Ramrakha v Chaudhry - [2006] NSWCA 42

NEW SOUTH WALES COURT OF APPEAL

CITATION: RAMRAKHA v CHAUDHRY [2006] NSWCA 42

FILE NUMBER(S):
40465/05

HEARING DATE(S): 27 February 2006

DECISION DATE: 10/03/2006

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

JUDGMENT OF: Giles JA Ipp JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20309/04

LOWER COURT JUDICIAL OFFICER: Patten AJ

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

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

DECISION:
Appeal dismissed with costs.

JUDGMENT:

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

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.
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.
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”.
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.”
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. … “
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.
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.
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.
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.
IPP JA: I agree with Giles JA and Basten JA.
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.
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.
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.”
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).
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.
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.”
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.
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.”
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.”
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.”
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.
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.”
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”.
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.”
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.
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.
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.
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.
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.
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.

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.”
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.
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.
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.
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.”
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).
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.
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.
In my opinion, the appeal should be dismissed with costs.

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LAST UPDATED: 14/03/2006