Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 45 (16 March 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLYNESIAN LIMITED
trading as Polynesian Airlines a duly incorporated Company having its registered office at Beach Road, Apia:
Plaintiff

AND:

SAMOA OBSERVER COMPANY LIMITED
a duly incorporated company having its registered office at Vaitele:
First Defendant

AND:

AUMUAGAOLO ROPETI ALE
of Toamua, Editor:
Second Defendant

AND:

SAVEA SANO MALIFA
of Vaitele, Publisher:
Third Defendant

Counsel: K M Sapolu and G Gilmour for plaintiff
P A Fepuleai and H Schuster for defendants

Hearing: 8 & 9 March 1999
Judgment: 16 March 1999

JUDGMENT OF SAPOLU, CJ

On 15 February 1999 the plaintiff applied and obtained from Wilson J an interim quia timet injunction which restrained the defendants, namely, the company publishing the Samoa Observer newspaper, its editor and its publisher from:

"Publishing or causing to be published any article or story relating to the salaries, remuneration, allowances, and benefits paid to the employees and higher ranking officers of the plaintiff (Polynesian Airlines) and other related details in the Samoa Observer issue of 16 February 1999 or other issue without the prior approval of the plaintiff."

Copies of the injunction were personally served at the premises of the company publishing the Samoa Observer newspaper and on its editor and publisher. Personal service of the injunction was acknowledged by each defendant by signing a receipt of documents. Those acknowledgments of service were produced in the present proceedings.

On 17 February 1999 the defendants filed a motion to discharge the injunction and that motion was heard before Wilson J on 19 February. On 24 February the learned Judge delivered his judgment setting out in detail his reasons for refusing to discharge the injunction. Following that judgment, an article in the form of an opinion headed 'Nothing illegal or something to hide' signed by 'Angry Citizen' and a letter to the editor headed 'Polynesian and the IOC' were published in the Samoa Observer's issue of the Sunday Samoan of 28 February 1999.

On 2 March the plaintiff filed a motion for an order to arrest and commit the defendants for contempt of Court for disobedience of the injunction as the article and the story published or caused to be published by the defendants in the Sunday Samoan issue of the Samoa Observer newspaper of 28 February were in breach of the terms of the injunction granted by the Court on 15 February 1999. The plaintiff's motion of 2 March had to be served on the defendants and it was, therefore, set down for hearing on 5 March. At the hearing counsel on both sides relied on their submissions and the affidavit evidence of their respective clients.

Now the rationale for contempt of Court is stated in Borrie & Lowe's Law of Contempt (1996) 3rd edn where the learned authors say:

'The rationale of both criminal and civil contempt is therefore essentially the same: upholding the effective administration of justice. If a Court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute'.

The above citation also appeared in the 2nd edition of that textbook and was cited with approval by the High Court of Australia in the case of Australasian Meat Industry Employees Union v Mudginherri Station Pty Ltd (1986) 161 CLR 98 at p.107.

In considering the affidavit evidence it is important to be clear first about three matters, namely, the kind of contempt that is alleged in this case, the ingredients of the alleged contempt, and the question of proof. Once those matters are clear in mind then any defences raised would be considered.

The kind of contempt alleged by the plaintiff against the defendants is civil contempt. The essence of the allegation is that the defendants' actions of publishing or causing to be published the article headed 'Nothing illegal or something to hide' and the letter to the editor headed 'Polynesian and the IOC' amount to disobedience or breach of the terms of the Court injunction issued against defendants on 15 February.

The ingredients which constitute civil contempt are threefold; these are the terms of the injunction must be clear and unambiguous, the defendant had proper notice of the terms of the injunction, and the terms of the injunction have been disobeyed or breached by the defendant. I will now discuss each of these three ingredients in turn relying in part on the authorities cited by counsel for the plaintiff.

Terms of the injunction must be clear and unambiguous:

In the English case of Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87 Luxmoore J said at p.95:

"If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done".

In the next English case of PA Thomas & Co v Mould [1968] 1 All ER 963 which was concerned with committal proceedings for contempt for breach of an interim injunction issued to protect confidential information, O'Connor J said at p.967:

"If the plaintiffs, however, seeking to protect their 'know-how', are anxious to 'enforce any injunction which may be granted to them by seeking the help of 'the Court to punish a breach of it, it seems to me to be quite essential that 'they should make it absolutely clear what they are seeking to protect".

Further on at p.967 O'Connor J went on to say:

"[Where] parties seek to invoke the power of the Court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it".

I am in respectful agreement with those statements of principles. As breach of an injunction has penal consequences which includes possible imprisonment and loss of liberty, it is justice that its terms must be clear and unambiguous so that the person against whom the injunction is issued will be left in no uncertainty as to what he is required to do, or to refrain from doing. The drastic consequences that may follow from disobedience or breach of an injunction must require that its terms should be clear and unambiguous and not vague or uncertain.

The defendant had proper notice of the terms of the injunction:

In the English case of Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 already cited in this judgment, Luxmoore J said at p.96:

"I think it is quite plain from the decision in Duffield v Elwes [1840] EngR 416; 2 Beav. 268 that that order could not be enforced by penal proceedings because there can be no default in compliance with an order ordering something to be done... when the order was not served".

The same should apply to an order not to do or to refrain from doing something. If such an order is not served then it cannot be enforced. Service of an injunctive order on the defendant is therefore essential. The position of course may be different where there is a statutory provision to the contrary.

In the next English case of Husson v Husson (1962) 3 All ER 1056 Lyell J said:

"[A] person cannot be held guilty of contempt in infringing an order of the Court of which he knows nothing".

Terms of the injunction have been disobeyed or breached by defendants:

The requirement that there should be disobedience or breach of an injunction is clearly reflected in what was said in W Watson & Sons Ltd v Garber (1962) 106 Sol Jo 31 by Lawton J:

"Before the Court would exercise its very special jurisdiction to punish for breach of an order, it was essential that proper proof of a breach be given".

It must be the most important ingredient of civil contempt in practice that there has been disobedience or breach of the terms of the Court order or an injunction by the defendant for it is the circumstance that normally sets proceedings for contempt in motion. This requirement for disobedience or breach of the terms of a Court order or an injunction requires consideration of the terms of the injunction and the actions of the defendant.

Proof:

The onus of proving civil contempt is on the party who brings contempt proceedings. This must be the person in whose favour the injunction had been granted by the Court and who is seeking to enforce the injunction.

The standard of proof is the criminal standard which is proof beyond reasonable doubt. In the case of Re Bramblevale Ltd [1970] Ch 128 which was concerned with a contempt arising from disobedience of a Court order, Lord Denning MR said at p.137 that the standard of proof which is required in contempt proceedings is one of beyond reasonable doubt.

I turn now to consider each ingredient of civil contempt in relation to the relevant facts of this case. As to the first ingredient that the terms of the injunction must be clear and unambiguous, it is plain that the injunction was to restrain the defendants, namely, the company publishing the Samoa Observer newspaper, its editor and its publisher from publishing or causing to be published any article or story relating to the salaries, remuneration, allowances and benefits paid to employees and higher ranking officers of the plaintiff and other related details in the Samoa Observer issue of 16 February 1999 or any other issue without the prior approval of the plaintiff. In my view, the terms of the injunction are quite clear and unambiguous on what the defendants were prohibited from doing. Counsel for the defendants also did not argue that the terms of the injunction were vague, uncertain or ambiguous and he must have had good reason for not doing so. I find the first ingredient for civil contempt to have been proved beyond reasonable doubt.

As to the second ingredient, namely, whether the defendants had proper notice of the terms of the injunction, the affidavit evidence is clear that each defendant was personally served with a copy of the injunction on 16 February and each one of them signed a receipt of document acknowledging receipt of the injunction. The second ingredient for civil contempt has, therefore, also been proved beyond reasonable doubt.

As to the third ingredient, namely, whether the terms of the injunction had been disobeyed or breached by the defendants, it is necessary to consider the two publications which are the subject of these contempt proceedings. In the first publication which is an article in the form of an opinion headed 'Nothing illegal or something to hide' and signed by 'Angry Citizen', whoever that person is, it is clear that 'Angry Citizen's' anger is directed at the plaintiff and the Court for issuing the 'stop publication' injunction. In the eighth paragraph of the article references are made to the Courts' decision which supports continuation of the injunction and a report by a foreign newspaper on what is covered in the injunction copies of which report were hawked around town. Those parts are then followed by two questions one of which makes mention of an 'advances scheme'. In my view the form of those two questions and the reference to the advances scheme in the context of what is said in the eighth paragraph of the article clearly relates to what is covered by the injunction. That is confirmed not only by the reference to a report by a foreign newspaper on what is covered in the injunction but also by the nature of the critical comments against the judiciary (which issued the injunction) in the ninth and final paragraph of the article.

Be that as it may, the crucial question is whether the article is in breach of the terms of the injunction. In the affidavit filed by the plaintiff s deputy chief executive officer it is there stated that the reference to an 'advances scheme' is a reference to a matter relating to the salaries, remuneration, allowances and benefits paid to the employees and higher ranking officers of the plaintiff which are covered under the terms of the injunction. In the affidavit by the publisher of the Samoa Observer, which is agreed to by the editor in his separate affidavit, it is stated that there is no mention of any details of the granting and advancing of allowances.

What the injunction prohibits is the publishing or the causing to be published of any article or story relating to the salaries, remuneration, allowances and benefits paid to employees and high ranking officers of the plaintiff and other related details without the prior approval of the plaintiff. After careful consideration, I have come to the view that reference to an 'advances scheme' within the context of the article and in particular within the context of the first, eighth and ninth paragraphs of the article is a breach of the terms of the injunction.

That brings me to the letter to the editor headed 'Polynesian and the IOC'. I have no difficulty in coming to the conclusion that this particular publication is in clear breach of the terms of the injunction. It contains matters relating expressly and directly to allowances and benefits paid to senior management staff of the plaintiff contrary to the prohibition contained in the injunction. The assertion by the publisher and the editor in their affidavits that the letter to the editor makes no mention of the details of the granting or advancing of allowances misses the point of the injunction which is to prohibit the publishing or the causing to be published of any article or story relating to the salaries, remuneration, allowances and benefits paid to the employees and higher ranking officers of the plaintiff without the prior approval of the plaintiff.

I am also satisfied that the breach of the terms of the injunction by the defendants was much more than casual or accidental.

In all then, I find the contempt alleged against the defendants to have been proved beyond reasonable doubt.

Other Matters Raised in Defence:

I turn now to the other matters which were raised in defence. The first is the right of every citizen in a democratic society to express his views on a matter which is of concern to him or to the public in general. This seems to suggest that the injunction should not have been issued in the first place because of the alleged right of a citizen to express his views freely in a democratic society. I must say this defence is not appropriate in civil contempt proceedings for disobedience or breach of an existing Court order. The order must be obeyed until it is discharged or set aside. In the English case of Hadkinson v Hadkinson [1952] P 285, Romer LJ said at p.288:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it. .. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed. (per Lord Cottonham LC in Chuck v Cremer (1846) Cooper temp. Cottonham 205, 338). Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court... is in contempt and may be punished by committal or attachment or otherwise".

That statement of principles was confirmed by Lord Diplock in delivering the judgment of the Privy Council in Isaacs v Robertson (1985) AC 97.

It is, therefore, clear that while an injunction or order of the Court exists, it must be obeyed. It is no excuse for anyone to disobey an existing Court order on the ground that he thinks the order should not have been made in the first place. To do so will be tantamount to taking the law into his own hands.

The other matter which is raised in the affidavits for the publisher and editor is that the article and letter to the editor were sent in by members of the public and were not written by members of the defendants' staff. However, even if that were so, these contempt proceedings are not concerned with the writing but with the publication of the article and the letter to the editor in the Sunday Samoan issue of the Samoa Observer newspaper.

There is, therefore, no meritorious defence. The finding of contempt I have made stands. It remains for the Court to hear any submissions on the question of penalty and costs.

CHIEF JUSTICE

Solicitors: Sapolu of Tamaligi, for plaintiff
Fepuleai of Tamaligi, for defendants

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLYNESIAN LIMITED
trading as Polynesian Airlines a duly incorporated Company having its registered office at Beach Road, Apia:
Plaintiff

AND:

SAMOA OBSERVER COMPANY LIMITED
a duly incorporated company having its registered office at Vaitele:
First Defendant

AND:

AUMUAGAOLO ROPETI ALE
of Toamua, Editor:
Second Defendant

AND:

SAVEA SANO MALIFA
of Vaitele, Publisher:
Third Defendant

Counsel: K M Sapolu and G Gilmour for plaintiff
P A Fepuleai and H Schuster for defendants

Hearing: 8 & 9 March 1999
Judgment: 16 March 1999

ADDENDUM

Penalty:

1. Counsel on both sides are in agreement that the defendants publish an appropriate apology to expunge the contempt committed by them. I accepted that and the terms of the appropriate apology to be agreed upon by the parties within three (3) days. Failing to do so, the Court will approve the terms of the apology.

2. I consider that the imposition of a fine in this case as a penalty is appropriate.

This is given the circumstances of the case and the fact that recently the same newspaper was found guilty of contempt in respect of a different case. Each of the defendants is fine $500.00 payable by 4.00pm today.

Costs:

Counsel to file memorandum as to costs within seven (7) days.

CHIEF JUSTICE