Alesana v Samoa Observer Company Ltd [1997] WSSC 15; CP 42-97 (5 June 1997)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

C.P.42/97

BETWEEN

TOFILAU ETI ALESANA
of Apia, Prime Minister
Plaintiff

AND

SAMOA OBSERVER COMPANY Ltd
a duly incorporated company having its registered office
at Vaitele, Western Samoa
First Defendant

AND

SAVEA SANO MALIFA,
Publisher of Apia
Second Defendant

Counsel: K M Sapolu for plaintiff
T Malifa for first and second defendants

Hearing: 23 May 1997
Judgment: 5 June 1997

JUDGMENT OF SAPOLU, CJ

The plaintiff has brought an action against the defendant for an alleged libel published in the Samoa Observer and Sunday Samoan newspaper on 8 December 1996 by filing a statement of claim. It is alleged that the first defendant is the publisher of the newspapers and the second defendant is acting editor and also the publisher of the same newspapers. Before filing a statement of defence, counsel for the defendants has filed a notice for further particulars under rule 16 of the Supreme Court (Civil Procedure) Rules 1980 so that the defendants are sufficiently informed of the plaintiff's claim. The notice for further particulars refers to a number of paragraphs of the statement of claim in respect of which further particulars are being sought.

It must be pointed out that particulars are matters of pleading and not matters of evidence or proof. Their purpose is to make plain to the opposite party the case that is being raised against him, and so enable him to take steps to deal with it. It follows that if a matter is already plain then further particulars of it are not necessary.

Now paragraph 2 of the statement of claim, as far as relevant, alleges that the Savaiian Hotel at Lalomalava, Savaii, is owned by the plaintiff's daughter and her husband. The further particulars being sought for the defendants are full details of ownership of that hotel including all accounts and finances as to its construction as well as all bank statements on all monies expended on the hotel. The factual allegation asserted in paragraph 2 of the statement of claim is quite plain that the hotel is owned by the plaintiff's daughter and her husband. I cannot see how for the purpose of pleadings, the plaintiff can state it any more plainly that the hotel is owned by his daughter and her husband.

It appears clear to me that what counsel for the defendants is really asking for is for the plaintiff to furnish information to prove the ownership of the hotel as alleged. In other words, information which will prove whether the hotel is actually owned by the plaintiff's daughter and her husband. But that will be going into the realm of evidence and proof which is not the purpose that particulars are designed to serve. Particulars are matters of pleadings designed to make plain in advance to the opposite party the case that is being raised against him, so as to enable him to deal with it. They do not go to proof. The application for further particulars in respect of paragraph 2 of the statement of claim is refused.

I turn now to paragraph 3 of the statement of claim which alleges that the first defendant is the publisher of the Samoa Observer and Sunday Samoan newspaper in Western Samoa and New Zealand. The application for further particulars is directed to two matters, namely, publication and circulation of the newspapers in New Zealand.

As to publication, counsel for the defendants submitted that the plaintiff should furnish particulars as to the printing of the newspapers in New Zealand and who was responsible for printing the newspapers in New Zealand. In my view this submission is not in order. Publication in the context of the tort of defamation means the making known of a defamatory statement to some person other than the plaintiff. In the case of Pullman v Hill & Co [1890] UKLawRpKQB 193; [1891] 1 QB 524, which was cited to the Court by counsel for the plaintiff, Lord Esher MR said at p.327:

"What is the meaning of 'publication'? The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself".

By definition, therefore, publication in the context of the tort of defamation does not mean the printing of a defamatory statement, but the act of making known a defamatory statement to some person, other than the person who is being defamed. Particulars which have been sought on the printing and the identity of the printers of the newspapers are therefore also refused.

With regard to circulation, it is to be noted that the circulation of the newspapers is not expressly pleaded in paragraph 3 of the statement of claim. However both counsel in their submissions seem to accept that paragraph 3 of the statement of claim extends to circulation of the newspapers in New Zealand. On that basis, counsel for the defendants has sought further particulars on the extent of the newspapers circulation in New Zealand, and who is responsible for the circulation of the newspapers in New Zealand.

There are three matters which call for comment here. The first is this. It is generally desirable practice to expressly plead the extent of the publication of a newspaper which is being sued for libel in terms of its geographical area of circulation. This does not mean that the exact boundaries of a newspaper's area of circulation must be pleaded. The reason for this is that in many cases of libel, an important factor in the assessment of damages is the extent of a newspaper's publication. In Duncan and Neill: Defamation (1978) cited by counsel for the plaintiff to the Court, it is there stated in para 18.14 at p.136:

"In many cases an important factor in the assessment of damages will be the extent of publication. Thus whereas a limited publication to one or two individuals may lead to a very modest award of damages, particularly if the publishees are not influenced by the publication or may disbelieve it, a publication in a national newspaper or by means of television or radio may lead to a very substantial award because the defamatory material is likely to come to the notice of a very large number of people including many who are friends or acquaintances of the plaintiff. On the other hand the gravity of the matter cannot always be assessed by reference to the extent of the publication and certainly not in any direct ratio to the number of persons to whom the defamatory material is published. Thus a publication by letter to an employer or to a limited circle of the plaintiff's friends may be no less damaging than the publication of similar material in an article in a newspaper". (italics mine)

In 28 Halsbury 's Laws of England 4^th edn para 237 at pp 118-119, it is there also stated:

"The extent of the publication, in terms of both the number of copies distributed and the geographical area within which distribution takes place, and of the nature of the audience, are always relevant. Generally, the damages will increase with the circulation of the libel, although not necessarily in direct proportion to it. Conversely, a limited publication may be extremely damaging for instance if it is to an employer".

See also McGregor Oil Damages 15^th edn para 1687 at pp 1066-1067.

Referring to the English text of Bullen & Leake & Jacobs: Precedents of Pleadings (1990) 13^th edn, it appears from the precedents for libel claims against newspapers set out in pp 628-631 that the area of circulation of a newspaper is always expressly pleaded. Whether that is now an essential pleading under English practice in a claim alleging libel cannot, on the basis of research material available to the Court, be asserted with certainty. What can now be asserted with confidence at this stage is that it is desirable practice in many cases of libel to expressly plead the extent of the publication of the libel in terms of its geographical area of circulation because it is an important factor in the assessment of damages should a plaintiff succeed in his action: see also Richards v Mc Lean [1973] 1 NZLR 521 at p.522.

That brings me to the question whether the particulars sought by the defendants in respect of the circulation in New Zealand of the newspapers in this case should be ordered. From the research I have done, I have not been able to find any case where the Court has ordered a plaintiff to furnish better or further particulars regarding the circulation of a newspaper sued for libel. The only case which seems to be of relevance is Whittaker v Scarborough Post Newspaper Co [1896] UKLawRpKQB 133; [1896] 2 QB 148. But what happened in that case was that it was the plaintiff who administered interrogatories to the defendants regarding the circulation of the newspaper. To the interrogatory administered by the plaintiff to the defendants about the number of copies printed and circulated of the newspaper, the Court held that in the circumstances of that case, the answer given by the defendants that a considerable number of copies was printed and published was sufficient.

There are passages in the judgments delivered in Whittaker v Scarborough Post Newspaper Co [1896] UKLawRpKQB 133; [1896] 2 QB 148 which are of assistance in this case. Lord Esher MR after referring to the interrogatory the plaintiff had administered to the defendants and the defendants answer thereto said at p.130:

"[It] is suggested that in this case, the newspaper being published in Scarborough, a Leeds jury would know nothing about its circulation. I do not think that is shown to be so. Scarborough is a large and well known watering-place frequented by Yorkshire people. If in such a case it could be shown that the place where the newspaper circulated was obscure and nothing would be known as to the extent of its circulation, it might be that such an interrogatory would be proper. One can hardly say that such an interrogatory ought in no case to be allowed".

Kay LJ at pp 150-151 of his judgment said:

"The object of administering interrogatories is to enable the party administering them to dispense with proof of material facts which may be admitted in the answers to them, or to obtain material information which only the party to whom the interrogatories are administered can give. The question is whether any further answer which the defendants might give to this interrogatory would be material. The newspaper in question is published at Scarborough, which is a well known watering place at Yorkshire, and the defendants have admitted in answer to the interrogatory that the number of copies of the newspaper which were printed and published is considerable. The only purpose for which it is suggested that the information asked for by this interrogatory would be material is the assessment of damages. I agree that to some extent the information asked for would be material for that purpose, and that it is information which only the defendants can give... In a case such as Parnell v Walter [1890] UKLawRpKQB 3; (1890) 24 QBD 441, where a question is asked for the purpose of a trial in London or Middlesex as to the circulation of a newspaper like The Times, I should say that it would be extravagant to require the proprietors of the newspaper to answer such a question at all. It is impossible not to see that in such a case the jury would know what the circulation of the newspaper is sufficiently well for the purpose of assessing the damages. If I had to express my opinion in a case like that, I should say that no answer whatever to such a question could, seriously speaking, be material. I do not, however, think that the case would be the same with regard to all local newspapers. I can imagine that there might be cases in which it would be probable that the jury would have either no information or the slightest possible information as to the circulation of the newspaper".

And A.L. Smith LJ at p.l52 of his judgment said:

"I agree that there may be cases in which the alleged libel is published in a newspaper the circulation of which no one knows anything about, and therefore I will not say that such an interrogatory ought never to be allowed in order to show that such a newspaper has some circulation".

Counsel for the plaintiff submitted that the circulation in New Zealand of the newspapers in this case is a matter within the knowledge of the defendants, and much more so than the plaintiff. Therefore the defendants should not be entitled to better or further particulars of the circulation of their newspapers in New Zealand. I have decided to accept that the circulation of the newspapers in New Zealand is a matter one would reasonably expect to be within the knowledge of the defendants and more so than the plaintiff who is neither the proprietor, publisher or printer of the newspapers. One would therefore expect that if there was to be an application regarding the circulation of the newspapers in New Zealand, it would come from the plaintiff administering interrogatories to the defendants because the extent of the circulation of the newspapers in New Zealand is a matter that should be within the knowledge of the defendants. Furthermore, the extent of the circulation of the newspapers in New Zealand could be a relevant factor in the assessment of damages in the event the plaintiff succeeds in his claim. Whether or not such an application, if made, would be granted is of no concern to the Court in these proceedings. The application for further particulars regarding the circulation of the newspapers in New Zealand is denied.

I turn now to the conflict of laws issues which have arisen from the pleadings in paragraph 3 of the statement of claim. It must be noted that the publication of a defamatory statement, in the sense of making it known to some person other than the person who is being defamed, is an essential element of the tort of libel. It is publication that completes the libel. It follows that the place where the publication of the libel is done, is the place where the tort is committed: Bata v Bata [1948] WN 366, 92 Sol Jo 574; Church of Scientology v Metropolitan Police Commissioner (1976) 120 Sol Jo 690. See also Kroch v Russell at Cie [1937] 1 All ER 725 which is to be contrasted with Shevill v Press Alliance S.R. [1992] 2 WLR.

In the present case, the action by the plaintiff is founded on publication of the two newspapers in Western Samoa and in New Zealand. What must therefore be clear is that for the publication of the newspapers made in Western Samoa the cause of action in libel arises in Western Samoa, and for the publication of the newspapers made in New Zealand the cause of action in libel must have arisen in New Zealand. The plaintiff has chosen to proceed with both causes of action in Western Samoa rather than bring two separate proceedings, one in Western Samoa and the other in New Zealand. Perhaps the plaintiff has his reasons for adopting that course of action. But that is a matter for him and his legal adviser. What the Court is concerned with here is whether the pleadings in paragraph 3 are in order.

The traditional rule in English conflict of laws for many years with regard to the litigation in England of tortuous causes of action which arise in a foreign country was stated by Willes J in Phillips v Eyre (1870) LR 6 QB 1 at pp 28-29 in these words:

"As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England... Secondly, the act must not have been justifiable by the law of the place where it was done".

That statement, as Mahon J correctly pointed out in Richards v McLean [1973] 1 NZLR 521 at p.524, was over the years the subject of very extensive examination, interpretation and criticism by both academic writers and Judges. It was reviewed by the House of Lords in Chaplin v Boys [1971] AC 356 and in that case Lord Wilberforce restated the rule in Phillips v Eyre in these terms at p.389:

"I would, therefore, restate the basic rule of English law with regard to foreign torts as requiring actionability as a tort according to English law, subject to the condition that civil liability in respect of the relevant claim exists as between the actual parties under the law of the foreign country where the act was done".

The general rule has also been reiterated in its modem form in the two leading English textbooks in this area of the law. In Cheshire and North Private International Law (1992) 12^th edn it is stated at p.542:

"It is clear that the combined effect of Phillips v Eyre and Boys v Chaplin is that an action in England based on a tort committed abroad necessitates reference to actionability both by English law and the law of the place of the tort. On the assumption that the rule relates to choice of law, the plaintiff will succeed if the wrong is of such a character that it would have been actionable if committed in England and it is one which, according to the law of the place of the tort, would impose civil liability on the defendant. According to Lord Wilberforce the cause of action must vest in the same person and lie against the same person in both legal systems".

In Dicey and Morris The Conflict of Laws (1993) 12^th edn vol 2, the modem general rule is stated at pp 1487-1488 in these terms:

"Rule 203 - (1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both

(a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and

(b ) actionable according to the law of the foreign country where it was done.

(2) But a particular issue between the parties may be governed by the law of 'the country which, with respect to that issue, has the most significant 'relationship with the occurrence and the parties".

Three comments are called for here. The first is that we are not concerned in this case with Rule 203(2) in Dicey and Morris. Secondly, the requirement that for a foreign tort to be actionable in England it must be actionable both by the law of England and by the law of the foreign country where it was committed is often referred to in the textbooks and relevant case law as the double-actionability rule. Thirdly, the law of the place where a tort is committed is often referred to as the lex loci delicti and the law of the place where it is tried is often referred to as the lex fori. There may be other issues of conflict of laws which are arguably relevant, but I need not prolong this judgment any further by exploring those issues. After all what the Court is really concerned with in this case is the notice for further particulars filed by the defendants.

Turning now to the pleadings in paragraph 3 of the statement of claim, it must be pointed out that if the plaintiff proposes to sue on the publication of the alleged libel in New Zealand, then the statement of claim must allege that the libel complained of is actionable by New Zealand law. In Bullen & Leake & Jacobs Precedents of Pleadings (1990) 13^th edn, it is stated in p.625:

"Subject to issues of forum, an action for libel and slander will lie for a publication outside the jurisdiction, where it is actionable by English law and the place of publication (Chaplin v Boys [1971] AC 356 at 389). Accordingly, if such publication is relied on, the statement of claim must contain a paragraph alleging that the matter complained of is actionable by the law of the foreign country concerned".

The precedents for libel claims which relate to publications abroad are set out in pages 422 and 631 of that book. The plaintiff is ordered to file an amendment to the statement of claim along the lines suggested in this part of the judgment.

Coming now to paragraph 5 of the statement of claim, it is there alleged that the first and second defendants "falsely and maliciously published or caused to be published" certain defamatory words concerning the plaintiff. Counsel for the defendants has sought particulars of the 'falsity' and 'malice' alleged in that paragraph.

I will also have to deny this part of the application for further particulars. It had been the practice in England to plead in a statement of claim that the defendant had "falsely and maliciously" published the words complained of as defamatory. However such a pleading was strictly unnecessary to the cause of action because the falsity of the words is presumed. The burden is then placed on the defendant to prove that the words are true. In other words the burden of proving justification is on the defendant. Similarly malice in the legal sense which is signified from the phrase "falsely and maliciously" is presumed from the fact of publication of defamatory words so that the plaintiff need not prove such malice: See Bullen & Leake & Jacobs Precedents of Pleading (1990) 13^th edn; Duncan and Neill Defamation (1978); 28 Halsbury's Law of England 4^th end para 16.

With regard to paragraph 6 of the statement of claim in which the plaintiff pleads the natural and ordinary meaning which he claims the defamatory words bear and on which he intends to rely at the trial, counsel for the defendants has asked that the plaintiff shows how the alleged publication is defamatory and that the natural and ordinary meanings pleaded actually bear those meanings. I must say that the purpose for seeking particulars is to make plain to a party the case that is being raised against him so that he can take steps to deal with it. It appears to me that what counsel for the defendant is asking for her goes beyond the purpose for seeking particulars.

It is not for the plaintiff to show at this stage how and in what way the alleged publication is defamatory of him. That would be done at the trial when evidence is adduced. All that is required of the plaintiff at this stage is to plead his cause or action with sufficient clarity so that the defendants would know the case which is being raised against them so that they may take steps to defend themselves.

As for the request that the plaintiff shows that the natural and ordinary meanings pleaded actually bear those meanings, I am of the view that is not necessary. If the defendants do not agree that the alleged defamatory words bear the natural and ordinary meanings pleaded by the plaintiff, then it is for them to demonstrate at the trial that the words do not bear the natural and ordinary meanings pleaded by the plaintiff. I would also accept the submission by counsel for the plaintiff that there is no requirement in the tort of libel to particularise the natural and ordinary meanings which have been pleaded with regard to an alleged libel. The issue is made clear in Bullen & Leake & Jacobs Precedents of Pleadings (1990) 13th edn where it is said at p.624:

"No particulars will be ordered of natural and ordinary meanings".

The next set of particulars sought for the defendants relates to paragraph 7 of the statement of claim in which it is alleged that by reason of the publication the plaintiff's political and personal reputation has been seriously injured and he has been exposed to ridicule and contempt. Counsel for the defendants has sought particulars and details of the plaintiff's political and personal reputation and particulars of the ridicule and contempt claimed.

As to the application for further particulars regarding the plaintiff's political and personal reputation, I think one must again not lose sight of the purpose of an application for further particulars. In my view the present application is seeking not particulars but evidence. Secondly, a plaintiff does not have to prove his reputation, although he may give evidence of his good reputation at the trial should that be necessary. In 28 Halsbury's Laws of England 4^th edn, it is stated at para 18:

"If a person has been libelled without any lawful justification or excuse, the law presumes that some damage will flow in the ordinary course of events from the mere invasion of his right to his reputation, and damage is known as 'general damages'. Thus, a plaintiff in a libel action is not required to prove his reputation, nor to prove that he has suffered any actual loss or damage". (italics mine)

If one were also to refer to the precedents for libel claims set out in Bullen & Leake & Jacobs Precedents of Pleadings (1990) 13^th edn at pp 627-634, in none of those precedents is a pleading alleging serious damage to a plaintiff's reputation is his reputation particularised. This part of the application for further particulars is also refused.

Similarly, the application for further particulars of ridicule and contempt is also refused. The phrase 'hatred, ridicule and contempt' is to be found in the English cases which attempted to define the word 'defamatory': see Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105, 108 per Parke B; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 per Scrutton LJ at p.477 and per Atkin LJ at p.486; Sim v Stretch [1936] 2 All ER 1237,1240 per Lord Atkin. In time the words 'hatred, ridicule or contempt', or some of them, came to appear with frequency in claims for libel as standard pleading to show that a plaintiff has been defamed. But such words were not as a matter of customary pleading particularised. I am of the clear view that further particulars on ridicule and contempt are not necessary just as it is not necessary to particularise the word 'defamatory'.

I come now to the further particulars which are being sought regarding paragraph 8 of the statement of claim. The opening words of paragraph 8 are that the defendants have acted in flagrant disregard of the plaintiff's rights in the expectation that rewards of doing so would outweigh any adverse legal consequences. The particulars which are being sought relate to the words 'any adverse legal consequences'. Counsel for the defendants has asked for particulars to show when the legal consequences were held to be adverse, the names of the Judges who decided that the consequences were adverse, and whether the defendants were present to defend themselves. Counsel for the plaintiff's response is that the adverse legal consequences mentioned in paragraph 8 of the statement of claim mean the potential of a judgment and award of damages against the defendants in the future.

In my view what counsel for the plaintiff says is to be accepted. I do not read the opening words of paragraph 8 as referring to any adverse legal consequences that have already occurred as counsel for the defendant has suggested. The opening words of paragraph 8 clearly appear to me to be referring to adverse legal consequences that may occur in the future. The particulars sought in this part of the defendant's application are therefore also refused.

The other further particulars sought on the particulars alleged in support of paragraph 8 of the statement of claim should also be refused. I think one must again bear in mind the purpose of particulars so that if the case the defendants have to meet is clear from the statement of claim then there is no room for further particulars. To ask to make plain what is already plain is a contradiction in terms. If the defendants do not agree with what is said in the particulars to paragraph 8 of the statement of claim, then the proper course to take is not to ask for further particulars, but to deal with the matter at the trial by way of legal submissions or by calling evidence.

I turn now to an important legal issue regarding paragraph 8 of the statement of claim and the question of exemplary damages which was touched upon by counsel for the defendants' application. Paragraph 8 as it stands appears to relate to exemplary damages which are pleaded in the prayer for relief together with general damages. It appears to me that the law of pleadings regarding exemplary damages has changed since Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027. In McGregor on Damages (1988) 15^th, edn it is stated in para 1769:

"In Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027 Lord Hailsham LC, while accepting the holding of the Court of Appeal in that case that exemplary damages need not be pleaded, proposed to have this practice reviewed being concerned that defendants could be taken by surprise. As a result the Rules of the Supreme Court were amended so as to provide, in R.S.C., Ord. 18, r.8(3), that a 'claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies"'.

The law in New Zealand, if it has not reached the same position, is moving strongly in the same direction as England. In the The Law of Torts in New Zealand (1997) 2^nd edn by Todd et al, it is stated at pp 1234-1235:

"[There] are statements in more recent cases which indicate that an intention to claim exemplary damages should be signalled, and that the facts justifying an award should be fully pleaded".

Then a little further on it is stated:

"In Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 at 30, Lord Cooke made it clear that a plaintiff must signal its intention to claim exemplary damages, and why. The general rule of modem pleading is that a plaintiff is required to state its case with sufficient particularity for the defendant to be able to formulate a proper reply. A claim for exemplary damages is analogous to fraud, and therefore ought to be pleaded with great particularity; a bald averment of 'flagrant disregard for the plaintiff's rights' is insufficient. Full particulars of the conduct relied on, and its egregious nature, should be supplied. The amount sought in respect of exemplary damages should also be particularised; the defendant is entitled to know its potential liability in respect of the claim".

Counsel for the plaintiff has provided in paragraph 8 of the statement of claim the particulars of the conduct relied on for what appears to be the claim for exemplary damages. However in the prayer for relief exemplary damages are included in the global amount claimed for damages which includes general damages. The report of the case Television New Zealand Ltd v Quinn [l996] 3 NZLR 24 is not yet available to the Court but I have no reason to doubt what is said about that case in the New Zealand textbook I have referred to. In view of the authorities I have cited, I am of the view that the statement of claim should be amended to make it clear that paragraph 8 and any other relevant paragraph relate to the claim for exemplary damages. The prayer for relief should also be amended to show which amount is claimed for general damages and which amount is claimed for exemplary damages. When the amount for general damages is separately pleaded in the prayer for relief in the statement of claim then there is no requirement to particularise general damages. I accept the submission by counsel for the plaintiff that general damages are presumed by law and no further particulars should be ordered.

Finally the further particulars sought in respect of paragraph 10 of the statement of claim are also denied as they are not only unnecessary, but it is also impossible for the plaintiff to foresee when the alleged defamatory words would be further published or cause to be published should such an event occur again. Furthermore, the pleading in paragraph 10 of the statement of claim is a customary pleading for an injunction to prohibit further commission of the tort complained of in the future.

In all then, the plaintiff is to file within 7 days an amended statement of claim incorporating the amendments required in this judgment.

This matter is set down for remention at 9 .15am on 12 June 1997.

CHIEF JUSTICE