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Edwards v Senituli [2009] TongaLawRp 52; [2009] Tonga LR 386 (24 July 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 198/07, CV 209/07, CV 236/07, CV 270/07

Edwards anors

v

Senituli anors

Ford CJ
20 April, 4 and 6 May 2009; 24 July 2009

Practice and procedure – application to strike out defence – application dismissed

There were four defamation actions before the court. The plaintiffs were different in each but the defendants were the same and each case arose out of the same publication. All the claims were consolidated and dealt with together. The defendants pleaded the defences of fair comment and qualified privilege. The plaintiffs made an application to strike out the defence of "fair comment" in each case. The principal submission advanced by the plaintiffs was that there were no factual grounds upon which any comment or expression of opinion could be based. The first and second defendants submitted that the passages complained of had to be read in the context of the article as a whole, and the defence of fair comment could not be said to be so clearly untenable that it could not possibly succeed.

Held:

1. The Court was to rule whether the words were capable of being regarded as statements of fact or capable of being regarded as comments but it was for the jury to decide which they were.

2. The Court found that it could not be said that the defence of fair comment was so clearly untenable that it could not possibly succeed and that was the test for dealing with a strikeout application.

3. The particulars filed on behalf of the third and fourth defendants in relation to their fair comment defence related only to the allegation that the statement related to "legitimate matters of public interest". No attempt was made to particularize the facts upon which the alleged comment was based. However, the Court did not intend to strike out the fair comment defence relied upon by the third and fourth defendants because they come under the same umbrella of legal principles relied upon by the first and second defendants. The Court required the third and fourth defendants to file an amended statement of defence within 28 days correctly particularising the facts upon which their fair comment defence was based.

4. The plaintiff's application to strikeout the defence of fair comment was dismissed.

Cases considered:

O'Brien v Salisbury (1889) 54 JP 215

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Templeton v Jones [1984] NZLR 448

Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777

Counsel for the plaintiffs : Mr Edwards
Counsel for the first defendant : Mr Tu'utafaiva
Counsel for the second defendant : Mr Radich
Counsel for the third defendant : Mr Fonua
Fourth defendant in person

Ruling

Introduction

[1] There are four defamation actions before the court. The plaintiffs are different in each but the defendants are the same and each case arises out of the same allegedly defamatory publication. Sensibly, counsel have agreed that they can all be consolidated and dealt with together.

[2] None of the defendants have raised justification as a defence but they have all pleaded the defences of fair comment and qualified privilege. This Ruling relates to an application by the plaintiffs to strike out the defence of "fair comment" in each case. The principal submission advanced by the plaintiffs is that "there are no factual grounds upon which any comment or expression of opinion can be based."

The publication

[3] The publication in question was an article entitled "Tonga Government blames PCPR for deaths and destruction in Nuku'alofa" which appeared on the Matangi Tonga website on 28 December 2006 and was allegedly on continuous display for approximately 1 month from that date. The third defendant is the owner and publisher of the Matangi Tonga website. The fourth defendant is a director/shareholder of the third defendant and editor of the Matangi Tonga. Although it is not specifically pleaded as such, the article was based on a paper published by the first defendant who was and still is the Press Secretary for the Prime Minister. The second defendant is claimed to be vicariously liable for the actions and conduct of the first defendant.

[4] The plaintiffs allege that the following passages appearing in the Matangi Tonga article are defamatory:

"(a) Claims contained in a confidential USP (University of the South Pacific) report that the Tonga Government failed to see the urgency in the warning signs, were yesterday disputed by the Prime Minister's Press Secretary, Lopeti Senituli, who blamed what he called "extremist" members of the PCPR for the deaths and destruction in Nuku'alofa on 16 November.

(b) It is important to identify the origin of this generic label and to seek out the main components and key players as it evolved over the years so as to fully grasp whom the real instigators and perpetrators of the violence were, Lopeti said in outlining a history of the development of the democracy movement and its key personalities from its origins in the early 1990s.

(c) Instead Lopeti said that, "the membership of the Peoples Committee for Political Reform (PCPR) must bear the full responsibility for the violence and deaths of 16 November." He identified the key members of the PCPR as Dr. Tu'i Uata, Clive Edwards and Mele 'Amanaki, who he labelled extremist because they opposed the formation of a Tripartite Committee that had been proposed by Government to continue the "talanoa" discussions started by the National Committee for Political Reform".

(d) "The Police are continuing their investigations so I would prefer to reserve comment. But as stated earlier, the membership of the Peoples Committee for Political Reform must bear the full responsibility for the violence and deaths of 16 November," said Lopeti."

[5] The paper released by Lopeti (the first defendant) is not before the court but a transcript of the full Matangi Tonga article ("the article") has been produced. It is made up of a total of 46 paragraphs. The words complained of, in other words, comprise only a small segment of the total article. In his statement of defence, the first defendant denies stating in his paper that "Dr. Tu'i Uata, Clive Edwards or Mele 'Amanaki could be blamed for the deaths and destruction of 16 November 2006."

Plaintiffs' submissions

[6] The thrust of the plaintiffs' objections to the fair comment defence are summarised in the following passage from counsel's written submissions:

"2.3 Mr Senituli is the Press Secretary for the office of the Prime Minister of the Kingdom of Tonga. He is by trade a professional wordsmith, and should know better than most, the importance of the use of words. He, of all people, should know the difference between expressing an opinion and an assertion of fact.

2.4 The language he has chosen to use here does not frame his comments as opinion, but rather as simple assertions of fact. Mr Senituli is not quoted as saying, "In my opinion, Mr Uata, Mr Edwards and Ms 'Amanaki must bear the responsibility for the events of November 16 because . . . " or "based on the information made available to me at this time, and subject to further investigation and verification, it is my belief that the certain factions of the People's Committee for Political Reform were the root cause of the problem . . .".

No. Rather, Mr Senituli makes bold and unfounded assertions such as, "the members of the People's Committee for Political Reform must bear the full responsibility for the violence and deaths of November 16", and he specifically names Dr. Tu'i Uata, Clive Edwards and Mele 'Amanaki as the principal instigators, labelling them "extremists", based simply upon the false accusation that they opposed the formation of a tripartite committee that had been proposed by government to continue the "talanoa" discussions started by the National Committee for Political Reform.

All of this is presented as matters of fact not as opinion or conjectures, or being subject to caveat or verification of any kind."

Defendants' submissions

[7] Through their respective counsel, the first and second defendants submitted that the passages complained of have to be read in the context of the article as a whole. They claim that the facts upon which the comments were based are set out in paragraphs [16] to [41] of the article and that they were already well known in the public domain. It was submitted that the article describes the chronology of events leading up to the riots that occurred in Nuku'alofa on 16 November 2006 and that the opinions expressed in the article were based upon those facts.

[8] In response to the plaintiff's allegation that the statements are framed as assertions of fact rather than comment or opinion, Mr Radich accepted that the phrases "in my opinion" or "it is my belief that" were not used but he submitted that such terminology is not determinative of the issue because "a statement can constitute, and can be understood as constituting, the opinion or comment of a person, without expressing itself in that way." Counsel carefully analysed the wording of the statements complained of, highlighting words such as "disputed", "blamed" and "labelled" and other particular passages, submitting in summary that each of the statements complained of is recognisable as a comment or expression of opinion. "In any event", Mr Radich concluded, "the defence of fair comment cannot be said to be so clearly untenable that it cannot possibly succeed."

Fair comment

[9] The legal significance of the defence of fair comment is summed up in Gatley on Libel and Slander 10th edition. Citing relevant authorities, the learned authors state (para 12.1):

"It is a defence to an action of libel or slander that the words complained of are fair comment on a matter of public interest. The right of fair comment is one of the fundamental rights of free speech and writing and it is of vital importance to the rule of law on which we depend for our personal freedom. The right is a bulwark of free speech."

[10] In Slim v Daily Telegraph Ltd [1968] 2 QB 157, 170 Lord Denning M.R. said that:

"The right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements."

[11] The elements of the defence of fair comment are stated in Clerk & Lindsell on Torts (19th edition) at 23-168 as follows:

"The modern authoritative statement of the law of fair comment is to be found in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 where, in the court of Final appeal of Hong Kong Lord Nicholls outlined the history and principles of the defence. The defendant must overcome four hurdles in order to establish the defence:

1. The statement must be comment and not fact.

2. The comment must have a sufficient factual basis (that is, the comment must be based on facts which are themselves sufficiently true).

3. The comment must be objectively "fair"-i.e. it must be an opinion which an honest person could hold. This is an objective test, but should not be confused with reasonableness.

4. The subject matter of the comment must be of public interest.

Where these are surmounted, the defence will succeed unless the claimant proves that the comment was maliciously published."

[12] At paragraph 23-169 of the same text the learned authors state:

"Whether a statement is fact or comment can be a very difficult distinction, particularly because in many publications there is a mixture of both. There is no statutory definition of fact and comment"

[13] It is for the jury to decide whether what has been published is a statement of fact or an expression of opinion. If, however, there is no reasonable doubt that the publication in question is capable of being regarded only as comment or as fact then the trial judge may decide that there is no case or issue to go to the jury. In other words, the court rules whether the words are capable of being regarded as statements of fact or capable of being regarded as comments but it is for the jury to decide which they are. As Gatley states (para 12.7):

"The question whether words are fact or comment is in the first instance for the judge: if he is satisfied that they must fall into one of the categories he should so rule; but if in his opinion reasonable people could take either view he must leave the matter to the jury. If a defamatory allegation is to be defended as fair comment it must be recognisable by the ordinary, reasonable reader as comment and the key to this is whether it is supported by facts, stated or indicated, upon which, as comment, it may be based."

[14] Halsbury, Vol 28, para 134 states:

"Whether the words complained of were reasonably understood as a comment or a statement of fact must depend on their context and is a matter for the jury subject to the judge's direction that they were capable of being so understood."

[15] There is no requirement at law that in order to qualify as "comment" a statement has to follow a particular format or be expressed in a particular way. A comment may even be expressed in the form of a fact provided it is clear that it is based on facts sufficiently indicated or notorious.

[16] Gatley, citing Field J. in the old case of O'Brien v Salisbury (1889) 54 JP 215, states:

"Comment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed, and from which his conclusion can be reasonably inferred. If, although stated as a fact, it is preceded or accompanied by such other facts, and it can be reasonably based upon them, the words may be reasonably regarded as comment, and comment only, and if honest and fair, excusable; and whether it is to be regarded as a fact or comment is a question for the jury, to be determined by them upon all the circumstances of the case."

[17] Clerk & Lindsell (para 23.169) states the position in these terms:

"The defence of fair comment is not limited to pure value judgments. A statement which appears to be factual and which is either true or false, may nevertheless be regarded as a comment where it is apparent that it is an inference drawn from other facts."

Discussion

[18] Counsel for the plaintiff sought to rely on the decision in Templeton v Jones [1984] NZLR 448, where the New Zealand Court of Appeal struck out a defence of fair comment on the ground that the statement sued on, viz, that the defendant despised Jews (which was only one of several allegations made by the plaintiff against the defendant) could not reasonably be understood as comment. Mr Radich submitted that Templeton v Jones is distinguishable from the present case and is not on point. In counsel's words:

"There the defence of fair comment was struck out on the basis that there was no indication that the defendant's statement that "Mr Jones is a man who despises many people . . . [including] jews" was intended to be anything other than a statement of fact and because there was no reference to any facts upon which the purported comment was based ."

[19] I agree with Mr Radich's summation of the Templeton v Jones case. Indeed, the Court of Appeal decision seems to militate against the proposition advanced by Mr Edwards in that the court clearly indicated that had the statement that the defendant despised Jews (on the face of it a statement of fact) been accompanied by an implied reference to well-known supporting facts, then the fair comment defence may have been sustainable. The contention of the defendants in the present case is that statements which, on the face of it, might appear to be statements of fact, are accompanied by supporting facts in the rest of the article.

[20] It is not appropriate in a strikeout application to go into the facts of a case in any more detail than is absolutely necessary and I do not propose to do so. Suffice it to say, in my view, it cannot be said in this case that the defence of fair comment is so clearly untenable that it cannot possibly succeed and that is the test for dealing with a strikeout application. In due course, having heard all the evidence, it will be necessary for me to determine whether the words in the article are reasonably capable of being regarded as comment and, if I so rule, it will then be for the jury to determine whether they are or not.

[21] Finally, I want to refer briefly to the position regarding the third and fourth defendants. Mr Fonua did have a lawyer acting for him early on but he is now acting in his personal capacity. The first and second defendants filed particulars of the facts upon which their respective fair comment defences are based. The particulars filed on behalf of the third and fourth defendants, however, in relation to their fair comment defence relate only to the allegation that the statement related to "legitimate matters of public interest". No attempt was made to particularize the facts upon which the alleged comment was based.

[22] Mr Edwards was critical of the particulars provided by the third and fourth defendants and he correctly described them as "irrelevant to the question" of whether the words in question were comments or assertions of fact. Nevertheless, I do not intend to strike out the fair comment defence relied upon by the third and fourth defendants because, obviously, they come under the same umbrella of legal principles relied upon by the first and second defendants. I will, however, require the third and fourth defendants to file an amended statement of defence within 28 days of the issuance of this Ruling correctly particularising the facts upon which their fair comment defence is based.

[23] Defamation is a notoriously difficult branch of the law, even for lawyers to master. In this case from the third and fourth defendants' perspective there is the added complication referred to in para [5] above that the first defendant is apparently alleging that the article published on the Matangi Tonga website contained additional allegations over what was stated in the paper published by the first defendant. In all the circumstances, I respectfully exhort Mr Fonua to engage a legal practitioner at some stage prior to trial.

Conclusion

[24] For the foregoing reasons, the plaintiff's application to strikeout the defence of fair comment is dismissed. Costs will be costs in the cause.