Alaiasa v Samoa Broadcasting Corporation [2006] WSSC 36 (9 June 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TOMANOGI SAPATI ALAIASA
of Lotopa, Sales Officer
Plaintiff

AND

SAMOA BROADCASTING CORPORATION.
Defendant

Counsel: T R S Toailoa for plaintiff

R. Wulf for defendant

Hearing: 23 August 2005,

30 September 2005

Judgment: 09 June 2006

JUDGMENT OF VAAI J

The plaintiff, a former employee of the defendant, claims $250,000 general damages against the defendant for publishing a notice defamatory of the plaintiff. The occasion for the suit is the notice placed by the defendant in the Observer Newspaper, a daily newspaper, on the 09 June 2004. The same notice was aired on the defendant’s television on the evening of the 07 and 08 June and headed:

NOTICE

'We wish to inform all our valued clients that Mr Tomanogi Alaiasa Alaiasa Aloisio Sapati’s employment with Samoa Broadcasting Corporation Limited has been terminated effective Monday 07 June. Our sales and marketing team will be contacting our clients approached by Mr Sapati over the last two weeks to ascertain your advertising and sponsorship requirements'.

The plaintiff alleges that in their natural and ordinary meaning the said words meant and were understood to mean that the plaintiff had been terminated from his employment for some dishonest deeds in dealing with SBC clients. In consequence the plaintiff’s reputation has been seriously damaged, and he has suffered considerable distress and embarrassment.

The defendants deny that the words are capable of defamatory meaning, deny malice and deny damage to the plaintiff’s reputation. As a further defence it alleges the truth of the words in the notice in substance and fact.

Background

On or about the 19 May 2004 the plaintiff was employed by the defendant as a sales consultant on a commission basis. He was given the defendant’s identification badge, business cards, list of clients and a letter of reference from the defendant to the clients. During the two weeks the plaintiff was with the defendant the plaintiff did not sell any product, and since he was employed on a commission basis he was not entitled to and did not receive any income. On the 04 June 2004 the plaintiff commenced employment with Radio Polynesia a competitor of the defendant; a move, which the defendant says, was not relayed to the defendant and was only brought to its attention on the 07 June. During this period of time both the defendant and its rival Radio Polynesian were selling advertising and sponsorship packages to companies and individuals for the radio broadcast and live television screening of the forthcoming international rugby match between the Fiji national rugby team and the Manu Samoa rugby team at Suva Fiji on the 11 June 2004. The defendant alleges that on the morning of the 04 June when the plaintiff commenced working for Radio Polynesia the plaintiff uplifted from the defendant’s office advertising packages that the defendant had prepared for the Fiji v. Manu Samoa rugby game. On the 07 June when the defendant became aware that the plaintiff was employed by Radio Polynesia it published the notice, the subject of these proceedings.

Pre-trial Applications

At the commencement of the hearing the plaintiff sought an amendment to its statement of claim by alleging that alternatively by innuendo the said words in the defendant’s notice were understood to mean that the plaintiff had been terminated from his employment for some dishonest deeds in dealing with the defendant’s clients. Objection was made by counsel for defendant to the proposed amendment on the basis that the plaintiff must plead the specific facts upon which the plaintiff alleges which gives the notice a meaning other than or additional to its ordinary meaning, and since the plaintiff has not pleaded any special facts the proposed amendment should be declined as the defendant is entitled to know that meaning of the statement on which the plaintiff relies so that the defendant is able to argue either that the statement in that meaning is not defamatory or that it is true of the plaintiff. If the intended innuendo pleaded by the plaintiff is a true or legal innuendo the defendant is justified in its objection. But that is not the case here. The plaintiff is simply alleging in the proposed amendment that the words in the defendant’s notice have a meaning beyond their literal meaning which is inherent in them and arises by inference or implication; it is commonly termed as false innuendo and the plaintiff need not set out specific facts in support of his plea. And since the defendant’s stance is that the words in the notice are not capable of bearing a defamatory meaning whether in its ordinary natural meaning or by implication I allowed the amendment sought by the plaintiff bearing in mind also that the defendant’s alternative plea of justification will not be prejudiced by the amendment. In any event the amendment sought is not really necessary since the defamatory meaning pleaded by the innuendo is the same as the natural and ordinary meaning pleaded.

The second application was moved by counsel for the defendant asking the Court to determine before the commencement of the substantive hearing whether the words in the defendant’s notice are capable of bearing a defamatory meaning. With due respect to counsel, the application in my view has substance but the timing in my respectful view, although unintended to cause delay would have resulted in undue delay as the substantive hearing will have to be further adjourned pending the ruling on the application.

It is true, as both counsels agree, the first issue to decide in a libel action is whether the words complained of are capable of bearing a defamatory meaning, and if resolved in the affirmative, the next issue is whether the words do in fact bear such a meaning attributed to it by the plaintiff. See Alesana v Samoa Observer Co. Ltd (1998) Supreme Court of Samoa, unreported; Cassidy v Daily Mirror Newspaper Ltd (1929) 2 KB 331 at 340; Sim v Stretch 1936 2 All ER 1237 at 1240.

In other jurisdiction where actions for defamation are heard before the judge and jury it is the judge who decides as a matter of law whether the statement or words are capable of a defamatory meaning, and, if they do, the jury then decides whether the words did in fact bear such a meaning. It follows therefore that if the Judge concludes that the words are not capable of bearing a defamatory meaning, that is the end of the matter as there is no case to go to the jury. To avoid delay in the hearing of the substantive action I allowed the hearing to proceed and requested counsels to file written submissions. I have received and read those submissions.

Are the words complained of capable of bearing defamatory meaning?

In deciding whether the words in the notice are capable of bearing a defamatory meaning the Court, as a matter of law, examines what meaning is expressly stated therein or can reasonably be inferred without looking at any surrounding material and without knowledge of further facts. Neither is the defendant’s intention relevant in determining this issue simply because even if the defendant intended to stigmatise the plaintiff there will be no defamation if the words used did not bear any defamatory meaning: Slim v Daily Telegraph Ltd (1968) 2 QB 157 at 172.

The principles to be applied in determining whether the words are capable of bearing a defamatory meaning are well settled and counsel for the defendant has referred to the often quoted judgment of Lord Reid on this subject in Lewis v Daily Telegraph Ltd (1963) 2 All ER 151 at 154:

'There is no doubt that in actions for libel the question is what the words would convey to the ordinary man; it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. ...

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. ...

Sometimes it is not necessary to go beyond the words themselves as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning:

And at page 155:

'Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning that they would put on the words in question. ...

What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression.'...

A very helpful summary was provided by BarkerJ in the New Zealand Court of Appeal decision in New Zealand Magazines Ltd v Karen, Lady Hadlee (unreported CA 74/96 24 October 1996):

(a) The test is objective. In the circumstances in which the words are published, what would the ordinary, reasonable person understand or infer from them as a matter of impression?

(b) The stereotype of the ordinary, reasonable person is one of ordinary intelligence, general knowledge and experience of the world, with a capacity of reading between the lines; but not one who would indulge in strained or forced interpretation or groundless speculation. This hypothetical person must also be fair minded, not avid for scandal, not unduly suspicious, nor one prone to fasten on to one derogatory meaning when other innocent or at least less serious meanings could apply.

(c) The words complained of must be read in context; in other words, the article must be construed with appropriate regard to the mode of publication and surrounding circumstances. See Charleston v Newsgroup Newspapers Ltd [1995] UKHL 6; (1995) 2 AC, 65, 71; Mitchell v Faber & Faber Ltd (English Court of Appeal, Civil Division, 24 March 1994); Morgan v Odhams Press Ltd (1971) 2 All ER 1156, 1177; and Lewis v Daily Telegraph Ltd (1964) AC 234, 260, 268.

The plaintiff first became aware of the publication of the notice when a close friend telephoned and inquired about the notice in the Samoa Observer Newspaper. Notices on the defendant’s television were also seen by the defendant’s two school children who were ashamed to go school as a result; and his wife who was assistant registrar at the National University of Samoa, was reluctant to go to work. Brothers and sisters overseas were concerned and contacted the plaintiff by telephone to inquire. A catholic priest and a close friend also visited the plaintiff as a result of the notice. He was ashamed. His then current employer, Mr Keil, manager of Radio Polynesia was alerted by the notice and put his other staff members on notice about the plaintiff. Since the notice published by the defendant was understood by members of his family, by his friends and by his then employer Mr Keil to mean that the plaintiff was dishonest and the wording of the notice did in fact bear that meaning, the plaintiff alleged he was lowered in the esteem of members of society. Mr Keil, however did not testify that he understood the notice to mean the plaintiff was dishonest; he said he was alerted which in my view tantamount to being suspicious and for that reason he warned the other staff members. If words do not convey more than mere suspicion, or even strong suspicion, they are not capable of bearing defamatory meaning: See Simmons v Mitchell (1880) 6 App Cas 156. And where a newspaper prints that the plaintiff is under investigation by the police fraud squad an ordinary and fair minded reader will not conclude that the plaintiff is guilty of something but will proceed on the basis that the investigation will reveal no criminal conduct: Lewis v Daily Telegraph Ltd (1964) AC 234. Since the test is an objective one it is not sufficient for the plaintiff to say the notice lowered his reputation in the estimation of his friends and family and therefore the public at large. It is what the ordinary reasonable person of ordinary intelligence not unduly suspicions and without propensity for scandal understood or infer from the words. In Byrne v Dean (1937) 1 KB 818 it was held that to impute that the plaintiff, a member of a golf club has sneaked to the police about an illegal machine kept in the club for purposes of gambling is not defamatory of the plaintiff although it did lower the plaintiff in the esteem of his fellow members.

Looking at the notice, I am of the respectful view that the wording of the notice is not capable of bearing a defamatory meaning, if anything, it merely raises a suspicion or as Mr Keil said, it put him on alert. And even if it bears a defamatory meaning the words are not capable of having the particular meaning which the plaintiff attributes to them either in their natural and ordinary meaning or by implication. The whole tenor of the notice was to inform the defendant’s clients who had dealings with, and assigned to the plaintiff, for their advertisement needs with the defendant, that the plaintiff is no longer with the defendant and secondly it advised the customers that other personels of the defendant will be in touch. In fact the last part of the Notice which the plaintiff has omitted from its statement of claim reads:

'Please contact SBCL Sales and Marketing office on 22919 Direct or 21735 ext 24 and 25 for any urgent queries'

Thank you

Management'

The above concluding portion of the notice provides the defendant’s customers with the means of making contact in the event of urgent needs which may arise prior to being contacted by the defendant’s sales person.

An ordinary, reasonable fair minded reader could not take the inference that the plaintiff was dishonest in dealing with the defendant’s clients as a result of which his services were terminated. To attribute that meaning to the words as alleged by the plaintiff is inviting the court to indulge in strained interpretations resulting in reading the notice out of context and giving the words a derogatory meaning when a more sensible innocent and less serious meaning is available.

Plea of Justification

In the event however that the words in the Notice are defamatory of the plaintiff, the defendant further alleges that the words are true in fact and in substance. Section 9 Defamation Act 1992/1993 provides:

'In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not provided to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges'.

For the defence of justification to succeed it is not necessary to prove the truth of every word of the libel. If the defendant proves that the main charge or gist of the libel is true, the defendant need not justify statements or words which do not add to the sting to the charge; See Matamua v Samoa Times & Faalogo (1970 – 1979) WSLR 144.

The sting of the charge here is that the plaintiff was dishonest when he uplifted from the defendant’s office advertising packages on the morning of the 04 June after the plaintiff had secured employment with Radio Polynesia, a competitor of the defendant, and without informing the defendant that he was then working for Radio Polynesia. The plaintiff testified he uplifted the advertising packages on the 3rd June. At 2 o’clock in the afternoon of the same day he met with the manager of Radio Polynesia to confirm he will resume work for Radio Polynesia. On the morning of the 04 June the plaintiff said he telephoned Mr Crichton the defendant’s manager of sales and marketing but Mr Crichton was not available and the plaintiff left a message for Mr Crichton that he was not coming back to work. But Mr Crichton gave evidence that on the evening of the 03 June he received a confirmation e-mail from Fiji Television for the defendant to air the Fiji v Samoa rugby game live. After hosting the Lali programme that same evening Mr Crichton spent about 2 hours in the office preparing advertising and sponsorship packages for distribution the next morning to the sales consultant. On the morning of the 04 June the plaintiff did not attend the meeting where the advertising packages were distributed to the sales consultant. But the plaintiff did come in later that morning and took away with him the advertising packages. He talked to Mr Crichton, he uplifted the package in the presence of Mr Crichton and left in the same taxi he came in. For very obvious reasons I prefer the evidence of Mr Crichton. On the 1st June both the defendant, and Radio Polynesia broadcasted live, Samoa’s Independence celebrations and the plaintiff admitted he was inside the Radio Polynesian’s broadcasting booth. He was there for some five hours and he was on air that day. On the 3rd June his employment with Radio Polynesia was confirmed at a meeting of the plaintiff and Mr Keil. Whether he uplifted the advertising packages on the 3rd or the 4th is immaterial. But I accept the evidence of Mr Crichton, there was no package for the plaintiff to uplift on the 3rd June because the package did not then exist, Mr Crichton completed the package on the evening of the 03 June which the plaintiff uplifted on the morning of the 04 June, the same morning he commenced work with Radio Polynesia. Dishonesty indeed. He had, as he conceded, Mr Crichton’s mobile phone number, so that he could have contacted Mr Crichton on the morning of the 04 June if indeed he wanted to. He did not tell Mr Crichton as he did not want Mr Crichton to know he was then working for Radio Polynesia when he picked up the advertising package. Indeed when the plaintiff was seen sitting inside Radio Polynesia’s broadcasting cubicle on the 1st June he must have already set in motion his move to leave the employment with the defendant and join Radio Polynesia. He told the court that as he did not receive a salary during his time with the defendant he started looking for another job. He found one with Radio Polynesia and he uplifted the defendant’s advertising package after he secured employment with Radio Polynesia. The defendant’s defence of justification must also succeed and is successful.

Judgment is entered for the defendant. The defendant is entitled to costs which I fix at $1,800.

VAAI J