at his office for collection.

15. Thus far, everything would appear to have been legally in order. However, the Plaintiff said in evidence that when he went to the office of the first Defendant to collect the Certificate of Seaworthiness the first Defendant refused to give it to him. The first Defendant denied this and said that the Plaintiff decided not to take the Certificate of Seaworthiness as the vessel was, at the time, not in service due to fuel-pump difficulties. The Plaintiff denied this and called the then Secretary for Trade and Communications, Mr Nakibae Teuatabo, to testify that he had gone to the first Defendant's office to get the Certificate of Seaworthiness and the Trading Licence. However, the Secretary was very vague in his evidence about the Certificate of Seaworthiness and seemed to be confused on the question of whether it was the Certificate of Seaworthiness or the Trading Licence for which they had gone to the Marine Superintendent's office. However, one thing was clear from the Secretary's evidence and that was that the first Defendant burst into a rage and said that he did not want any verbal dealings with the Plaintiff and said that he would not give any documents until he had information as to the ownership of the M.V. Tinapili. It also appeared from the Secretary's evidence that things were not going well between the first Defendant and the Ministry. Taking this evidence into account I find, on a balance of probabilities, that the first Defendant was not telling the truth when he said that the Plaintiff had decided not to take the Certificate of Seaworthiness and that the Plaintiff told the truth that the first Defendant refused to give it to him.

16. With regard to the issue of the Trading Licence there is no doubt that the Plaintiff never made a formal written application for one even though he had been advised to do so by the first Defendant on 8th May 1979. However, while the first Defendant was at pains to state throughout his evidence that he could not issue a Trading Licence until there was first in existence an Exemption Order, he never once mentioned this in any of the correspondence which he had with the Plaintiff and the only mention of it in the correspondence produced was in a letter dated 29th May 1979 (MS 6/51) which the first Defendant wrote to the Minister in a tone which suggested that he, the first Defendant, took an opposite view to the Minister on the granting of a Trading Licence to the Plaintiff but that he could not issue one in any event until an Exemption Order was issued in respect of the M.V. Tinapili. The first Defendant gave evidence to the effect that he had orally informed the Plaintiff of the need for the Exemption Order many times but the Plaintiff denied that he had ever been so informed. The evidence of the Secretary, already referred to above, made no mention of the first Defendant's ever having drawn attention to the Exemption Order and in this respect favours the Plaintiff's version rather than that of the first Defendant. I find, on a balance of probabilities, that the first Defendant was not telling the truth on this point and that the Plaintiff's version that the lack of an Exemption Order was never mentioned to him by the Marine Superintendent is the truth.

17. The matter does not, however, end there as, before the action for unlawful interference in business can be sustained, the actions or the inaction of the first Defendant must be shown to have been unlawful.

18. Taking the legal position into account the first Defendant did not do anything illegal or unlawful in what I have set out above. He did issue the Certificate of Seaworthiness and, even though it was not handed over to the Plaintiff until 24th July1979 it was in existence from 25th May 1979 and the Plaintiff was notified of its existence on 31st May 1979. Thus, the Plaintiff could use his vessel lawfully on and after 25th May 1979 whether or not he actually got the Certificate of Seaworthiness into his hands. With regard to the Trading Licence the first Defendant could not lawfully issue it until the Exemption Order had been made. Thus, in not issuing the Trading Licence before 24th July 1979 it cannot be said that the first Defendant acted unlawfully.

19. On the question of the first Defendant's alleged interference in the Plaintiff's business by advising shippers not to use the M.V. Tinapili, I find that I believe the evidence of Ienraoi Kautu the General Manager of the Cooperative Federation that he was never told not to ship the goods on the M.V. Tinapili but made up his own mind not to ship the goods as he had been advised by the first Defendant that the vessel was not trading lawfully. I find that, whether or not his motives were pure, the first Defendant acted within the law in advising would be shippers not to use the M.V. Tinapili as it had not had a Trading Licence issued in respect of it. Again in writing to the Copra Society giving his view on the seaworthiness or otherwise of the M.V. Komaiwai the first Defendant did not act unlawfully. He may have acted rashly as a man qualified in marine matters who, as Lloyds' subagent, had access to detailed information, in making grossly inaccurate and sweeping statements regarding the state and condition of the M.V. Komaiwai but he did not act unlawfully in so doing.

20. With regard to his requiring the owner or master of the M.V. Tinapili to seek written permission to come alongside or berth at Betio Wharf, the first Defendant acted within his rights, powers and duties as Marine Superintendent. His actions may well have been harsh and may not have been in accordance with the normal practice but they were, nevertheless, not unlawful.

21. Thus, on the law and on the authorities I must find that, although the actions of the first Defendant may not have been those of a civil servant doing his best for the public it is not a matter for me to decide, as it is outside the scope of the Courts, as the learned Attorney was at some pains to point out, the first Defendant's actions were within the law and, thus, not unlawful and the first ground of action must fail for want of this essential ingredient and not damages can be awarded

22. On the second ground of action, that of Defamation, it turns completely on the correspondence which passed between the Deputy Secretary of the Copra Society and the first Defendant and the first Defendant's replies thereto. The Plaintiff has claimed $10,000 damage for defamation of character on the ground that the first Defendant made adverse reflections on his character as a businessman and on his immigration status. The first Defendant's defence to this was that the whole of the correspondence should be looked at when it would be seen that the original letter from the Copra Society to the Registrar of Cooperatives was copied to him and that as the letter was in the nature of a request for advice he, the first Defendant, considered that he had a duty and a common interest to advise the Copra Society and, to support this view, he drew attention to the fact that he had copied his letter in reply to the Secretary of his Ministry. Thus, in effect, the first Defendant's defence was that what he wrote about the Plaintiff was written on a privileged occasion and therefore not actionable. In addition, the first Defendant, in evidence attempted to justify what he had written about the Plaintiff by stating that he considered that the Plaintiff was of a doubtful character in that he sailed and did business with the M.V. Tinapili without the appropriate documents and that he had made inquiries from the Immigration authorities concerning the Plaintiff's immigrant status apart from the fact that, as a member of the Civil Status Tribunal, he knew that the Plaintiff had never applied for "belonger status". The first Defendant, also argued that in his letter of 25th May 1979 he was merely pointing out to the Copra Society that they should make enquiries and that he was merely writing the letter to help the Society and not to break the trade relationship between the Society and the Plaintiff's business as he had stated in his letter of 6th June 1979.

23. The law on Defamation as set out in one of the leading authorities on the subject, Gatley on Libel and Slander, 7th Edition, is that if a Plaintiff alleges that he is defamed in the way of business there is no obligation on the Plaintiff to show that he suffered actual damage, but he is perfectly entitled to say that there has been a serious libel upon him, that the law assumes that he must have suffered damage, and that he is entitled to substantial damages (Goddard L. J. in English and Scottish Cooperative v Odhams (1940) 1 K.B. 429 at 461 (C.A.)). If, in their very nature, the words used were reasonably likely to produce a general loss of business, sufficient causal connection is established on mere proof of publication of the words (Ratcliffe v Evans [1877] UKLawRpKQB 69; (1892) 2 Q.B.D. 524.). Also, if the words were written by the first Defendant in the discharge of a public or a private duty or on a subject matter in which both he and the person to whom the words were written have a legitimate common interest, those words would have been written on an occasion of qualified privilege (paragraph 442). Further if the words were written on such a privileged occasion that privilege would be lost if it were shown that the writer was actuated by malice or if the privileged occasion were abused or if the communication were irrelevant. Again, if the words were written on a privileged occasion, the mere fact that they were volunteered is no evidence of malice if it was the duty of the Defendant to write them but in the case of Macintosh v Dun (1908) A.C. at page 399, it was said that "in cases which are near the line, and in cases which may give rise to a difference of opinion, the circumstance that the information is volunteered is an element for consideration certainly not without some importance." In the case of Greenlands v Wilmshurst (1913) 3 K.B. at page 535 Hamilton L.J. said that what had to be considered was "Was he (the defendant) a fussy busybody acting ultroneously or a person discharging a genuine moral duty?" Further, the deliberate adoption on a privileged occasion of a mode of communication which is more injurious than the occasion and circumstances require is evidence of malice (paragraph 266) and if, on a privileged occasion, the defendant introduces charges against the plaintiff unconnected with, and irrelevant to, the duty or interest which gave rise to the privilege, the defamatory matter thus introduced is evidence of malice (paragraph 1269).

24. In this present case I find as a fact that the words were written by the first Defendant and that they written of and concerning the Plaintiff. I also find as a fact that the words were published to the Copra Society and to the Secretary for Trade and Communications. I also find as a facts from the evidence before me, after studying all the translations, that the words used were "With regard to the member of the Compass Rose who had made proposals to you, there are doubts in his business and his being granted permission to stay in Kiribati...........you have to consider these things very carefully before throwing away your money for nothing." I find as a fact that the letter of 25th May 1979 written by the first Defendant was written as a result of the fact that the Deputy Secretary of the Copra Society had written on 18th April 1979 to the Registrar of Cooperatives, Betio asking him to do two things -

(1) "The Committee agree to this idea (i.e. Joint venture with the Plaintiff regarding the M.V. Komaiwai) but since they have little knowledge of the venture when it materializes, they enquire as to what effect this will have on the Shipping Corporation, perhaps the Bkatm Union and other working organisations, and this is why they put this forward to you to finalize this idea" and

(2) "The Committee also expresses its idea that the very much like the ship to come but are not too keen to accept the share they should get. While they see it now that the Compass Rose is not yet ready to buy the ship, this Society is read to buy it and Compass Rose will run the venture. The second idea is that the Society will buy half and Compass Rose the other half and to eliminate William Shipping completely.

I put this idea before you with the hope that you go through it in the least possible time since Williams shipping is still looking for others who may wish to buy its ship. If the idea of acquiring this ship is going to be a success then it is better that consideration be made as soon as possible or we would not be in a position to get it if we are late.

I attach a picture of this ship to help you in considering the matter."

I find as a fact that this letter was copied to the first Defendant but not written to him and that his only interest in the matter was a nautical one.

25. The questions, therefore for decision are:-

(a) Were the words quoted above from the first Defendant's letter defamatory of the Plaintiff?

(b) Were the words written on an occasion of qualified privilege?

(c) Were the words used an abuse of that privilege or irrelevant to the subject matter of the privilege and thus outside the scope of the privilege?

(d) If the words were defamatory and outside the scope of qualified privilege what was of the extent of the publication of those words?

(e) What damages if any has the Plaintiff suffered?

26. I find, as a fact, that the words used in the letter of 25th May 1979 as quoted in paragraph 24 o this judgment were, in their ordinary meaning, defamatory of the Plaintiff as a businessman.

27. I find as a fact and as a matter of law that the first Defendant wrote the letter of 25th May 1979 on a subject matter in which both he and the Copra Society had a legitimate common interest and that that common interest was the seaworthiness and general condition of the M.V. Komaiwai, and insofar as that common interest was concerned the occasion was one of qualified privilege. I have had some doubts as to whether or not the occasion, even in this respect, was an occasion of qualified privilege as there is a strong indication that the letter written by the first Defendant was a mere piece of officiousness and that there was no genuine social, legal or moral duty on the first Defendant to make any comment at all on the matter, following the statements on the law made at paragraph 476 of Gatley (Seventh Edition). However, on a balance of probabilities, I find that part of his letter referring to the M.V. Komaiwai was written on an occasion of qualified privilege but I shall deal with the remainder of that letter later in this judgment.

28. I find that the words used referred to the Plaintiff and disparaged him in his business both by stating that "there are doubts in his business" and inhibited others doing business with him as it was stated that there were doubts about "his being granted permission to stay in Kiribati", and in so doing I find that hey went outside the scope of the qualified privilege and thus following Nevill v Fine Art Co [1895] UKLawRpKQB 61; (1895) 2 Q.B. 156 at 170 and 171 where it was held that where extraneous statements are published which can have no reference to the privileged occasion or the occasion has been wilfully misused it becomes the duty of the judge to rule that so far as they are concerned the occasion is not privileged, (seek Clerk and Lindsell on Torts, Fourteenth Edition, paragraph 174 ). I rule that the occasion was not privileged insofar as those words were concerned. My finding on this point is further supported by the words of Findlay L.C. in Adam v Ward (1917) A.C. at page 318 "The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away any protection on the subject matter to which privilege attaches." In the same case it was also held that if, on a privileged occasion, the defendant introduces charges against the plaintiff unconnected with and irrelevant to the duty or interest which gave rise to the privilege, the defamatory matter thus introduced is evidence of malice. I find as a fact, therefore, in all the circumstances of this case that malice has been established by the Plaintiff and I find that they words used were irrelevant and went outside the scope of any duty or interest which the first Defendant may have had, which duty or interest extended only to the condition of the M.V. Komaiwai in the first Defendant's capacity as Marine Superintendent, and no further.

29. The defamatory words were published only to the Copra Society and to the Secretary for Trade and Communication and to no one else. The fact that the Plaintiff came to see the letter was fortuitous and was never the intention of the first Defendant. The publication was thus of a limited nature and could not be said to have damaged the Plaintiff's business reputation, was confined to the Copra Society and to the Ministry of Trade and Communication and as the first Defendant was the servant or agent of the Ministry I discount the Ministry in this connection.

30. The last question to be answered is - what damages, if any, did the Plaintiff suffer by the publication of the defamatory words? On the evidence before me there is nothing to prove any special loss, or damage, although, as I said earlier, following English and Scottish Cooperative v Odhams (1940) 1 K.B. 440 (C.A.), there is no obligation on the Plaintiff to show that he suffered actual damage. The first Defendant, to some extent, tried to make amends at the request of the Plaintiff by saying in his letter of 6th June 1979 "It is not my intention to stop you trading with the Compass Rose and Williams Shipping Company, but what I have in mind is that it is necessary to take careful steps and to find out true facts before you commit yourselves" but that did not go anywhere nearly far enough to undo the damage already done by his first letter. To contend that he was merely pointing out avenues of investigation and not making defamatory statements is, I consider, a weak argument without any substance. And for the first Defendant to try to justify his words by referring to the incident when the Plaintiff sailed his vessel without a Certificate of a Licence as sufficient to support his statement as to the Plaintiff's being doubtful in his business goes very near towards aggravating the damage, while the reference to the first Defendant's membership of the Civil Status Commission is a complete "red herring" as it is well-known that "belonger status" has no bearing on immigration status. In the circumstances, I do not consider that the Plaintiff suffered damages to the extent of the $10,000 he has claimed. I do consider, however that he has suffered some damage but that damage has not been great and there has been no proof that the Joint Venture with the Copra Society broke down as a result of the defamatory words or for any other reason besides inertia and the common local practice of forming Committees whenever a difficult decision has to be made. I find, therefore, that the Plaintiff has succeeded in vindicating his good name and that he should be awarded nominal damages only as the publication of the defamation was limited. I award him $250 damages against the first Defendant and half the costs of the action as he failed in the first part of it. I award no damages against the second Defendant as he was not involved in the second part of the action but as it was necessary for the second Defendant to be present to appear for the first Defendant I make no order as to costs in respect of him.

31. The Plaintiff is to summit his Bill of Costs divided by two to the first Defendant as soon as possible and the first Defendant as soon as possible and the first Defendant is ordered to pay the $250 damages and half the Plaintiff's costs before 30th November 1979.