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Enosa v Samoa Observer Co Ltd [2005] WSSC 54; [2005] 1 LRC 409 (29 April 2005)

[2005] 1 LRC 409

IN THE SUPREME COURT OF SAMOA

ENOSA

V

SAMOA OBSERVER CO LTD AND OTHERS

[2005] WSSC 6

Supreme Court
Sapolu CJ
5, 29 April 2005

(1) Practice and procedure - Application to strike out claim - Defamation - Defence - Justification - Requirements - Defendant having to plead and prove defence of justification - Proof of truth of statements - Proof requiring oral testimony and involving issues of credibility - Whether appropriate to determine issues on written submissions only - Whether claim to be struck out.

(2) Practice and procedure - Application to strike out claim - Defamation - Defence - Fair comment - Requirements - Defendant having to plead defence of fair comment in order to rely on it - Whether clear what statements or expressions of opinion attracting defence - Whether plain and obvious that plaintiffs claim was clearly untenable - Whether claim to be struck out.

(3) Practice and procedure - Application to strike out claim - Defamation - Abuse of process - Whether claim frivolous or vexatious - Whether claim brought for improper purpose - Whether diverting from true course as to serve extortion or oppression - Whether exerting pressure to achieve improper end - Whether omission to inquire whether relevant report existing and corresponding with statements by defendants sufficient to constitute abuse of process.

The plaintiff filed a claim for defamation against the defendants following the publication of four newspaper articles concerning the plaintiff. The defendants filed a motion in the Supreme Court to strike out the plaintiffs claim. The motion was, inter alia, that the statement of claim should be struck out as the claim was frivolous or vexatious and/or the claim would fail or could not be proved. The defendants argued that the defence of justification was open to them and that the report complained of by the plaintiff consisted of information which was divulged by a source at the Public Service Commission. The defendants stated that the source was prepared to testify to prove the existence of the report and that it would not be possible for the plaintiff to contradict such evidence or to show that such evidence was false. The defendants also contended that, given that the Public Service Commission report was referred to, the plaintiff should have first inquired with the Public Service Commission or the Cabinet to find out if such a report existed and whether it sought his resignation, before filing a civil suit against the defendants. It was also submitted by counsel for the defendants that the report complained of was a fair and reasonable exercise of the freedom of the press on a matter of public interest.

HELD: Motion dismissed.

(1) The plaintiff was not obliged to prove as part of his cause of action that the defamatory statements complained of were false. The law presumed that the publication of an allegedly defamatory matter was false unless the contrary was pleaded and proved by the defendant. The plaintiff did not have to plead in his statement of claim that the statements complained of were false in order to found a cause o1aCiiuu in defamation. The common law defence of justification to an action in defamation meant that the allegedly defamatory statements complained of were true. If the defendants wanted to rely on justification as a defence, then it was for them to plead and prove that the allegedly defamatory statements were true. If they were able to satisfy the court at the trial that the statements were true then they would not be liable to the plaintiff. Proof in that context would necessarily involve the giving of oral testimony and issues of credibility might arise. It would be risky and inappropriate to determine issues of credibility on the basis of written submissions by counsel unless there was agreement on the matter between the parties which, in the instant case, appeared unlikely. Only one of the four newspaper articles in question referred to the report from the Public Service Commission to the Cabinet. Even then, the reference to that report did not take up a substantial part of the newspaper article complained of. The focus of the complaint by the plaintiff was also not directed as to whether or not the said report existed or was conveyed by the Public Service Commission to the Cabinet. The focus of the complaint and claim by the plaintiff was centred on other aspects of the said article. The part of the defendants' motion to strike out based on the defence of justification was therefore dismissed (see pp 413-414, below).

(2) At common law it was a good defence to an action for defamation for the defendant to prove that the statements complained of constituted a fair comment on a matter of public interest. If the defendants wanted to rely on the defence of fair comment then it had to be pleaded. It was not sufficient to raise the defence by way of submissions without pleading it first and in the instant case the defence had not been pleaded. It was also far from clear what statements complained of in the plaintiff's statement of claim attracted the defence of fair comment. The word 'comment' in that context meant a statement or expression of opinion as opposed to a statement or assertion of fact. It was not shown what statements or expressions of opinion contained in the articles complained of would attract the defence of fair comment. The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action had to be sparingly exercised. The factual allegations in support of the claim were assumed to be true and correct. The jurisdiction would only be exercised where it was very plain and obvious that the plaintiffs claim was so clearly untenable that it could not possible succeed. If those principles were to be adapted and applied to the defendants' motion to strike out the plaintiffs claim on the basis that the plaintiff would not be able to successfully rebut a defence of fair comment, then it had not been demonstrated that it was very plain and obvious that the plaintiffs claim was so clearly untenable that it could not possibly succeed because of any defence of fair comment. The part of the defendants' motion to strike out based on the defence of fair comment was therefore dismissed (see pp 414-415, below).

(3) A pleading or an action was frivolous when it was without substance, groundless, fanciful, wasting the court's time or not capable of reasoned argument. A pleading or an action was said to be vexatious when it was lacking in bona fides, hopeless, without foundation, could not possibly succeed or was oppressive. 1n the instant raze it was not possible to see tom the submissions by counsel and other material placed before the court how the plaintiffs action could be described as frivolous or vexatious. Counsel for the defendants did not submit that the plaintiffs claim was brought for an improper purpose, or had been diverted from its true course as to serve extortion or oppression, or to exert pressure so as to achieve an improper end, in order to show that the plaintiffs claim was an abuse of process. The omission to inquire whether the relevant report existed and sought the plaintiff's resignation before filing the claim would not constitute an abuse of the courts' process. The task of persuading the court to dismiss or stay a claim before trial on the ground of abuse of process was a heavy one and it was only in the most clear and obvious cases that it would be appropriate upon a preliminary application made before trial to strike out proceedings (see pp 415-417, below). Goldsmith v Sperrings Ltd [1977] 2 All ER 566 and Broxton v McClelland [1995] EMLR 485 applied.

Case referred to in judgment
Broxton v McClelland [1995] EMLR 485
Goldsmith v Sperrings Ltd [1977] 2 All ER 566, [1977] 1 WLR 478, UK CA

Legislation referred to in judgment
Defamation Act 1992/1993, ss 9-10
Supreme Court (Civil Procedure) Rules 1980, r 70

Other sources referred to in judgment
Bullen, Leake and Jacobs Pleadings and Precedents (12^th edn, 1975), pp 145, 625
The Law of Torts in New Zealand (2^nd edn, 1997), p 907
Winfield & Jolowicz on Tort (14^th edn, 1994), pp 340, 348

Motion
The defendants, the Samoa Observer Co Ltd, Muliaga Jean Malifa and Autagavaia Tipi Autagavaia, applied to the court by motion seeking to strike out a statement of claim dated 5 October 2004 filed for defamation by the plaintiff, Lolofie Taule'ale'ausumai Dr Eti Enosa. The facts are set out in the judgment.

R Drake for the plaintiff
T R S Toailoa for the defendants.

29 April 2005. The following judgment was delivered.

SAPOLU CJ

STRIKE OUT MOTION BY DEFENDANTS

In these proceedings the court is concerned with a motion by the defendants to strike out the plaintiffs statement of claim dated 5 October 2004 filed for defamation. Two grounds were put forward in support of the motion. These are:

(1) the statement of claim does not disclose a cause of action maintainable in law and therefore should be struck out pursuant to r 70 of the Supreme Court (Civil Procedure) Rules 1980;

(2) the statement of claim should be struck out under the court's inherent jurisdiction on the basis that:

(a) the claim is frivolous or vexatious; and/or

(b) the claim will fail or cannot be proved.

At the hearing of the motion, counsel for the defendants in his submissions conceded that the plaintiff's statement of claim does disclose a cause of action against the defendants. The first ground of the motion was abandoned. I will therefore not concern myself in this judgment with the first ground of the defendant's motion

SUBMISSIONS BY COUNSEL

In his written submissions presented to the court, counsel for the defendants says that the defendants would rely principally on the court's inherent jurisdiction to strike out the plaintiffs claim on the basis that it will fail and cannot succeed. He elaborates on this in his submissions by saying that in order for the plaintiff to succeed in his claim, he must not only be able to prove all the ingredients of his claim but he must also be able to successfully rebut any defence that the defendants are likely to put up. It is said that a defence that is open to the defendants is that of justification, that is the defamatory words complained of are in substance true. It is also said that the report complained of by the plaintiff in his claim consists of information which were divulged by a source in the Public Service Commission to the third defendant, a reporter of the Samoa Observer newspaper and the author of the article which is the subject of the plaintiff's complaint. That source is prepared to testify to prove the existence of the report and it would not be possible for the plaintiff to contradict such evidence or to show that such evidence was false.

It is further submitted by counsel for the defendants that it was quite clear from the newspaper article complained of that the source of the information was an official of the Public Service Commission. It is further stated that it was also clear from the same newspaper article that it contains a reference to a Public Service Commission report to the Cabinet seeking the plaintiff's resignation. The plaintiff should therefore have first inquired with the Public Service Commission or the Cabinet to find out whether such a report exists and whether it, in fact, seeks his resignation before filing a civil suit against the defendants. It is then said that such an exercise would be futile, vexatious and an abuse of the court's process.

It is also submitted by counsel for the defendants that the report complained of was a fair and reasonable exercise of the freedom of the press on a matter of public interest. Any expression(s) of opinion(s) was/were fair and the defence of fair comment would absolve the defendants of any liability to the plaintiff.

Much of the written submissions by counsel for the plaintiff was devoted to countering the first ground of the defendants strike-out motion, namely, that the plaintiffs statement of claim does not disclose a reasonable cause of action in defamation and should therefore be struck out. As counsel for the defendants abandoned the first ground of the defendants' motion at the hearing those parts of the submissions by counsel for the plaintiff directed to that ground will not be considered in this judgment. It will also not be necessary to refer to the remainder of the submissions by counsel for the plaintiff at this junction, but certain parts of those submissions will become apparent in what follows in this judgment.

RESOLUTION OF THE DEFENDANTS STRIKE-OUT MOTION

The essence of what remains of the defendants' strike-out motion, as explained in the written submissions of their counsel, is that the plaintiffs claim cannot succeed for two reasons. These are:

(1) there are defences, namely, justification and fair comment, which are open to the defendants that the plaintiff will not be able to successfully rebut; and

(2) the plaintiffs action is frivolous, vexatious and an abuse of process.

Dealing first with the defence of justification, this defence is available at common law to an action in defamation. It is referred to in s 9 of the Defamation Act 1992/1993. What the defence of justification means is that the allegedly defamatory statements complained of are true.

As a matter of proof the plaintiff is not obliged to prove as part of his cause of action that the defamatory statements complained of are false. The law presumes that the statements are false. Thus, the plaintiff does not have to plead in his statement of claim that the statements complained of are false in order to found a cause of action in defamation. If the defendants want to rely on justification as a defence then it is for them to plead and prove that the allegedly defamatory statements were true. If they are able to satisfy the court at the trial that the statements were true, then they will not be liable to the plaintiff. In the English text of Winfield &Jolowicz on Tort (14th edn, 1994), p 340, the learned authors explain:

'The plaintiff need not prove that the statement is false, for the law presumes that in his favour. But the defendant can plead justification (the technical name for truth here), and if he can establish it by evidence he has a good defence ...'

In the New Zealand text The Law of Torts in New Zealand (2nd edn, 1997), p 907, the learned authors state:

'The defence of truth, formerly known at common law as justification, was renamed by the Defamation Act 1992 ... The plaintiff need not, as part of his or her cause of action, prove that the statements made about him or her were false, but the defendant has a complete defence if the defendant can satisfy the Court that the imputations contained in the matter sued on were true, or not materially different from the truth.'

I will therefore accept the submission made by counsel for the plaintiff on the basis of what is said in Bullen, Leake and Jacobs Pleadings and Precedents (12th edn), p 625, that the law presumes that the publication of an allegedly defamatory matter is false unless the contrary is pleaded and proved by the defendant. Thus, the submission by counsel for the defendants that the plaintiff will not be able to successfully rebut any defence likely to be put up by the defendants, which includes the defence of justification, misconceives the true position. It is for the defendants to first plead the defence of justification, which has not been done, and then prove it. Before the stage is reached when the plaintiff may be required to rebut by evidence a defence of justification, the defendants would have to first plead and then prove it. A submission that the plaintiff will not be able to rebut a defence of justification does not amount to pleading or proving that defence. Proof in this context will necessarily involve the giving of oral testimony and issues of credibility may arise. It will be risky and inappropriate to determine issues of credibility on the basis of written submissions by counsel unless there is agreement on the matter between the parties which, in this case, appears unlikely.

It is also to be noted that the plaintiffs claim relates to four separate newspaper articles all of different dates. It is in only one of those newspaper articles, as pleaded in the statement of claim, that mention is made of the report from the Public Service Commission to the Cabinet which is referred to in the submissions by counsel for the accused. Even then, the reference to that report does not take up a substantial part of the newspaper article complained of. The focus of the complaint by the plaintiff is also not directed as to whether or not the said report existed or was conveyed by the Public Service Commission to the Cabinet. The focus of the complaint and claim by the plaintiff is centred on other aspects of the said newspaper article as reflected in para 6 of the statement of claim.

I have therefore come to the view that this part of the defendants' motion should be dismissed.

The second defence mentioned by counsel for the defendants in his submissions is that of fair comment. At common law it is a good defence to an action for defamation for the defendant to prove that the statements complained of constituted a fair comment on a matter of public interest. The defence is referred to in s 10 of the Defamation Act 1992/1993.

If the defendants want to rely on the defence of fair comment then it must be pleaded. It is not sufficient to raise the defence by way of submissions without pleading it first. On the matter of pleading the defence of fair comment Winfield & Jolowicz on Tort (14th edn, 1994), p 348, states:

'By analogy with the stance taken on pleading justification, the defendant should spell out his defence of fair comment with sufficient precision to enable the plaintiff to know what statements are said to attract the defence. The usual form of pleading is that "the said words are fair comment on a matter of public interest, namely ..." followed by particulars of the facts on which the comment is based. At one time there was an alternative form, the so-called "rolled up" plea, which ran "in so far as the words complained of consist of statements of fact, they are true in substance and in fact; and in so far as they consist of expressions of opinion they are fair comment made in good faith and without malice [on the said facts] which are matters of public interest".'

The matter of public interest to which the alleged fair comment relates must be explicitly set out in the pleading. Furthermore, if the pleading does not contain particulars of the facts on which the fair comment is based, the plaintiff will be entitled to ask for particulars of such facts. The facts on which the comment is based must also be true.

As already mentioned, it was submitted for the defendants that the report complained of by the plaintiff was a fair and reasonable exercise of the freedom of the press on a matter of public interest. Any expression(s) of opinion(s) was/were fair and the defence of fair comment would absolve the defendants of any liability to the plaintiff The first difficulty with this part of the submissions for the defendant is that the defence of fair comment should be pleaded, but it has not been pleaded. It is also far from clear what statements complained of in the plaintiff's statement of claim attract the defence of fair comment. The word 'comment' in this context means a statement or expression of opinion as opposed to a statement or assertion of fact. It was not shown what statements or expressions of opinion contained in the newspaper articles complained of would attract the defence of fair comment. There are then the questions of whether the comments were on a matter of public interest and whether they were fair. The answers to these questions do not appear from the submissions for the defendants, particularly in relation to the question of whether the comments were fair.

The principles governing the exercise of the court's jurisdiction on a f motion to strike out a statement of claim on the ground that it does not disclose a cause of action has been discussed in so many cases before the Samoan courts that they have become well-known. The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is very plain and obvious that the plaintiffs claim is so clearly untenable that it cannot possibly succeed. If these principles are to be adapted and applied to the defendants' motion to strike out the plaintiffs claim on the basis that the plaintiff would not be able to successfully rebut a defence of fair comment, then it has not been demonstrated that it is very plain and obvious that the plaintiffs claim is so clearly untenable that it cannot possibly succeed because of any defence of fair comment. This part of the defendants' motion is also dismissed.

It was finally submitted for the defendants that the plaintiffs claim is frivolous, vexatious and an abuse of process and on that basis it should be struck out. In Bullen, Leake and Jacobs Pleadings and Precedents (12th edn, 1975), p 145, it is there stated that a pleading or an action is frivolous when it is without substance, groundless, fanciful, wasting the court's time or not capable of reasoned argument. A pleading or an action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or oppressive.

In relation to abuse of process in the context of an action for defamation, I refer to the English case of Goldsmith v Sperrings Ltd [1977] 2 All ER 566 where the plaintiff brought an action for defamation consisting of libel against the defendants who sought an order to dismiss or stay the action on the ground that it was frivolous, vexatious and/or in abuse of the process of the court. In the Court of Appeal all three judges agreed on the relevant legal principles to be applied but they differed on the application of those principles to the facts. Lord Denning MR, who was in the minority on that point, said (at 574):

'In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abuse when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.'

Searman LJ said (at 582):

'It is right therefore, that to obtain before trial the summary arrest of a plaintiffs proceedings as an abuse of the process of the court, the task of satisfying the court that a stay should be imposed is ... a heavy one.'

In the more recent English case of Broxton v McClelland [1995] EMLR 485 at 498 Simon Brown LJ said:

'Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.'

There are numerous cases which deal with claims based on alleged abuse of process. However, it is not necessary for the purposes of this judgment to refer to any more of those cases.

On the basis of the authorities that I have referred to, it is not, possible to see from the submissions by counsel and other material placed before the court how the plaintiff's action can be described as frivolous or vexatious. On the basis of the concession that was made, that the plaintiffs claim does disclose a cause of action, it cannot be said that the claim is without foundation, groundless, fanciful, not capable of reasoned argument, lacking in bona fides or hopeless so as to make it frivolous or vexatious. It was not argued that the plaintiff's action is oppressive so as to make it vexatious on that basis. It was, however, submitted that the plaintiff's action cannot possibly succeed because of the defences of justification and fair comment. I have already explained why that submission cannot succeed at this stage of the proceedings.

On the issue of abuse of process, counsel for the defendants did not submit that the plaintiffs claim was brought for an improper purpose, or has been diverted from its true course so as to serve extortion or oppression, or to exert pressure so as to achieve an improper end, in order to show that the plaintiffs claim is an abuse of process. What was submitted is that the plaintiff should have first inquired with the Public Service Commission or the Cabinet to find out whether the report in question exists and whether it, in fact, seeks the plaintiffs resignation before filing his claim against the defendants. I cannot see how this omission to act as suggested against the plaintiff would constitute an abuse of the courts' process. It does not come within the description of the concept of abuse of process given by Lord Denning MR in Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 574. It is also to be borne in mind that the task of satisfying the court to dismiss or stay a claim before trial on the ground of abuse of process is a heavy one and it is only in the most clear and obvious cases that it will be appropriate upon a preliminary application made before trial to strike out proceedings on the ground of abuse of process: see Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 574 per Searman LJ and Broxton v McClelland [1995] EMLR 485 at 498 per Simon Brown LJ. The word 'abuse' has certain powerful connotations and should be reserved for proceedings which truly deserve to be so described. The last part of the defendants' motion and submissions is also dismissed.

All in all then, the strike-out motion is dismissed.

The question of costs is reserved.

The case is adjourned for re-mention on 16 May 2005 and for the defendants to file and serve a statement of defence.

Solicitors:
Drake & Co Law Firm for the plaintiff.
Toailoa & Associates for the defendant.