Mauli v University of the South Pacific (USP) [2008] WSCA 8; CA 05 of 2007 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 05/07

BETWEEN:

FALEULU MAULI
of Alafua.
Accountant
Appellant

AND:

UNIVERSITY OF THE SOUTH PACIFIC (USP)
a body corporate established pursuant to the Charter of the University
dated the 4th day of February 1970
First Respondent

AND:

MICHAEL YEE-JOY, JOHN GAUKRODGER,
BRUCE SUTTON, LISA APTED
all of Suva Fiji, Chartered Accountants practising under the style KPMG
Second Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Hearing: 15 September 2008

Counsel: TRS Toailoa for Appellant
R. Drake for First Respondent
P. A. Fepuleai for Second Respondent

Judgment: 19 September 2008

JUDGMENT OF THE COURT

Introduction

1. By a judgment in the Supreme Court of Samoa on 5 April 2007 the Chief Justice dismissed the appellant’s proceedings against the respondents claiming damages for defamation and for negligence. From that judgment the appellant appeals to this Court.
   

Factual Background

2. The appellant was the Chief Accountant in the Accounts Section of the first respondent, the University of the South Pacific ("USP") at its Alafua campus in Samoa. His position was a full time one.
   
3. USP operated a system of fixed term employment contracts. From time to time an individual’s contract fell due for review by a Staff Review Committee (the "SRC") which decided whether or not the contract would be renewed.
   
4. The appellant’s contract was a three year one. It fell due for review in 2001. His application for renewal was considered by the SRC at its November 2001 meeting. Members of the SRC were:
   

Vice-Chancellor (Chair)

Deputy Vice-Chancellor

Pro Vice-Chancellors (four, one of whom was from Alafua campus)

Two non-USP staff members of Council

Three elected members of academic and comparable staff

Heads of Schools

Director, University Extension

One Director of an Institute

5. By letter of 19 December 2001 the SRC advised the appellant that it had deferred consideration of his contract to its meeting in May 2002 because it was "seriously disturbed with what appeared to be major inadequacies in the performance of your role as financial manager and controller for the University at Alafua Campus. Your attendance and time keeping had also been considered and the Committee was not impressed." The letter went on to advise that the SRC had asked university officers to "investigate certain allegations on your business interests which might be in conflict with your responsibilities to the University and your alleged frequent absences due to those other interests".
   
6. In a three page letter to the SRC of 19 April 2002 the appellant set out his replies to the allegations. Among other things he stated:
   
   • (9) I refute strongly the allegations about my attendance and time keeping. I had dedicated myself to my profession as Chief Accountant at Alafua Campus. Like everybody else, I took approved leave as and when I needed it. I ensured that my leave did not adversely affect my work. And what I do during my leave and after working. I hope the committee will see it as my freedom like everyone else. As like any loving and dedicated husband and father, I loved to help my wife with her business or spent my time with my music hobby instead of wasting my precious time with socialising at a kava/beer bowl or addiction to a game of golf or tennis.
     

(10) For the information of the Committee, my wife (Brenda) who was spending time bringing up our children and playing tennis whilst in Fiji for 6 years from 1981 to 1987, is a very successful businesswoman in Samoa and I am fortunate and blessed to have such a financial independent wife. She owned the biggest nightclub (RSA). Tatiana Motels, a Service Station and the famous RSA Band and Tatiana Band. She’s the Managing Director and runs her own businesses independently. She has her own accountant and staff who helped her with the business. My wife is quite capable of running her own business and must not be confused or mixed up with my preferred Chief Accountant job at USP. Granted she is a woman, but many women today do jobs similar or better than men. Even at USP many women are holding senior positions and doing a very good job. We have to respect them too. Ironically my wife successes in her business and the visible contributions and benefits to the many communities and the whole country gave recognition and appreciation by the government, the business communities and the general public. The invaluable recognition and contacts therefore, also benefited the University through my present position as Chief Accountant at Alafua Campus.

7. At its meeting in May 2002 the SRC resolved to further defer their review of the appellant’s contract to its meeting in November 2002.
   
8. The second respondents ("KPMG") were in practice as auditors and chartered accountants. They were internal auditors for the USP.
   
9. From 28 May to 10 June 2002 KPMG carried out an internal audit of the Alafua campus of the USP.
   
10. KPMG recorded their findings in an 81 page draft report of 12 July 2002. The draft was divided into an Executive Summary and the body of the report.
    
11. The draft Executive Summary contained extensive criticism of the accounting, budget-setting and payroll systems which were the appellant’s responsibility. The criticisms included the following under Major Findings:
    

"The Chief Accountant is noted to have business interests which suggest a conflict with the discharging of his duties as the most senior financial officer at the Campus.

12. The draft body of the report amplified the criticisms in detail. Again there were extensive criticisms of the accounting, budget-setting and payroll systems which were the appellant’s responsibility. The criticisms of the appellant himself included the following:
    

"We note that the Chief Accountant has various business interests that may conflict with the discharging of his responsibilities as an employee of the University.

...

We believe that employees of the University should not be excluded from participating in family or other business/commercial ventures, however, these should not conflict with their primary responsibility to the University as an employer or conflict with services provided by the University.

...

Matters noted which suggest a conflict of interest include:

• the regular absence of the CA from the University during working hours, during which period we understand he performed personal errands...

...

• The stopping of all outside catering by the Dining Hall, a service which is provided by the CA’s business interest."
  

13. KPMG sent a copy of the 81 page draft to the Bursar of the Alafua campus who on 1 August 2002 forwarded it on to the Pro Vice-Chancellor. The Pro Vice-Chancellor divided the draft into the parts which related to individual departments and sections of the Alafua Campus. By letter of 7 August 2002 he forwarded to each of the heads of department or section the part relevant to that head. Each head of department or section was asked to review and comment upon his or her part of the report.
    
14. The appellant duly reviewed the part relevant to his section and forwarded his comments to the Pro Vice-Chancellor. A senior management team at the Alafua campus discussed the draft and collated comments, including those of the Pro Vice-Chancellor, before forwarding the result to KPMG.
    
15. KPMG then prepared their final report of 4 October 2002 which ran to some 156 pages. The final report was a collation consisting of a revised executive summary, the body of the report in terms of the original draft, and the insertion of the comments of the department or section heads, and the Pro Vice-Chancellor, immediately following the portions of the report to which they respectively related.
    
16. In the final report the Executive Summary (pp 1 to 9) repeated the extensive criticism of the accounting, budget-setting and payroll systems which were the appellant’s responsibility. It also included the following:
    

"The Chief Accountant is noted to have business interests which suggest a conflict with the discharging of his duties as the most senior financial officer at the Campus...

...

The procurement function of the Dining Hall (for food items only) is controlled by the Chief Accountant, and this has led to conflicts and other issues arising ..."

17. The latter statement appeared for the first time in the final report.
    
18. In the body of the report the general criticisms of the appellant’s performance were amplified in great detail. Among the criticisms were the following along with the appellant’s own responses (pp 19 to 21):
    
    • 1.5 Conflicts of interest
      

Key Business Risks

We note that the Chief Accountant has various business interest that my conflict with the discharging of his responsibilities as an employee of the University. We understand that the CA is a director and a shareholder in a company of which two motels and a service station are divisions. We also understand that the CA is involved in managing a nightclub and a band.

Comment by Chief Accountant (CA):

My wife Tatiana Brenda Mauli is the managing director of her Tatiana Investments business. She has her own accountant, supervisors etc who helped her run the business. Naturally, all good loving husbands have to help their wives after hours including weekends and also advise their wives on anything that improve their business or career. I love music and I productively use my leisure time in writing music for the Band instead of wasting it in the golf course or parties. This is now my favorite past time hobby and a community service to our country, which give recognition to USP where I work. I love my job as a Chief Accountant of USP and am the longest service senior staff of the Bursary remaining. I had been looking well after the interest of USP all these years during the difficult times of many coups in Fiji from 1987 when a lot of senior staff deserted USP and also during the time when no PVC was in place for some considerable time at Alafua Campus. I feel I have contributed positively and productively to the University both in Suva and now at Alafua for the last 21 years under many Bursars, VCs and Pro VCs. It is unfortunate and sad to note that some people do not understand and appreciate these great services and commitments.

We believe that employees of the University should not be excluded from participating in family or other business / commercial ventures, however these should not conflict with their primary responsibility to the University as an employer or conflict with services provided by the University.

Comments (CA):

I do not see any conflict of interest in my wife’s business and USP. In fact there is nothing at USP that is of interest to my wife’s business in nightclub, motel and service station. In fact my wife’s business did not provide any catering services etc to USP as she does not operate one. While my wife, loves running her own business, I love my professional job as Chief Accountant of US. A business is a completely different entity from my wife. I love my wife as every man loves his wife. You are not a man or human if you do not.

Matters noted which suggest a conflict of interest include:

• The regular absence of the CA from the University during working hours, during which period we understand he performed personal errands. During the first four days of the internal audit, we observed that the CA was off-campus during normal working hours on several instances. Staff in the Accounts Section advised us on at least two occasions that the CA had gone out to for personal banking.
  

Comments (CA)

The Auditors should have asked me directly so they can be given the true explanation of where I went. I do not waste my time doing banking for USP or for my wife’s business.

Our review of the security arrival and departure records over a random period of five weeks in 2001 and 2002, revealed that on average the CA spends approximately 2.8 hours away from the Campus each day. This suggests that a significant amount of time has been dedicated by the CA to activities outside of the University during normal working hours.

Comment (CA)

Again, the auditors should have asked me about the above issue. Furthermore not all senior staffs have vehicles and senior staff living inside campus would be left out and not included in this type of surveillance exercise thus showing an incomplete and unreliable record of all staff movements. Also, I am entitled to one hour lunch break each working day.

• The stopping of all outside catering by the Dining Hall, a service which is provided by the CA’s business interests.
  

Comment (CA)

This is a false and misleading comment. It shows poor judgment of what is a rumor and a fact. We discussed (April 6, 2001) continuous problem in substantial loss in the Dining Hall with the Pro Vice Chancellor and Secretary (Student Welfare officer was not available) and approved my recommendation that outside catering done by our Dining Hall must be stopped, as these are the major cause of losses. I.e. we supplied $1000 worth of colourful seafood’s etc for only $500. These outside catering in principle were supposed to make a good profit to compensate or break even the small number of students in residence but in reality they tend to cause the losses. To compound the problem, the Dining Hall was run by a Junior Clerical Clerk who was there to keep the stores stocks and issues records and was not trained in the catering services. The Student Welfare Officer was also not thereto supervise the management of the Dining Hall in the absence of a qualified catering manager for the last 4 years. My wife also took my advice and does not operate or involved in such catering services, as they are costly and risky. No restaurant or meals are provided in her motels as quests are encouraged to eat out. The Pro Vice Chancellor- Ebenebe can verify that I have no such interest in this decision and that the Dining Hall finally show a very small deficit with profit in the Residential Hall in 2001 since we took that decision.

19. KPMG sent the final report to the Vice-Chancellor and the three members of the USP Audit Committee. The members of that committee were all non-staff Council members from Fiji – a businessman named Mr Jannif and two qualified accountants, Ms Apted and Mr Chief.
    
20. The Vice-Chancellor sent the final report to the Pro Vice-Chancellor of the Alafua Campus. By an email of 28 October 2002 to the Alafua Heads of Departments and Sections, the Pro Vice-Chancellor attached the report, advised that there would be a video conference to discuss it, and drew attention to the importance of maintaining confidentiality as to the contents of the report. A video conference of Alafua Heads of Departments and Sections duly followed.
    
21. The Vice-Chancellor arranged for copies of the Executive Summary of the final report to be distributed to the members of SRC. It is common ground that they did not receive copies of the full report (see evidence of Fonoti Dr Lafitai Fuatai, Mohammed Umar, and appellant’s affidavit of 24 October 2005 para 19(d)).
    
22. The SRC’s next meeting was in Suva on 18 November 2002. The Bursar was present but was not a member of the committee and did not vote. The three members of the Alafua campus attended by video-link from Samoa. The appellant was present in Suva in person. When it came to consideration of his contract he presented his response to criticisms of him in the KPMG report and then withdrew.
    
23. The SRC continued with discussion of aspects of the Executive Summary of the KPMG report in the appellant’s absence. At the end of the discussion there was a vote as to the appellant’s future with USP. Although the three members from Alafua supported the appellant, a majority by a margin of four votes voted in favour of non-renewal of his contract. There is a dispute over the reasons for that result to which we will return.
    
24. The Bursar, Mr Latham, deposed that beyond that, no copies of the report were circulated within the University or outside it nor were any copies placed in the library or on the University’s web site. There was no evidence to the contrary.
    
25. To summarise, the evidence established that:
    
    • (a) Before the KPMG investigation and report the SRC had already expressed concerns about the appellant of the kind that were later reflected in the report.
    • (b) The full final report was seen by the three members of the Audit Committee, the Vice-Chancellor, the Bursar, and the Alafua Heads of Departments and Sections.
    • (c) The full report contained all the allegations set out above including the reference to "The stopping of all outside catering by the Dining Hall, a service which is provided by the CA’s business interests" and the appellant’s response.
    • (d) Of the members of the SRC only two, the Vice-Chancellor and the Alafua Pro Vice-Chancellor, had the full report. The others had the Executive Summary.
    • (e) It was the content of the Executive Summary that formed the basis of discussion, not the rest of the report.
    • (f) The Executive Summary contained extensive criticism of the accounting, budget-setting and payroll systems which were the appellant’s responsibility.
    • (g) The Executive Summary also contained the statements that "The Chief Accountant is noted to have business interests which suggest a conflict with the discharging of his duties as the most senior financial officer at the Campus" and that "The procurement function of the Dining Hall (for food items only) is controlled by the Chief Accountant, and this has led to conflicts and other issues arising"
      

Proceedings in the Supreme Court

26. The appellant issued proceedings claiming damages of $3,816,223 for defamation. The same amount was claimed for negligence as an alternative cause of action.
    
27. As the foundation for his defamation claim the appellant pleaded all the passages from the KPMG final report quoted above. He then went on to plead that they carried the imputation that he "was dishonest in the conduct of his duties as chief accountant" and that he had "taken advantage of his position as such for his personal gains and that of his family’s business interests (sic)".
    
28. In the alternative the appellant pleaded that KPMG had been negligent in the way in which they had arrived at the conclusions expressed in their report and in failing to check the facts with the appellant personally before publishing the report.
    
29. The defendants pleaded a general denial of the appellant’s allegations but for reasons which are unclear (at least with respect to all statements but one), they did not plead justification. Even more strikingly, they did not plead qualified privilege. Notwithstanding that, all counsel spent considerable time during the evidence and submissions traversing the foundation, or lack of foundation, for the criticisms of the appellant made in the KPMG report.
    
30. In his judgment the Chief Justice found that in all cases except one, the statements complained of did not carry the meanings alleged by the appellant. The exception was the reference to "The stopping of all outside catering by the Dining Hall, a service which is provided by the CA’s business interests". But as to that statement he noted that the "bane" it contained was neutralised by the "antidote" in the appellant’s comments which immediately followed. He concluded that the two in combination were not defamatory.
    
31. On that basis the Chief Justice dismissed the defamation action.
    
32. As to negligence, the Chief Justice adopted a line of authority developed in the New Zealand courts, also accepted in Australia, to the effect that a claim for loss of reputation is the proper subject of an action for defamation and can not be relied upon as the basis for an action in negligence. Consequently that cause of action was also dismissed along with the appellant’s proceedings as a whole.
    

The Appeal

33. In this court the appellant advanced essentially five grounds of appeal:
    
    • (a) That the Chief Justice had made an error of fact in that the report upon which the appellant’s case relied was the original KPMG report, not the composite report later incorporating the appellant’s own comments and the executive summary; consequently the plaintiff’s own comments could not be relied upon to remove the sting of the initially defamatory statement;
    • (b) The Chief Justice should not have accepted the defence of bane and antidote because it had not been pleaded by the respondents;
    • (c) The Chief Justice was wrong in law in his conclusion that a concurrent cause of action in negligence was not maintainable in law;
    • (d) The Chief Justice’s involvement in the cross-examination of the appellant’s witnesses was excessive; and
    • (e) The delays between the commencement of the hearing, the finalisation of the hearing, and the delivery of the courts’ decision violated the appellant’s right to a fair hearing within a reasonable time.
      

(a) Wrong report relied upon

34. The first ground of appeal was that the Chief Justice had founded his judgment upon the wrong document: whereas the appellant’s case was based upon the draft report of 12 July 2002, the Chief Justice had inadvertently relied upon the final report of 4 October 2002.
    
35. Selection of the correct report was important to the appellant because it was only in the final report that the allegations against the appellant were associated with his own rebuttals. It was the presence of the appellant’s rebuttals in that document that persuaded the Chief Justice that what would have otherwise have been defamatory was not defamatory when read in association with the rebuttals.
    
36. An examination of the record in the Supreme Court shows that the appellant consistently referred to the final report as the basis for his case:
    
    • The page references to the report given in the appellant’s first amended statement of claim relate to the final report, not the draft which had different numbering.
    • One of the pleaded defamatory passages ("The procurement function of the Dining Hall (for food items only) is controlled by the Chief Accountant, and this has led to conflicts and other issues arising ...") appears only in the final report; it does not figure in the draft report.
    • In his opening Mr Toailoa took the Court carefully through the relevant pages of the final report, expressly referring to the particular exhibit where the final report was to be found. As he did so the Chief Justice wrote references to the final report at the appropriate places on the first amended statement of claim.
    • In his closing submissions Mr Toailoa expressly identified the defamatory matters by reference to the paragraph in the first amended statement of claim which included both the page references from the final report and one of the defamatory statements found only in the final report.
    • There is no Supreme Court record of the appellant or his counsel ever saying that they relied upon anything other than the final report.
      
37. It is understandable that having seen the Chief Justice’s reliance upon something found only in the final report as the basis for deciding against the appellant, the appellant would now wish to divert his case to the draft report.
    
38. However selecting and identifying the particular defamatory statement or statements relied upon lies at the very heart of a defamation action. To change to a different defamatory statement in the Court of Appeal would be to substitute a fresh cause of action altogether. That could have far-reaching consequences stemming from the different wording, dates, recipients and consequences of publication. Such a fundamental change of direction can not be permitted at this stage of the litigation.
    

(b) Bane and antidote defence not pleaded

39. It is true that the defendants did not expressly plead "bane and antidote" as a defence to the action. However "bane and antidote" is simply historical language for the proposition that the meaning of a document is to be derived from the document as a whole. Words are to be read in context. The context included the appellant’s comments.
    
40. In their statements of defence the defendants denied the meanings attributed by the appellant to the KPMG report. That is all that they were required to do.
    

(c) Negligence available as concurrent cause of action

41. Mr Toailoa did not pursue this ground in his written or oral submissions. We respectfully agree with the Chief Justice that where the essence of a plaintiff’s complaint is that he or she has been defamed, negligence is precluded as a cause of action in lieu of, or as an alternative to, defamation – see, for example, Balfour v Attorney-General [1990] NZCA 364; [1991] 1 NZLR 519, 529 (CA).
    

(d) Excessive intervention in cross-examination

42. Mr Toailoa complained that during the cross-examination of the appellant the Chief Justice asked many questions of his own and made suggestions to opposing counsel as to matters which might usefully be pursued. Mr Toailoa contrasted that with relative silence on the Chief Justice’s part during the evidence of defence witnesses.
    
43. Having carefully perused the transcript we are satisfied that there is no substance in this complaint. Given the length and complexity of the trial the interventions were not unwarranted in nature or number. We note also that the pleadings in defamation proceedings are unusually technical, demanding and important. Inadequacies in the pleadings of all parties in the present case placed extra demands on the Chief Justice in his attempt to identify the real issues and control the trial.
    

(e) Delays violating right to fair hearing

44. Mr Toailoa was understandably disappointed that the trial had to be adjourned for five months part heard followed by further delays until judgment was eventually given. He submitted that the appellant had been denied the right to a fair trial under art 9 of the Constitution.
    
45. However there is no suggestion that at the outset counsel had sought, and been denied, a fixture long enough to accommodate all the steps which the trial eventually required. Unfortunately delays of the kind encountered here are not unusual in other jurisdictions. They are an inevitable consequence of the demands placed upon courts which must share their resources among the many litigants competing for their time. There was no denial of the right to a fair trial.
    

Did the KPMG report convey the alleged defamatory meaning?

46. Although not advanced as a formal ground of appeal, we think that the real substance of the appeal lies in the appellant’s submission that one of the statements complained of continued to be defamatory notwithstanding the appellant’s comments which followed.
    
47. The statement in question was the reference in the body of the final report to "The stopping of all outside catering by the Dining Hall, a service which is provided by the CA’s business interests".
    
48. It is true that that statement was immediately followed by the appellant’s detailed rebuttal but this left the reader in the position of having to choose between inconsistent assertions: Gatley on Libel and Slander (1998) 9th ed at 3.29. The primary allegation came from KPMG, a seemingly independent source. The appellant had an obvious interest in the outcome. In that situation some readers could have reasonably concluded that the KPMG version was to be given more weight.
    
49. Having said that, it is important to consider the meaning which the reader could reasonably take from the statement. Here it is important to consider both the actual words used and the context in which they appeared. The statement itself did not allege the stopping of outside catering provided to the Dining Hall but the stopping of outside catering provided by the Dining Hall. In short it was a reference to the Dining Hall’s practice of competing with other commercial caterers in providing catering services to others.
    
50. Had there been any doubt on that score, it would have been removed by the appellant’s response which immediately followed. In his response (later echoed in his evidence at trial) the appellant referred to "my recommendation that outside catering done by our Dining Hall must be stopped, as these are the major cause of losses. I.e. we supplied $1000 worth of colourful seafood’s etc for only $500. These outside catering in principle were supposed to make a good profit to compensate or break even the small number of students in residence but in reality they tend to cause the losses." This could only have been a reference to the University’s desire to make money by providing catering services to the public, a point which must also have been well known and understood by the particular readers who read the report. As has been pointed out, these readers were not the public at large but members of the university itself.
    
51. Read in context, the implied meaning of the statement complained of was therefore no more than that the appellant had used his position to remove the University from the catering market in which his own business was also a competitor. This supports the defamatory imputation that he had "taken advantage of his position as such for his personal gains and that of his family’s business interests" but not that he "was dishonest in the conduct of his duties as chief accountant".
    
52. To summarise, we accept the appellant’s submission that notwithstanding his own added comments there remained a defamatory sting in the stopping of outside catering statement. The imputed meaning was that he had taken advantage of his position as Chief Accountant for the personal gain of himself and his family by removing a competitor from the catering market.
    
53. Since we have found the statement to be defamatory it is necessary to move to the question of damages.
    

Cause of SRC decision not to renew the contract

54. In approaching damages the principal question is the role of the defamatory statement in the non-renewal of the appellant’s contract. The main thrust of the appellant’s case was that it was defamatory statements in the KPMG report which caused him to lose his position in the university. Loss of the appellant’s position formed the basis for his claim to $1,316,223 in what was described as "special damages".
    
55. Given his finding as to defamatory meaning, it became unnecessary for the Chief Justice to determine the basis for the SRC decision not to renew the appellant’s contract. We have carefully analysed the evidence on that topic. The question is to determine the role, if any, played by the statement found to be defamatory. The appellant had to show a causative link between the impugned statement and the decision of the SRC.
    
56. On that subject the evidence shows the following:
    
    • (a) At least a majority of the SRC must have already formed a negative view of the appellant before the KPMG report given SRC’s letter of 19 December 2001. Certainly a report from independent auditors could only have reinforced the SRC’s concerns, but the report is essentially an amplification of the allegations already made in that letter.
      
    • (b) In his evidence the appellant complains that when the auditors came to the Alafua campus they came with certain assumptions and that it was wrong for auditors "to come in and already have an assumption that someone is bad and you have to try and do a report to prove that without even going through the gathering of evidence to support it". His complaint was essentially that those in control of the SRC were using KPMG to rationalise a view already formed. There is some support for that view in the evidence of Mr Umar.
      
    • (c) Another of the complaints made in the appellant’s evidence was that the Vice-Chancellor had distributed only the Executive Summary to the members of the SRC and that he distributed it only at the meeting instead of well beforehand which was the usual practice. But to the extent that the Executive Summary was critical of the appellant, more time to consider it could only have heightened its impact. More importantly, the Executive Summary did not contain the defamatory statement now relied upon. Nor has any cause of action been founded upon oral statements made at the meeting.
      
    • (d) The Executive Summary, (and indeed the full report) contains extensive criticism of the accounting, budget-setting and payroll systems which were the appellant’s responsibility together with other criticisms of the appellant himself. At least in this Court it was accepted that none of the statements in the Executive Summary were defamatory.
      
    • (e) The Bursar, who was present but not a member of the SRC, deposed that "My clear recollection of the meeting is that the decision not to renew Mr Mauli’s contract was made purely on the basis of his work performance as Chief Accountant. He was judged to be performing at an unacceptable level. My clear recollection is that conflict of interest was not discussed, nor was it a factor that led to the decision of the SRC not to renew the contract".
      
    • (f) The evidence of a member of the SRC, Fonoti Dr Lafitai Fuatai, clearly supported that view. In his affidavit the doctor had deposed that the debate was centred on the findings of the KPMG report and that the majority were influenced by criticisms of the appellant it contained including not being prompt with his attendances, the inference that he was spending more time helping out his wife’s business than being at the office and the stopping of Dining Hall caterings as it was a service provided by his wife’s business. However in his oral evidence he said that "the discussion was based on the Executive Summary of the KPMG report that was given to all of the committee members to look at." Critically, the Executive Summary contained no reference to the stopping of Dining Hall caterings. He went on to say "I can recall the Vice Chancellor saying as in my statement that Mr Mauli had not stolen any money from they university, the question had have was whether Mr Mauli’s performance was on a par with his job description" and in answer to the question whether it was the appellant’s performance in relation to his contract replied "Yes that is what the Vice Chancellor was saying whether Mr Mauli was performing up to par that was what the committee was going to vote on to decide whether each member felt that Mr Mauli was performing and doing his responsibilities as required in his contract." His subsequent acceptance of some grossly leading questions in re-examination is to be ignored.
      
    • (g) That view is also supported by another member of the SRC, Mr Umar. In his affidavit Mr Umar recalled discussion of the KPMG report and said that "A huge part of the report covered Accounts Section and I believe that that may have influenced the USP decision to terminate the services of Mr Mauli". In his oral evidence he was asked whether "there were any specific issues from the report that were brought to the fore and highlighted to the attention of the members of the SRC" to which he gave a lengthy answer concluding " no I do not find anything that specifically can tie it to or attached it to or implicates Mr Mauli in the context of the way that the report was presented". When asked again he gave further lengthy answers about a number of matters in the report best captured in his remark that "However we did discuss a great many things which were picked from the executive report which were also referred to the chief accountant and a few of the things that I recall was the reconciliation was not timely or the reports were not prepared at one time, the management was not up to standard, the supervision or absenteeism – these are the kinds of things ...". Later in cross-examination he agreed that discussion of the report "focused on things like reconciliations, not having reports prepared on time and things like that" and "centred on his performance as a chief accountant". He agreed that the executive summary before the SRC contained no reference to the stopping of dining hall caterings and that "the main criteria for evaluation, that’s the performance evaluation. That’s how all the staff are evaluated. So the criteria that we used for one person is also used for others. It’s the same criteria and that’s performance under different performance indicators." In short his evidence was that the SRC concern was performance, not conflict of interest.
      
    • (h) Only two members of the SRC – the Vice-Chancellor and the Alafua Pro Vice-Chancellor are shown to have received the full report which contained the defamatory statement. The evidence is that discussion at the SRC was confined to the Executive Summary which did not contain the defamatory statement. Although something found in the full report could have influenced the votes of the two members who had it, it could not have influenced the votes of the rest of the majority who voted in favour of non-renewal of the contract.
      
    • (i) The Executive Summary contains extensive criticism of the sectors of the Alafua Campus for which the appellant was responsible together with criticisms of the appellant himself in respects which have not been challenged as defamatory in this Court. The overwhelming evidence is that it was non-performance which led to the SRC decision.
      
57. The onus was always on the appellant to demonstrate a causal link between the defamatory statement and the non-renewal of his contract. We do not think that he has discharged that onus. At best, there is a remote possibility that in some indirect and undefined way for which there is no direct evidence, the chances of the appellant’s re-appointment were diminished by the defamatory statement.
    

Assessment of damages

58. There being no pleading as to the extent and nature of publication, Mr Toailoa was asked to address this topic in the Court of Appeal. Without abandoning the allegation that there had been wider publication, he focused upon the effect which the report had had on the SRC. We have now found that the chances that without the defamatory statement the appellant’s prospects would have been improved are remote.
    
59. There remains the evidence that the full report containing the defamatory statement was received by the three members of the Audit Committee, the Vice-Chancellor, the Bursar, the Alafua Pro Vice-Chancellor, and the Alafua Heads of Departments and Sections.
    
60. In assessing damages for publication to those persons the following factors are relevant:
    
    • (a) This was publication to only a handful of people within an institution coupled, for those at the Alafua Campus, with a reminder from the Pro Vice-Chancellor that the contents of the report were to be kept confidential.
    • (b) The indications are that of those recipients, the ones at the Alafua Campus did not accept the criticisms of the appellant. That is indicated by the unanimous support of the Alafua members of the SRC, including the Alafua Pro Vice-Chancellor, and representatives of the Alafua Campus called by the appellant at the trial.
    • (c) The particular statement found to be defamatory was buried in a 156 page report much of which was concerned with criticisms of the areas of the Campus for which the appellant was responsible along with a series of personal criticisms of the appellant himself.
    • (d) The nature of the defamatory allegation was not in the most serous category – removal of a potential competitor from a market shared by the appellant’s family – and was to at least some degree mitigated by the appellant’s accompanying response.
    • (e) Although we have assumed that the presence of the appellant’s response did not entirely remove the sting of the statement, we bear in mind that some readers – the Chief Justice included – could have concluded that the response was an adequate answer to the allegation.
    • (f) Such damage as has occurred to the appellant’s wider reputation in Samoa and the South Pacific will have stemmed from his effective dismissal from the University consequent upon the many criticisms of his performance described in the KPMG report. The weight of the evidence is that that would have occurred with or without the particular statement found to be defamatory.
      
61. The assessment of general damages for defamation is not a matter of precise calculation. We are satisfied that in all the circumstances this defamation was at the lower end of the scale. We assess the damages as $10,000 for loss of the chance, however remote, that the appellant might have been reappointed but for the defamatory statement and $5000 for residual consequences of the publication to other members of the University. The total damages awarded are therefore $15,000.
    

Result

62. The appeal is allowed. The appellant is awarded damages jointly against the two respondents in the sum of $15,000 together with costs in this Court in the sum of $2,500.
    
63. Costs in the Supreme Court are remitted to the Supreme Court for determination. Although it is a matter for the Chief Justice, the principal considerations could well be that (a) the appellant has succeeded in his defamation claim (b) he has failed in his negligence cause of action (c) he has failed in relation to all but one of his defamatory statements and (d) he has failed as to the principal basis for his claim to damages.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher