RAMRAKHA v CHAUDHRY [2006] NSWCA 42

New South Wales Court of Appeal

CITATION: RAMRAKHA v CHAUDHRY [2006] NSWCA 42

HEARING DATE(S): 27 February 2006

JUDGMENT DATE: 10 March 2006

JUDGMENT OF: Giles JA at 1; Ipp JA at 10; Basten JA at 11

DECISION: Appeal dismissed with costs.

CATCHWORDS: DEFAMATION - jury did not accept an imputation was conveyed - whether jury's finding was one that no reasonable jury could reach - jury's decision was reasonably open to it.

LEGISLATION CITED: Defamation Act 1974 (NSW), s7A

Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 CASES CITED: Gorman v Barber (2004) 61 NSWLR 543 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Sonda v Signorelli [2004] NSWCA 134

Karam Chand Ramrakha - Appellant PARTIES: Mahendra Chaudhry - First Respondent National Farmers Union - Second Respondent

FILE NUMBER(S): CA 40465/05

COUNSEL: Mr S. M. Littlemore QC/Mr M. K. Rollinson - Appellant Mr T.D.F. Hughes - Respondents

SOLICITORS: Ramrakha Jenkins, Sydney - Appellant Harish Prasad & Associates, Parramatta - Respondents

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20309/04

LOWER COURT JUDICIAL OFFICER: Patten AJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40465/05 SC 20309/04

GILES JA IPP JA BASTEN JA

10 March 2006 KARAM CHAND RAMRAKHA v MAHENDRA CHAUDHRY & ANOR Judgment 1 GILES JA: The reasons of Basten JA, which I have had the advantage of reading in draft, describe the question raised on the appeal, and set out from the book the critical passage at p 130 and other passages material to whether it was open to the jury to reject imputation (a). To those passages may be added the discussion at pp 100-109 of the passing through Parliament in August-October 1976, about a year prior to the 1977 election, of a Bill concerned with land tenure. 2 The book says at p 108 that the NFP was divided, and that a deferment in consideration of the Bill "allowed the rift within the NFP time to solidify into two bitter factions". Mr Koya and a number of others were named as members of one faction, and Mr Ramrakha and others were named as members of the other faction. It was said - "The split rocked the Indian community as both sides became vociferous in their opposition to each other. Meetings were held throughout the cane belt by both factions seeking farmers' support. The issue provided further fodder to K C Ramrakha's ambition to wrest the leadership from Koya and he mounted a challenge in the weeks and months that ensued. 3 Also at p 108 the book told of a call on Mr Koya to resign as party leader and his response, followed by - "Two days later K C Ramrakha came lashing back at Koya claiming he was 'completely disillusioned' with the leader and expressing no confidence in him". 4 Ultimately the Bill was passed, and it was said at p 109 - "The controversy over ALTA drove a deep and irrevocable rift within the National Federation Party, splitting it into what later became the Dove and the Flower factions. Although time and again after this, the party was to present a united front, the veneer was too thin to last, so rancorous had been the scars created." 5 This part of the book was taken up in the passage at pp 128-9 set out in part by his Honour in his [18], although that is not included in his Honour's extract. It is useful, in my view, to see the passages set out by his Honour, including the critical passage, more fully and as set out in the book - "NFP had secured the support of Ratu Osea giving it a slight three seat majority in the house. The results had taken NFP by surprise … it had gone to the polls without any intention of running the country. It was probably now assailed by self-doubts about its ability to run the country or perhaps was dismayed by governing with such a slender majority. Whatever the reason, it first approached Mara for a coalition which he turned down. Instead of letting the leader accept the position of Prime Minister and taking it up from there, NFP bickered amongst itself. As a tense nation waited breathlessly for four days, the NFP shut itself in the Opposition office wracked by controversy from within as to who should become prime minister. The split which had rocked NFP at the ALTA debate just a year before had been plastered over for the elections. It now cracked threatening to spill over into a national crisis. As NFP bickered, it lost the initiative and the plot. Four days later when S M Koya finally arrived at Government House to be sworn in as Prime Minister by Governor General Ratu George Cakobau, he was informed that the job had already been given to Ratu Mara. Fiji Times editor Vijendra Kumar, noting history in the making, had already put out a special afternoon edition of the paper hailing Koya as Fiji's new Prime Minister. When news of the debacle at Government House reached The Fiji Times, it had to hastily recall the special edition many of which by then had been devoured by the public. 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. 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. Many lay Indians became disillusioned with the party … this was the beginning of the end for the National Federation Party, doomed by its own internecine warfare. So strong, however, was the grip that the NFP had on the Indian psyche that it took close to two decades for it to be completely unseated as the 'saviour' of the Indian community. The party thereafter split into the Dove and Flower factions. … " 6 In my opinion, a reasonable jury could take the view that it was not disloyal, let alone grossly disloyal, for Mr Ramrakha (and Irene Jai Narayan, who had been named as a member of the faction of which Mr Ramrakha was a member) to inform Ratu Mara, secretly or otherwise, that Mr Koya did not enjoy the support of all NFP parliamentarians, and that the adverse connotation which might otherwise have come from the words "stabbed in the back by his own people" was not that of disloyalty. 7 There was a split within the NFP. Mr Ramrakha and Mr Koya were in bitterly opposed factions, and Mr Ramrakha had expressed complete disillusionment with Mr Koya and said that he had no confidence in him. He had challenged Mr Koya for the leadership. When surprised by its success at the 1977 polls, the NFP "bickered amongst itself", was "wracked by controversy from within as to whom should become prime minister" and was "engaged in an internal power struggle". This was linked with the split from the previous year, which had been "plastered over for the elections" and "now cracked". Jai Ram Reddy, who had also been named as a member of the faction of which Mr Ramrakha was a member, also proclaimed in public that Mr Koya would not be able to function as prime minister because he would not have the support of the army and the civil service. 8 In these circumstances, the jury could reasonably have come to the view that there was no disloyalty, certainly not gross disloyalty, if Mr Ramrakha told Ratu Mara that Mr Koya did not enjoy the support of all NFP parliamentarians, and that imputation (a), or an imputation not substantially different from it, was not conveyed by the book. 9 As to regard to the transcript of submissions made before the jury, I agree with that Basten JA has said. I agree that the appeal should be dismissed with costs. 10 IPP JA: I agree with Giles JA and Basten JA. 11 BASTEN JA: In 2004, the Fijian National Farmers Union published a book recounting the history of Indians brought as indentured labourers to Fiji, "Children of the Indus 1879-2004". The plaintiff in these proceedings, Mr Karam Chand Ramrakha alleged that the book contained a number of statements which were defamatory of him. The first defendant, Mr Mahendra Chaudhry, was the general secretary of the National Farmers Union in 2004 and wrote a foreword to the book. 12 Pursuant to s 7A of the Defamation Act 1974 (NSW) a jury was asked to determine whether the defendants published the book and whether material in the book conveyed the imputations which were said to be defamatory of the plaintiff. The jury answered questions with respect to publication favourably to the plaintiff; however, it found that none of the imputations raised by the plaintiff was conveyed by the book. It did not reach questions as to whether the imputations were defamatory of him. 13 The question left to the jury with respect to the imputations read as follows: "2. Has the plaintiff established that the matter complained of, published in the book 'Children of the Indus', conveyed of him to the ordinary reasonable reader the following imputations (or imputations not substantially different from them)? (a) That, as a parliamentary member of Fiji's National Federation Party, he was guilty of gross disloyalty in that he stabbed his leader in the back. (b) That, as a parliamentary member of Fiji'$ [sic] National Federation Party, he secretly conspired with Irene Jai Narayan to prevent the leader of his party being appointed Prime Minister, and did it because he wished to take the party's leadership for himself. (c) That, as a parliamentary member of Fiji's National Federation Party, he cheated his own party's leader out of the Prime Ministership." 14 The negative answers given by the jury in relation to imputations (b) and (c) have not been the subject of challenge in these proceedings. The only question raised on the appeal is whether it was open to the jury to reject imputation (a). As the parties to the present appeal accepted, the jury's finding may only be overturned if it is one that no reasonable jury could reach: See John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [185] (Callinan J) and Gorman v Barber (2004) 61 NSWLR 543 at [9] and [26] (Mason P). 15 The plaintiff's complaint ultimately centred on one paragraph of the book; however, to understand that paragraph, it is necessary to give a little of the historical context in which the paragraph appears as set out in the book. 16 As the book explains, by the time Fiji obtained independence from British rule in 1970, a major political division existed between the Indian and Fijian communities. A second source of political organisation was centred on the struggle by cane growers demanding an increase in the prices paid by the Colonial Sugar Refining Company or its subsidiary. As the book stated (p 121): "The National Federation Party had its roots in sugar politics." 17 However, there appear to have been divisions within the National Federal Party ("the NFP"), through much of its history. Its principal concerns, in addition to sugar, involved problems with land tenure, particularly for Indian tenant farmers. In October 1969, the year before independence, Mr S. M. Koya took over leadership of the NFP. 18 In the early 1970's, the Government was led by the leader of the Fijian Alliance Party, Chief Minister Ratu Sir Kamisese Mara. In 1977 the country went to the polls against a background of racial tension, arising in part from a view held by the Indian community that Ratu Mara had refused to honour an agreement to abide by the recommendations of the Royal Commission on Fiji's electoral system. Because of a division in the Fijian communal vote, the NFP secured 26 seats in the 52 member House of Representatives, and obtained the support of an independent member, giving it a small absolute majority. The book stated (pp 128-9): "The results had taken NFP by surprise … it had gone to the polls without any intention of running the country. It was probably now assailed by self-doubts about its ability to run the country or perhaps was dismayed by governing with such a slender majority. Whatever the reason, it first approached Mara for a coalition which he turned down. Instead of letting the leader accept the position of Prime Minister and taking it up from there, NFP bickered among itself. As a tense nation waited breathlessly for four days, the NFP shut itself in the Opposition office racked by controversy from within as to who should become Prime Minister. … As NFP bickered, it lost the initiative and the plot. Four days later when S.M. Koya finally arrived at Government House to be sworn in as Prime Minister by Governor-General Ratu George Cakobau, he was informed that the job had already been given to Ratu Mara." 19 According to the book, disillusionment with the NFP grew over the ensuing years. The book stated (p 135): "By 1985 the stage was set for the advent of the Fiji Labour Party onto Fiji's political arena. The NFP was in tatters and had virtually stopped functioning as an effective opposition."