Apia Broadcasting Ltd v Ponifasio [2012] WSCA 5 (1 June 2012)

Court of Appeal of Samoa

Apia Broadcasting Ltd v Ponifasio [2012] WSCA 5

Case name: Apia Broadcasting Ltd v Ponifasio

Citation: [2012] WSCA 5

Decision date: June 2012

Parties:

APIA BROADCASTING LTD a duly incorporated company having its registered offices at Taufusi, Apia and trading as TV3 and ATANOA HERBERT CRICHTON General Manager of TV3 and TUTUILA FARAO Reporter of TV3 v TUALA AUIMATAGI IOSEFO PONIFASIO Matai of Leauvaa and Businessman.

Hearing date(s): 28 May 2012

File number(s): CA 02/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

On appeal from:

Order:

Representation:

P Fepulea’i for first, second and third appellants

A Su’a for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Mauli v University of the South Pacific [2007] WSSC 23;

Enosa v Samoa Observer Co Ltd [2009] WSSC 95;

Uili v Malif [1980-1993] WSLR 440;

Malifa v Uili [1993] WSCA 6;

Alesana v Samoa Observer Co Ltd [1988] WSSC 1

Siemer v Stiassny [20011] 2 NZLR 361 (CA) at [56], [73]

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

CA 02/12

BETWEEN

APIA BROADCASTING LTD a duly incorporated company having its registered offices at Taufusi, Apia and trading as TV3.

First Appellant

AND

ATANOA HERBERT CRICHTON General Manager of TV3

Second Appellant

AND

TUTUILA FARAO Reporter of TV3

Third Appellant

AND

TUALA IOSEFO PONIFASIO Matai of Leauvaa and Businessman

Respondent

Court:

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Hearing: 28 May 2012

Counsel:

P Fepulea’i for first, second and third appellants

A Su’a for respondent

Judgment: June 2012

JUDGMENT OF THE COURT

Introduction

1. After a defamation trial in the Supreme Court the respondent secured judgment against the three appellants in the sum of $80,000 for general damages, $40,000 for aggravated damages and $10,000 for exemplary damages, a total of $130,000 plus costs. In this Court the appellants appeal against quantum of damages only.

Factual Background

2. The respondent was formerly a practising lawyer in Samoa. He had also been involved in a tourism venture at Virgin Cove. In November 2010 he was suspended from legal practice. In 2011 he stood for election to parliament as a member of the Tautua party in the Constituency of Gagaemauga No. 1.
3. The first appellant, Apia Broadcasting Limited (“TV3”) operates a public television station. Its primary owner and chair of its Board was Hans Joachim Kiel, a supporter of the Human Rights Protection Party (“HRPP”). A candidate from the party, and sitting member of Parliament, Sala Fata Pinati (“Mr Sala”), was the opposing candidate in the Gagaemauga No. 1 constituency.
4. The second appellant, Atanoa Herbert Crichton, (“Mr Crichton”) was the General Manager of TV3. The third appellant, Tutuila Farao, (“Mr Farao”) was the news editor and a reporter for TV3.
5. The village of Leauvaa, and a number of its sub-villages, were in the Gagaemauga No. 1 constituency. On Friday 25 February 2011 the respondent and members of his party held a campaign meeting there a week before the election. TV3 was represented at the meeting and later broadcast that meeting.
6. On Saturday 26 February 2011, Mr Sala and members of his party held a campaign meeting in Leauvaa. A Mr Moli was one of the speakers at the meeting. He made derogatory remarks about the respondent. They were filmed by TV3 under the supervision of Mr Farao. TV3 also filmed interviews with Mr Moli and other HRPP supporters. Mr Farao’s plan was to assemble a compilation of extracts from the meeting and interviews for broadcast on Monday evening.
7. On the morning of Monday 28 February the respondent participated in a panel interview conducted by TV3. No-one from TV3 told him that they were intending to broadcast something derogatory about him. That may have been due to the fact that at that stage Mr Farao was still working on his compilation.
8. On the evening of Monday 28 February 2011 TV3 broadcast Mr Farao’s compilation of the HRPP meeting and interviews. The report was introduced by Mr Crichton. His introduction stated that there was strong support in the village for the incumbent Member of Parliament. Mr Farao referred to the respondent’s meeting on 25 February and stated that the respondent was not received well by the village of Leauvaa. A person interviewed referred to the absence of titled chiefs from the meeting. A further person interviewed complained of the presence of Tautua party members brought in as strangers. Mr Farao commented that those remarks showed the strong disagreement of the village and that strangers had come to the land of Leauvaa without permission.
9. The broadcast went on to report Mr Moli’s derogatory remarks about the respondent. He stated that some high chiefs had acted badly and that the respondent’s meeting was contrary to custom. He likened the visitors’ entry to “the thief and a robber” implying that they had entered like criminals at night. Mr Farao commented that this was not the will of Leauvaa through Tuala and Vaifali. Mr Moli added that the village was unanimous that the incumbent was their very own member. Mr Farao then linked to a fourth interviewee, Vaifale Iose, who complained about the respondent’s criticism that the government had not provided sufficient service to the village. Mr Iose (wrongly) stated that the respondent had criticised Mr Sala personally, although he had in fact criticised merely the government in general. A Mr Mata’afa was shown thanking Mr Sala for his good works and stating “well done and thank you”.
10. The compilation concluded with the following exchange:

“Tutuila Farao – ‘Some of the reasons why the village believes they should not accept Tuala Iosefo Ponifasio as suitable for the position were also revealed at this meeting.’

Tuala Kasipale Moli – ‘The fine should be $20,000, and remove his role as lawyer. What are these tourism businesses? What happened to the Virgin Cove? All monies from overseas were eaten. A disgrace. Do we need leaders like this to leave the country? Works speak louder.’

Tutuila Farao – ‘The village of Leauvaa is now unanimous for their one and only candidate Afioga Sala Fata Lisati Pinati Ah Leong, who has been the incumbent member for the past 2 parliamentary sittings.’

Tuala Kasipale Moli – ‘The majority of the village want to protect the decision made at our meeting. But a person’s right is still left to the person’s free will.’

Tutuila Farao – ‘The country’s general elections is this Friday. Tutuila Farao, TV3 News.’”

11. The respondent first heard of the compilation when he watched the TV3 News on the evening of Monday 28 February. The broadcast was repeated on the following morning, Tuesday 1 March. Later on the same day the respondent arranged for his sister to communicate with TV3. She spoke to Mr Crichtotelephone, had a meea meeting with him later that day and collected a DVD of the broadcast.
12. On the following day, Wednesday 2 March,arch, the respondent made unsuccessful attempts to contact Mr Crichton and Mr Farao to request a retraction. Later on the same day Mr Farao went to the respondent’s house. As the respondent was distressed he declined an interview and arranged for Mr Farao to speak to two Matai who were at his house. Mr Farao filmed an interview with the two Matai on the question of the call for peace in the village made by Mr Sala. Later that day TV3 made brief mention of the call for peace as a news item but made no other reference to the matter.
13. At the election on 4 March, the respondent was defeated and Mr Sala elected.
14. In mid-May 2011 the village held a reconciliation ceremony. At the ceremony Mr Moli withdrew his allegations. He gave an emotional apology to the village and to the respondent. Mr Farao was present.
15. At no stage did any of the appellants apologise to the respondent or offer to publish a retraction.

Supreme Court proceedings

16. The respondent issued the present proceedings on 20 May 2011. The proceedings focused on the critical passage in the broadcast of which the agreed English translation is:

“Where is the thing at Virgin Cove? All the monies from overseas were eaten. A disgrace. Do we take leaders like this to lead the country? Actions speak louder.

17. The respondent alleged that particularly in the context of the full broadcast, the words meant in their natural and ordinary meaning, and were understood to mean, that the plaintiff was a thief, a dishonest and fraudulent person who could not be trusted, was not worthy to be a leader or representative in parliament, and was a disgrace, irresponsible and incompetent.
18. In their defence the appellants pleaded justification (i.e. that the words were true in substance and fact), fair comment (i.e. genuinely held opinion expressed in relation to true facts on a matter of public interest) and qualified privilege (i.e. a fair and accurate report of the proceedings of a public meeting for the further discussion of a matter of public concern).
19. Those defences were persisted in at trial notwithstanding an affidavit from Mr Moli, filed and served the day before the trial, in which Mr Moli swore that he had no basis for his defamatory allegations. The appellants’ counsel cross-examined the respondent as to the truth of the Moli statements. No evidence was called to establish the truth of the words spoken. At the very end of the trial, when the last witness, Mr Crichton, was giving evidence, the Judge extracted from him an oblique form of withdrawal of the defamatory statement.
20. In his judgment Slicer J found the words used to be defamatory; pointed to the absence of any evidence in support of justification; accepted that the topic was one of public interest; pointed to the lack of sufficient factual foundation for fair comment; and held that the interviews did not involve a fair or accurate report of any public meeting.
21. On the subject of damages, the Judge pointed to the wide publication (TV3 covered 85% of the population) and the very serious nature of the defamatory allegations. He referred to five Samoan decisions. Of the five, he considered that four, Mauli v University of the South Pacific [2007] WSSC 23, ($15,000), Enosa v Samoa Observer Co Ltd [2009] WSSC 95 ($25,000), Uili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440 ($20,000) and Malifa v Uili [1993] WSCA 6 ($20,000), were less serious than the present case.
22. The Judge regarded this case as closest to Alesana v Samoa Observer Co Ltd [1988] WSSC 1 in which an award of $50,000 had been awarded in 1998. Taking into account the difference in the value of money between 1998 and 2011, the fact that the plaintiff was a public figure, that the imputations were of a most serious nature, and that his reputation in commerce and politics had been tarnished, the Judge concluded that $80,000 was an appropriate award for general damages.
23. As to aggravated damage, the Judge noted that the appellants had made no apology or retraction. They persisted with their pleading of justification up to and throughout the trial. Although Mr Crichton and Mr Farao gave evidence, they offered no apology. There was no evidence that the appellants had published the apology given by Moli in May. There had also been a breach of the Journalists Code of Ethics in that the respondent had been offered no right of reply. The appellants’ conduct had prolonged the personal harm to the respondent. Aggravated damages of $40,000 were awarded.
24. As to exemplary or punitive damages, the Judge considered the applicable legal principles and awarded $10,000.

The Appeal

25. We have recovered that in this Court the appeal was confined to the argument that the damages were manifestly excessive.
26. The appellants’ first ground in support was that “the respondent did not ask or seek an apology, retraction or right of reply from the appellants”.
27. It could scarcely be suggested that the appellants did not know that the respondent was aggrieved by what had been said before the trial took place. The content of Mr Moli’s derogatory remarks alone showed their defamatory nature. Even if Mr Farao had been left in any doubt over how a person in the respondent’s position would react to those remarks, the doubt was presumably removed when Mr Farao went to the respondent’s house on Wednesday 2 March. Certainly any doubt on that score must have been expelled when Mr Farao attended the reconciliation meeting in May and, of course, once proceedings were issued. Six months elapsed between the issue of proceedings and the trial.
28. The appellant’s principal argument implies that damages for defamation will be reduced or denied if the plaintiff had failed to seek an apology or retraction. No authority was cited for that proposition. Nor does it accord with principle. For present purposes liability is not challenged. It follows that from the moment the defamatory statement was made, the appellants were responsible for the consequences of an actionable wrong that they had committed against the respondent. The consequences included ongoing harm to reputation and feelings. It was always open to the appellants to mitigate the harm, and therefore the damages. This they could have done by publishing an apology and retraction. If they did not do so they must bear the consequences. It was never the respondent’s responsibility to set that form of mitigation in motion.
29. The appellants’ second ground of appeal was that the Judge had placed undue emphasis on certain facts. These included the political sympathies of TV3’s owner, the programme’s introduction by Mr Crichton, the failure to warn the respondent of the proposed broadcast, and the fact that Mr Farao learned of the respondent’s complaint at the May reconciliation meeting. Having studied the judgment we see no undue emphasis on any of these matters. They were all relevant.
30. We accept that there is room for argument over the precise dates upon which each appellant learned of the respondent’s displeasure about the defamatory broadcasts. Even if that been relevant, there could scarcely have been any room for argument on that topic from May 2011 when the proceedings were issued. But in any event knowledge of a plaintiff’s reaction is not critical to damages for the reasons already traversed in para [30].
31. Thirdly the appellants submitted that the damages awarded were excessive, particularly by comparison with the $50,000 awarded in the Alesana case above.
32. We agree that the damages awarded in this case were at the upper end of the possible range, even taking into account its aggravating features. It is not for an appellate court to interfere unless there was an error of principle or the damages awarded were plainly wrong. But for one aspect we would dismiss the appeal.
33. The one qualification we have concerns the way in which the Judge used Alesana as the base from which to build his approach to damages. He was entitled to take into account inflation and other detailed differences between the two cases in order to arrive at his higher figure. However when considering matters of aggravation and other aspects of general damages, it is important to avoid the danger of double-counting. For that reason, the growing view is that it is better to include aggravating circumstances as merely components of one overall figure for general damages: Siemer v Stiassny [20011] 2 NZLR 361 (CA) at [56], [73]. However Siemer is also authority for the proposition that in the end it is the totality of the award that matters.
34. In the present case the Judge used Alesana as the base to which he made various adjustments. However he then awarded another $40,000 as a distinct figure for aggravated damages. He did not expressly acknowledge the fact that Alesana the $50,000 embraced both aggravating and other circumstances relevant to general damages. Given the very real risk that the Judge overlooked that point, we reduce the total of $120,000 for general and aggravated damages to $95,000.
35. The appellants did not contend that the punitive damages were excessive or that they should not have been cumulative upon the combined general and aggravated damages.

Result

36. The appeal is allowed. In substitution for the damages awarded in the Court below we substitute $95,000 for general damages plus $10,000 for punitive damages, a total of $105,000. There will be no additional award for aggravated damages.
37. The arguments specifically advanced on behalf of the appellants have failed. The appellants did not rely upon the possibility of confusion due to the inclusion of aggravated damages in the $50,000 awarded in Alesana. In the circumstances there will be no award of costs to either party.
    

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith