IN THE SUPREME COURT OF SAMOA
Alisi v FESA & Ors [2023] WSSC 11 (23 March 2023)

Case name: 	Alisi v FESA & Ors 	
		
Citation: 	[2023] WSSC 11 	
		
Decision date: 	23 March 2023	
		
Parties: 	FAAFETAI ALISI of Palisi, Manager, Corporate Services (Plaintiff) v THE FIRE AND EMERGENCY SERVICES AUTHORITY, a body corporate established under section 3 of the Fire and Emergency Service Act 2007 (First Defendant); THE OMBUDSMAN, an independent corporate sole established under section 5 of the Ombudsman (Komesina o Sulufaiga) Act 2013 (Second Defendant); THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF FINANCE (Third Defendant); THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF PUBLIC ENTERPRISES (Fourth Defendant).	
		
Hearing date(s): 	28 September 2022	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Clarke	
		
On appeal from:		
		
Order:	For the foregoing reasons:

(i)	the fourth and sixth causes of action grounded in ultra vires and breach of article 9 of the Constitution are struck out as against the Second Defendant. 
(ii)	Plaintiff and Second Defendant to agree as to costs, failing which, Second Defendant is at liberty to file and serve memorandum as to costs within 14 days and Plaintiff to file and serve a response within a further 7 days. 
(iii)	the seventh and eighth causes of action for breaches of article 9 of the Constitution against the Third and Fourth Defendants are struck out;
(iv)	adjourned for mention to Monday, 27th March 2023 at 2.00pm to set a hearing date.	
		
Representation: 	K. Kruse for the Plaintiff
D. Fong, C. Faitele, L. Tavita & T. Sofe for Defendants	
		
Catchwords: 	Strike-out motion – initial suspension & then termination of employment – alleged misappropriation of funds – breach of plaintiff’s right to natural justice; right to a fair trial – defamation – employment dispute – ultra vires – plaintiff seeking damages.	
		
Words and phrases:		
		
Legislation cited:	Constitution of the Independent State of Samoa 1960, Article 9; 9(1); 
Defamation Act 1993, s. 18(1);
Ombudsman (Komesina o Sulufaiga) Act 2013, ss. 2; 6; 18; 31; 31(2); 
Public Bodies Act 2001
Public Finance Management Act 2001, s. 14(3);
Supreme Court (Civil Procedure) Rules 1980, r. 70.	
		
Cases cited:	Ah Him v Brunt [2014] WSCA 2;
British Columbia Development Corporation v Friedmann [1984] 2 SCR 447;
Brooks v Muldoon [1973] 1 NZLR 1;
Hill v Church of Scientology of Toronto [1995] 2 SCR 1130;
Malielegaoi & Ors v Speaker of the Legislative Assembly [2022] WSSC 35 (30 August 2022);
McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019);; The Laws of New Zealand, (online looseleaf edn, Lexis Nexis) Damages in Administrative Law;
X (minors) v. Bedfordshire CC [1995] UKHL 9 (29 June 1995).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

FAAFETAI ALISI of Palisi, Manager, Corporate Services

Plaintiff

A N D:

THE FIRE AND EMERGENCY SERVICES AUTHORITY, a body corporate established under section 3 of the Fire and Emergency Service Act 	2007

First Defendant

A N D:

THE OMBUDSMAN, an independent corporate sole established under section 5 of the Ombudsman (Komesina O Sulufaiga) Act 2013

Second Defendant

A N D:

THE ATTORNEY GENRAL for and on behalf of the MINISTRY OF FINANCE.

Third Defendant

A N D:

THE ATTORNEY GENRAL for and on behalf of the MINISTRY OF PUBLIC ENTERPRISES.

Fourth Defendant

Counsel:	K. Kruse for Plaintiff
		D. Fong, C. Faitele, L. Tavita and T. Sofe for Defendants

Hearing:	28 September 2022
Judgment:	23 March 2023

JUDGMENT (MOTION TO STRIKE OUT)
A.	Introduction
1. 	First, my apologies to the parties for the delay in handing down this judgment. 
2. 	The Second, Third and Fourth Defendants apply to strike out the Plaintiff’s Statement of Claim either in its entirety or in part pursuant to:
(i) 	Rule 70 of the Supreme Court (Civil Procedure) Rules 1980; and/or
(ii) 	The inherent jurisdiction of the Supreme Court.
3. 	In support of the strike out motions:
(a) 	the Third Defendant has filed an affidavit by Muliagatele Losalini Moli-Reupena, the Assistant Chief Executive Officer (ACEO) for the Internal Audit and Investigation Division of the Ministry of Finance (MOF); and
(b) 	The Fourth Defendant has filed an affidavit by Manu Dr Cam Wendt, ACEO, Public Bodies Governance Division of the Ministry of Public Enterprises.
4. 	The Plaintiff has not filed an affidavit in support of its Notice of Opposition to the strike out motions. The Second Defendant has also not filed an affidavit in support of its motion to strike out.
B.	Statement of Claim:
5. 	The Plaintiff pleads that on 22nd September 2017, she entered into an employment contract with the First Defendant (“FESA”) as Manager of Corporate Services (first agreement). The contract commencement date was 1 October 2016 and was for a term of 3 years expiring 30 September 2019. The contract terms included a provision for the payment of overtime outside of working hours, which may be determined by FESA.
6. 	When the Plaintiff’s employment contract ended in September 2019, she re-applied for her position and was successful (second agreement). Re-appointment was on the same terms and conditions as the first agreement, however, the written agreement was never completed by the Office of the Attorney General and therefore, a written agreement was not signed.
7. 	During both the first and second agreements, the Plaintiff was paid overtime at rates agreed to with FESA. During the term of the second agreement, the overtime was approved by the Commissioner of FESA. 
8. 	During the course of the second agreement, a complaint or complaints were lodged against the Plaintiff with the Second Defendant (“the Ombudsman”). The Plaintiff was required to attend an interview with the Ombudsman in or around November 2020. The Plaintiff was not informed about what the allegations were or the identity of any complainants. At the interview with the Ombudsman, the Plaintiff was then not:
(a) 	informed of the administrative decision the Ombudsman was investigating;
(b) 	informed of the identity of her accusers;
(c) 	informed of the particulars of (any) allegations or accusations;
(d) 	given the opportunity to properly prepare any response; and
(e) 	an opportunity to be heard.
9. 	By letter dated 17 December 2020, the Plaintiff was suspended by FESA from her employment citing the investigation conducted by the Ombudsman. On about 15 January 2021, the Plaintiff’s suspension was extended by a further two weeks, however, her payments were then also ceased. Following the completion of the Ombudsman’s investigation, the Plaintiff was not provided with a copy of the Ombudsman’s report either by the Ombudsman or FESA.
10. 	On or about 20 January 2021, the Plaintiff was informed that the report by the Ombudsman dated 30 November 2020 had implicated her and that the MOF had initiated an investigation into the allegations of alleged misappropriation of public funds and property. On the 21st January 2021, she was then asked to attend an interview with the MOF relating to their investigation. She however was not informed of any allegations, accusations or charges so that she could be informed prior to the MOF interview.
11. 	Accompanied by her then solicitor, the Plaintiff attended the MOF interview on the 26th January 2021. The interview was with representatives of MOF and MPE. At that interview, the Plaintiff alleges that MOF and MPE “were incapable of identifying or particularizing the allegations, accusations or charges (if any)…” but she understood from statements made to her that it arose from allegations of misappropriation of funds” from the payment of her overtime. Following the interview, the Plaintiff’s suspension continued without pay.
12. 	Having heard nothing further from FESA, MOF or the MPE, the Plaintiff wrote to FESA in June 2021 seeking an update. FESA responded on the 4th August 2021 terminating her employment “based on findings of misappropriation of funds and recommendations made in reports from MOF and MPE.” The Plaintiff alleges that FESA, MOF and the MPE did not inform her of their findings or recommendations nor did they disclose the reports to her at that time.
Claim Against Second Defendant: Ombudsman
13. 	Two causes of action are pleaded against the Ombudsman. The first is that the Ombudsman breached the Ombudsman (Komesina o Sulufaiga) Act 2013 (“OA 2013”) by acting outside of jurisdiction:
(a) 	in that the Ombudsman’s investigation and subsequent report dated 30 November 2020 was not pursuant to an administrative decision, as provided under section 18 of the OA 2013; and
(b) 	by doing so, the Ombudsman “conducted an investigation that breached the Plaintiff’s civil rights: 
(i) 	the Ombudsman failed to identify to the Plaintiff who her accuser(s) was;
(ii) 	the Ombudsman failed to inform the Plaintiff of the actual allegation(s) against her;
(iii) 	the Ombudsman failed to particularise the allegation(s) against her;
(iv) 	the Ombudsman failed to allow the Plaintiff time to consider the information being put to her in order for the Plaintiff to be able to prepare her response;
(v) 	the Ombudsman failed to inform the Plaintiff of its adverse find and/or provide her a copy of the Ombudsman’s Report.”
14. 	The Plaintiff ultra vires cause of action is advanced on the basis that “there was no actual jurisdiction or authority for the Second Defendant to investigate in the first place” and that the Plaintiff “has a cause of action or reasonable cause of action against the Second Defendant for having acted ultra vires…” 
15. 	The second cause of action is an alleged breach of her fundamental rights protected by article 9 of the Constitution. The Plaintiff grounds her article 9 claim on the Ombudsman’s alleged failures referred to in paragraph 13(b) above as constituting a breach of her civil rights and her right to natural justice.
16. 	As a result of the Ombudsman’s Report, FESA suspended the Plaintiff and MOF and MPE then conducted a further investigation. The Plaintiff alleges that by reason of the Ombudsman’s actions, she suffered loss and damage:
(a) 	in the sum of $335,980.08, being the same amount as the salary and entitlements claimed by the Plaintiff against FESA for loss of salary and entitlements at paragraph 39(a), 39(b), 39(c) and 39(d) of the Statement of Claim; and
(b) 	aggravated and exemplary damages and costs.
Claims Against Third and Fourth Defendants: MOF and MPE
17. 	The Plaintiff’s causes of action against MOF and MPE are founded on (a) alleged breaches of her right to a fair trial guaranteed by article 9 of the Constitution; and (b) defamation. Against both MPE and MOF, the Plaintiff also claims damages in identical terms as against the Ombudsman.
C.	The Law
18. 	The principles governing the Court’s exercise of the jurisdiction to strike out are well settled. These were perhaps most succinctly summarized by the Court of Appeal in McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019) stating: 
	“The principles applicable to strike out applications can be summarised as follows:
	(a) The Court derives its jurisdiction to strike out all or part of a statement of claim or counterclaim from either r 70 of the Supreme Court (Civil Procedure) Rules 1980, or its inherent jurisdiction, or both. In either case a ground for striking out is that the pleading discloses no arguable cause of action.
	(b) The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
	(c) For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied upon is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
	(d) The same applies to any other incontrovertible source of fact such as an independently recorded transcript of court proceedings. 
	(e) The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
	(f) It follows that the jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.”
D.	Discussion
19. 	Fundamentally, this is an employment dispute involving the suspension and subsequent termination of the Plaintiff by FESA. The Ombudsman, the MOF and the MPE are sued as a result of alleged investigations and reports by each of these Defendants into the Plaintiff’s workplace performance. The MOF and MPE are also sued for alleged defamation concerning statements allegedly contained in their reports.
Strike Out Motion – Ombudsman
20. 	The Ombudsman applies to strike out the Plaintiff’s cause of action ultra vires on the grounds that, in summary:
(i) 	The Ombudsman acted within his jurisdiction pursuant to section 18 of the OA 2013;
(ii) 	The claim constitutes an abuse of process in that (a) it seeks to judicially review the Ombudsman’s finding through an action; (b) is contrary to section 31 of the Ombudsman’s Act; and (c) is a misjoinder of the Ombudsman;
(iii) 	The Statement of Claim does not disclose a reasonable or known cause of action against the Ombudsman.
21. 	Section 18 of the OA 2013 provides:
	“18. Powers to investigate administrative decisions (1) The Ombudsman may, on complaint or own initiative, investigate any administrative decision that affects a person in the person’s personal capacity made by any of the following:
	(a) a Ministry or organisation; or
	(b) an officer when carrying out a power or function conferred by an enactment.
(2) The Ombudsman may, commence an investigation upon receiving a complaint even if the complaint may not, on its face, be against any administrative decision.”
22. 	Section 2 of the OA 2013 defines an ‘administrative decision’ as: 
	“…a decision or recommendation made (including any recommendation made to a Minister), or any act done or omitted, on a matter of administration of a Ministry or organisation;”
23. 	In British Columbia Development Corporation v Friedmann [1984] 2 SCR 447 at 474, the Canadian Supreme Court considered the phrase “a matter of administration” in the context of the jurisdiction of the Ombudsman Act of British Columbia and stated:
	“In my view, the phrase ‘a matter of administration’ encompasses everything done by governmental authorities in the implementation of government policy. I would exclude only the activities of the legislature and the courts from the Ombudsman’s scrutiny.”
24. 	The Plaintiff contends that there was no administrative decision for the Ombudsman to investigate. Accordingly, “there was no such administrative decision [by the Plaintiff] that affected the [to date, unidentified] complainant in his/her personal capacity.”
25. 	The Ombudsman also relies on section 31 of the OA 2013 to contend that the claim against the Ombudsman cannot be brought. Section 31states:
	“31(1) A proceeding of the Ombudsman must not be held bad for want of form, except on the ground of lack of jurisdiction. 
	31(2) A proceeding or decision of the Ombudsman must not be challenged, reviewed, quashed, or called into question in a court.” (emphasis added)
26. 	Where the Ombudsman is alleged to be acting or have acted outside of the jurisdiction conferred by section 18 of the OA 2013, there is no question that the proceeding or decision by the Ombudsman is amenable to review by the Supreme Court. Although section 31(2) of the OA 2013 is a privative clause restricting judicial oversight of decisions or actions undertaken by the Ombudsman, it does not oust the jurisdiction of the Court to review proceedings or decisions made by the Ombudsman that are allegedly ultra vires. Section 6 of the OA 2013 relevantly provides:
	“6. Independence – (1) The Ombudsman:
	(a) is an independent officer of Parliament; and
	(b) must independently carry out the functions, duties and powers under this Act; and
	(c) when carrying out the functions, duties and powers under this Act, is not to be subject to a direction or influenced by a person, officeholder or authority.
(2) This section does not prevent a court from making a direction or order whether the Ombudsman: 
	(a) has carried out the functions, duties and powers under this Act;or
	(b) should or should not carry out the functions, duties or powers.” (emphasis added)
27. 	In these proceedings, the Plaintiff is seeking damages against the Ombudsman for allegedly acting ultra vires of the OA 2013. The Plaintiff submits that she:
	“does not purport to seek judicial review of the Second Defendant’s report: the cause of action is that there was no actual jurisdiction or authority for the Second Defendant to investigate in the first place. Absent jurisdiction under section 18, the Second Defendant should not have investigated whatever the complaint was against the Plaintiff…”
28. 	By the Ombudsman allegedly carrying out the investigation into the complaint received that was in breach of section 18 of the OA 2013, the Plaintiff allegedly suffered harm and claims damages. Ultra vires however is a doctrine of administrative law. It is applied to the judicial review of administrative decisions as opposed to constituting a cause of action in private law to seek damages. This is because damages “are not available as a remedy in administrative law without behavior that is tortious in its own right.”
29. 	In X (minors) v. Bedfordshire CC [1995] UKHL 9 (29 June 1995), Lord Browne-Wilkinson at page 4 in terms of private law causes of action for an alleged breach of statutory duty addressed this same question. His Lordship stated:
	“The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance or that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance
of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action…” (emphasis added)
30. 	Damages are not available as a remedy for an alleged breach of a public law right. The Plaintiff must plead a private law cause of action. A private law cause of action however has not been pleaded. Even if a private law tortious cause of action was pleaded against the Ombudsman (without determining the questions definitively as argument was not heard on this point), such a cause of action would potentially run afoul of section 31(2) of the OA 2013. 
31. 	In all, I am satisfied that the purported cause of action for damages arising from the Ombudsman allegedly acting ultra vires in the absence of an expressly pleaded private law cause of action is untenable and bound to fail. Accordingly, the “Fourth Cause of Action” as against the Ombudsman will be struck out.
Breach of Article 9 by the Ombudsman
32. 	I now turn to the sixth cause of action pleaded against the Ombudsman, that is the Ombudsman breached the Plaintiff’s civil rights guaranteed by article 9 of the Constitution. I understand this cause of action to be for alleged breach of article 9(1) of the Constitution.  Article 9(1) provides:
	“9. Right to a fair trial - (1) In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.”
33. 	The Plaintiff alleges that the Ombudsman breached her article 9(1) rights by:
(i) 	the Ombudsman failing to identify to the Plaintiff who her accuser(s) are;
(ii) 	the Ombudsman failing to inform the Plaintiff of the actual allegations against her;
(iii) 	the Ombudsman failing to particularise the allegations against her;
(iv) 	the Ombudsman failing to allow the Plaintiff time to consider the information being put to her in order for the Plaintiff to be able to respond; and
(v) 	the Ombudsman failing to inform the Plaintiff of its adverse finding and/or provide her a copy of the Ombudsman’s Report.
34. 	Article 9(1), as it may relate to these proceedings, is concerned with the right to a fair trial in the “determination” of a person’s civil rights. It guarantees to a person “a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law”, when the person’s civil rights are being determined. The Ombudsman however has no power to conduct a hearing to determine a person’s civil rights. The Ombudsman can only investigate, report, refer and make recommendations. Unlike the Constitutional guarantees enshrined in article 9(1) that apply when a person’s civil rights are being determined, the conduct of the Ombudsman’s investigation (which does not determine any civil rights) must be in private and the Ombudsman “is not required to hold a hearing.” Although a person who may be adversely affected by a report or recommendation by the Ombudsman does have a right to heard in terms of any such report or recommendation, this does not trigger article 9(1). This is because the Ombudsman’s report and/or recommendations do not involve the determination by the Ombudsman of any civil rights.
35. 	The Plaintiff refers and relies on Malielegaoi & Ors v Speaker of the Legislative Assembly [2022] WSSC 35 (30 August 2022) for the proposition that article 9(1) applies to the Ombudsman. Malielegaoi & Ors v Speaker of the Legislative Assembly however is not on point. In those proceedings, the Court at paragraph 105 stated:
	“105. At face value the Applicant’s concern about not being heard by the decision maker is compelling. It is a fundamental premise of a just and fair decision that the right to be heard extends to the right to be heard as to penalty by the person or body charged with making the decision.”
36. 	Unlike the Legislative Assembly “which was charged with making the decision” on the penalty that was imposed on Mr Malielegaoi and Mr Rimoni, the Ombudsman was not a decision maker nor did the Ombudsman determine any of the Plaintiff’s civil rights or her employment. Article 9(1) does not apply. Malielegaoi v Speaker of the Legislative Assembly does not assist the Plaintiff.
37. 	I am satisfied that this cause of action is so clearly untenable that it could not possibly succeed. It will accordingly also be struck out.
Strike Out Motion: Ministry of Finance and Ministry for Public Enterprises
38. 	The Plaintiff’s causes of action against MOF and MPE are (a) breach of article 9 of the Constitution; and (b) defamation. In summary, MOF and MPE ground their application to strike out the Plaintiff’s claim on the grounds that:
(i) 	MOF and MPE were carrying out their statutory functions when conducting their inquiries and investigations;
(ii) 	 the alleged breach of article 9 is misconceived, seemingly, on the basis that the MOF and MPE complied with article 9(1); and
(iii) 	The allegations of defamation are misconceived and subject to qualified privilege.
Breach of Article 9
39. 	The MOF and MPE submit that the enquiries and investigations carried out by both Ministries into alleged misappropriation or loss were carried out pursuant to the Public Finance Management Act 2001 (“PFMA”) and Public Bodies Act 2001 (“PBA”). 
40. 	I accept that the claim by the Plaintiff against the MOF and MPE is misconceived. As I have stated, article 9(1) is concerned with the right to a fair trial in the “determination” of a person’s civil rights. That hearing must be conducted before an independent and impartial tribunal. 
41. 	The investigations carried out by the MOF, subject of the Plaintiff’s complaint, did not entail any determination of the Plaintiff’s civil rights. In the case of the MOF, it was an investigation into allegations of alleged misappropriation of public funds and properties. By virtue of section 14(3) of the PFMA, the Financial Secretary is duty bound to act to protect public monies, including conducting an inquiry. The Plaintiff’s authority to operate or access or deal with government accounts and property is not a civil right. Following the MOF investigation, it was recommended that disciplinary action be taken against the Plaintiff. Disciplinary action might entail the determination of the Plaintiff’s civil rights, however, that was not a matter involving the MOF.
42. 	Similarly, the MPE did not determine any civil rights of the Plaintiff. The MPE carried “out an investigation into the Plaintiff arising out of the Ombudsman’s Report dated 30 November 2020, and MPE issued its own Report dated 17 February 2021.” The MPE then allegedly recommended that the Plaintiff’s employment be immediately terminated. The Plaintiff’s termination was by FESA. This similarly does not trigger article 9 of the Constitution.
43. 	These causes of action for alleged breaches of article 9 of the Constitution by the MOF and MPE are also untenable and bound to fail. They will accordingly also be struck out.
Defamation
44. 	The Plaintiff alleges that she was defamed by MOF and MPE in reports prepared by each and circulated to the Prime Minister and respective responsible Ministers. The alleged defamatory statements or imputations principally relate to findings by MOF and MPE that the Plaintiff misappropriated public funds and received entitlements and allowances to which she was allegedly not entitled. The MPE recommended that the Plaintiff be terminated and the Plaintiff was then subsequently terminated by FESA. The pleadings must be taken as capable of proof.
45. 	The MOF and MPE apply to strike out the Plaintiff’s defamation claim on the grounds that, in summary:
(a) 	The MOF and MPE were carrying out statutory functions including their investigative and inquiry functions under the PFMA and PBA;
(b) 	The information obtained and relied on by the MOF and MPE were sufficient to prove allegations of misappropriation of public funds and serious misconduct against the Plaintiff; and
(c) 	The findings published by the MOF and MPE are subject to qualified privilege.
46. 	Although the MOF and MPE rely on qualified privilege as a grounds for striking out the Plaintiff’s claim, neither identify the specific grounds of qualified privilege relied on either under common law or pursuant to the Defamation Act 1993.
47. 	Under Samoan law, it is accepted that to establish defamation, a Plaintiff must prove:
(a) 	That the words complained of
(b) 	carried the imputations pleaded in the statement of claim;
(c) 	That these imputations were defamatory;
(d) 	That the words complained of were published by the defendants; and
(e) 	That no defences to the claim had been established.
48. 	I accept that the Plaintiff’s claim for defamation against the MOF and MPE may be difficult. However, based on the pleadings and the material before me, I cannot conclude that the Plaintiff’s case in terms of the elements necessary to establish defamation which I have set out above in paragraph 47(a) – (c) above are bound to fail. The MOF and MPE also claim that qualified privilege applies to the publications. This is for the Defendant to prove. It then becomes the duty of the Plaintiff to prove that the publication is “made with ill will.” Malice may not be limited to spite or ill will to which it is commonly understood but may extend to “any indirect motive or ulterior purpose” or where “the Defendant spoke dishonestly, or in knowing or reckless disregard for the truth.” Based on the pleadings and the material before me, I am not satisfied that the Plaintiff’s claim is bound to fail by virtue of the defence of qualified privilege. That is a matter for the trial proper.
Result
49. 	For the foregoing reasons:
(i) 	the fourth and sixth causes of action grounded in ultra vires and breach of article 9 of the Constitution are struck out as against the Second Defendant. 
(ii) 	Plaintiff and Second Defendant to agree as to costs, failing which, Second Defendant is at liberty to file and serve memorandum as to costs within 14 days and Plaintiff to file and serve a response within a further 7 days.
(iii) 	the seventh and eighth causes of action for breaches of article 9 of the Constitution against the Third and Fourth Defendants are struck out;
(iv) 	adjourned for mention to Monday, 27th March 2023 at 2.00pm to set a hearing date.

JUSTICE CLARKE