Reti v Taulaga II [2002] WSSC 17 (14 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TUSANI FAAOLOFALA RETI
of Faleula, Vice President of the Lands and Titles Court,
FONOIVASA LOLESIO AH CHING
of Siusega,
GALUVAO TANIELU GALUVAO
of Lelata and
MISA LAUMEI PITA ANAE
of Vaivase-uta,
all Samoan Judge of the Lands and Titles Court.
Plaintiffs

AND

LUPEMATASILA TAULAGA II
of Siufaga, Falelatai, Matai.
Defendant

Counsel: FP Meredith for plaintiffs
TK Enari for defendant

Hearing: 13 August 2002
Judgment: 14 August 2002

JUDGMENT OF SAPOLU CJ

Nature of proceedings

As matters unfolded in the submissions made by counsel for the defendant, it became clear that essentially what is sought in the defendant’s pre-trial motion for orders is an order to strike out the plaintiffs action in defamation on the ground that the statements alleged to be defamatory of the plaintiffs were absolutely privileged as they were made in the course of judicial proceedings. That this procedure is available before trial to a defendant in a defamation action where absolute privilege is in issue is confirmed by the authorities cited by counsel, namely, Peerless Bakery v Watts [1955] NZLR 339; Atkins v Mays [1974] 2 NZLR 459; Teletax Consultants Ltd v Williams [1989] NZCA 23; [1989] NZLR 698; Hercules v Phease [1994] VicRp 68; [1994] 2 VR 411; Oliver v Bryant Strata Management (1995) 41 NSWLR 514; Tertiary Institutes Allied Staff Association Inc v Tahana [1998] 1 NZLR 41.

It would appear that the procedure I have referred to will be convenient where the factual matters on which the defendant’s strike out motion is based are not in dispute: Atkins v Mays [1974] 2 NZLR 459, 462. But where there are factual disputes which should be determined at trial, the proper course to follow is to proceed to trial and to rule on the question of absolute privilege after hearing the evidence. In this case the defendant, without having filed a statement of defence, has moved to strike out the plaintiffs action. He relies on the facts pleaded in the plaintiffs amended statement of claim. The facts are therefore not in dispute.

Facts

The Land and Titles Court is a specialist Court established under Article 103 of the Constitution with jurisdiction over disputes relating to matai titles and customary land. Its composition and the details of its jurisdiction are set out in the Land and Titles Act 1981. Broadly speaking, the Land and Titles court has two divisions, the trial division which hears and determines cases at first instance and the appellate division which hears and determines appeals from decisions of the trial division. When the Court sits at the trial division level, a deputy president of the Court will preside with at least two other judges and one or two assessors.

As it appears from the facts pleaded in the amended statement of claim, the defendant is a matai from the village of Matautu at Falelatai. On 14 and 15 November 2001 he appeared as a party in a case that was heard at Mulinuu by the trial division of the Land and Titles Court. Presiding at the hearing of that case was the first-named plaintiff as deputy president of the Court and the second-named and third-named plaintiffs as judges. The assessor who was the other member of the Court is not a party to these proceedings. The fourth-named plaintiff, who is also a judge of the Land and Titles Court and a matai from the same village as the defendant, did not participate as a judge in the case as he was in New Zealand at the time.

After the hearing the Court reserved its decision which was delivered on 22 November. Apparently the defendant lost his case for he then exercised his right of appeal provided under s.76 of the Land and Titles Act 1981 by lodging an application for leave to appeal to the appellate division of the Court with the registrar against the decision of the trial division of the Court. As is normal practice with applications for leave to appeal against a decision of the trial division of the court, the defendant’s application sets out the grounds of his appeal together with detailed reasons in support of those grounds. The registrar then serves copies of the defendant’s application for leave to appeal on the other parties to the case for them to file oppositions to the defendant’s application if they wish to do so. This procedure is set out under the relevant provisions of the Act and it appears that what was done in this case was in accordance with those provisions.

Section 79 of the Act provides seven grounds of appeal. Two of those grounds appear to be relevant to those parts of the defendant’s application for leave to appeal which are complained of as defamatory in the plaintiffs amended statement of claim. The first of those two grounds of appeal is that a member of the Court had made a mistake or misconducted himself in relation to the hearing of the case as to affect its outcome; the second ground is that the decision of the Court was manifestly against the weight of the evidence that was adduced at the hearing. Any person who wants to make application for leave to appeal is required by s.80 to make such application to the registrar in the prescribed form. The prescribed form requires an applicant for leave to appeal to set out in the application form his grounds of appeal. Section 83 then requires the registrar to prepare and serve a copy of the application for leave to appeal on all the other parties to the proceedings. And s.84 requires any party who wishes to oppose the application for leave to appeal to file his opposition and the reasons for it within 21 days. A copy of any opposition that is received will be served by the registrar on the applicant for leave to appeal.

In the defendant’s application for leave to appeal that was made to the registrar under s.80, he makes allegations which amount to accusations of dishonesty, bias and partiality against the plaintiffs, particularly the first and fourth named plaintiffs. It is then alleged that the unfavourable outcome of the defendant’s case was due to family ties between the first and fourth named plaintiffs and the successful party in the defendant’s case. It is further alleged that the defendant suspects that at times during informal or casual conversations between judges, one judge may try to influence another judge regarding a case, and because of the judicial collegiality between the judges and the fourth-named plaintiff, the Court in the defendant’s case chose to ignore the weight of the evidence adduced at the hearing and based its decision on family ties. It is further alleged that that was the same reason why the defendant lost to the same successful party in another case that was heard before the Land and Titles Court. The defendant then requests the president of the Court to terminate the appointments of the first and fourth named plaintiffs as judges of the Land and Titles Court.

Putting aside the question of whether the statements in the defendant’s application for leave to appeal are right or wrong, true or false, defamatory or not, the statutory grounds of appeal which are covered in the parts of the defendant’s application for leave to appeal of which the plaintiffs complain are: (a) a member of the Court misconducted himself in relation to the hearing of the case as to affect its result; and (b) the decision was manifestly against the weight of the evidence that was adduced at the hearing. Each of the first, second and third named plaintiffs who had presided over the defendant’s case has filed an affidavit in these proceedings denying that he was biased, corrupt or influenced by family ties or association with any other judge when he tried and determined the defendant’s case. The fourth-named plaintiff who was in New Zealand and did not participate as a judge in the defendant’s case has also filed an affidavit denying that he has ever tried through his judicial association with the other judges or through family ties to influence a decision of a brother judge on any matter that has come before the Land and Titles Court.

I must say that the statements complained of in the amended statement of claim constitute a serious attack on the integrity and impartiality of the plaintiffs, especially the first and fourth named plaintiffs, as judges of the Land and Titles Court. But the statements are bare assertions, some of which are described as based on the suspicions held by the defendant. In his affidavit that was subsequently filed and dated 17 May 2002, the defendant explains that the essence of his present ground of appeal is perceived bias which implies that he was not relying on actual bias. Without giving any conclusive view, it is not clear where perceived bias can come in as a ground of appeal under s.79. As it is not necessary to come to any decision on the matter in these proceedings, I say no more about it.

Absolute privilege

For the purpose of the defendant’s strike out motion, the Court is not required to decide whether the statements in issue are defamatory or not. What has to be decided is whether the occasion in which the statements were made is absolutely privileged. If the occasion in which the statements were made is absolutely privileged, then the defendant’s strike out motion must succeed and the plaintiffs action in defamation struck out. It matters not whether the statements in issue are false and malicious.

It is clear beyond dispute from the New Zealand, Australian and English authorities the Court has been referred to, that the occasions which attract absolute privilege include parliamentary proceedings, official communications between high officers of State, judicial proceedings and quasi-judicial proceedings. There may be other such occasions but I am not required here to provide an exhaustive list. The focus of the defendant’s strike out motion is that the statements made by the defendant were made in the course of judicial proceedings and therefore are absolutely privileged.

It is now well established at common law that oral and written statements made by judges, counsel, witnesses or parties in the course of judicial proceedings are protected by absolute privilege and cannot be the subject of a defamation action. It does not matter if the statements are false and malicious. It is also well established that absolute privilege is not restricted to statements made in Court but extends to oral and written statements made during the preparatory steps which are incidental to judicial or quasi judicial proceedings and are necessary for them: Mann v O’Neill [1997] Aust Torts R64, 309, at p.64, 312.

In the English case of Dawkins v Lord Rokeby (1873) LR 8 QB 255 Kelly C.B. stated at pp 263-264:

“The authorities are clear, uniform and conclusive that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any Court or tribunal recognized by law.

“The principle which pervades and governs the numberless decisions to that effect is established by the case of Floyd v Barker [1572] EngR 142; 12 Co. Rep. 23 and many earlier authorities.... which are to be found collected in Yates v Lousing 5 Joh 282, 9 Joh 295 and Revis v Smith [1856] EngR 51; 18 C.B. 126; 25 L.J. (C.P.) 195.

“These two decisions are themselves direct authorities that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.”

Dawkins v Rokeby has been cited with approval in a number of subsequent English cases where the question of absolute privilege was in issue in relation to statements made in the course of judicial and quasi-judicial proceedings. It was also cited with approval in the New Zealand case of Atkins v Mays [1974] 2 NZLR 459, 460-461.

In the Australian case of Mann v O’Neill [1997] Aus Torts R 64, 309 at 64, 312 which was concerned with a defamation action brought by a magistrate who sat in the Small Claims Court of the Australian Capital Territory against a litigant for alleged defamatory accusations made by the litigant concerning the magistrate, the majority of the High Court of Australia which comprised of Brennan CJ, Dawson, Toohey and Gaudron JJ stated:

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings whether by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an occasion properly incidental to judicial proceedings, and necessary for them.”

A little further on, the majority of the Court went on to state what in their opinion is the rationale behind the immunity given under absolute privilege by saying:

“And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duty freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardize the safe administration of justice. It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on the broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.”

It may be a real hardship for a person who believes that he has been defamed to find that he is prevented from having the opportunity to vindicate his reputation because the statement alleged to be defamatory was made in the course judicial proceedings which attracts the protection of absolute privilege. However, the authorities have consistently held over many years that the privilege is necessary and indispensable for the efficient and due administration of justice. The interest of the individual who complains that he has been defamed is subordinated to the public interest in the efficient and due administration of justice. To relax or abrogate absolute privilege because of the possibility that a few individuals may abuse it and cause hardship to others is seen to be carrying the high risk that the numerous individuals like judges, legal representatives, jurors, parties and witnesses who participate daily in the administration of justice will be impeded or deterred in the performance and discharge of their duties by the thought that they may be the subject of a defamation action because of anything they say in the course of their duties no matter how innocent they may have said it.

It has been submitted on behalf of the plaintiffs that the statements complained of as defamatory were not made in the course of judicial proceedings as the statements were made after the conclusion of the trial before the trial division of the Land and Titles Court and the decision of the Court had been delivered. It was therefore said that the statements do not attract absolute privilege. It was further submitted that even if the Court holds that the statements complained of as defamatory were made in the course of judicial proceedings, they should still not attract absolute privilege as the statements were in effect a misdirected complaint regarding the plaintiffs coupled with a request to the president of the Land and Titles Court (who happens to be also the Chief Justice) to terminate the appointments of the first and fourth named plaintiffs as judges of that Court.

I will deal now with the first submission for the plaintiffs. The defendant in this case was a party to proceedings before the trial division of the Land and Titles Court which was presided over by the first, second and third plaintiffs. Having lost his case in those proceedings, the defendant filed an application for leave to appeal pursuant to s.76 of the Land and Titles Act 1981 which provides a right of appeal against a decision of the trial division of the Court to the appellate division of the Court. The defendant’s application for leave to appeal was made in the prescribed form and was filed with the registrar of the Court pursuant to s.80. Section 78 provides the grounds of appeal which includes grounds that have traditionally been considered as grounds for judicial review. Two of those grounds appear to be reflected in the statements in issue. These are: (a) misconduct on the part of a member of the Court which has affected the result of a case, and (b) the decision of the Court was manifestly against the weight of the evidence that was adduced at the hearing.

It is clear from the appeal provisions of the Land and Titles Act 1981 that the filing of an application for leave to appeal against a decision of the trial division of the Court is a necessary first step to set in motion the statutory appeal process to the appellate division of the Court. It is an integral part of the appeal process. No party to proceedings before the trial Court who wishes to appeal to the appellate Court can go there directly without first filing an application for leave to appeal. The president of the Court sitting alone will then decide whether leave to appeal should be granted. If leave is granted, the appeal will then be set down for hearing before the appellate division of the Court.

Absolute privilege, as the authorities show, is not confined in its application to oral and written statements made at the actual hearing of a case; it also applies to oral and written statements which are incidental to and necessary for judicial proceedings. The application for leave to appeal filed by the defendant is such a statement. It is a necessary first step to set the statutory appeal process in motion. Absolute privilege therefore applies to it.

In the case of Mann v O’Neill [1997] Aust Torts R 64,309 cited by both counsel, the majority of the High Court of Australia on facts quite different from the facts of the present case held that the statements complained of as defamatory were not made as a necessary first step to initiate quasi judicial proceedings for disciplinary action. That is different from this case where the filing of an application for leave to appeal is an integral part of the appeal process and is an essential first step to set that process in motion.

The statements that the plaintiffs in the present case complain of as defamatory are contained in the defendant’s application for leave to appeal. I have held that absolute privilege applies to that application. The statements contained in the application are also protected by absolute privilege and therefore not actionable in defamation.

As for the second submission for the plaintiffs, it is true that parts of the statements complained of as defamatory have the flavour and appearance of a complaint of bias and improper conduct against the plaintiffs. However, as already pointed out, statements made as a necessary first step to initiate the appeal process from the trial division to the appellate division of the Land and Titles Court are protected by absolute privilege. In deference to the second submission by counsel for the plaintiffs, I will try to deal with it on the basis on which it was presented. One of the grounds of appeal provided in s.79 is that a member of the Court had misconducted himself in relation to the hearing of a case as to affect its result. An application for leave to appeal which relies on this ground of appeal will often give the appearance of a complaint against the conduct of a judge. That seems unavoidable. It is difficult to see how an appellant can rely on alleged misconduct as a ground of appeal without giving the appearance that he is also complaining about the conduct of a judge in relation to the hearing of his case. And if an appellant gives such an appearance in his appeal, should the law penalise him for what the statute has made possible for him to do. I think not. But perhaps consideration should be given as to whether this ground of appeal should be retained as it can be open to abuse.

It was then submitted that the request made by the defendant to the President of the Land and Titles Court was misdirected as the president of the Court has no jurisdiction to deal with disciplinary matters such as the removal of a judge. As I have already pointed out, the president of the Land and Titles Court is also the Chief Justice who is also the Chairman of the Judicial Services Commission which has jurisdiction to deal with disciplinary matters. Perhaps the defendant, as a layperson, did not see the difference between the office of president of the Land and Titles Court and the office of the Chief Justice as one person holds both offices. It is also clear that the defendant’s request for removal arises from the allegations made in his grounds of appeal and not from something that is remotely connected or totally unconnected with his application for leave to appeal.

As I have already stated, I have dealt with the submissions for the plaintiffs out of deference to those submissions and because even though the law on absolute privilege in relation to judicial proceedings is well settled in other common law jurisdictions, this is the first time a Samoan Court has had to deal with this issue, at least in the last twenty six years. I wish therefore to refer at this point of my judgment to what was said by the New Zealand Court of Appeal in Teletax Consultants Ltd v Williams [1989] NZCA 23; [1989], NZLR 698 at 701 in a judgment delivered by Richardson J:

“The general legal principles are well settled. No action will lie for defamatory statements, whether oral or written, made in the course of judicial proceedings before a Court of Justice or a Tribunal exercising functions equivalent to those of an established Court of justice. (See the discussion in Gatley on Libel and Slander (8^th ed, 1981) para “383).

Further on at p.701 Richardson J said:

“The legal consequence of absolute privilege is that whether the words were relevant or irrelevant, true or false, malicious or bona fide, the action is baseless and frivolous ‘(Fitzherbert v Acheson [1920] NZGazLawRp 137; [1921] NZLR 265, 269).

“In Lincoln v Daniels Devlin LJ identified three categories where absolute privilege applied: (1) to what is done in the course of the hearing before the Court or Tribunal; (2) to what is done from the inception of proceedings including all pleadings and other documents brought into existence for the purpose of the proceedings; and (3) to the briefs of evidence and to what is said in the course of interview of potential witness.”

For all the foregoing reasons the defendant’s strike out motion must succeed and the plaintiffs action is therefore struck out.

Counsel to file memorandum as to costs within ten days.

I conclude this judgment by thanking counsel for their research and citation of authorities which I have found very helpful.

CHIEF JUSTICE

Solicitors:
Meredith & Ainuu Law Firm for plaintiffs
Kruse, Enari & Barlow for defendant