Nirumalan K Pillay and Others v A Balakrishnan and Others

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 15 May 1997
• Neutral Citation: [1997] SGCA 19
• Docket Number: Civil Appeal No 137 of 1996
• Date: 15 May 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Harry Elias SC and Tan Chee Meng (Harry Elias & Partners)
• Citation: [1997] SGCA 19
• Defendant Counsel: JB Jeyaretnam and Ganesan Krishnan (G Krishnan & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Civil Procedure,Tort,Defence of fair comment,Whether particulars of express malice irrelevant, frivolous or would prejudice or delay the fair trial of the action,Express malice,Defamation,Whether defendant had an indirect or improper motive to attack a third person relevant to question of express malice,Whether proof of express malice of one joint tortfeasor would defeat defence of fair comment of other tortfeasors,Fair comment,Pleadings,Particulars of express malice pleaded in reply to defeat defence

Judgment:

LP THEAN JA

(delivering the judgment of the court):

This is an appeal against the decision of a judge in chambers in which he allowed an appeal against the decision of the senior assistant registrar dismissing an application to strike out, inter alia, two paragraphs of the reply filed by the plaintiffs on the ground that they are irrelevant, frivolous and would prejudice or delay the fair trial of this action. The central issue in this appeal concerns the matters pleaded by the appellants in the reply in support of their plea of express malice alleged to have been entertained by the first three respondents.

2. The events

The first, third, fourth and tenth appellants are advocates and solicitors practising in Singapore. The second appellant is a retired school principal. The fifth, sixth, eighth, ninth and eleventh appellants are education officers, and the seventh appellant is a computer operations officer. All the appellants were members of the organising committee of the 1995 Tamil Language Week that was held from 8 April to 15 April 1995.

3.The third respondent is a political party in Singapore, the Workers` Party. The first and second respondents are members of the party. The party publishes anewsletter, The Hammer , once every two months which is sold to the public. The second respondent is the editor and the fourth respondent the printer of The Hammer .

4.In the issue of The Hammer published in August 1995, there appeared an article in Tamil about the 1995 Tamil Language Week (`the article`) which was written by the first respondent. The appellants complained that certain passages of the article were, in their ordinary and natural meaning, defamatory of them. On 26 December 1995, the appellants commenced the present action against all the respondents claiming damages for libel. They claim against the first respondent as the author, the second respondent as the editor, the third respondent as the publisher and the fourth respondent as the printer of the article, as all of them participated in the publication of the article.

5.In their statement of claim (as subsequently amended), the appellants pleaded, inter alia, the allegedly defamatory passages of the article in Tamil and an English translation thereof, which is as follows:

In the midst of a gathering of vultures determined to ensure that the number of intellectuals do not increase, we are proud to see the sacrificial white doves of the 25 Tamil Organizations mingling in a national mainstream called the Tamil Language Week ...

Although this Tamil Language Week is a drama enacted for written judgment by the government ...

Forty years have passed since Tamil received official recognition according to the Constitution in 1954. Despite that why have the 25 organizations remained tight-lipped and silent instead of proposing a resolution to question as to why Tamil has not been offered as a subject of study in the National University of Singapore. Is this your service to Tamil? You are cheating the Tamils living in Singapore generation after generation. Is this just? The Tamil Language Week you organized also resulted like what Bharathiyar said, `You are a warrior at words (no action).` Besides you gathering and dispersing, what have you achieved? ...

The organisers have told us that many fear that the Tamil language would die in the future. For that, there is no necessity for us to obtain the assurance of ministers who are in power today and who would disappear tomorrow. We are creators of history for achievements! Let us realise and so act that so long as there is one Tamilian, Tamil will not die in Singapore.

We learn that faces which have not been seen amongst Tamilians so far have, with an intention to seek political gains, taken on responsibilities in the Tamil Language Week. If that were true, we ask them not to prostitute nakedly and wander for position, in the name of Tamil.

6.The appellants averred that the above passages in the article referred to them and that in their ordinary and natural meaning were understood to mean that: a. the plaintiffs and each of them are stooges of the government in allowing themselves to be regarded as the sacrificial white doves;

b. the plaintiffs organised the Tamil Language Week in order to obtain and curry favour with the government;

c. the plaintiffs are incompetent, inactive and ineffective in promoting the Tamil language and they are cheats and liars in not fulfilling their duties in the specific cause of promoting the Tamil language;

d. the plaintiffs are nakedly prostituting themselves in order to seek political gain/office rather than serve the cause of the Tamil language.

Alternatively, the appellants pleaded that the words complained of in their context bore the above defamatory meanings by way of innuendo.

7.The first, second and third respondents (`the three respondents`) filed a joint defence. They denied that the article or any part thereof referred to or were capable of referring to the appellants. They also denied that the article or any part thereof in the natural and ordinary meaning bore or was capable of bearing the meanings as alleged by the appellants. In the alternative, the respondents pleaded that the words complained of were a fair comment on a matter of public interest, and particulars of the fair comment were given.

8.In response, the appellants filed a reply, in which they pleaded in para 3 that the three respondents were actuated by express malice when they published the article, and they (the appellants) set out a lengthy list of particulars, as they were required to do under O 78 r 3(3) of the Rules of Supreme Court then in force (now O 78 r 3(3) of the Rules of Court 1996). The appellants also pleaded in para 4 six sub-paragraphs of additional facts or matters in support of the claim for aggravated damages.

9.Following this, the three respondents applied by Summons-in-Chamber No 1602 of 1996 to strike out the statement of claim as disclosing no reasonable cause of action, and, failing that, to strike out paras 3 and 4 of the reply as being irrelevant, frivolous and tending to prejudice or delay a fair trial of the action. The application was heard before a senior assistant registrar, who dismissed it. The respondents appealed to a judge in chambers.

10.The learned judge who heard the appeal refused the application to strike out the statement of claim; but he allowed the application to strike out paras 3 and 4 of the reply. The appellants requested for a hearing of further arguments, and accordingly further arguments were heard. During that hearing, the appellants conceded that para 4 was inept and ought to be sruck out; their further arguments were directed against the application to strike out para 3. The learned judge affirmed his earlier decision and subsequently gave his grounds of judgment (reported in [1997] 1 SLR 322).

11.The learned judge in [para ] 18 of the judgment concluded thus:

I reviewed the reply in the light of the rules of pleading and statements of law outlined above. I found para 3 to be an utterly confused mix of indiscriminatory allegations against all the defendants which will embarrass each of the defendants in one way or another and prejudice the conduct of the defence of each defendant. It sets out at great length allegations of defamatory statements as regards the government and People`s Action Party members of Parliament without relating them to the defamation alleged by the plaintiffs, who do not claim to be members of the government or the People`s Action Party. Further, matters set out do not say who was actuated by malice and the causal connection between the allegation and the defendant. The allegations are too sweeping and remote, rendering impossible a fair trial on the issue of malice. Counsel for plaintiffs during arguments was prepared to concede para 3(e) as being remote but in my view striking out that paragraph alone does not cure the other defects in the reply. Paragraph 3(f) is a mere re-affirmation of what had been stated in the statement of claim which is not a matter for reply. In the circumstances I strike out paras 3 and 4 of the reply on the ground that they are abhorrent to substantive as well as formal rules of pleading.

Against the decision of the learned judge the appellants have now appealed.

12. The appeal

One of the defences raised by the respondents is fair comment on a matter of public interest. This defence can be defeated by proof by the appellants - and the burden is on them - that in publishing the article the respondents were actuated by express or actual malice. Malice in the law of defamation is extremely broad. It is not confined to ill-will or spite entertained by the respondents against the appellants; it means also any improper motive on the part of the respondents in publishing the article.

13. Gatley on Libel and Slander (8th Ed) in para 765 contains the following summary:

` Indirect motive.` Actual malice does not necessarily mean personal spite or ill will. `Malice in the actual sense may exist even though there be no spite or desire for vengeance in the ordinary sense.` `Any indirect motive other than a sense of duty is what the law calls malice.` `Malice means making use of the occasion for some indirect purpose.` ...

A similar passage is also found in Duncan and Neill on Defamation (2nd Ed) in para 17.18:

Express malice includes any indirect or improper motive. Accordingly any evidence would be relevant on the issue of malice if it tended to show that the defendant made the publication not for the purpose for which the qualified privilege existed nor in the exercise of his right to comment on the matter of public interests but, for example, in order to injure the plaintiff or some third party.

14.As stated in the passage just quoted, the term malice even includes a motive to injure a third party. Gatley explained the basis for such extended meaning in para 767...