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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
CIVIL CASE No. 149
of
2003
BETWEEN:
Mr.
MARC NEIL JONES
First
Plaintiff
AND:
DAILY
POST NEWSPAPER
Second
Claimant
AND:
CHRISTOPHE
EMELEE
Respondent
Mr. Juris Ozols for the
claimants
Mr. Felix Laumae for the
Respondent
Date of hearing: 16
September 2003
Date of judgment: 25
September 2003
JUDGMENT
Before me is a claim for
judicial review dated and filed on 10 September 2003. The first claimant is Mr.
Marc Neil Jones of Port-Vila,
Vanuatu, the publisher and part owner of the
second claimant, Daily Post Newspaper. The respondent is, Mr. Christopher
Emelee, of
Port-Vila, Chairman of the Board of Vanuatu Maritime Authority
(V.M.A.).
The claimants claim a
quashing Order that the Orders made by the learned Magistrate Boe in Civil Case
No. 189 of 2003 restraining
the first and second defendants from publishing
various items made on the
8th
day of September 2003 be
quashed.
The grounds of the claim
are contained in the claim.
The
claimants relied on a sworn statement of the first claimant dated 10 September
2003 filed before the Magistrate’s Court
in CC 189 of 2003 in support of
the claim. The claimants applied for the Court to hear the claim on the basis of
urgency.
This claim for judicial
review is issued on the basis of the Civil Procedure Rules 2002 – Part
17.
On 10 September 2003, upon
hearing both counsels and upon reading the first claimant’s statement, the
Court made interlocutory
Orders to the following effect:
“1. There is urgency to deal and hear the application for judicial review in CC 149 of 2003 and as such the time requirements set under the rules are abridged.
2. The respondent’s application dated 9 September 2003 and the Orders issued by the Magistrate’s Court on 8 September 2003 in Civil Case No. 189 of 2003 are now stayed pending the final determination of this case.
3. The respondent shall file and serve his defence and sworn statements in support by 15 September 2003 before 4.30PM o’clock.
4. The first and second claimants undertake not to publish any articles in relation to Civil Case No. 139 of 2003 until the hearing and determination of this case.
5. The application for judicial review is listed for hearing on Tuesday 16 September 2003 at 4.00PM o’clock in the afternoon.
6. Liberty to apply within 48 hours notice.
7. The costs are reserved.”
The
respondent filed his response to the claim on 15 September 2003 and applied for
the claim to be struck out on the grounds as set
out in his
response/defence.
The respondent
relied on his sworn statement dated 5 September 2003 filed before the
Magistrate’s Court in CC 189 of 2003 in
support of his defence.
The claim for judicial review
arises out of a series of restraining Orders issued by the Magistrate’s
Court on 8 September 2003.
Those Orders are set out below:
“1. That first and second respondents forthwith restrained from publishing in their newspaper any news and letters on matters, action and decision taken collectively by applicant as Chairman of the Board of Vanuatu Maritime Authority and his members which are now under investigation and pending before the Court.
2. That first and second respondents be restrained from publishing any insulting news and letters aiming at attacking the family life and any other news aimed at attacking the applicant.
3. Any breach of the terms of these Orders by the first and second respondents would be a contempt of Court.
4. Police be serve with the copy of this Order fro enforcement.
5. Cost in the cause.”
Before
the learned Magistrate made Orders of 8 September 2003 which are now challenged,
the following events occurred:
• On 26 June 2003, the respondent, Mr. Christophe Emelee filed a Supreme Court claim in CC 104 of 2003 against the first and second claimants in the present case seeking, among other relief, damages for libel and order restraining the defendants/claimants in the present case to further publish items directly or otherwise defaming the personal character of the claimants relating to the affairs of VMA.
• On 29 August 2003, Mr. Felix Laumae acting on behalf of the respondent, Mr. Christophe Emelee, filed another Supreme Court Claim in Civil Case No. 139 of 2003 against the Daily Post Newspaper, (as defendant) and seeks for damages for libel and Order that the defendant be restrained from further making unbalance report on VMA issues.
• On 4 September 2003, Mr. Ozols filed an application seeking for restraining Orders against the respondent’s wife and members of his family who assaulted Mr. Mark Neil Jones on that date. Injunctive Orders were issued by the Magistrate’s Court on 10 September 2003 to this effect to prevent further violence. Those Orders are not challenged.
• On 5 September 2003, Mr. Laumae filed an urgent application with statements in support before the Magistrate’s Court on behalf of the respondent seeking for the injunctive Orders which were granted by the learned Magistrate on 8 September 2003 and now challenged for judicial review before this Court.
It
is common ground that on 8 September 2003 no substantive claim was filed by the
claimant (Mr. C. Emelee) before the Magistrate’s
Court. It is also common
ground that the learned Magistrate issued the restraining Orders of 8 September
2003 on the basis of the
claim(s) filed and pending before the Supreme Court in
CC 104 of 2003 and CC 139 of 2003 and pending case management conference
hearing.
I now turn to the grounds
of the claim. The claimants challenge the Magistrate’s Court Orders of 8
September 2003 on six (6)
grounds. I will deal with each of them in
turn.
The first
ground
The claimants say that in
so far as the Supreme Court has jurisdiction over Civil Case No. 139 of 2003,
the Magistrate erred in making
interlocutory Orders in respect of the matters
arising from that Supreme Court
proceedings.
It is contended on
behalf of the respondent that the Magistrate is right in granting the
restraining Orders. It is also said that
the Magistrate has jurisdiction to give
Orders to maintain the status quo between the parties whether the matter is
pending before
the Supreme Court or the Magistrate’s Court. There is
likely that violence will occur if action complained of is not stopped.
It is
further argued on behalf of the respondent that the rule does not say that when
a matter is before the Supreme Court one has
to apply for interlocutory Orders
in the Supreme Court.
The
contentions advanced on behalf of the respondent are baseless and reflect the
respondent’s counsel wrongful apprehension
of the
law.
An injunction (be it of
interim, interlocutory or permanent nature) is not a cause of action (like a
tort or a breach of contract)
but a remedy (like damages). The overriding
requirement is that an applicant must have a cause of action in law entitling
him to
substantive relief. The rule, thus, is that an injunction must be
ancillary to a substantive cause of
action.
All Courts (including
Magistrate’s Courts) have jurisdiction to grant injunction but must be
within their respective jurisdiction
and as ancillary to substantive relief. An
interlocutory injunction must be ancillary to a substantive claim made in the
action.
A court must refuse to hear a claim for injunction which has no
jurisdiction to grant even if the defendant does not take any objection
himself.
In the present case,
there was no substantive claim filed before the Magistrate’s Court nor a
case about to be filed before
the Magistrate’s Court warranting the
learned Magistrate to grant the interlocutory injunctive relief on 8 September
2003.
The only matters referred by
the respondent’s counsel before the Magistrate was the Supreme Court Civil
Case No. 139 of 2003.
The
claimants are correct, the learned Magistrate is not entitled to exercise the
jurisdiction of the Supreme
Court.
The Magistrate has no
jurisdiction to issue interlocutory Orders on substantive claim that are pending
before the Supreme Court. The
first ground of the claim
stands.
The
second ground
In the second
ground, the claimants say that if the Magistrate understood himself to be making
an interlocutory Order before a proceeding
is started pursuant to Order 7.5 of
the Civil Procedure Rules, the Magistrate erred in fact and in law and that the
documents before
the Court failed to show that the applicant had any serious
question to be tried or that he would be seriously disadvantaged if the
Order
was not granted. It is also said the Magistrate further misdirected himself by
finding to order Mr. Emelee to file any substantive
claim in proceedings CC No.
189 of 2003.
The respondent denied
the second ground of the claim and contended that the balance of convenience
lies in favour of granting the
interlocutory Orders.
On 8 September 2003, there was no
substantive claim filed before the Magistrate’s
Court.
Rule 7.5 of the Civil
Procedure Rules 2002 provide as follows:
“Application for interlocutory order before a proceeding is started
7.5 (1) A person may apply for an interlocutory order before a proceeding has started if:
(a) the applicant has a serious question to be tried; and
(b) the applicant would be seriously disadvantaged if the order is not granted.
(2) The application must:
(a) set out the substance of the applicant’s claim; and
(b) have a brief statement of the evidence on which the applicant will rely; and
(c) set out the reasons why the applicant would be disadvantaged if the order is not made; and
(d) have with it a sworn statement in support of the application.
(3) The court may make the order if it is satisfied that:
(a) the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed; and
(b) the applicant would be seriously disadvantaged if the order is not made.
(4) When making the order, the court may also order that the applicant file a claim by the time stated in the order.”
On
the face of the Orders of 8 September 2003, the learned Magistrate failed to
order Mr. Emelee to file any substantive claim in
the Magistrate’s Court
Civil Case No.189 of 2003, when the interlocutory Orders were granted. The
Magistrate failed to satisfy
himself that there was a serious question to be
tried on the strength of the documents of the then applicant/now respondent in
this
case. The balance of convenience can be of use only if the Magistrate
applied his mind on whether there is an arguable case to be
tried and if he is
not satisfied whether there is adequacy for damages, and if he is not so
satisfied, then, he can consider the
balance of convenience. The approach of the
Courts to interlocutory applications inter partes for prohibitory injunctions is
laid
down in the case of
American Cyanamid Co
v Ethicon Ltd (1975) A.C. 396, which is
adopted and applied by Vanuatu Courts in various cases. For the present purpose,
the claimants are correct
and the ground two of the claim must
stand.
The
third ground
On the third ground
of the claim, the claimants say that the Magistrate erred in making orders which
neither enforce any legal right
that the claimant might be able to assert in
Court nor does it identify any apprehended breach of the law that the Courts
might otherwise
have a legitimate interest in seeking to
prevent.
The respondent says the
Court has right to step in to stop and enforce the rights under the law and
Constitution.
Again whatever the
value of the submission of the respondent under ground 3, it is baseless. There
is no cause of action to substantiate
the injunctive relief sought and granted
on 8 September 2003 before the Magistrate’s Court. The claimants are
correct to say
that the Magistrate erred in making Orders which neither enforce
any legal right that the claimant might be able to assert in Court
nor does it
identify any apprehended breach of the law that the Courts might otherwise have
a legitimate interest in seeking to prevent.
Ground 3 of the claim
stands.
The
fourth ground
The fourth ground
of the claim is that the Orders made by the Magistrate are ambiguous and fail to
properly refer to either of the
cases currently before the Supreme Court or give
any effect to ensuring the proper administration of justice in these
cases.
The respondent denied
ground 4 of the claim and says the Orders issued by the Magistrate on 8
September 2003 are clear and are not
ambiguous.
Whatever the view or
position to take, during the hearing, counsel for the respondent acknowledged
the ambiguity of the Magistrate’s
Court of 8 September 2003 when he
suggested that the claimants cannot make reporting on some of the matters under
investigation,
as they are not spelt out clearly in the Orders under challenge.
Further on the face of the Orders, they fail to properly refer to
either of the
cases currently before the Supreme Court. On the face of the Orders, they are
ambiguous. Ground 4 of the claim
stands.
The
fifth ground
The claimants say in
the fifth ground of the claim that the Magistrate, in making Order 2
misapprehended the law in stating that the
second claimant had a duty under the
law to publish both side of a story and had failed to do so in this case thus
justifying an
Order in the terms in which it was
made.
The respondent denied ground
5 of the claim and says that a journalist has a duty to undertake investigative
activity to publish a
balance report to avoid defaming
people.
The submission of the
respondent in ground 5 does not help much. On the face of the Orders of 8
September 2003 under challenge, Order
2 seems to be in the nature of a permanent
injunction restraining the first and second respondents (now claimants in CC 149
of 2003)
from publishing any insulting news and letters aiming at attacking the
family life and any news aimed at attacking the applicant.
If that is what Order
2 is intended to do, then, it is quite wrong in
law.
In defamation actions, the
law is that at the trial of an action for libel, or slander actionable per se,
after the Court on hearing
evidence have found in favour of the claimant, the
Court may grant a perpetual injunction restraining publication of the words
complained
of or any similar matter, provided that there is reason to apprehend
further publication by the
defendant.
In the present case,
there was no substantive claim filed before the Magistrate’s Court on 8
September 2003. There was no trial
hearing in which the learned Magistrate made
findings of facts in favour of the then claimant (now respondent), Mr. Emelee.
It is
wrong for the Magistrate to issue an injunction of permanent nature
against the second respondent (now second claimant) as he did
in Order 2 of the
Orders of 8 September 2003.
There
is no doubt that there is jurisdiction for a Court to grant an interlocutory
injunction to restrain publication of alleged defamatory
matter, whether a libel
or a slander per se, until trial or further
order.
However, because freedom of
speech is so fundamental in any democratic society, like Vanuatu, the attitude
of the Courts must be one
of caution. In effect, even if it is thought that the
publication defames the claimants, there are several defences open to the
defendants
at trial which are capable of defeating the action, and the decision
in any event is one for the Magistrate or Judge as a trier of
fact.
The following is adopted
from the book of David Bean on Injunctions
3rd
Edition, it summarises (at page 47) the position with persuasive authorities for
guidance:
“An interlocutory injunction will be refused in the following circumstances:
(i) if the defendant swears an affidavit indicating an intention to plead justification (Bonnard v. Perryman [1891] 2 Ch 269); this includes cases where the defendant intends to justify the ‘sting’ of the allegations even though he cannot prove the precise facts stated (Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412);
(ii) if the defendant intends to plead fair comment on a matter of public interest (Fraser v. Evans [1969] 1 QB 349 at 360, per Lord Denning MR);
(iii) if the publication is prima facie privileged and (in any case of qualified privilege) there is no ‘absolute overwhelming’ evidence of malice (Quartz Hill case, above; Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 WLR 958; Herbage v Pressdram Ltd [1984] 2 All ER 769);
(iv) If the decision at the hearing may turn upon the question of the general character of the plaintiff (Bonnard v Perryman, above).
In addition, as for a perpetual injunction, there must be reason to apprehend further publication and, if it is required, there must be proof of special damage.
...
The rule in Bonnard v Perryman as to the defence of justification is unaffected by the American Cyanamid case. Freedom of speech is so important that if a person is only saying or repeating what he honestly believes to be true, an interlocutory injunction will not be granted against him (J Trevor & Sons v Solomon (1977) 248 EG 779). The same rule applies to cases of injurious falsehood (‘trade libel’) as the defamation (Bestobell Paints Ltd v. Bigg [1975] FSR 421). It does not apply to cases where the tort alleged is conspiracy to injure the plaintiff’s interests; but where an interlocutory injunction application is made in such a case the court will scrutinize it carefully to ensure that the allegations of conspiracy is not simply an attempt to circumvent the defence of justification in Bonnard v Perryman.... In such a case the public interest in freedom of speech is one of the most important factors to be taken into account....”
The
sixth ground
The claimants say in
ground six of the claim that the Magistrate failed to take account of the
claimants’ constitutional rights
and his orders amount to an infringement
of those rights.
The respondent
denies ground six (6). It is said that the order does not infringe the first and
second defendants’ constitutional
right. The order does not stop the first
and second claimants from
publishing.
As to ground six of
the claim, the claimants fail to specify their particular constitutional rights
infringed and how they are infringed.
Finally the claimants must show how the
granting of the Orders by the learned Magistrate on 8 September 2003 amounted to
an infringement
of their constitutional rights. They fail to do so in the
present case. The last ground of the claim cannot stand and must
fail.
Despite the fact that ground
six of the claim fails the claimants are entitled to the remedy they seek in
their claim.
On the basis of the
above reasons, the Court makes the following Orders:
1. The Orders made by the Magistrate’s Court on 8 September 2003 in Magistrate’s Civil Case No. 189 of 2003 are hereby quashed.
2. The first and second claimants are entitled to costs to be agreed or taxed.
3. The matter in CC 149 of 2003 is listed for costs assessment and enforcement conference on Friday 17 October 2003 at 2.30PM o’clock.
DATED at Port-Vila this 25th day of September 2003
BY THE COURT
Vincent LUNABEK
Chief Justice
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