Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2; 02 1996 (17 September 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 2/96

BETWEEN:

SU'A RIMONI D. AH CHONG
of Apia, Western Samoa,
Controller and Chief Auditor of Western Samoa
Appellant

AND:

THE LEGISLATIVE ASSEMBLY OF WESTERN SAMOA
established pursuant to Article 42 of the Constitution of Western Samoa
First Respondent

AND:

THE ATTORNEY-GENERAL OF WESTERN SAMOA
sued on behalf of the Prime Minister and the Government of
the Independent State of Western Samoa
Second Respondent

AND:

MAIAVA IULAI TOMA,
FAAFOUINA IOFI, TULIAUPUPU
PALA LIMA, PAPALII JOHN RYAN,
AGNES STEWART,
LEIATAUA DR KILIFOTI ETEUATI
all of Samoa, members of the Commission of Inquiry appointed
to report on the Controller and Chief Auditor's Report to the Legislative Assembly
Third Respondents

Coram: The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 27 August 1996

Counsel: J.O. Upton Q.C., J.P. Ferguson and Ruby Drake for Appellant
Attorney-General T. Se Apa, A.R. Galbraith Q.C., W. Akel
and Tracey J. Walker for Respondents

Judgment: 17 September 1996

JUDGMENT OF THE COURT DELIVERED BY
LORD COOKE OF THORNDON

The plaintiff in the Supreme Court proceedings from which this appeal arises was appointed in March 1992 (the date given in his statement of claim) as Controller and Chief Auditor in the service of Western Samoa. This is an important independent office provided for by the Constitution, Articles 97, 98 and 99. The appointment is made by the Head of State acting on the advice of the Prime Minister. The office is to be held until the age of sixty years provided that the Legislative Assembly may by resolution then extend the period. The plaintiff was about 38 years of age at the time of his appointment.

The Chief Auditor, as it is convenient to call him, may at any time resign but shall not be removed from office except on the like grounds and in the like manner as a Judge of the Supreme Court. So he cannot be removed from office except by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of members of Parliament, praying for his removal on the ground of stated misbehaviour or of infirmity of body or mind: Article 68(5). In the interest of the people of Western Samoa he is given that security of tenure.

There is a limited power in the Head of State, acting on the advice of the Prime Minister, to suspend the Chief Auditor. It is provided for in Article 97(5). The Court is not called upon in these proceedings to consider the extent of that power.

Article 99 provides:

Audit of accounts

99. (1) The Controller and Chief Auditor shall audit the Treasury Fund, such other public funds or accounts as may be established, the accounts of all Departments and offices of executive government and the accounts of such other public statutory or local authorities and bodies as may be provided by Act.

(2) The Controller and Chief Auditor shall report at least once annually to the Legislative Assembly on the performance of his functions under this Article and shall in his report draw attention to any irregularities in the accounts audited by him.

It is clear therefore that the Chief Auditor has ongoing responsibilities and may report to the Legislative Assembly more frequently than annually. In the performance of his lawful functions he is not subject to any control by the Government.

On 6 July l994 the Chief Auditor forwarded a report to the Speaker of the Legislative Assembly for tabling in the Assembly, covering the period from 1 January 1993 to 30 June 1994. It is a 94-page document. The present proceedings do not require the Court to consider its contents in any detail - a point to which we will return. It was critical of many Government Departments and other bodies, identifying a range of what in the Chief Auditor's opinion were irregularities or shortcomings in financial matters. Under the heading FULLY OWNED GOVERNMENT ORGANISATIONS REGISTERED UNDER THE PRIVATE SECTOR COMPANIES LAW, while referring in a preliminary passage to limitations on the Audit Office's constitutional mandate to report to Parliament, the report makes severe criticism of the history of growing and heavy Government indebtedness or exposure in Polynesian Airlines affairs, and of the directors of the airline and Cabinet in their decisions or policy in that connection.

The Standing Orders of the Legislative Assembly provide by standing order 137 for a Public Accounts Committee consisting of seven Members. It is the duty of he Committee, inter alia, '.... to examine the public accounts and such other accounts and reports laid before the Assembly or any circumstances connected with any account or report required to be laid before the Assembly in such manner and to such extent as the Committee thinks fit together with any report of the Controller and Chief Auditor thereon ....'

The report was tabled by the Speaker in the Legislative Assembly on 12 May 1994. On the same day the Prime Minister initiated a debate upon it. His object, as appears from the report of his opening speech in Hansard, p. 1, was in part that those charged in the report should be able to voice their side for the information of the country. Originally he proposed a motion that standing order 29(1), which deals with the order paper, be set aide to allow for the discussion by Parliament of the report, and that the report thereafter be transmitted to the Public Accounts Committee for their examination and report back to Parliament 'in one of its next sitting'. But after an extensive debate, the Assembly approved the withdrawal of the first motion and carried instead a different motion moved by the Prime Minister. As to this the Hansard report, translated, reads:

MOTION FOR GIVING THE REPORT TO A
COMMISSION OF INQUIRY APPOINTED BY
CABINET

Prime Minister

Mr. Speaker, I move a motion: To give this report to a Commission of Inquiry which will be selected by Cabinet at the earliest possible time, to carry out their work, and to follow in accordance with requirements of the Commission of Inquiry Act. Seconded by Le Tagaloa Pita and Tupuola Sola Siaosi.

The motion was carried. The report will be given to a Commission of Inquiry - Cabinet will select.

By warrant under his hand dated 21 July 1994 the Head of State 'acting upon the advice of Cabinet and in exercise of the powers vested in me by the Commissions of Inquiry Act 1964' appointed eight persons (subsequently two did not act, but the appellant makes no point of this) to be members of the Commission and specified the Commission's terms of reference. The warrant directed the Commission to hand over the report of its findings to Cabinet within three months from the date of its appointment. By a similar warrant dated 26 August 1994 his Highness substituted new paragraphs (d) and (c) for those originally appearing in the terms of reference.

As so amended the terms of reference read:

TERMS OF REFERENCE

(a) To examine in detail all matters raised in the Report of the Controller and Chief Auditor.

(b) To give opportunity to those whose performance of their functions and duties are mentioned in the report to respond to such matters raised in the Report regarding such performance which had been carried out in a manner they believed to be consistent with established policies and practices;

(c) To investigate in detail records, evidence and statements which the basis of matters submitted in the report and in particular the basis of the various statements contained in the report;

(d) To clarify the functional relationships prescribed by the Constitution and Legislation as between the established position of the Controller and Chief Auditor on the one hand and the following positions and entities on the other hand:

(a) Departmental Heads and Employees

(b) Statutory Corporations

(c) Other Government Enterprises

(d) Cabinet

(e) Cabinet Ministers

(f) Parliament

(g) Members of Parliament

(e) To examine Cabinet's role as the executive branch in the determination of National Policy and the scope of its authority and obligations in this regard under the Constitution.

(f) To comment on all matters mentioned in the report.

(g) To look into other important matters which may be relevant and to which it may be desirable to extend the Inquiry.

At this stage of the narrative it is convenient to dispose of two comparatively minor contentions, not central to the appellant's case, that were advanced or outlined during our hearing. First it was said that these terms of reference were outside the scope of the Commissions of Inquiry Act 1964. That Act is closely similar to and was obviously largely copied from the corresponding New Zealand Act, the Commissions of Inquiry Act 1908 (without some of its more recent amendments). The main difference is that by s.4 of the Western Samoa Act a Commission's report is to be made 'to Cabinet and to no one else'. There can be no doubt that an Inquiry into the Chief Auditor's report was 'upon any question arising [indecipherable] of s.4. In part it falls also within paragraphs (b), (c) and (d) of that section. We reject this contention.

Secondly it was said that, despite the recital in the warrant, the Head of State may not have acted on the advice of Cabinet, as required by s.4; and that the statement of claim could be amended to introduce this contention, which has not been pleaded so far. The reference in the warrant to the Commission tends to suggest that the setting up of a Commission was treated as settled by the resolution of the Legislative Assembly. But that is of no significance, as Cabinet would have been fully entitled to advise the Head of State to establish a Commission simply because the Legislative Assembly had so resolved, It was always intended that Cabinet would select the members. By doing so and causing the names to be communicated to the Head of State, Cabinet would at least impliedly advise the setting up of a Commission in accordance with the Legislative Assembly's wish. The suggested amendment could not improve the plaintiff's case. This contention likewise must be rejected.

After sittings and deliberations the Commission reported to Cabinet in a 76-page document dated 20 October 1994. The report was also tabled in the Legislative Assembly and debated by the Assembly. It is most important for us to point out, to prevent any public in misunderstanding or false expectation, that these proceedings which the Chief Auditor has brought and with which we are now dealing do not require the Court to consider the merits or otherwise of the Commission's report. Where there are differences between the Chief Auditor's views and those of the Commission about the contents of his report or its lawful scope, the Court is not asked to decide which view is right or whether perhaps both views are partly right. We are not even invited to consider how far it would be appropriate for the Court to adjudicate on such questions of right and wrong. Neither side asks us to go into the substance of the dispute. The Chief Auditor, presumably acting on legal advice, has confined his Court challenge to the Commission's report to procedural matters, as we will explain, and the comparatively minor contentions which we have already rejected.

That said, in order to deal with the procedural points that are raised by these proceedings it is necessary to reproduce the Commission's own summary of their conclusions and recommendations. This adequately reflects the tenor of the more detailed earlier portions of their report:

CONCLUSIONS AND RECOMMENDATIONS

1. We confirm, in the main, the irregularities outlined by the Controller and Chief Auditor but we do not agree with all of the dimensions of these events portrayed in the Report.

2. The Report, we conclude, must have been designed to shock; sacrificing in the process, balance and consistency in treatment, so as not to detract from that objective. The faithful portrayal of the truth in some instances may also have suffered. However in terms of shock value it is a successful document.

3. Much of this success unfortunately may be attributable to the treatment in the Report of matters that are outside the Controller and Chief Auditor's jurisdiction and legitimate sphere of concern.

4. The citing of political figures, particularly Ministers on flimsily composed allegations or suggestions of wrongdoing is also a notable feature.

5. The Auditor has disregarded mechanisms laid down by law to determine the correctness or legality of certain actions by government officials and has improperly taken unto himself the function of declaring such actions as wrong or unlawful in his Report.

6. We confirm the disturbing trends of dishonesty and unprofessional conduct uncovered by the Controller and Chief Auditor in some Departments and Agencies of Government.

7. The existence of these elements in serious but isolated cases, however, does not comprise a general state of degeneracy in public administration as could perhaps be inferred from numerous allusions to such state in the Report. It is nevertheless appropriate to institute measures aimed at discouraging misconduct while developing public confidence in the institutions of Central Government.

8. We conclude that Cabinet as the Executive Branch is intended to have almost unfettered power to determine and to direct the implementation of national policy; but in tandem with that power are fundamental obligations, the observance of which is vital to the maintenance of democracy.

9. We recommended the introduction of legislation establishing a Code of Conduct for leaders in Government to be administered by a three-man Leadership Commission.

10. We recommended also that Government addresses directly the issue of inconsistent applications of the law and tax assessment procedures by the Department of Inland Revenue as reported by the Auditor.

11. We further recommend that the Public Service Commission carry out a thorough review of the entire upper structure of PWD with a view to re-establishing professional standards of performance and control.

12. We recommend finally that Government considers amending the Public Trust Act 1975 with a view to clarifying the functions and regularising the activities of the Public Trust Office.

We would like to stress that our report has been designed to be read as a whole. The taking of any part in isolation may distort context.

After the report of the Commission became public the Chief Auditor issued in the Supreme Court the proceedings in which the present appeal arises. The statement of claim is dated 30 June 1995. The plaintiff sues the Legislative Assembly of Western Samoa as first defendant, the Attorney-General on behalf of the Prime Minister and Government as second defendant, and individual members of the Commission of Inquiry as third defendants. We have reservations about the somewhat novel course of naming a House of the legislature as a defendant. It is not a body corporate and we doubt whether it can sue or be sued. The orthodox procedure would be to sue Ministers or the Speaker or other officer who might seek to enforce decisions of the House alleged to be invalid. But Mr Galbraith for the respondents did not take this technical point, and we need not rule on it. The Government and the Commission were in fact represented before us by the Attorney-General and his other counsel; that is sufficient for our purposes.

The statement of claim pleads four causes of action. In brief summary they are-

(i) Against the Legislative Assembly, allegations that by failing to refer the report of the Chief Auditor to the Public Accounts Committee pursuant to standing order 137 and resolving that the report be referred to a Commission of Inquiry the Legislative Assembly acted unconstitutionally. There are also some general allegations of unconstitutionality and failure to protect the independence of the Chief Auditor; they plainly stem from the procedure that is complained of.

(ii) Against the Prime Minister and Government, similar allegations of unconstitutional conduct in adopting, proposing or promoting the same procedure. In addition there are two paragraphs (d) and (e), extending (although not confined) to alleged political pressure and unconstitutional action after he had made his report.

(iii) Against the Commission of Inquiry, allegations that the terms of reference were ultra vires the 1964 Act. The particulars given in support indicate a contention that establishment of the Commission was inconsistent with the Chief Auditor's functions under Article 99(2) of the Constitution.

(iv) Against the Commission of Inquiry, allegations that the conduct of the Commission in the course of its hearings and deliberations constituted a breach of the rules of natural justice against the Chief Auditor in respects particularised in the statement of claim.

The plaintiff claims declarations and the quashing of the Commission's report.

On or about 9 August 1995 the defendants filed a notice of motion for orders including the striking out of the proceedings as frivolous, vexatious and an abuse of the Court's procedure and of the procedures of the Legislative Assembly and as failing to disclose a cause of action. It is proper to say at this point that the Chief Auditor appears to be making bona fide claims on grounds involving important constitutional issues. In our opinion it would not be right to label his proceedings as frivolous and vexatious.

The defendants' motion came before Sapolu CJ on 18 and 19 October 1995. For reasons fully and clearly given by him in a reserved judgment delivered on [indecipherable] particulars of any adverse effect of the Commission's report on any right or interest the plaintiff might have. We need not repeat the incidental orders. From that judgment the plaintiff appeals with the leave of the Chief Justice and the defendants cross-appeal.

To bring the narrative up to date we should mention two other developments. On 11 January 1995 Cabinet resolved to direct all Government Departments and all public servants involved for the immediate effective implementation of recommendations in the report of the Commission as well as in the report of the Chief Auditor. Ten specific directions were set out. Follow-up action was contemplated. To that degree the Chief Auditor has been vindicated. In combination his report and the Commission's report have evidently had a salutary impact.

The other development is more controversial. On 6 July 1995, very shortly after the commencement of his Court proceedings, the Chief Auditor was suspended without pay. He challenged the suspension by further proceedings issued on 10 July 1995. Soon afterwards his salary was reinstated, but on 8 March 1996 the Legislative Assembly apparently resolved to continue the suspension until the end of the Court proceedings. A further warrant to suspend was signed by the Head of State and served on the Chief Auditor on 11 March 1996. On 22 April 1996 the Chief Auditor issued proceedings challenging the fresh suspension. We take these facts from the chronology put in at our hearing by counsel for the appellant. Mr Upton suggested that the suspension was a punishment or retaliation for the first proceedings.

Neither the latter suggestion nor the validity of the suspension are matters raised by the present appeal. As yet the Chief Auditor's proceedings challenging his suspension have not been brought on for hearing in the Supreme Court. It seems rather unfortunate that all justiciable issues between the Chief Auditor and the Government cannot now be decided by this Court, but we have no control over what the parties choose to put before us. The consequence is that unless an amicable settlement is reached - which is surely much to be desired in the public interest - litigation and bitterness may be long drawn out.

The Principle of Non-Intervention

There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time.

This principle is accepted in all comparable jurisdictions. It was accepted by all three Courts, the High Court, the Court of Appeal and the Privy Council, at the successive stages of Prebble v. Television New Zealand Ltd [1994] 3 N.Z.L.R. 1 (P.C.), [1993] 3 N.Z.L.R. 513 (C.A.). A slightly earlier application of it in the Court of Appeal was Te Runanga o Wharekauri Rekohu v. Attorney-General [1993] 2 N.Z.L.R. 301. Australian authorities to the same effect were among those collected in that case at 308 and in the Prebble case [1993] 3 N.Z.L.R. at 511. In other South Pacific jurisdictions there are recent recognitions and discussions of the principle in, for instance, Kalauni v. Jackson, (Court of Appeal of Niue: judgment 23 January 1996) and Robati v. Privileges Standing Committee of the Parliament of the Cook Islands and the Speaker, a judgment of the Court of Appeal of the Cook Islands delivered on 7 February 1994. In Robati it was in fact held that on the particular facts the principle did not apply. Mr Galbraith suggested that Robati was wrongly decided, but we need not consider that question, for the facts are very different.

Of course, like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own orders and to depart from them if the Assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly But we agree with McLelland J. in Namoi Shire Council v. Attorney-General for New South Wales [1980] 2 N.S.W.L.R. 639, 645, that the Court would lean against such an interpretation, an approach also to be seen as suggested by the Niue Court of Appeal in the judgment already cited. In the present case Sapolu C.J. would have required 'irresistible clarity'. Possibly, in our respectful opinion, that puts the test a little high, but certainly any real ambiguity would be resolved in favour of non-intervention.

In this case the plaintiff's counsel have relied on Article 59 of the Constitution:

Introduction of bills etc. into Legislative Assembly

59. Subject to the provisions of this Part and of the Standing Orders of the Legislative Assembly, any Member of Parliament may introduce any bill or propose any motion for debate in the Assembly or present any petition to the Assembly, and the same shall be considered and disposed of under the provisions of Standing Orders:

Provided that, except upon the recommendation or with the consent of the Head of State, the Assembly shall not proceed upon any bill which, in the opinion of the Speaker, Deputy Speaker or other Member of Parliament presiding, would dispose of or charge the Treasury Fund or any other public fund or account or revoke or alter any disposition thereof or charge thereon, or impose, alter or repeal any tax, rate or duty.

To suggest that (subject to the power of the Legislative Assembly to amend its standing orders, as provided for in Article 53) Article 59 imposes on the Legislative Assembly any fetter relevant in this case is to misconceive the purpose of the Article. The purpose is to guarantee to Members the right, or as it was called in the Constitutional Convention debates the power, to initiate bills, motions or petitions. It is a condition of that right that standing orders be complied with. Apart, however, from the proviso about money bills, which is not relevant in this case, Article 59 contains nothing to restrict the Legislative Assembly in the procedure that it may decide to adopt or allow. Members indeed have the qualified rights to which we have referred; and the Legislative Assembly must respect those rights. But there is no suggestion in this case that any Member has been denied any such rights.

On that short ground we consider that Article 59 does not help the appellant. Except to the extent that rights are conferred on Members, the Article does not entrench standing orders as they may be at any particular time or make compliance with them a condition of the lawfulness of action by the Legislative Assembly. Nor can any implied entrenchment or condition of compliance be extracted from any other provision of the Constitution. Certainly the intention of the Constitution is that the Chief Auditor shall be independent and able to investigate and report freely within his proper sphere. But his freedom of investigation and report was not taken away or impeded by anything done by the Assembly in deciding on a Commission of Inquiry or in refraining from sending his report to the Public Accounts Committee, or by anything done by the Commission in inquiring and reporting. The principle of non-intervention by the Court in internal Parliamentary matters is thus fully operative in this case. The Chief Justice was therefore right to strike out the cause of action pleaded against the Legislative Assembly and (except for two paragraphs) the cause of action pleaded against the Attorney-General. The actions of the Government which are complained of by the plaintiff in the pleadings struck out are inseverably connected with internal Parliamentary matters. They, too, are protected by the shield of Parliamentary immunity.

Alleged Political Pressure

We share the Chief Justice's view that paragraphs (d) and (e) of main paragraph 10 of the statement of claim should not be struck out. If political pressure or other attempted undermining of the Chief Auditor's constitutional independence of the Government is proved to have been exerted or undertaken outside the Legislative Assembly by any Minister or other representative or delegate of the Government it is conceivable that at least declaratory relief might be granted by the Court to the Chief Auditor. It might be necessary for the Court in that way to clarify further his constitutional function and status; or to emphasise the extent of his lawful powers of investigation and report under the Constitution and the Regulations concerning his office. Much could turn on the evidence. It is as well to say no more about this branch of the case at the present stage.

Alleged Breaches of Natural Justice

The plaintiff pleads a considerable list of allegations under this head against the Commission. Their gist is that he was not cited as a party or treated as if he were a party to the inquiry or allowed to cross-examine witnesses through his counsel. Nor was he allowed a copy of the transcripts of evidence. There is also an incidental issue as to whether the sitting of the Commission, in the particular circumstances in which they were held, can truly be described as public sittings. On the other hand the plaintiff did give quite lengthy evidence and was represented by counsel, who made submissions, although arguably her role may have been unduly limited.

Section 6(2) of the Commissions of Inquiry Act 1964 gives a Commission a power of citing parties interested in the inquiry. Section 7 provides:

7. Persons interested entitled to be heard - Any person who satisfies the Commission that he has an interest in the inquiry apart from any interest in common with the public shall be entitled to appear and be heard at the inquiry as if he had been cited as a party to the inquiry.

It is obvious from the very subjected-matter of the inquiry (an inquiry into, among other things, all the matters raised in the Chief Auditor's report and the basis of the statements in the report) and it is further obvious from the Commission's conclusions and recommendations that he had an interest in the inquiry apart from any interest in common with the public. Plainly the Commission were expected to and did address themselves to whether the Chief Auditor was justified in his criticisms. It is no answer to say that, if he had been accorded his full rights as to citation or under s.7 and the rules of natural justice, it might have been necessary to accord similar rights to other persons, such as persons criticised in his report. True that could have prolonged the hearing. But prolongation of a hearing is a price that may have to be paid if it is decided to set up a Commission of Inquiry into what persons have said and done.

Whether, having regard to the particular position of the appellant, the procedure followed by the Commission was or was not in breach of the Act and the rules of natural justice impliedly incorporated therein is another question which we should not now decide. It could be affected by evidence. The rules of natural justice are not hard-and-fast. They depend on all the circumstances of a case. We hold only that the appellant has a reasonably arguable case that he was not given natural justice and that this pleaded cause of action should not be struck out before trial.

We do not overlook that the findings of the Commission in their report have no binding effect. In essence findings of a Commission of Inquiry are only an expression of views formed by the Commission as a result of the inquiry. They are not a judgment of a Court, and except in some incidental respects not now relevant (such as an order for costs, but none was made in this case) they cannot be enforced like a judgment of a Court. This has been pointed out in the New Zealand Court of Appeal cases of In re Erebus Royal Commission (No. 2) (1981) 1 N.Z.L.R. 168, 653, and Re Royal Commission on the Thomas Case [1982] 1 N.Z.L.R. 252, 257. But the point is not always understood by the general public.

The fact remains that, although not legally binding, condemnatory findings by all official Commission of Inquiry can have a serious effect on the reputation of individuals and their status in the eyes and understanding of the community. That is why the Courts insist on observance of the rules of natural justice so far as they apply. The decision in the Erebus case holding that the rules of natural justice applied and had not been fully complied with in that case was upheld by the Privy Council in Re Erebus Royal Commission [1983] N.Z.L.R. 662, [1984] 3 All E.R. 201. We repeat that at this pre-trial stage we are expressing no opinion on what precisely the rules of natural justice required in the circumstances of the Western Samoa Commission's inquiry.

The Chief Justice thought that the statement of claim did not sufficiently allege an effect on the plaintiff's interests. He gave leave to amend and allowed for further argument thereafter. We think, however, that when the natural justice pleading is read as a whole in the context of a statement of claim alleging undermining of the plaintiff's status it becomes sufficiently clear that the plaintiff is complaining of an effect on his reputation and the public perception of his constitutional role. That is enough to give jurisdiction. In our view no amendment is needed.

That there is potentially a difficult question about the relief available is brought out by the Chief Justice's reference to Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1992) 175 C.L.R. 564. In that case the High Court of Australia may have held that to justify more than declaratory relief it is not enough that a report made in breach of natural justice affects a plaintiff's reputation. On the other hand in the Erebus case the New Zealand Court of Appeal and the Privy Council left open the possibility of quashing sections of a report on that ground: see [1981] 1 N.Z.L.R. at 667, [1983] N.Z.L.R at 687, [1984] 3 All E.R. at 224. We need not now essay any opinion as to how that question should be resolved in Western Samoa. In any event, whatever the answer to that question, the remedy of declaration is available if the plaintiff proves his allegations of breach of natural justice.

Result

For these reasons we allow the appeal to the extent that we hold that the natural justice cause of action may stand as pleaded and without amendment. In all other respects we dismiss the appeal. We also dismiss the cross-appeal.

All questions of costs are reserved until after the trial or the earlier termination of the case by settlement or otherwise.

The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Solicitors:
Drake & Co., Apia, Appellant
The Attorney-General's Office, Apia, for Respondents