COURT OF APPEAL OF SAMOA
Tupu v Investment Ltd, Tamati, Onesemo [2015] WSCA 1

Case name: 	Tupu v Investment Ltd, Tamati, Onesemo	
		
Citation: 	[2015] WSCA 1	
		
Decision date: 	17 April 2015	
		
Parties: 	Faatoia Tupu (Appellant)
Beta Multimedia Investments Co Ltd (First Respondent)
Tuiloma Bismarck Tamati (Second Respondent)
Talauega Lafi Onesemo (Third Respondent)	
		
Hearing date(s): 	13 April 2015	
		
File number(s): 	CA02/15	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Mulinuu, Courthouse	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst	
		
On appeal from:	Faatoia Tupu v Beta Multimedia Investment Co. Ltd, Tuiloma Bismarck Tamati, Talauega Lafi Onesemo (Supreme Court matter)	
		
Order:	1. 	The appeal is allowed. The order for security for costs and the order staying the proceedings are quashed.
2. 	Costs are reserved	
		
Representation: 	H Wallwork for Appellant
A Suá and F E Niumata for Respondent	
		
Catchwords: 	DEFAMATION – public interest, journalist – security - 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A 02/15

BETWEEN:	

FAATOIA TUPU
Appellant

A N D:	

BETA MULTIMEDIA INVESTMENTS CO. LTD
First Respondent

A N D:	

TUILOMA BISMARCK TAMATI
Second Respondent

A N D:	

TALAUEGA LAFI ONESEMO
Third Respondent

Coram:	Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing:	13 April 2015

Counsel: 	H Wallwork for Appellant
A Su’a and F E Niumata for Respondents

Judgment:	17 April 2015

JUDGMENT OF THE COURT
Introduction
3. 	The appellant is a young single man living in Samoa. The respondents are a newspaper publisher, editor and journalist respectively. The appellant issued Supreme Court proceedings for defamation against the respondents. On 4 February 2015 the Supreme Court ordered him to pay security for costs in the amount of $12,000. He appeals against that order.
Factual Background
4. 	In 2013 the appellant was involved in a car accident in which two of his co-occupants died. A fourth, Ms Leslie Kohlhase, was charged with manslaughter on the basis that she was the driver. 
5. 	At her trial in July and August 2014 Ms Kohlhase alleged that it was the appellant who was the driver. The assessors must have decided that there was a reasonable doubt on that score because she was acquitted.
6. 	Soon after the trial the respondents published two articles about the appellant. Among other things they said “Police may find … that their main and only remaining suspect has skipped the country … The defence team [appearing for Ms Kohlhase]… argued in closing submissions that the driver was the only other survivor from the incident, namely [the appellant]. They argued this given the injuries he sustained which were minimal and commensurate to the damage that was effected on the driver’s side of the vehicle.”
7. 	In his statement of claim the appellant pleaded that in its natural and ordinary meaning the words used meant that that the appellant was a police suspect in the deaths, that he had run away from Samoa because he was the main and only suspect, and that he was in fact guilty of the allegation made by defence counsel at Ms Kohlhase’s trial, namely that he was criminally responsible for the deaths. 
8. 	In their statement of defence the respondents pleaded the affirmative defences of truth and fair comment. The only portions of the pleaded defence of truth that are material for present purposes were the defence pleadings that the police had been looking for the appellant and that he was the only other suspect that the Police could have investigated. 
Supreme Court Judgment
9. 	In the Supreme Court the Judge correctly outlined the applicable principles. He said it was common ground that “this young unemployed plaintiff has no assets and will be unable to meet any adverse order for costs”; regarded the substantive merits of the claim and defence as ”evenly balanced”; repeated that “the plaintiffs personal circumstances strongly suggest[s] that he will fail to meet any order for costs awarded against him”; and concluded that on balance an order for security in the sum of $12,000 “would be just in all the circumstances.” 
Security principles
10. 	The principles governing the ordering of security for costs can never be rigidly stated because there is an overriding discretion to do what is just between the parties in the individual case. However the principles that will usually apply can be briefly summarized as follows:
(a)	The Court must be satisfied as a threshold matter that there is reason to believe that a plaintiff will be unable to meet the defendant’s costs if the plaintiff is unsuccessful.
(b)	If the Court is so satisfied, it may make an order for security for costs if it considers an order to be appropriate in all the circumstances. In exercising its discretion the Court balances two competing interests of justice: the interest in protecting a genuine plaintiff’s right to be heard; and the interest in a defendant being protected from unjustified litigation.
(c)	Relevant circumstances include:
	i	The merits and prospects of success of the claim;
	ii	Whether the plaintiff’s impecuniosity results from the defendant’s actions;
	iii	Disposal of assets by the plaintiff to avoid meeting an adverse costs order;
	iv	Delay in applying for security for costs;
	v	The plaintiff’s use of third party funding; and
	vi	Public interest in the litigation.
11. 	There is an additional principle of some importance in the present case. In general it is only where the plaintiff’s claim appears to be without merit that it would be right to order security in circumstances where the plaintiff’s impecuniosity would halt his or her claim.
Application to this case
12. 	It is not appropriate or necessary for us to examine the merits of the appellant’s substantive claim in any depth. It is sufficient to say that the plaintiff’s claim is well arguable. It cannot be dismissed as unmeritorious. 
13. 	The statement of defence, on the other hand, has its difficulties. There may well turn out to be substance in the appellant’s pleading that the natural and ordinary meaning of the words used is that the appellant was a police suspect in the deaths and that he had run away from Samoa because he was the main and only suspect. We say nothing as to the possible further meaning as to actual guilt. If even the former meanings are upheld, the only realistic defence would be to prove the truth of those allegations. As presently pleaded, the statement of defence does not do so. In that regard some assistance may be derived from authorities on tiers of meaning where statements of the present kind are made. It is sufficient to say that on the very limited material presently before us, the merits appear to be heavily weighted in favour of the appellant as the respondents have not pleaded that the appellant was actually the driver of the car.
14. 	The second factor that weighs with us is that the appellant is impecunious. Although there is some suggestion that his family could help him over security, that is another factor counting against security, certainly a substantial one.  
15. 	Weighing those two factors we have concluded that there should be no security in the present case. 
Conclusions
16. 	The appeal is allowed. The order for security for costs and the order staying the proceedings are quashed.
17. 	Costs are reserved.

Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst