The book then described the growth of the National Farmers Union as a political force, during the 1990's. In the general election of May 1999, the Labour Party was successful and its leader, Mahendra Chaudhry, the present defendant, became Prime Minister. After noting that Labour, with its coalition partners, achieved an astonishing landslide victory, the book continued (p 183):
"Another incredible feature of the election was the total annihilation of the National Federation Party. Labour had scooped all 19 Indian communal seats."
20 One year later, the Government was toppled in a coup led by Mr George Speight, who claimed he had acted "to protect the rights of the indigenous people of Fiji" and who duly proclaimed himself president: p 190. Mr Chaudhry and members of his Government were kept hostage in Parliament for 56 days.
21 The central passage about which the plaintiff complains concerned the 1977 election, which had resulted in a bickering NFP losing the Prime Ministership: see [18] above. The critical passage read (p 130):
"There is also some basis to the story that Karam Ramrakha and Irene Jai Narayan had informed Ratu George secretly that Koya did not enjoy the support of all NFP parliamentarians. Regrettably, at the hour of his triumph Koya had been stabbed in the back by his own people."
22 The statement undoubtedly has a perjorative flavour. However, the imputation requires, first, identification of the plaintiff as at least an object of denigration; secondly, the attribute which is denigrated must be his loyalty and, thirdly, the degree of denigration must be sufficiently serious to constitute gross disloyalty. Thus, the question for the jury was whether this paragraph conveyed an imputation that Mr Ramrakha had been guilty of "gross disloyalty" in that he secretly "stabbed his leader in the back".
23 Part of the context in which this passage must be read are the two preceding paragraphs, referring to the appointment of Ratu Mara as Prime Minister.
"The Indian community felt cheated. So did Koya. The Governor-General despite powers vested in him by the Constitution giving him discretion in appointing as Prime Minister the person who in his opinion commanded the most support in the House of Representatives, had nonetheless acted dishonourably. He could have had more dialogue on the issue. Many regard this as Fiji's first coup.
In the final analysis, however, Indians and the NFP had only themselves to blame. There appears to be some excuse for the actions of Ratu George. Once again, at a crucial stage in national affairs, NFP was engaged in an internal power struggle. While the nation waited, in an interview with The Fiji Times and Radio Fiji , Jai Ram Reddy claimed that Koya would not be able to function as Prime Minister because he would not have the support of the army and the civil service."
24 The NFP then split into two factions, one, led by Reddy, Ramrakha and Jai Narayan, secured 13 seats in the following election, with Mr Koya's faction managing only three Indian communal seats and he himself losing his seat.
25 In a book of less than 200 pages of text, it is perhaps not surprising that the particular election in 1977 was dealt with in less than two pages. However, the lack of detail in the paragraph complained of leaves open a number of interpretations, which a reasonable jury might accept.
26 First, while it may have been unconventional for the plaintiff and his colleague to inform the Governor-General that Mr Koya did not enjoy support of all NFP parliamentarians and to do so secretly, the fact that the party was "racked by controversy" over who should become Prime Minister, appears not to have been a well-contained secret. To say that the statement conveyed an imputation of disloyalty requires (as noted below) identification of the beneficiary of the obligation of loyalty. But in any case, to breach confidence (if that happened) would not necessarily be to act disloyally. It is not clear that some principle of confidentiality, owed to the party, required silence as to the existence of factional disputes. Indeed the existence of those disputes appears to have been public knowledge.
27 Secondly, the imputation as pleaded is curiously silent as to the person, body or entity to whom the plaintiff owed a duty of loyalty. The inference may be drawn, from the fact that the capacity in which the plaintiff was alleged to be guilty of gross disloyalty, was "as a parliamentary member of Fiji's National Federation Party" that the duty was owed to the party. But it was not the party which was said to have been "stabbed in the back", but Mr Koya. Mr Koya appears to have been the acknowledged leader of the party going into the elections, but the fact that the NFP spent four days deliberating as to who should be Prime Minister suggests that his position as leader thereafter depended on the vote of the newly elected parliamentary members.
28 The jury was not required to assume that any duty of loyalty was owed to the person who led the party into the election. If the duty of loyalty was owed to the new leader, once elected, then it would have been necessary to show that the conduct of the plaintiff occurred after the party-room election. None of these matters was pleaded, nor the subject of any evidence, beyond the content of the book itself. Furthermore, in considering the meaning ascribed by the ordinary reader in Australia, the jury were entitled to accept that he or she would take into account the political and cultural background in which the events took place. There may have been nice questions as to whether the reader would think that Fijian culture and political traditions differed from Australian traditions. This might, in the jury's view, have required assessment against the obligations of political loyalty expected in 1977, in a country with less than a decade of self-government and a tradition of rule somewhat foreign to the so-called Westminster system. Whilst these considerations may, of course, be relevant to the characterisation of an imputation as defamatory, they are also relevant to the question whether a particular imputation is conveyed.
29 Thirdly, the concept of "gross disloyalty" carries a connotation of serious moral disapprobation. If there were a real chance that Mr Koya would not have been able to command the support of all of his own party, it would be necessary to determine whether the Governor-General might be told of that fact, before appointing a prime minister, without gross disloyalty.
30 Finally, the imputation relied on by the plaintiff may have required that the paragraph be read in isolation, without reference, for example, to the preceding paragraph. That paragraph, as noted above, commenced with the sentence:
"In the final analysis, however, Indians and the NFP had only themselves to blame."
31 If Mr Koya were stabbed in the back 'by his own people', that statement could readily refer to "Indians and the NFP" more generally, and not to Mr Ramrakha and Ms Jai Narayan alone. Indeed, it would be somewhat curious if the writer had intended to exclude from this criticism Mr Jai Ram Reddy, who had publicly attacked the ability of Mr Koya to govern.
32 Each of these reasons would, in my view, support a finding that the imputation was not conveyed in the terms pleaded. Thus looking only at the publication and the pleading, I would conclude that the jury's decision was reasonably open to it.
33 In the course of argument, counsel noted a tension, which no doubt emerges in varying degrees in the pleadings of most defamation cases. On the one hand, the plaintiff will wish to plead as serious an imputation as the publication will sustain, in order to maximise his or her potential damages. On the other hand, to set one's imputation at too high a level, without an appropriate back-up imputation, may be to risk losing the case. Counsel for the Respondent in the present appeal suggested that that might have happened. He also contended that the jury may have thought that the plaintiff's imputation was a strained or forced reading of the material in the book. On the other hand, counsel for the Appellant argued that the defendant at trial had virtually conceded that imputation (a) arose, as pleaded.
34 In seeking to explore these lines of argument, the Court was taken to the transcript of submissions made before the jury. These submissions were, it was suggested, of assistance. Reference was made to the comment of McColl JA (Mason P and Beazley JA agreeing) in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [109] to the following effect:
"As the issue to be determined is whether the jury's finding was one which a reasonable jury could have reached, in my view, an appeal court's inquiry should be directed to resolving that issue by considering the parties' addresses to the jury as well as the trial judge's summing up."
35 Reliance was also placed on comments made in this Court in Sonda v Signorelli [2004] NSWCA 134 at [29] (Beazley JA, Santow JA and Howie J agreeing).
36 There may be cases in which a perusal of submissions made to a jury will assist in understanding how a jury reached a particular conclusion. Alternatively, the manner in which a case is left to the jury may demonstrate a departure from the pleadings, by way of concession, which the other party relied upon. If the jury had, in such a case, adopted a position which was open on the pleadings, but not on the concession, the party relying on the concession might be able to establish that it had not had a fair trial. But it cannot be correct to require, as was suggested in the present case, that this Court's inquiry as to whether the jury's finding was one which was open to a reasonable jury, should be directed to resolving that issue by reference to the parties' addresses to the jury as well as the trial judge's summing up.
37 The question in the present case must be determined by considering the passage in the book which was said by the plaintiff to give rise to the relevant imputation, read in its context, and by asking whether a reasonable jury could be satisfied that the imputation was not conveyed. It is unnecessary, and usually inappropriate, to speculate as to how the jury may have understood counsels' submissions. That is because it would have been open to the jury to disregard counsels' submissions. The question is whether the conclusion reached was open to them. As noted above, there were ways of reading this paragraph in its context which did not involve an imputation of "gross disloyalty". Neither the nature of the finding, nor any extraneous material, demonstrates that the jury was misled, whether consciously or unconsciously, to depart from their statutory function.
38 In my opinion, the appeal should be dismissed with costs.
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