BETWEEN:
Mr. KALFAU MOLI
of Port-Vila, in the Republic of Vanuatu
Plaintiff
AND:
Mr. BOB HESTON
of Port-Vila in the Republic of Vanuatu
Defendant
Coram: Chief Justice
Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Counsels: Mr. Saling
Stephens for the appellant
Mr. John Malcolm for the respondent
Hearing date: 23 April
2001
Judgment date: 27 April 2001
JUDGMENT
This is an appeal from the judgment entered
against Kalfau Moli for a total of VT8 million on the 27th
September 2000 in the Supreme Court sitting in Port-Vila. The appellant is
the owner/publisher and editor of a newspaper
called �the Nasara� which
is distributed in Vanuatu.
On the 23rd February 2000, on its
front page it carried a sensational story about a meeting which had taken
place the previous weekend
where family members have been complaining about
the Master of a Company who had been sleeping around with female staff. The
article did not name the man or the Company but the story, (which was the
predominant headline and shaded,) included a
photograph which clearly was of
TAVA FARM.
The story outlined reports which have been
collected by the newspaper and which in the ordinary and natural meaning of
the
words indicated:
(a)
that
a white man master was sleeping with female employees;
(b)
that
unconventional sexual practices were occurring;
(c)
that
he was breaking up marriages;
(d)
generally
he was misbehaving.
The allegations are serious and if untruthful
and without foundation were a gross and unjustifiable slur on an innocent
man.
Although the respondent is not named, there is
clear and unequivocal connection established on the basis of the available
evidence. The Judge was satisfied that the article related only to the
respondent. That finding is not challenged.
The respondent immediately retaliated with
vigour and determination.
His solicitor wrote a letter to the appellant
noting that the respondent contended that the article referred to him and
alleging it was a clear and serious defamation. He indicated that the
allegations were totally denied and the lawyer said it
was the most
scandalous defamatory assertion he had ever seen printed in Vanuatu.
The lawyer continued that he doubted that any
retraction or apology could mitigate the damage caused to his client�s
reputation.
He advised that he was instructed to sue the Editor, the
newspaper and its owners for a sum in the vicinity of VT100 million.
The
evidence suggests that there was no response to his letter.
Two days later Mr. Heston cooperated in the
creation of an article which was published on the 26th February
in a competitive Vanuatu paper �the Trading Post�. In this the
respondent in his own defence re-iterated his innocence,
refuted the various
allegations made speculated as to how the story may have come about and
indicated that he would be
taking Nasara to Court for a VT150 million Vatu.
Although no credit is due to the appellant for this, such publication did
provide that some balance immediately arose.
The Writ was issued on the 28th
February 2000. It was issued against not only the present appellant as
editor but also against him and another as the owners
and publishers of the
Nasara.
The statement of claim pleaded the article
(which had been printed in Bislama) in total. It assented that the natural
and
ordinary meaning of the article related to Mr. Heston and resulted in
the defamation of the plaintiff who had been injured in
his-
(a)
Personal
and professional reputation; and
(b)
Had
been brought into ridicule, contempt and public odium.
It was alleged that the article was published
out of ill-will and for economic advantage. It was further said that the
defendant
had acted in a calculating manner in contemptuous disregard of the
plaintiff�s position and that as a result the plaintiff had
suffered
general and aggravated damages.
The proceedings further alleged the publication
was with flagrant and contemptuous disregard of the plaintiff�s right and
reputation and in the circumstances deserved the imposition of exemplary
damages.
The plaintiff claimed 50 million Vatu general
damages, 50 million Vatu aggravated damages and 50 million Vatu exemplary
damages.
There was available to the Supreme Court an
affidavit of Patterson Revo of Port-Vila clerk testifying that he had served
personally the proceeding on both the defendants on 1st March
2000.
No action was taken by the defendants within 14
days as required by the Writ.
A request was made for judgment by default. On
11th April at 9.15am, judgment as to liability was entered, for
damages thereafter to be assessed.
There was a further hearing on 23rd June 2000.
There was no appearance of the present appellant. Mr. Heston requested a
date for hearing on the issue of damages. The Court set the 12th
July at 8.30am and indicated that Mr. Moli was to be notified of that
hearing date.
At the hearing on 12th July, there
was no appearance by either of the defendants. The Court heard submissions
on the issue of damages from Mr.
Malcolm, counsel for Mr. Heston. The Judge
adjourned the matter to the 3rd August and required that the
defendants be advised of that date.
At the hearing of 3rd August Mr.
Sugden represented Mr. Moli. Questions were raised as to service and whether
the judgment should be set aside.
Also issues arose as to what should be
done in respect of each defendant. The matter was further adjourned to the
21st August with the Court requiring any applications to be filed
by the 18th August by the defendants.
On the 25th August, (steps having
been taken), the Court set a timetable and determined that on 21-24 November
2000 there would be
a trial for the first defendant on the issue of
liability and for the assessment of damages with regard to Mr. Moli. The
timetable was full and complete and such as was necessary to have that
matter ready for hearing on the allocated date.
There was a further hearing on the 27th
September involving only Mr. Moli and Mr. Heston. The Judge�s record of
that hearing is as follows:
�Hearing of 27th September 2000
Mr. Malcolm for the plaintiff
The defendant Kalfau Moli in person
Malcolm Deft offers apology, retraction.
Wishes to take no further part.
Moli I have officially offered apology and retraction.
This is to be printed. I will carry it on front page.
Malcolm Deft agreed to let me draft it. He will
publish.
Ct. Which page and by when
Moli I will carry it on the front page, before 8th
October.
Malcolm Would like judgment to issue
Ct.
Anything further deft wishes to say. First case of this type, no previous
cases/figure to use.
Moli Agree judgment should issue. Sugden wrote a letter
saying he would no longer act. Requested money + placed me in difficult
position. I will offer anything. Learnt a lesson from this. Seen Malcolm and
discussed this.
M+M Happy for judgment to be sent out by post
Ct. Will within week
Moli Wish to say not neglecting Ct. Notices were served
late. Nothing else to say.
Ct. Spoken to Sheriff re. Late service. P+P costs.
Judgment to go by hand to defts� office.�
The
judgment under appeal follows from that hearing. It sets out the background
to the matter and refers to the affidavits
which were filed. It considers
the law which is applicable in a case such as this and it noted that there
has been an apology
although made late in the day. It noted the evidence of
the effect on the respondent of the wrong done to him.
The
primary Judge summarised the legal position in this way:
�The purposes of an award of damages for defamation
are �
(i)
consolation for the distress;
(ii)
reparation for the harm done to reputation;
(iii)
vindication of the plaintiff�s reputation.
The total award must achieve all these purposes.�
There is no challenge to this or any other
aspect of the legal analysis of the Judge.
The judgement records the effect of this
publication on others closely associated with the respondent and their
responses.
It noted that there was not a shred of evidence to show that the
suggestions were true in the slightest detail. It noted how
easy it is for
such allegations to be made which are difficult to refute with the constant
problem of people believing
that �there is no smoke without fire�.
It was noted that the article which had been on
the front page, highlighted by shading and would immediately be seen by
people in a shop just by being on the counter even if they did not actually
buy the newspaper. The Judge noted that the Court
did not have any evidence
of circulation or distribution figures for the newspaper Nasara, which
clearly, should have been
provided to the Court.
A matter of importance is that the initial
article having referred to female employees at the business at Tava Farm,
one
of them wrote a letter to the Editor signed by all in which they refuted
the suggestion. This letter was never printed and did
not receive any
acknowledgement from the appellant.
The Judge later noted that there was no evidence
to suggest that there has been any attempt made to check the story or ask
for information from those involved before publication. The Judge found that
this was not a case which involved innuendo
or implications as the
allegations were clear and unambiguously direct.
He found that there were no mitigating factors
apart from the fact that the appellant had not sought to defend on any false
basis or run up extra legal costs.
Finally the Judge considered the concept of
punitive damages which are available for particularly reprehensible conduct
to teach a wrong doer that such torts do not pay. It is an award which is
made where the compensation will otherwise be insufficient
to adequately
punish the defendant. In his view this can be appropriate when a wrong doer
knowingly or recklessly publishes
defamatory matter with a view to
increasing sales or ratings. The Judge found that in the absence of any
other explanation
such conclusion be drawn here.
He turned to the question of appropriate figures
and noted that this was the first case that there has been an award of
damages for defamation in Vanuatu. He noted that awards in comparable cases
in countries like Australia, New Zealand and elsewhere
has to be considered
as against the particular social, economic and community situation which
exist in this Republic. He
noted the criticism which have been made of the
level of damages awards generally and the concerns in other country when
awards of damage for defamation are compared with damages for other forms of
civil wrong.
The judgment then said:
�A figure of VT1 million is clearly inadequate. The
figure of VT10 million is probably excessive. A figure for each of the heads
of damages can be narrowed by this method.
In my judgment the figures for damages should be as
follows:-
Compensation
damages &nbbsp; &nsp; &nbbp;&nnbp;&
VT5 million
Aggravating damages p;&nssp; p; &nbp; &nbp; ;&nbpp; &n sp;
VT7 miT7 million
