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Pale v Pohiva [2006] TongaLawRp 13; [2006] Tonga LR 148 (31 May 2006)

IN THE SUPREME COURT OF TONGA

Pale

v

Pohiva anors

Supreme Court, Nuku'alofa
Webster CJ
CV 411/2006

31 May 2006; 31 May 2006

Practice and procedure – interim injunction – restraint of publication – court balanced free speech with defamation principles – application refused

The plaintiff sought an ex parte interlocutory injunction to restrain the defendants from repeating an alleged defamation of the plaintiff. Submissions were heard in chambers. The plaintiff had given no undertaking as to damages and no English translations of the alleged defamatory passages were appended as part of the plaintiff's affidavit. Although translations were incorporated in the statement of claim, they were not evidence as they would have been if appended to a sworn affidavit. The decision dealt with the principles applicable to the grant of interim injunctions to restrain publication of defamatory statements.

Held:

1. There should in general be no prior restraint on publication, though those who publish in possible breach of implied limitations do so at their peril and may find themselves liable to sanctions after the event if they have overstepped the mark -- Taione v Lali Media Group Ltd & Ors [2005] Tonga LR 67. The prior restraint of publication, though occasionally necessary in serious cases, was a drastic interference with freedom of speech and should only be ordered where there was a substantial risk of grave injustice -- Attorney-General v BBC [1980] 3 All ER 161, 183.

2. A clear case had not been made out that this was an exceptional case where it was appropriate to restrict the right of free speech nor was the Court satisfied that there was a substantial risk of grave injustice or clear and compelling reasons or exceptional circumstances so as to justify an injunction. The application was refused.

Cases considered:

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL)

Attorney-General v BBC [1980] 3 All ER 161 (HL)

Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406

Bestobell Paints Ltd v Bigg [1975] FSR 421

Bonnard v Perryman [1891] 2 Ch 269

Church of Scientology v Readers Digest [1980] 1 NSWLR 344,350A

Coulson v Coulson [1887] 3 TLR 846

Harakas v Baltic Mercantile and Shipping Exchanges Ltd [1982] 1 WLR 959; [1982] 2 All ER 701 (CA)

Hector v Attorney-General of Antigua [1990] 2 All ER 103 (PC)

Hodgson v Stiassny & Ors NZ High Court CIV 2005-404-1808, 5.5.05

Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129

New York Times Co v United States 403 US 713, 91 SCt 2140, 29 L Ed 2d 822 (1971)

New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4