Enosa v Samoa Observer Company Ltd [2009] WSSC 95 (20 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LOLOFIE TAULEALEAUSUMAI DR. ETI ENOSA
of Lotopa, Chief Executive Officer of the Ministry of Health.
Plaintiff

AND:

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

AND:

MULIAGA JEAN MALIFA
of Apia, Publisher.
Second Defendant

AND:

AUTAGAVAIA TIPI AUTAGAVAIA
of Vaitele and Moataa c/- Observer Samoa Co. Ltd. Newspaper Reporter.
Third Defendant

Counsels: Mrs R Drake for the plaintiff
Mr TRS Toailoa for the defendants

Judgment: 20 August 2009

JUDGMENT OF NELSON, J.

1. The parties:

1.1. The plaintiff was until late November 2004 the Chief Executive Officer ("CEO") of the Ministry of Health ("MOH") of the Government of Samoa. He was appointed to that position in January 1994.

1.2. The first defendant is the printer and publisher of the ‘Samoa Observer’, ‘Saturday Observer’ and the ‘Sunday Samoan’ ("the newspapers") which are newspapers having a wide circulation in Samoa and elsewhere. The first defendant also maintains an internet web site through which its publications can be accessed.

1.3. The second defendant is the publisher of the newspapers. The third defendant is a reporter and was at all material times employed by the first defendant.

2. The proceedings:

2.1. The plaintiff brings these proceedings alleging defamation on the part of the defendants in publishing certain articles and materials about him in the newspapers. The Statement of Claim consolidates two actions: the first is against all the defendants and is based on articles that appeared in the newspapers on 28 August 2004, 10 September 2004, 11 September 2004 and 18 September 2004. The second is against the first and second defendants only and relates to articles and materials in the editions of 22 May 2005 and 24 May 2005 following dismissal by this court of the defendants application to strike out the plaintiffs claim. This action also alleges a sustained attack by the first and second defendants on the plaintiffs well being and reputation by constant reminders and references to the plaintiffs suspension and related matters in its publications over the 05 October 2004 - 25 May 2005 time period.

3. The first cause of action:

3.1. The facts:

3.1.1. The essential facts are not in dispute, only their interpretation. To receive the full flavour of the articles complained about copies are appended to this judgment.

3.1.2. On the front page of the Saturday Observer of 28 August 2004 the following story appeared:

"9 CHARGED OVER $4 MILLION SCANDAL – Health aid funds allegedly misused. The Public Service Commission (PSC) has begun charging public servants allegedly involved in a growing scandal involving at least $4 million, its top officer confirmed yesterday.

Letters were delivered this week to nine public servants in the Ministry of Health, the PSC chief executive, Fa’amausili Dr. Matagialofi Luaiufi, said.

More Ministry of Health staff are expected to be charged, including another senior officer, as investigations continue, she said.

It follows months of investigations by PSC and Treasury officers and a Commission of Inquiry set up by the PSC.

This has been over the alleged misuse of at least $4,160,17.33 of World Health Organisation aid funds provided to Samoa for health projects, she said.

But the full extent of the scandal is not yet clear as some documents appear to have been destroyed, Faamausili said.

POLICE

The Police Ministry is now expected to be called in to investigate as well. This follows a meeting on Thursday between top officers from the PSC, Treasury and the Attorney General’s Office.

Fa’amausili, Finance chief executive Hinauri Petana and Attorney-General Brenda Heather-Latu were amongst those at this meeting.

In the coming week Health Minister Mulitalo Siafausa Vui will be briefed by the PSC. Contacted this week his office said he was not involved in the investigations but would be briefed by officers.

Fa’amausili said the findings of an individual investigation by a senior Government officer has supported the findings of earlier investigations.

PROOF

She said the process requires a different individual outside of the PSC Commission of Inquiry to conduct a separate investigation into Treasury and PSC reports. This is to ensure full proof of charges made.

Amongst other information confirmed yesterday:

- the Attorney General’s Office, Police, PSC and Treasury are working to bring back a Health officer believed to have been flown to New Zealand after being questioned.

- This woman is a key witness in the investigations and was allowed to take resignation leave despite being supposed to remain in the country, Fa’amausili said.

- The Samoa Observer has seen a letter allegedly signed by the woman before she went to New Zealand.

- This letter according to Fa’amausili, names senior people allegedly involved.

- The WHO funds were allegedly misused between January 1998-December 2003 according to Treasury findings.

- Information started flowing when six clerks who were first charged out of initial investigations into another matter by Treasury and the PSC started talking.

Those six have been dismissed over alleged involvement in a scandal involving false documentation over supplies of goods for the hospitals. A businessman has also been charged over his alleged involvement in this.

Faamausili said the woman who has become a key witness was first approached by Treasury officers and eventually gave a statement.

But despite orders for everyone involved in the investigations to remain in the country until investigations were completed Fa’amausili said the woman was granted resignation leave.

WOMAN

She said the woman was alleged to have had a personal relationship with another more senior officer in the ministry.

Faamausili said the Attorney-General’s Office and the Police Department have been working to get the woman back from New Zealand.

I think they’ve located her, she said.

Faamausili said at the moment they’re mainly dealing with the charges that need to be delivered to people being charged."

This story would have made it clear to the ordinary fair-minded reader that something was greatly amiss at the Ministry of Health, that it involved substantial sums of money and that charges were being laid against MOH officers by their employer the Public Service Commission ("PSC"). Further that investigations were continuing and that further charges including those against a senior officer were expected. Police involvement was also likely.

3.1.3. The inquiry into malpractices in the MOH became the subject of a Cabinet paper dated 6 September 2004 under the hand of the Minister of the Public Service Commission. Paragraph 1.1. of the paper reflected the investigative history of the matter:

The first report of the Ministry of Finance – November 2003;

Report of a commission of inquiry established by the PSC – December 2003;

Audit Office report covering the period January to December 2003;

The second report of the Ministry of Finance - March 2004;

The third report of the Ministry of Finance ("the third Treasury Report/the Report")

3.1.4. The Cabinet paper discussed all three Ministry of Finance reports and the involvement of various MOH employees. It then focused on the third Treasury Report in some detail and concluded that the PSC was satisfied the plaintiff and other named senior officers had acted in breach of inter alia the Public Service Act 1977 and the Public Finance Management Act 2001. It recommended the plaintiff be charged for offences against those Acts and specimen charges were annexed to the Paper.

3.1.5. The Paper also indicated the third Treasury Report had at that time or at some previous stage been tabled in Cabinet. Significantly different to the Cabinet paper was the core recommendation of the Report, not that the plaintiff be charged but that the plaintiffs employment as Chief Executive Officer of the MOH "be seriously considered for termination" (pages 38 & 42). The Report contained allegations of fraud and misconduct on the part of the plaintiff and other officers in the MOH.

3.1.6. On Friday 10 September 2004 the Samoa Observer carried the following front page headline:

"RESIGN! Shock PSC report call on Health CEO, details page 3"

And on page 3 in an article penned by the third defendant:

"PSC REPORT: HEALTH BOSS SHOULD QUIT

Cabinet Ministers get recommendations

By Autagavaia Tipi Autagavaia

"Cabinet is being urged to ask Ministry of Health chief executive officer Lolofie Taule’ale’ausumai Dr Eti Enosa to resign, a Public Service Commission (PSC) source said yesterday.

It is one of the recommendations in a PSC report following major investigations into financial problems in the ministry, the source said.

Assistant chief executive officer Samau Ieru Lokeni, Internal auditor Filemoni Mulinuu and chief accountant Mateo Ah Tong all already face possible PSC disciplinary action, the source said.

The source – who is well informed on the investigations = spoke on the condition of not being identified.

Investigations have been carried out by Treasury and a Commission of Inquiry set up by the PSC. The Attorney General’s Office has also been involved in meetings relating to the findings.

INVESTIGATIONS:

Three separate investigations have already led to action against a number of staff over alleged misuse of money. Some suspended junior level Health staff have appeared in court.

A Government official, who did not want to be named, said that copies of the Public Service Commission report have been distributed to all ministers. This is for them to read before discussing it in next week’s Cabinet meeting, the official said.

Public Service Commission chief executive Faamausili Dr Matagialofi Luaiufi, when contacted yesterday, did not want to comment. It is because it is a very sensitive issue, she said.

Public Service Commission Minister Palusalue Fa’apoi II did not want to comment because Cabinet is yet to discuss the report. But he confirmed he had seen part of it.

Chief executive Lolofie was away from the office yesterday attending the opening of a new church. He was involved in ceremonies associated with this when contacted there.

He said to contact him today but another source said he is going overseas today on an official trip.

TWO ISSUES

The investigations at the Health ministry are understood to cover two separate issues.

One is said to involve the ordering of goods for hospitals. It is believed to involve questions over goods being ordered and paid for but not received by the hospitals.

The other is said to involve the alleged misuse of funding from the World Health Organisation.

Faamausili, while reluctant to comment yesterday, said earlier the full extent of some of the problems was not yet clear as some documents appear to have been destroyed."

3.1.7. On 11 September 2004 the Saturday Observer under the front page headline – "I’M CLEAN – Health accountant says he’s done no wrong" repeated that "Cabinet is being urged to ask Lolofie to resign, a PSC source had said on Thursday."

3.1.8. On 18 September 2004 the Saturday Observer carried the following front page headline:

"HEALTH PROBE CONTINUES, Minister Palusalue tells – page 3"

And on page 3:

"PALUSALUE TELLS OF HEALTH PROBE."

The article ended with the words "A PSC source said Cabinet is being urged to ask Lolofie to resign because of the problems in his ministry."

3.2. The allegations:

3.2.1. The plaintiff alleges the headlines and article of 10 September 2004 are defamatory because their natural and ordinary meaning is that:

(a) the plaintiff acted corruptly and dishonestly in the purchase and payment of goods within the MOH;

(b) the plaintiff has misappropriated funds within the MOH;

(c) the plaintiff should resign as he is corrupt and a thief.

The plaintiff also pleaded innuendo but counsel for the plaintiff indicated at the hearing that the issue of innuendo was not being pursued. The position here seems to be the same as that in Mauli v USP [2007] WSSC 23 where there was also a reference to innuendo in the Statement of Claim but it was not pursued at the trial, neither was any special meaning of the words pleaded or evidence called to show that because of such special meaning the words used in the publications were defamatory. The plaintiff here relies solely on the natural and ordinary meaning of the words.

3.2.2. The plaintiff says the defamation has seriously injured his professional and personal reputation and has exposed him to ridicule and contempt. And that the articles of 28 August, 11 September and 18 September 2004 have aggravated his damage. In particular the constant repetition of the advice from a PSC source that "Cabinet is being urged to ask Lolofie to resign." It is alleged such a claim is false and defamatory of the plaintiff.

3.3. The law

3.3.1. There have been a number of defamation cases dealt with by the court over the years. See for example Tauiliili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440, Alesana v Samoa Observer [1998] WSSC 1 and more recently Alaiasa v SBC [2006] WSSC 36 and Mauli v USP [2007] WSSC 23. They illustrate the diversity of circumstances in which defamation can arise.

3.3.2. For the sake of consistency I propose to follow the approach of Sapolu, CJ in Mauli, an approach not disapproved of by the Court of Appeal [2008] WSCA 8 when reviewing the Mauli Supreme Court decision. That approach requires the judge to determine:

(a) whether the matter complained of carries the imputation pleaded by the plaintiff;

(b) whether the imputation was defamatory?

(c) whether the matter complained of was published?

(d) have any defences to the defamation been established?

(e) if not, the quantum of damages that should be awarded to the plaintiff.

In this case, publication has been conceded by the defendants and the real dispute is whether the matters complained about carry the imputations pleaded by the plaintiff and are therefore defamatory and whether any defences to it have been successfully raised.

3.4. Analysis:

3.4.1. Do the matters complained of carry the imputations pleaded by the plaintiff?
Firstly, the matters complained of. The plaintiffs complaint is directed towards three (3) matters: the headlines of 10 September 2004, the article of 10 September 2004 written by the third defendant, and the articles carried by the 28 August, 11 September and 18th September editions.

3.4.2. He says the natural and ordinary meaning of the headlines and the article of 10 September 2004 are:

(i) that the plaintiff acted corruptly and dishonestly in the purchase of and payment for MOH goods;

(ii) that the plaintiff misappropriated ministry funds; and

(iii) that the plaintiff should resign as he is corrupt and a thief.

And further that the damage to the plaintiffs reputation has been aggravated by the other headlines and articles which impute that he is a corrupt and a thief and should resign.

3.4.3. I deal firstly with the headlines of the Friday 10 September 2004 Samoa Observer. There are two headlines: that on page 1 and that on page 3. Page 1 reads:

"RESIGN! Shock PSC report call on Health CEO, details page 3"

3.4.4. The facts show the headline to be erroneous in two areas: firstly, there never was a "PSC report" in the matter. The evidence is that the only "reports" there were came from the Ministry of Finance (3), the Commission of Inquiry set up by the PSC (1) and the Audit Office (1). And of these only the third Ministry of Finance report was before Cabinet. Secondly if this is meant to be a reference to the Cabinet paper of 6 September 2004 tabled by the Minister for the PSC in Cabinet, that Paper did not call for the plaintiffs resignation. Its recommendation was that he be charged and it attached a format for charges. Nowhere is there a suggestion or call on the plaintiff to resign.

3.4.5. The suggestion that the plaintiff resign is in fact found in the third Treasury Report that the Cabinet paper discussed. But it is a suggestion only and not a recommendation as it uses the words the plaintiffs employment "be seriously considered for termination" as opposed to "the plaintiffs employment be terminated." Not a minor error for there is a marked difference between a report from the PSC as the plaintiffs employer and a report from the Ministry of Finance as the financial arm of Government. Equally there is a difference between a call for the plaintiffs resignation and one requiring him to be "considered for termination".

3.4.6. The evidence of the third defendant made it clear that the error arose from a telephone discussion between the third defendant and his confidential scource at the PSC revealed at the hearing to be PSC Commissioner Ale Vena. Wherein Mr Ale advised him of a recommendation to Cabinet that the plaintiff resign ("faamavae"). The journalist obviously took this to be a recommendation from the PSC and without checking the accuracy of his information or viewing the "PSC report", he launched into the sensational revelations contained in the 10 September 2004 headline and article. A mistake one would expect from a rookie not one with 18 years experience in the game.

3.4.7. That the headlines are factually inaccurate is beyond doubt. That a nation should only talk to itself about correct facts is also beyond doubt.

3.4.8. The error is repeated in the headline on page 3 which reads:

"PSC REPORT: HEALTH BOSS SHOULD QUIT

Cabinet Ministers get recommendations"

Instead of "resign" the headline uses the word "quit", a distinction without a difference. Similar observations apply to this headline.

3.4.9. The error is perpetuated in the third defendants article which refers to resignation as being "one of the recommendations in a PSC report following major investigations into financial problems in the MOH". The report is said to have been "distributed to all ministers. This is for them to read before discussing it in next weeks Cabinet meeting." Again a misrepresentation as to what had been written and circulated in Cabinet.

3.4.10. The mistake is however not contained in the articles surrounding the 10 September 2004 article. There is no reference to a PSC report requiring the plaintiff to resign in the 28 August 2004 Saturday Observer. And the statement in the 11 September and 18th September editions that "Cabinet is being urged to ask Lolofie to resign" is neutral as it does not say urged by whom, neither does it refer to a non-existent PSC report to Cabinet requiring the plaintiff to resign. I accept however that it does reinforce the earlier misrepresentations contained in the 10 September headlines and article.

3.4.11. The first question as noted is do these publications, as distinct from the Third Treasury Report, carry in their natural and ordinary meaning the imputation that the plaintiff acted corruptly and dishonestly in the purchase and payment of MOH goods, that he misappropriated MOH funds and that he should resign because he is corrupt and a thief? In deciding that issue the test to be applied was explained by Hunt, J in Farquhar v Bottom [1980] 2 NSWLR 380, 385 in a passage cited with approval in Mauli:

"I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid or suspicious of mind nor avid for scandal. The ordinary reasonable reader does not live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs."

And was stated in this fashion by the New Zealand Court of Appeal in NZ Magazines Ltd v Hadlee:

"(a) The test is objective: under the circumstances in which the words were published, what would the ordinary reasonable person understand by them?

(b) The reasonable person reading the publication is taken to be one of ordinary intelligence, general knowledge and experience of worldly affairs.

(c) The Court is not concerned with the literal meaning of the words or the meaning which might be extracted on close analysis by a lawyer or academic linguist. What matters is the meaning which the ordinary reasonable person would as a matter of impression carry away in his or her head after reading the publication.

(d) The meaning necessarily includes what the ordinary reasonable person would infer from the words used in the publication. The ordinary person has considerable capacity for reading between the lines.

(e) But the Court will reject those meanings which can only emerge as the product of some strained or forced interpretation or groundless speculation....,

(f) The words complained of must be read in context. They must therefore be construed as a whole with appropriate regard to the mode of publication and surrounding circumstances in which they appear....."

Blanchard, J. referred in his judgment to:

"the qualities of the notional ordinary reader: someone not avid for scandal and fair-minded, not unduly suspicious and not prone to fasten on one derogatory meaning when other innocent or at least less suspicious meanings could apply."

3.4.12. By themselves the headlines of 10 September 2004 and those subsequent do not convey the imputations pleaded by the plaintiff. The real question is whether the 10th September 2004 article conveys such imputations and if not whether it does when read together with the headlines. To answer that, an examination of the 10 September 2004 article is necessary.

3.4.13. The crux of the article is contained in the opening two and penultimate three paragraphs:

"Cabinet is being urged to ask Ministry of Health chief executive officer Lolofie Taule’ale’ausumai Dr. Eti Enosa to resign, a Public Service Commission (PSC) source said yesterday.

It is one of the recommendations in a PSC report following major investigations into financial problems in the ministry, the source said...................

The investigations at the Health ministry are understood to cover two separate issues.

One is said to involve the ordering of goods for hospitals. It is believed to involve questions over goods being ordered and paid for but not received by the hospitals.

The other is said to involve the alleged misuse of funding from the World Health Organisation."

3.4.14. These show that according to the newspapers well placed PSC scource, Cabinet is being urged to ask the plaintiff to resign; that this is one of the recommendations of a PSC report following major investigations into financial problems at the MOH; that the investigations covered two issues, one involving questions over goods ordered and paid for but not received, and the other the alleged misuse of aid funds from the World Health Organisation. The article also referred to the various investigations, that three senior officers faced possible disciplinary action, that action had already been taken against staff over the alleged misuse of money and that some suspended junior staff have been prosecuted in court. Further that copies of the PSC report had been distributed to Cabinet ministers to read in preparation for the following weeks Cabinet meeting, that neither the PSC CEO or Minister wished to comment and that the plaintiff was otherwise engaged when contacted the day of the article, but that he wanted to be contacted the next day. However another scource had indicated to the third defendant that the plaintiff was travelling overseas the following day on official business. The article concluded with the tantalizing morsel for any would be conspiracy theorist that the full extent of the problem was not clear as some documents according to the CEO of the PSC appear to have been destroyed.

3.4.15. Various other aspects of the article require highlighting:

(i) as noted earlier there are factual inaccuracies in the headlines and the article. There was no "PSC report" as such and the PSC recommendation to Cabinet via the Cabinet paper was for the plaintiff to be charged. The suggestion that he be asked to resign came from the third Treasury Report and was a suggestion only, not a recommendation and on the evidence before me could not fairly be described as an "urging";

(ii) the investigations referred to were investigations into the affairs of the MOH not into the conduct or affairs of its CEO. They were clearly wide-ranging enquiries which led to various staff being implicated and subjected to disciplinary and other action. The plaintiff was not identified as a person under investigation;

(iii) the earlier article of 28 August 2004 referred to the charging of a number of MOH staff in what was said to be "a growing scandal" at the ministry involving "over $4m" in aid funds. More staff were "expected to be charged including another senior officer" but there is no suggestion this refers to the plaintiff. It does not accuse him of anything, it does not implicate him in any manner, in fact the article makes no mention of the plaintiff;

(iv) the 10 September 2004 headlines and article do not directly impugn the honesty or integrity of the plaintiff but by highlighting the fact that Cabinet is being urged to seek his resignation, it implies that he is not blame free in the matter. The basis for requesting his resignation is not stated but the inference that can reasonably be drawn is that it is somehow linked to the financial irregularities uncovered by the investigations into his ministry.

3.5. Conclusions:

3.5.1. The plaintiffs case is that the inferences to be drawn go as far as the imputations pleaded in the Statement of Claim. With respect I do not agree or accept that on a balance of probabilities the natural and ordinary meaning of the 10 September 2004 headlines and article is that the plaintiff acted corruptly and dishonestly in the purchase and payment of MOH goods or that he had misappropriated MOH funds or that he is corrupt and a thief and should therefore resign. That is reading too much into the words and would be a strained and forced interpretation of the headlines and article. There is nothing in either the headlines or the article that links the plaintiff in a dishonest or corrupt manner to the financial irregularities unearthed. No direct involvement of the plaintiff is alleged and the ordinary reasonable fair-minded reader would not conclude the plaintiff is being asked to resign because he was involved in the defalcations or because he is corrupt and a thief.

3.5.2. What the ordinary fair-minded reader could reasonably and more likely did conclude is that he is being asked to resign because these matters occurred while he was CEO at the MOH. That as such they occurred on his watch so to speak and he must take responsibility for them. I harken back to the qualities of the ordinary fair-minded reader described by Blanchard, J. in Hadlee:

"someone not avid for scandal, not unduly suspicious and not prone to fasten on one derogatory meaning when other innocent or at least less suspicious meanings would apply." (emphasis mine).

I believe that is the meaning the ordinary fair-minded reader could and would reasonably have taken from the headlines and the article. As my brother judge noted in Alaisa v Samoa Broadcasting Corporation [2006] WSSC 36 "if words do not convey more than mere suspicion or even strong suspicion, they are not capable of bearing a defamatory meaning."

3.5.3. As to the context in which the words were printed namely the earlier article of 28 August 2004, as observed above that article make no reference to the plaintiff. It therefore does not add anything vis-a-viz the plaintiff to the 10 September 2004 headlines or article.

3.5.4. As the Court of Appeal said in Mauli v USP [2008] WSCA 8:

"It is important to consider the meaning which the reader could reasonably take from the statement. Here it is important to consider both the actual words used and the context in which they appeared."

In relation to both I find that the headlines and article of 10 September 2004 in their ordinary and natural meaning do not on a balance of probabilities carry the imputations pleaded by the plaintiff. The third Treasury Report may carry the imputations pleaded but the complaint in respect of this cause of action is against the aforementioned headlines and article, not the Report.

3.5.5. As to whether the subsequent headlines and articles complained about give rise to the necessary imputations, for the same reasons I find they do not as they are essentially repetitive of the primary allegation and do not contribute anything of substance to the primary allegation. Having found that, it is unnecessary to go on and consider part (b) of the Mauli test, viz. whether the imputations were defamatory.

3.5.6. But if I had to, my analysis would be along the following lines: if the imputations did arise, would such imputations be defamatory? Again the law in this area was canvassed by Sapolu, CJ in Mauli. The relevant test is whether the imputations were "likely to lead hypothetical ordinary reasonable people to think less of the plaintiff". In the words of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1240:

"After collating the opinions of many authorities I propose the test – would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?"

3.5.7. In my view imputations of corruption and dishonesty in the course of ones employment as CEO of a Government ministry are clearly imputations that would lead to right thinking members of our society thinking less of the plaintiff and they would therefore be of a defamatory nature. The answer to the second question would accordingly be "yes". But for the reasons given I am not satisfied the words gave rise to the imputations pleaded and on this ground the plaintiffs first cause of action fails. I turn to the second cause of action.

4. The second cause of action:

4.1. The facts:

4.1.1. Again many of the facts are not in dispute. On 29 April 2005 the Honourable Chief Justice dismissed an application by the defendants to strike out the plaintiffs claim. On 22 May 2005 the Sunday Samoan carried the following on its front page:

"ALLEGED FRAUD IN HEALTH"

On page 2 was the following said to be an extract from the third Treasury Report:

"A. 4 Account Name: ARH Regional Project Samoa

Account No. 2599680

Establishment Date: Unknown

Trustees/Signatories: Dr. Enosa, Mr Lokeni and Mrs Sinefu Enosa-Reupena

(a) It was noted that both the MOH’s CEO Dr. Eti Enosa and his daughter Mrs Sinefu Enosa-Reupena appointed Project Coordinator for this project, were authorized signatories for this account (Appendix 8). This raises concern, as either one of them should have withdrawn from being an authorized signatory to this account as their relationship as father and daughter raises issues of impropriety and conflicts of interest.

Findings for Account No. 2599680 (ARH Regional Project Samoa)

1. The investigation was able to obtain some cheque leaves drawn from this account and noted that out of the twenty seven (27) cheque leaves obtained twenty four (24) were signed by both the CEO and his daughter while only three were counter-signed by the third signatory, Mr Lokeni and the CEO. Due to the conflict of interest that exists from the close relationship between the CEO and his daughter as trustees to this account, it should have been clear to the CEO that these cheques should have been signed by either one of them and Mr Lokeni, not just the two of them only as was discovered in most instances. The operation of this account has serious implications on the CEO motives, his professional ethics and moral conduct. The aforementioned facts indicate that Dr. Enosa is in breach of Section 13 of the PFMA 2001 in his responsibilities as a head of department, and Part C3 of the Treasury Instructions 1977 in his duties as an accounting officer."

4.1.2. And in an editorial in the same issue by Savea Sano Malifa entitled ‘Freedom of speech can never be destroyed’ was the following:

"HEALTH:

Then there’s the court decision to postpone the hearing of the $1 million claim by the former CEO of Health Lolofie Taule’ale’ausumai Dr Eti Enosa against the Samoa Observer, to the first week of November.

Well, we honestly don’t know whats going on. For trying to do an honest job of informing the public responsibly, we get sued. Senior government officials have assured there was nothing to worry about, and yet the suit is continuing.

It would really be interesting to know if there is justice at all in this country. For the last twenty years I’ve been mulling over this question, and I’ve still not been able to muster the confidence to look it in the face and answer either yes or no.

Along the way, the riddle has become so tenacious that the word justice is now an integral destructive force driving the mind towards insanity.

We see there’s justice from afar but then up close it becomes a skeletal framework resembling moral rightness, but its not, its just a blur of decadence obscuring any commonsense and decent thinking."

4.1.3. In the Tuesday 24 May 2005 Samoa Observer on the front page:

"Health – New Details – Report tells of Warehouse allegations, pages 2 and 3."

And on page 2 further extracts from the third Treasury Report:

"5 INVESTIGATIVE FINDINGS AND OBSERVATIONS"

"5.1. PROCUREMENTS AND PAYMENTS:

5.1.1. Consisent with findings of our two most recent previous investigations at MOH the alleged malpractice relating to the procurement and payment systems noted during this investigation were found to be similar in nature. Although the fraudulent practice was not as substantial and severe as with Cleansol Enterprise and Samoa Chemicals in terms of fraudulent proceedings, it is believed that the alleged malpractice was initially conceived and originated from procurements and payments made to the Warehouse. Eventually these fraudulent practices developed and extended both in frequency and amplitude to Cleansol Enterprise and Samoa Chemicals over the years.

5.1.2. From January 1998 to December 2003, a total of approximately $416,017.33 was found to have been fraudulent procurements and payments made out to the Warehouse Company (Appendix 1 refers). These payments were regarded as fraudulent in nature due to the fact that they were neither registered in MOH’s Ty11 and Ty1 registers nor any substantial and/or concrete evidence was found or provided to the investigation team to confirm full (or even partial) receipt or issue of goods ordered to respective divisions sections or units of the Ministry of Health as such. The enormity of this amount reflects both the sheer magnitude of procurement and payments made by MOH from January 1998 to December 2003 to the Warehouse Company. A number of these documents are attached as Appendix 2 for the clarification of fraudulent practices relating to procurement and payments made to the Warehouse Company from January 1998 to December 2003."

4.1.4. And on page 3:

"5.1.9 The investigation confirmed that these alleged malpractices had also been employed with another company named the Warehouse Company Limited situated at Taufusi Upolu. It is believed that this particular company is owned by the CEO of the Ministry of Health’s sister’s family. Substantial sums of public monies were expended on numerous orders made to the abovenamed company and were mostly endorsed by the MOH’s CEO. (Please refer Appendix 6). This is deemed to be an indirect violation of Part K.2(2) of Treasury Instructions 1977 which states that "Any officer involved in any way purchasing stores for Government is to declare whether or not he or his wife has any shares or other interest in any business or undertaking which supplied government with stores. This declaration is to be made in writing to the Financial Secretary giving details of the shares or interest held." Moreover, procurement and payments made to the Warehouse Company (with substantial orders endorsed by the CEO himself) constitutes an apparent conflict of interest. The fact that there was no declaration of the conflict of interest in accordance with the aforementioned requirement renders the CEO in breach of this specific provision."

4.1.5. Each article was accompanied by the picture of a very worried looking plaintiff. This was undoubtedly deliberately chosen as it is apparent from exhibits produced by the defendants that they had other less apprehensive looking photographs of the plaintiff on file. Again in order to appreciate the impact of what was published, copies are attached.

4.1.6. As to the remainder of the relevant facts the plaintiffs evidence was that when the 10th and 11th September 2004 articles were published he was attending an overseas meeting with the Minister of Health. He was shocked to be advised by his family of the articles and while he had been aware of the first two Treasury investigations, he was completely unaware of the third which culminated in the third Treasury Report. He said the first and second investigations were a direct result of financial irregularities in the MOH being drawn to the attention of Treasury by the ministry. But he was unaware a third investigation was in progress and was not given at any time an opportunity to view or comment upon the third report whether in draft or in final form, or to respond to the allegations therein. No one spoke to him about it and the first time he saw the report was when his lawyer gave him a copy following his suspension.

He was saddened and distressed by Governments treatment of him and of the 10 September 2004 article he says in his affidavit:

"The news was such a shock my heart almost stopped. I was totally devastated angry and depressed and could not comprehend the reason for the recommendation because I was unaware of any investigation concerning myself or had answered to any charge of misconduct."

Meanwhile news of the articles had spread rapidly and many relatives and acquaintances approached him on the subject. In reply to which all he could say was he had no knowledge of the matter or why he was being asked to resign. People shunned him and on 20 September 2004 he was advised of Cabinets decision to suspend him on full pay with the promise that he would be reinstated if the allegations were not proven.

4.1.8. Subsequently he was charged by the PSC but this did not proceed to a defended hearing because his contract of employment expired and the issue became academic. He denied any wrongdoing and has brought these proceedings because of the damage to his personal and professional reputation. He also said that from October 2004 onwards the defendants engaged in a malicious campaign to destroy his reputation. The 22nd and 24th May 2005 publications were part of this character assassination

In relation to the ARH (Adolescent Reproductive Health) Project and publication of 22 May 2005, his evidence was relevantly as follows: this was a Secretariat of the Pacific Community ("SPC") Project that ran from October 2001 to December 2003 aimed at improving access to information on reproductive health and services for young people. Under the Project Lettter of Understanding the Samoan Government was required to appoint a National Health Co-ordinator ("NC") to implement the project. The MOH was responsible for overall monitoring including management of the project bank account. It was an SPC requirement the account have three authorized signatories – the NC, the Project director and the permanent head of the MOH. Any two of them could sign cheques. The appointed national co-ordinator was the plaintiffs daughter Mrs Sinefu Enosa-Reupena and the project director was Mr Ieru Lokeni the MOH Director of Corporate Services. Both had offices within the MOH. The NC was directly responsible to the MOH Director of Preventative Health Services Dr. Nuualofa Potoi, and Mr Lokeni to the plaintiff as ministry CEO.

4.1.10. The plaintiffs evidence as to the procedure for release of funds was first the NC writes up a budget for a particular activity. This is submitted initially to Dr. Potoi for approval and then to him for final approval. The matter is then referred to the Ministry Chief Accountant and if in order, he prepares a cheque. This is sent to the plaintiff to sign as principal signatory and that is the last time he sees the cheque. His evidence was he did not know who counter-signed each cheque but acknowledged it was usually the NC as she was responsible for disbursement of the funds and their acquittal (an expenditure report) to the SPC head office in Fiji. The plaintiff produced as Exhibits "P-11(a),(b),(c)" documentary examples of the budget approval process.

4.1.11. The plaintiffs evidence was confirmed by his daughter Mrs Enosa- Sinefu. She also added that the cheques were usually made out to "cash" to facilitate disbursement for expenses and allowances – see for example Exhibits "P-11(a)", "(b)" and "(c)". A practice fraught with danger from many perspectives.

4.1.12. Her further evidence was she was not aware of any Treasury investigation into ARH matters until the Police contacted her in September 2004 to interview her about why some project cheques had been banked into her personal bank account and why she had co-signed many of the cheques with her father. She accepted at least two cheques for substantial amounts were deposited to her bank account but said this was for "safekeeping purposes" and the monies had all been appropriately used as evidenced by the satisfactory acquittals sent to the SPC head office in Suva. She also conceded one of the two cheques was cashed by her husband who is not an employee of the Project or the MOH but whom she sometimes used as a clerk "to run errands for me." A further practice with potential for misconstruction and abuse and clearly contrary to established Treasury procedures in relation to the account as noted in A.4 paragraphs 2 and 3 page 29 of the third Treasury Report. Details concerning these matters were also published in the 22 May 2005 Sunday Samoan as part of the page 2 extract.

4.1.13. As for the Warehouse allegations in the 24 May 2005 edition, the plaintiffs evidence was that following established procedures the Warehouse became the successful tenderer for the procurement of tyres and tubes for MOH vehicles over the 1998 to 2003 period. All tenders were screened by the MOH Tenders Committee who then make a recommendation to the Government Tenders Board which makes a selection and in turn refers the successful tender to Cabinet for final approval. His only role is as CEO to endorse the Ty-11 payment voucher submitted to Treasury for payment of purchases. In support of this the plaintiff produced Exhibits "P-12" to "P-15" showing the Warehouse was the successful tenderer for various years. The gist of the plaintiffs evidence was that he had no involvement in the tender process and that Government validly awarded the tyres and tube tender to the Warehouse. Further that all other purchases from the company were justified and legitimately actioned.

4.1.14. However this in fact is not entirely correct as two of his own documents Exh. "P-12(d)" for the financial year 1997/1998 and Exh. "P-14" for the financial year 1999/2000 are letters from the plaintiff to the Ministry of Finance seeking approval to awarding the tender to the Warehouse as the lowest tenderer. Given that the Warehouse is his brother-in-laws business he should have disassociated himself from the process. It is not appropriate that he should be recommending Government accept the tender even though in both cases it was the lowest tender submitted. Neither should he have played any role in authorizing payments for procurements from the company whether pursuant to the tender or otherwise, or in any document relating thereto. There was also evidence in the third Treasury Report that he was involved in authorizing non-tender purchases from the company in breach of Treasury requirements as to supporting documents.

4.1.15. The plaintiffs evidence also referred to disbursement of WHO funds to the MOH but as these form no part of his claim, that evidence is irrelevant.

Not surprisingly the plaintiffs brother-in-law Papalii M. Scanlan appeared and gave evidence supportive of the plaintiff. He said that until the 24 May 2005 publication he had no inkling his business was under investigation by the Ministry of Finance. And that no-one from the ministry approached him about these matters. Further that between 1998 and 2003 the Warehouse supplied the MOH non-medical goods pursuant to an approved tender. And all goods requisitioned and paid for whether pursuant to the tender or ordered separately by the MOH were supplied as evidenced by delivery dockets signed by the company delivery person and the MOH receiver. All these documents were handed over to the Police investigative team when they called on him on 17 September 2004 as part of their inquiries.

This latter part seems at odds with his initial evidence that the first he knew of a Ministry of Finance investigation into his business was the 24 May 2005 publication because he said the Police informed him on 17 September 2004 about the allegations in the third Treasury Report. He must therefore have known of the allegations as early as 17 September 2004. In cross examination he reiterated however that no enquiry or request for records had been made of him personally or his company by the Treasury investigators. Had they done so he would have given them the relevant delivery dockets which established supply and delivery to the MOH. He handed over all documents in his possession to the Police investigators. It is not in dispute that the Police preferred no charges against the plaintiff but did pursue criminal prosecutions against other MOH and non-MOH personnel.

4.1.18. The defence called a number of witnesses but it is not necessary for present purposes to exhaustively review all that evidence. On the matters covered by the 22 and 24 May 2005 publications, the main witness was the author of the third Treasury Report Ms Mafuli Aiono, Assistant CEO Finance at the Ministry of Finance. At the material time she was an employee of the Investigation and Internal Audit Division of the ministry. She was the lead investigator in the third special investigation into alleged mismanagement and malpractices at the MOH. The investigation focused on allegedly fraudulent procurements and payments in respect of the Warehouse Company Limited and the management and operation of overseas funded special purpose accounts by the MOH.

4.1.19. In respect of the former, her evidence was that the MOH series of investigations began when Treasury queried some of their procurement documents. The MOH responded by way of an Irregularity Report signed by Mr Lokeni the Assistant CEO Corporate Services on behalf of the Ministry CEO. A Treasury inquiry was accordingly launched into purchases from a number of local companies and the focus only shifted to the Warehouse during the third investigation. She had conducted the first two investigations and it was on her recommendation that the third was undertaken.

4.1.20. As far as she was aware the plaintiff knew of all the investigations. He was overseas when the third investigation began but she recalled being sent by her CEO to talk to the plaintiff as part of the third investigation to seek his permission to stock take the ministrys storeroom. Her evidence here is a little nebulous as in examination in chief (pg 37) she said:

"I was also sent there to talk to him and he did not allow me inside."

As all Government CEO’s have their own offices and secretaries who strictly regulate the flow of visitors to their CEO’s, I took this to mean he did not allow her inside his office as opposed to he did not allow her into the storeroom. My notes of evidence and recollection is to that effect. This is consistent with her next answer which is:

"Q. He did not want to talk to you?

A. No."

But in cross examination (pg 41) she said she talked not only to the plaintiffs secretary but also to the plaintiff himself. Although presumably if she did, it was only about permission to stocktake the Ministry storeroom.

4.1.21. What is apparent from her evidence is that she did not at any time discuss with the plaintiff the Warehouse procurements, the ARH Project Account or any of her concerns. The reasons for this she explained in cross examination:

"Q. did you think to talk to dr. enosa to clarify these concerns you had in respect of the procurement of goods from the warehouse?

A. no.

Q. was there any reason for that?

A. yes.

Q. what was that?

A. because my CEO told us just go there & investigate & report to him and shes the one that is in level with the CEO in structure.

Q. Are you saying that your CEO instructed you not to talk to dr. enosa about those concerns you had about the warehouse procurement?

A. no because every finding we have to report to her before we finalise the report & she’s the one who has to discuss with the CEO."

And later in cross examination:

"Q. did you not think to try and write to him directly that you would like to meet with him so that he can explain some of these concerns you had?

A. I think I mentioned every finding we report to our CEO we even sent drafts of the report before we submit to other ministries and my understanding as a principal officer she should write.

Q. so you are saying that you just go bring these reports and then leave it to the CEO to discuss it with her counterclerk? (This is a typographical error, it should be "counterpart").

A. well our responsibility is to report to the CEO."

4.1.22. When pressed as to why she did not in the interests of a thorough investigation pursue these matters with the plaintiff her unconvincing reply was she tried a number of times to contact him but was always told by the ACEO Corporate Services and the plaintiffs secretary that he was in meetings and was unavailable. It was clear from her evidence she had no interest in actively pursuing these matters with the plaintiff and further, that she was under a time constraint because the PSC were pressuring her team "to finalise the report".

4.1.23. In relation to the Warehouse one of the main conclusions of her report was that:

"From January 1998 to December 2003 a total of approximately $416,017.33 was found to have been fraudulent procurements and payments made out to the Warehouse Company. These payments were regarded as fraudulent in nature due to the fact that they were neither registered in MOH’s Ty11 and Ty1 registers nor any substantial and/or concrete evidence was found or provided to the investigation team to confirm full or even partial receipt or issue of goods ordered to respective divisions, sections or units of the MOH as such".

Further that:

"It is believed that this particular company is owned by the CEO of the Ministry of Health’s sister’s family. Substantial sums of public monies were expended on numerous orders made to the abovenamed company and were mostly endorsed by the MOH’s CEO........

Morever, procurement and payments made to the Warehouse Company (with substantial orders endorsed by the CEO himself) constitutes an apparent conflict of interest. The fact that there was no declaration of the conflict of interest in accordance with the aforementioned requirement (under Part K 2(2) of Treasury Instructions 1977) renders the CEO in breach of this specific provision."

These conclusions were published in the Samoa Observer of 24 May 2005 and it is this which the plaintiff claims is defamatory of him.

Ms Aionos evidence was that a Ty11 is a request for supplies prepared, certified and approved by a ministry and submitted to Treasury. Treasury then issues a purchase order to the nominated supplier to supply the particular ministry. The goods are supplied and a Ty1 is then drawn up by the ministry confirming supply of goods and requesting payment from Treasury. On the basis of this a Treasury cheque is drawn, payment is effected and the Ty1 marked "processed and paid". It was also the witnesses evidence that Treasury Instructions required every government ministry to keep Ty1 and Ty11 registers recording every request for a purchase order and every request for payment. These are two separate registers and the registration numbers of each transaction recorded therein are supposed to be sequential beginning with the first document of each financial year.

4.1.25. The witnesses evidence was not very clear and this was not helped by the cursory nature of her examination in chief but it seems that one of the problems encountered during the MOH investigation was documents were registered in the Ty11 supplies register but not in the Ty1 payment register. The Report was produced as Exhibit "D-2" for the defence and Appendix 1 shows that in many cases the relevant Ty1 register could not be located. Appendix 1 also notes various other documentary deficiencies and questionable practices in relation to the Warehouse procurements and purchases over the relevant period.

4.1.26. The registers were not the only problem. In cross examination Ms Aiono stated that when MOH staff were interviewed and stock cards checked, delivery dockets and signatures of personel who received the goods were missing and could not be produced to the investigators. They accordingly failed to find any satisfactory evidence that goods ordered were supplied and/or received by the MOH, only evidence that the company had been paid for them. This led to her conclusion as per above that a fraud was being perpetuated because the payments were not properly registered nor was there sufficient evidence provided to confirm full or even partial receipt or issue of such goods. It is noted in passing that Appendix 2 containing the relevant Ty11’s and Ty1’s also shows the plaintiff as the approving officer of at least two Warehouse Ty11’s, one on 26 February 1998 and the other on 20 July 1999.

4.1.27. Ms Aiono was not examined as to the other alleged defamatory conclusions in her report involving the ARH Project bank account. Probably because there is no dispute the account existed and as to the authorised signatories, Exhibit "D-2" in paragraph A 4(a) reflected the factual situation:

"It was noted that both the MOH CEO and his daughter Mrs Sinefu Enosa-Reupena, appointed project co-ordinator for this project, were authorized signatories for this account. This raised concern as either one of them should have withdrawn from being an authorized signatory to this account as their relationship as father and daughter raises issues of impropriety and conflicts of interest .........

Due to the conflict of interest that exists from the close relationship between the CEO and his daughter as trustees to this account, it should have been clear to the CEO that these cheques should have been signed by either one of them and Mr Lokeni, not just the two of them only as was discovered in most instances. The operation of this account has serious implications on the CEO’s motives, his professional ethics and moral conduct."

These conclusions were inter alia published in the 22 May 2005 Sunday Samoan and the plaintiff claims they are defamatory of him.

4.1.28. The other defence witnesses consisted of PSC Commissioner Ale who essentially confirmed he was the scource for the 10 September 2004 article and the man behind the Samoa Observer and its sometime managing editor, Savea Sano Malifa. Savea denied the defendants were engaged in a campaign to do the plaintiffs reputation harm and maintained the publications in question were part of the normal and responsible functions of a free press. There was no intent to deliberately defame the plaintiff and the Observer is not in the business of maliciously or otherwise defaming members of the public. This is far from the newspapers role as self-appointed servants of the public and a watchdog of the government. He argued that any damage to the plaintiffs reputation was done by Government as his employer in suspending and refusing to rehire him and not by the defendants who were simply reporting the facts of the matter as contained in the third Treasury Report.

4.1.29. The difficulty with these assertions is firstly, as recognized by the defendants own counsel, actual intention is irrelevant. The classic illustration is the leading case of Hulton and Co. v Jones [1909] UKLawRpAC 57; [1910] AC 20 (HL). In that case an article was written by a correspondent of an English newspaper reporting that at a large and well attended motor vehicle show in France there on the terraces was "Artemus Jones with a woman not his wife who must be you know – the other thing." The writer did not know an Artemus Jones and had made the name up for the purposes of the story. In fact there really was an Artemus Jones a barrister in practice in North Wales. In holding the newspaper and its publishers liable to Mr Jones, the English House of Lords said:

"A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both."

As noted by Lord Loreburn, LC intention is no defence "however excellent it may be". The defendants remedy "is to abstain from defamatory words."

4.1.30. As for the suggestion that the plaintiffs damage was caused by his employer, the problem with that is it overlooks the fact that what is complained about is not publication of the plaintiffs suspension and the decision by Government not to re-employ him, what is complained about is publication of the alleged defamatory statements in the third Treasury Report in the Observer editions of 22 and 24 May 2005.

4.1.31. As to the argument that all the defendants were doing was publishing the conclusions of a Treasury investigation as part of a newspapers duty to bring relevant reports to the attention of the public so that it is well informed, it must be pointed out that once a newspaper publishes or repeats for its readers a statement, it adopts it as its own. As stated by the eminent Lord Denning in Associated Newspapers Ltd v Dingle [1962] 2All ER 737, 754:

"At one time in our law it was permissible for a defendant to prove in mitigation of damages that previously to his publication, there were reports and rumors in circulation to the same effect of the libel. That has long since ceased to be allowed and for a good reason. English law does not love tale-bearers. If the report or rumor was true let (the defendant) justify it. If it was not true he ought not to have repeated it or aided in its circulation. He must answer for it just as if he started it himself. Newspapers in particular must not speak ill about people for the spice that it gives their readers. It does a newspaper no good to say that other newspapers (in this case, the Treasury report) did the same. They must answer for the effect of their own circulation without reference to the damage done by others". (italics are mine)

Lord Morris of Borth-y-Gest at page 758 agreed when he said a defendant can not seek "to mitigate damages by a plea that he had only published what others had also published."

4.1.32. As stated by the learned editor in his evidence it is not a newspapers duty to publish defamatory statements neither is it in the public interest for a newspaper to disseminate such material. Prudence however should have dictated that this also extend to potentially defamatory material. The suggestion that the defendants acted in this case in a "fair, responsible and impartial manner" cannot be sustained in light of the fact that they published damning findings against a senior public servant, lifted from a confidential Government report without first giving him the opportunity to respond or answer them. That the relevant Treasury investigation also failed in this regard is no defence for the defendants. There is no doubt the public has a right to be informed but this does not mean informed about only one side of the story. If newspapers are to put meat on the bone they must tender the whole of the joint. To do otherwise is hardly fair, impartial or responsible reporting.

but a4.2. The allegations:

4.2.1. The plaintiff alleges the extract in paragraph 4.1.1. above from the third Treasury Report published in the 22 May 2005 Sunday Samoan is defamatory because the words in their natural and ordinary meaning meant that the plaintiff and his daughter deliberately counter-signed the relevant cheques for the criminal purpose of defrauding the MOH of ARH Project funds, that the plaintiff is corrupt and a thief, that he is professionally unethical and full of moral turpitude and that they stole the funds involved. Innuendo was again pleaded but not pursued.

4.2.2. In relation to the 24 May 2005 extract reproduced at paragraphs 4.1.3 and 4.1.4 the plaintiff says it is defamatory because the natural and ordinary meaning of the words is that the plaintiff because of his family connection to the Warehouse owners acted corruptly or was corruptly involved in the purchase and payment of goods from the Warehouse, that the plaintiff influenced or used his position as CEO to direct the purchasing of goods from the Warehouse, that these purchases and payments were fraudulently carried out, that goods paid for were not all supplied and that the plaintiff is corrupt and full of moral turpitude. Innuendo was also pleaded but not pursued.

But the plaintiffs claim seems to go further than this because the Statement of Claim pleads that when the defendants Strike Out Motion was rejected by this court on 29 April 2005, the defendants retaliated by beginning to publish as from 6 May 2005 (one week later) excerpts from the third Treasury Report in an orchestrated campaign to harm the plaintiff and his reputation. The first two paragraphs of the editorial of Savea Sano in the 22 May 2005 Sunday Samoan (see paragraph 4.1.2 above) is part of this campaign. The Statement of Claim goes on to allege that the campaign dates back to 5 October 2004 but as no 5 October 2004 article was put into evidence, I assume the pleadings mean 10 October 2004 onwards being the first article submitted and being the date provided under the heading ‘Particulars’ in the Statement of Claim. As from then the plaintiff says the defendants have maintained a sustained attack on his emotional well-being and reputation by constant reminders and references to his suspension, the PSC proceedings against him, the Police investigations and the present court proceedings by articles and publications usually prominently positioned on the front pages of its newspapers. In support of that the plaintiff introduced into evidence various articles over the 10 October 2004 to 25 May 2005 period. He says the 22 and 24 May articles represent the climax of the campaign.

It is convenient to deal here with this aspect of the claim. The answer is two-fold. Firstly I have found no evidence suggesting that as from 6 May 2005 the Defendants began publishing excerpts from the third Treasury Report. A review of the plaintiffs exhibits shows that the only post-29 April 2005 publications were on 30 April 2005 an article about charges against the ministry ACEO Mr Lokeni, on 6 May 2005 the recommendations of the Report under the headline that the plaintiffs employment has been recommended to be "seriously considered for termination" and on 14 May 2005 an article containing an unconfirmed report that the Police investigation has cleared the plaintiff of wrong doing. There was therefore only one extract from the Report published in this period viz. the Reports recommendations on 6 May 2005. One excerpt does not a campaign make. This part of the plaintiffs claim has not been established and must be rejected.

As for the suggestion that the quoted passages from the 22 May 2005 editorial are also part of the campaign, this has no foundation. I have found no cogent or reliable evidence of such a campaign. In respect of the passages themselves, the first paragraph merely records the adjournment of the substantive court hearing till November. And the second paragraph is an expression of the views and frustrations of the learned editor. They cannot reasonably be said to be in promotion of an anti-plaintiff campaign. This too must be rejected.

4.2.6. One relevant fact that does emerge from this period is a paragraph in the 6 May 2005 article which reads:

"Due to matters that are currently before the courts, the Samoa Observer acting on legal advice cannot publish the report in its entirety."

The article then goes on to publish the recommendations of the Report with accompanying explanatory notes about each of the MOH officers referred to. This clearly shows that at this stage there was a recognition that publication of other parts of the Report could expose the newspaper to legal proceedings. Why this changed by 22nd and 24th May 2005 when excerpts began to be published is not altogether clear but publication per se is insufficient to support the argument that the defendants were by then actuated by malice and were orchestrating a campaign to destroy the plaintiffs well-being and reputation.

4.2.7. As to the allegation that the defendants campaign to ruin the plaintiff began in October 2004, again the evidence fails to establish this is so. A review of the relevant articles shows that the defendants did keep the plaintiffs case in the public spotlight but that they did so by reporting events concerning the plaintiff as they unfolded. This is a legitimate function of journalism and those who live in the public spotlight must expect the heat of its glare now and then. Those shy of it are always free to remove themselves from it. I find nothing in the evidence before me from which to reasonably infer that the defendants went further and were engaged in deliberate efforts to destroy the plaintiffs physical well being and reputation. This allegation also fails.

4.3 Relevant law:

4.3.1. This does not need to be restated. They are the same principles referred to earlier in respect of the plaintiffs first cause of action.

4.4 Analysis:

4.4.1. I have little difficulty in concluding that given the history preceding the 22nd and 24th May 2005 publications in particular the many headlines and articles during 2004 referring to a recommendation that the plaintiff resign as CEO of the MOH and the subsequent publicity given to his suspension and non-employment by Government, the 22nd and 24th May 2005 publications would in the mind of the ordinary fair-minded reader carry the imputations pleaded by the plaintiff. They did not in September 2004 but the relentless and tenacious publicity given to the plaintiffs affairs since was such that by 22nd and 24th May 2005, I believe the ordinary and fair-minded reader would on a balance of probabilities more likely than not have changed his position to the extent that the publications in question would carry the imputations pleaded. As the Court of Appeal observed in Mauli, context is as important as the actual words.

4.4.2. As to the actual words used in the publications they speak for themselves. The Sunday Samoan of 22 May 2005 in relation to the ARH Project bank account notes "that both the MOH’s CEO Dr Eti Enosa and his daughter Mrs Sinefu Enosa-Reupena appointed project co-ordinator for this project were authorized signatories for this account......" and speaks of "their relationship as father and daughter" as raising "issues of impropriety and conflicts of interest". And then in more direct terms: "The operation of this account has serious implications on the CEO’s motives his professional ethics and moral conduct."

Two days later in the edition of 24 May 2005 it is said: "From January 1998 to December 2003 a total of approximately $416017.33 was found to have been fraudulent procurements and payments made out to the Warehouse Company...... The enormity of this amount reflects both the sheer magnitude of procurement and payments made by MOH.....documents are attached as Appendix 2 for the clarification of fraudulent practices relating to (these) procurements and payments........" And then the sting of the defamation: "It is believed that this particular company is owned by the CEO of the MOH’s sisters family. Substantial sums of public monies were expended on numerous orders made to the abovenamed company and were mostly endorsed by the MOH’s CEO." And towards the end of the paragraph: "Moreover, procurements and payments made to the Warehouse Co. (with substantial orders endorsed by the CEO himself) constitutes an apparent conflict of interest."

4.4.3 The ordinary fair minded reader would have been left in no doubt as to the corruptness of the plaintiff in the manner pleaded in the Statement of Claim. The inclusion of factual detail adds weight and credibility to the conclusions stated. And the publications would have been sufficient to lower the plaintiffs reputation in the mind of right thinking members of our community so that they would think less of him. According to the plaintiff it did have that effect as he became a public pariah, shunned and avoided by colleagues and friends. The first and second defendants in their publications of 22nd and 24th May 2005 have in my assessment defamed the plaintiff. That part of the claim is proven to the required standard.

4.4.4. But that is not the end of the matter. As the Supreme Court in Mauli determined, it must now be considered whether the defendants have successfully raised any defences to the defamation. They have purported to raise three defences: qualified privilege, justification and fair comment.

4.5. Defences: qualified privilege

4.5.1. Following dismissal of their strike out motion, the defendants filed and served an Amended Statement of Defence dated 25 July 2005 raising the defences of justification and fair comment. No mention or averment was made in that document to a defence of qualified privilege. However on the morning of 19 May 2008 the third day of trial of this matter, the defendants sought leave to amend their defence by adding the defence of qualified privilege. Not surprisingly this was vehemently objected to by the plaintiff which closed its case later that day.

4.5.2. The defendants initially tried to argue that the defence was in substance already pleaded by the Statement of Defence but I rejected this in an oral ruling delivered on 19 May 2008 before the defendants opened their case. I also indicated that particulars as to the nature and basis upon which the defence was claimed needed to be provided for the court to properly consider the application. I also noted as is apparent from the written transcript of the ruling that an assessment as to potential prejudice to the plaintiff needed to be made given the lateness of the application.

4.5.3. Furthermore I questioned whether the defence applied to cases involving allegations of criminal activity. The New Zealand Court of Appeal decision in Vickery v McLean (unreported) 20 November 2000 CA 125/00 was referred to and excerpts from that judgment are most illuminating and well worth reproducing in full:

"All occasions of qualified privilege are based on an identified public interest in allowing people to speak and write freely, without fear of proceedings for defamation unless they misuse the privilege. On occasions of privilege the public interest is seen as prevailing over the protection of individual reputations. The price of the freedom is the requirement that the privilege be responsibly used. When the Courts are asked to find that a particular occasion, not directly covered by authority, is one which should attract qualified privilege, the ultimate question is whether it is in the public interest to recognize the privilege and strike the balance between freedom of expression and protection of reputation accordingly..............

(Where) the subject matter involves an allegation of serious criminality, the law has been clear for many years that such allegations or complaints, provided they are bona fide, may be made to the appropriate authorities under qualified privilege. But the privilege is lost if the allegations are disseminated beyond those whose proper function it is to investigate and, if appropriate, to act upon them (italics mine)."

That is, the protection is lost if allegations of criminal misbehaviour are publicized before they are properly investigated and if appropriate acted upon by the relevant authorities. The relevant authorities in this case were Cabinet and the PSC as the plaintiffs employer and the Police given the nature of the matters in issue.

4.5.4. The rationale for such a rule is obvious. In Vickery v McLean it was said that in order for the plaintiff to succeed -:

"It is necessary for Mr Vickery to establish his asserted privilege by reference to first principles. He must show that it is in the public interest (for the common convenience and welfare of society, as Parke B classically put it in Toogood v Spyring [1834] EngR 363; (1834) 1 CM & R 181, 193; [1834] EngR 363; 149 ER 1044, 1050), that on an occasion such as the present, freedom of expression should prevail over protection of reputation. More specifically he must show that it is in the public interest for people to be able to make allegations of serious criminal offending, albeit in a bona fide way, to or through the news media.

Even if such allegations were responsibly made, it would be contrary both to settled law and to the public interest to allow such communications to be made under qualified privilege. We do not consider that society has changed in such a way as to justify a departure from previous perceptions of the public interest in this respect. It is, in our view, demonstrably not in the public interest to have criminal allegations, even if bona fide and responsibly made, ventilated through the news media. That could only encourage trial by media and associated developments which would be inimical to criminal justice processes. Society has mechanisms for investigating crime and determining guilt or innocence. It is not in the public interest that these mechanisms be bypassed or subverted."

In short, a newspaper is not a mechanism suitable for ascertaining guilt or innocence however nobly intended publication may be.

4.5.5. It was suggested in the courts ruling that the defendants file a formal application providing the necessary particulars of the defence but this was never done. Instead final submissions argue that the defence is raised by paragraphs 11, 21, 22 and 23 of the Amended Statement of Defence which addresses the defendants constitutional right of free speech. In support of this was cited Sir Gordon Bissons judgment in Alesana v Samoa Observer Co. Ltd [1998] WSSC 1 wherein the learned judge is said to have expressed the view that the right to freedom of speech and expression under article 13(1)(a) of the Constitution is not a stand alone constitutional defence but an aspect of qualified privilege.

4.5.6. With respect I do not see how this argument resolves the defendants predicament. Firstly it does not address the Vickery v McLean hurdle. Secondly, pleading the defendants constitutional right to free speech is not the same as pleading a defence of qualified privilege. The two are different creatures and I do not understand Sir Gordon Bissons judgment to be that the article 13(1)(a) right is an aspect of qualified privilege.

4.5.7. The judgment discussed article 13(1)(a) as it related to the circumstances of the case before the learned judge, viz. an editorial by the defendants editor suggesting corruption by the plaintiff in directing Government funds towards building of his hotel in the island of Savaii. That is a background of political commentary and discussion. The judge went to great pains to point this out by saying at the outset:

"Mr Harrison (for the defendants) submitted that the Court could not find the defendants liable in damages because what they published was in exercise of their constitutional right of free speech and expression. But for present purposes he limited that freedom of speech and expression to a political discussion. Accordingly I approach this issue to that extent."

He went on to note:

"The starting point is the fundamental right of freedom of speech and expression. This is a precious right which the press enjoys as a watchdog in the public interest to expose corruption in holders of political office and in the conduct of public affairs. It is in the interests of those exercising their universal voting rights in Samoa to be informed of corruption, if it exists, in the halls of power. But this fundamental freedom is not absolute, it must be curbed to prevent defamation to the extent that the law in Samoa imposes reasonable restrictions on the exercise of that right. The restrictions involve the recognition of the right in everyone to their good name and the right not to have their reputation disparaged by defamatory statements made about them by third persons without lawful justification or excuse. Samoa has retained the offence of criminal libel which New Zealand has not showing the importance in Samoan society attached to reputation. It is the common law and the Defamation Act 1992/1993 which imposes restrictions on the exercise of that fundamental right of freedom of speech and expression."

The learned judges conclusion was:

"The fundamental right to freedom of speech and expression under Article 13(1) of the Constitution can hardly be said to "triumph" or be in any superior position when it is qualified by Article 13(2) by laws which impose reasonable restrictions to prevent defamation. Article 13(1)(a) which affirmed that everyone has the right to freedom of expression, does not elevate "for all purposes freedom of speech above the right to reputation which is inherent in the dignity of the individual". I am of the same opinion with regard to article 13(1) and (2). I see no occasion for the introduction in Samoa of a stand-alone constitutional freedom of speech defence on political affairs when the Constitution itself limits such freedom by existing laws which in Samoa are the Defamation Act 1992/1993 and the English common law, as evolved in Samoa."

And then the relevant part for present purposes:

"In accordance with the decision of the Court of Appeal of Samoa in L v L (supra), I would develop the common law as in New Zealand and Australia to widen the scope of qualified privilege in accordance with the passages I have quoted from both Lange cases. With the introduction of universal adult suffrage in Samoa by the Electoral Amendment Act 1990 replacing matai suffrage, the former being preferred by a majority of the people of Samoa voting in the 1990 plebiscite, each member of the Samoan community "has an interest in disseminating and receiving information opinions and arguments concerning government and political matters that affect the people of Samoa". This widening of the scope of qualified privilege brings political matters within the general rule that there must be a common and corresponding duty or interest between the person who makes the communication and the person who receives it."

The decision thus widened the scope of qualified privilege to include political discussion. It did not make the article 13(1)(a) defence an aspect of qualified privilege.

4.5.8. In any event, this is not a case involving political commentary or discussion. It is a case involving publication of the findings of a confidential government report suggesting corruption and criminal misconduct on the part of the plaintiff. Those are allegations of criminal misbehaviour.

4.5.9. It is also clear that any special defences intended to be raised must be pleaded in a Statement of Defence. As Sapolu CJ observed in Mauli:

"In respect of possible defences, if the defendant intends to rely on a special defence, for example, absolute privilege, qualified privilege or justification (truth), then such defence should be pleaded. It is not enough that such defence is only raised in the concluding submissions of counsel. This has been the problem in this case with the defence of qualified privilege raised in the concluding written submissions for the second defendants but was not pleaded in their statement of defence. No amendment to the statement of defence has also been sought."

4.5.10. The defence must not only be pleaded, it must be clearly pleaded not camouflaged or obtusely implied in the Statement of Defence. I quote from the New Zealand Court of Appeal judgment in Cranson v NZ Trainers Association Inc. (unreported) 22 March 2000 CA 225/99:

"Bullen & Leake and Jacob’s Precedents of Pleadings (12th Ed – 1975) makes it plain that the circumstances said to give rise to qualified privilege generally must be expressly pleaded. The authors state (at p.1174):

Pleading. The defence of qualified privilege must be expressly pleaded. In pleading privilege it is not enough to state generally that the defamatory matter was a privileged communication. The facts and circumstances raising the privilege should, unless they appear on the face of the Statement of Claim, be stated in the Defence in a concise form so that the ground on which the privilege is claimed may appear."

In that case the defence was in fact generally pleaded in the Statement of Defence but without particulars and without specifying the basis upon which it was claimed. Here there is not even a reference to the defence in the Statement of Defence. I see no justification in departing from the Mauli and Cranson approach. To do otherwise would be to sanction trial by ambush.

4.5.11. Cranson also shows that in addition to clear pleading the circumstances that give rise to the defence must be addressed by the evidence. Mr Cranson succeeded "simply because the Association did not identify in evidence the circumstances which would attract the defence of qualified privilege." On this aspect the defendants case was also deficient.

4.5.12. These matters cannot be circumvented by the defendants by raising and arguing qualified privilege in their final submissions. That is a wholly inappropriate manner of raising any defence. The defendants argument and qualified privilege insofar as it is purportedly raised fails.

Justification:

4.5.13. Here the defendants argue that the words complained of are true in substance and in fact, i.e. they rely on the defence of justification. This defence has been clearly pleaded by paragraph 9 of the Statement of Defence which in substance states:

1. That the words complained of are true in substance and in fact. Particulars – the defendants will place reliance on the third Treasury Report in particular paragraph 6.2.2(5) which recommended the plaintiffs employment be seriously considered for termination for breaches of various provisions of the Public Finance Management Act 2001, Treasury Regulations 1965 and Treasury Instructions 1977; and

2. That the defendants will further rely on other reports concerning the plaintiff which the plaintiff seeks to discover from non-parties to the litigation.

4.5.14. As no evidence was called in relation to the second matter and neither is it referred to in counsels closing submissions, it seems the defence rests primarily on the first limb and the assertion that the third Treasury Report establishes as true the matters complained about and therefore their publication was justified. In other words that in relation to the ARH Project account (Samoa Observer of 22 May 2005) the Report establishes as true that the plaintiff and his daughter deliberately counter-signed the relevant cheques for the criminal purpose of defrauding the MOH of ARH Project funds, that the plaintiff is corrupt and a thief, that he is professionally unethical and full of moral turpitude and that he and his daughter stole the funds involved. And in relation to the Warehouse procurements (Observer of 24 May 2005) it establishes as true that the plaintiff because of his family connection to the Warehouse owners acted corruptly or was corruptly involved in the purchase and payment of goods from the Warehouse, that the plaintiff influenced or used his position as CEO to direct the purchasing of goods from the Warehouse, that these purchases and payments were fraudulently carried out, that goods paid for were not all supplied and that the plaintiff is corrupt and full of moral turpitude.

4.5.15. The following definitions of the defence of justification were cited with approval by Sapolu CJ in Enosa v Samoa Observer Co. Ltd. [2005] WSSC 6:

"The plaintiff need not prove that the statement is false, for the law presumes that in his favour. But the defendant can plead justification (the technical name for truth here), and if he can establish it by evidence he has a good defence.....

The plaintiff need not, as part of his or her cause of action, prove that the statements made about him or her were false, but the defendant has a complete defence if the defendant can satisfy the Court that the imputations contained in the matter sued on were true, or not materially different from the truth."

4.5.16. To that must be added the principle applied by Vaai, J in Alaiasa v Samoa Broadcasting Corporation [2006] WSSC 36:

"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."

That principle is codified in section 9 of the Defamation Act 1992/1993 which provides:

"9. Justification – 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 proved to be true do not materially injure the plaintiffs reputation having regard to the truth of the remaining charges."

By virtue of section 9 the defence still retains its common law title of justification.

4.5.17. The first question to be answered from the evidence is does the third Treasury Report establish in substance and in fact that the plaintiff and his daughter deliberately counter-signed the relevant cheques for the criminal purpose of defrauding the MOH of ARH Project funds, that the plaintiff is corrupt and a thief, that he is professionally unethical and full of moral turpitude and that they stole the funds involved? The Report at pages 28 and 29 makes it clear there were many irregularities in respect of the operation of the ARH project account. These included the plaintiff as CEO and his daughter as NC co-signing the majority of account cheques, the fact that some of these cheques were made payable to ‘cash’, the fact that one such cheque in the sum of $18,735.00 was found to have been deposited into the plaintiffs daughters personal bank account, and the fact that a cheque for $2,800 was cashed by the daughters husband who neither worked for or was affiliated to the MOH or the ARH Project. There were also questions as to Mrs Enosa-Reupena’s salary payments but these do not appear to have involved the plaintiff or form part of the plaintiffs claim. From all this the Report concluded that the plaintiff and his daughter were in breach of various provisions of the Public Finance Management Act as well as Treasury Instructions and it recommended the plaintiffs employment be seriously considered for termination.

4.5.18. There is no doubt the Report was correct in noting the impropriety in the plaintiff co-signing cheques for an aid funded project being administered by his daughter. He should have disassociated himself from the Project and delegated that responsibility to the third authorized signatory, the ministry ACEO. The Report was also correct in questioning the proprietriness in having a project cheque deposited to the project co-ordinators personal bank account and the cashing of one cheque by the co-ordinators "errand boy". But these matters were satisfactorily explained by Mrs Enosa-Reupena who pointed out that all Project expenditure had been satisfactorily accounted for by the necessary acquittals to SPC headquarters in Fiji. There is no sound basis for alleging the plaintiff and his daughter were engaged in some form of criminal fraud but the Report is correct that these amounted to breaches of applicable fiscal management statutes and Treasury instructions for which the plaintiff and his daughter should be held accountable as public servants.

4.5.19. Where the Report erred was in taking the further and quite significant step of saying without any other evidence that the operation of the account had "serious implications on the CEO’s motives, his professional ethics and moral conduct". In these words and that allegation lies in my respectful view the sting of the defamation.

4.5.20. A sting compounded by the fact that the initiators of the third special investigation and the Report, viz. the Ministry of Finance, did not at any stage make a determined cogent or real effort to interview the plaintiff or obtain his views and responses to what were obviously serious and damning allegations emergent from the investigation. Therein lies the fundamental flaw of the third Treasury Report for it is a basic principle of natural justice that a person must be given the opportunity to answer the case being made against him or her. This is often referred to as the "audi alteram partem" (Latin for "hear the other side") rule or the right to be heard rule which has received wide acceptance and support e.g. Furnell v Whangarei High Schools Board [1973] AC 660 (PC); Wiseman v Borneman [1971] AC 297 (HL); Caritativo v State of California [1958] USSC 162; (1958) 357 US 549 (SC).

4.5.21. A pertinent example of what should have been done is provided by Re Pergamon Press Ltd [1970] 3 All ER 535, a case involving an investigation by Board of Trade inspectors pursuant to the Companies Act 1948 (UK). The suggestion was there made by counsel for the inspectors and I quote from the judgment of Lord Denning:

"that in point of law, the inspectors were not bound by the rules of natural justice. He said that in all the cases where natural justice had been applied hitherto, the tribunal was under a duty to come to a determination or decision of some kind or other. He submitted that when there was no determination or decision but only an investigation or inquiry, the rules of natural justice did not apply. He cited Parry-Jones v Law Society [1968] 1 All ER 177 to support his proposition. I cannot accept counsel for the inspectors’ submission. It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings: see Re Grosvenor and West End Railway Terminus Hotel Co Ltd (1897) 76 LT 337. They are not even quasi-judicial, for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings; see Hearts of Oak Assurance Co Ltd v A-G [1932] AC 392. They do not even decide whether there is a prima facie case, as was done in Wiseman v Borneman [1969] 3 All ER 275.

But this should not lead us to minimize the significance of their task. They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions...........

Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly. This is a duty which rests on them, as on many other bodies, although they are not judicial, nor quasi-judicial, but only administrative: see R v Gaming Board for Great Britain, ex parte Benaim [1970] EWCA Civ 7; [1970] 2 All ER 528. The inspectors can obtain information in any way which they think best, but before they condemn or criticize a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice." (my emphasis)

As to what information should be given Vicount Dilhorne and Lord Reid explained in the Furnell case:

"I do not take Lord Denning MR’s last sentence to mean that it will suffice to tell a man what charges are being preferred against him............ but as meaning that he must be given an outline of the case against him so that he knows what is being said against him sufficiently to have a fair opportunity of correcting or contradicting it."

4.5.22. Had the plaintiff been given an opportunity to be heard the defamatory conclusions contained in the Report and published by the defendants, again without reference or recourse to the plaintiff, his daughter or to the other side of the story as it were, may not have been reached. At the least the plaintiff and his daughters version would have given the Report and the publications some semblance of fairness and balance.

4.5.23. The Report cannot be said to establish as true in substance or in fact these defamatory statements, neither does the Report establish that the gist of the defamatory statements are true. The defence of justification in relation to the publication of 22 May 2005 fails.

4.5.24. The second question to be addressed is does the Report establish in substance and in fact that the plaintiff because of his family connection to the Warehouse owners acted corruptly or was corruptly involved in the purchase and payment of goods from the Warehouse, that the plaintiff influenced or used his position as CEO to direct the purchasing of goods from the Warehouse, that these purchases and payments were fraudulently carried out, that goods paid for were not all supplied and that the plaintiff is corrupt and full of moral turpitude. The relevant parts of the Report are pages 7, 8 and 9. There it refers to various fraudulent practices in relation to two other local companies and notes that while such were "not as substantial and severe....... it is believed that the alleged malpractice was initially conceived and originated from procurements and payments made to the Warehouse." It went on to say that over the five years from January 1998 to December 2003 "approximately $416,017.33 was found to have been fraudulent procurements and payments made out to the Warehouse company......." And that these payments were regarded as "fraudulent in nature due to the fact that they were not registered in MOH’s Ty11 or Ty1 registers" and because no "substantial and/or concrete evidence was found or provided to the investigation team to confirm full (or even partial) receipt or issue of goods ordered". This led to the belief of the investigators that many of the goods ordered and paid for had not been supplied. The Report went on to state and here lies the heart of the defamatory allegation "that this particular company is owned by the CEO of the MOH’s sisters family" and that "numerous orders made to the abovenamed company were mostly endorsed by the MOH CEO" who had not made any declaration of conflict of interest. Thus the investigating teams conclusion that the MOH had been defrauded and that the plaintiff was right in the thick of it.

It is apparent from the Report that the Treasury investigators found many deficiencies in relation to MOH documentation and records. And that there was good cause for believing from the inadequacy of the records that goods paid for had not been supplied or received. But further inquiries with the Warehouse would have unearthed the evidence of supply and delivery referred to by Mr Scanlan in his testimony. These comprised the signed delivery and other dockets Scanlan subsequently handed over to the Police. The extent of the further inquiries that there were by the Treasury team was according to Ms Aionos evidence one visit to the Warehouse premises and finding only the workers there and no Mr Scanlan, they departed never to return. To characterize this as the Report does as "a subsequent search of all Ty11 requisition forms was made to the Warehouse by MOH" is misleading. Clearly little effort was made to clarify the documentary irregularities and anomalies with the Warehouse owner and operator. If that had been done, again a different conclusion would undoubtedly have been reached and this would have been reflected in the Report. The failure by the investigators to do this make their conclusions highly suspect at best and incorrect at worst. In this regard the Report cannot be said to establish as true in substance or in fact the defamatory statements therein as published by the defendants in their 24 May 2005 edition. Again these matters are not saved by s.9 of the Defamation Act. The defence of justification in relation to this publication also fails.

Fair comment:

4.5.26. This defence is the very essence of freedom of speech and expression, a right guaranteed to every citizen by article 13(1)(a) of the Constitution. It is the right of every citizen to air their views on matters which concern them. Provided the opinion is honestly held and the writer or speaker has their facts right, it does not matter how unusual or extreme the opinion may be. And it is a right by its very nature not exclusive to the media but available to everyone. As observed by Lord Shaw in Arnold v King-Emberor (1914) 83 LJPC 300:
"To whatever lengths the subject in general may go, so also may the journalist, but his privilege is no other and no higher..... the range of his assertions his criticisms or his comments is as wide as, and no wider than, that of every other subject. No privilege attaches to his position."

4.5.27. The defence however has a number of elements which must be present for it to succeed. First and foremost it must be comment based on true facts, secondly it must be comment as opposed to fact, thirdly the comment must be fair and fourthly it must relate to a matter of public interest.

4.5.28. The first requirement is the fundamental basis of the defence. The comment or opinion must be based on facts which have been established to be true. For a comment is really a statement of opinion about certain facts. And the onus of proving the facts are true is on the defendants who raise the defence. The learned authors of Todd ‘Law of Torts in New Zealand’ 3rd edition at paragraph 16.8.2(b) state the matter thus:

"The defence of honest opinion (as it is known in New Zealand) will not protect a defendant if he or she is commenting on things which never happened or which he or she has got wrong. One cannot legitimately criticize a public figure for something that person never did. As Lord Ackner once said "It is of course well established that a writer may not suggest or invent facts and then comment upon them..... The commentator must get his basic facts right": Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109, 1113 (PC)"

4.5.29. But this requirement is subject to s.10 of the Defamation Act 1992/1993 which provides:

"Fair Comment – In an action for defamation in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved."

In other words, if the comment part of the statements complained about is fair in relation to such of the facts on which it is based as are proved, then the defence succeeds. It would be irrelevant that not all the facts are proven to be true or even proven to be substantially true. The defence succeeds if the comment is fair in relation to those facts proven to be true.

In this case I have great difficulty following the defendants defence because of the scantiness with which it is pleaded. The defendants have failed to follow the pointers of the Chief Justice in his strike out judgment in this matter where he said:

"If the defendants want to rely on the defence of fair comment then it must be pleaded. It is not sufficient to raise the defence by way of submissions without pleading it first. On the matter of pleading the defence of fair comment Winfied v Jolowicz on ‘Tort’ (1994) 14th edition states at p.348:

‘By analogy with the stance taken on pleading justification, the defendant should spell out his defence of fair comment with sufficient precision to enable the plaintiff to know what statements are said to attract the defence. The usual form of pleading is that ‘the said words are fair comment on a matter of public interest, namely ......,’ followed by particulars of the facts on which the comment is based. At one time there was an alternative form, the so-called ‘rolled up’ plea, which ran ‘in so far as the words complained of consist of statements of fact, they are true in substance and in fact; and in so far as they consist of expressions of opinion they are fair comment made in good faith and without malice [on the said facts] which are matters of public interest.’

The mater of public interest to which the alleged fair comment relates must be explicitly set out in the pleading. Furthermore, if the pleading does not contain particulars of the facts on which the fair comment is based, the plaintiff will be entitled to ask for particulars of such facts."

In the absence of specific pleadings or any particularized facts I can only assume the defence is being raised in respect of all the statements complained about in both publications.

In relation to the 22 May 2005 publication I have already observed there seems no dispute as to the factual basis of the ARH Project account. The first two elements of the defence are therefore established. The operation of such an aid-funded account in a Government ministry is also undoubtedly a matter of public interest, hence the final criteria of the defence is satisfied. The controversy revolves around whether or not the comments made in the third Treasury Report and published by the defendants were "fair".

4.5.32. "Fair" in this sense does not mean fair in the ordinary sense for one persons sense of fairness is not necessarily anothers. But it means an opinion honestly held. As explained by Diplock J in Silkin v Beaverbrook [1958] 2 AllER 516, 518:

"The expression "fair comment" is a little misleading. It may give the impression that you, the jury, have to decide whether you agree with the comment, whether you think that it is fair. If that were the question which you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate, or prejudiced, provided – and this is the important thing – that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?"

4.5.33. At common law however there was one exception to the test of honestly hold belief. That arose where the comment imputed dishonourable or corrupt motives to a plaintiff. In that case a defendant had to go further and prove that what was published was justified by the facts. Gatley on ‘Libel and Slander’ 6th edition at paragraph 725 cites a long list of authorities for the proposition that an imputation of corrupt or dishonourable motives will render the comment unfair unless such imputation is warranted by the facts truly stated or referred to, i.e. it is an inference which a fair-minded man might reasonably draw from such facts and represents the honest opinion of the writer. It cites the following passage from the judgment of Cockburn CJ in the old but still valid authority of Campbell v Spottiswoode [1863] EngR 405; (1863) 3 B & S 769, 776:

"A line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base sordid and wicked motives unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his belief was not without foundation... It is said that it is for the interest of society that the public conduct of public men should be criticized without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour, with a view to the welfare of the country, if we were to sanction attacks upon them destructive of their honour and character and made without any foundation. I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable."

This accords with the notion of "fairness" in the defence of fair comment for as noted by Lord Esher MR in Merivale v Carson (1887) 20 QBD 280, 281 the question must always be:

"Would any fair man, however prejudicial he may be, however exaggerated or obstinate his views, have said that which this criticism has said?"

4.5.34. These common-law principles by virtue of the definition of "law" and "existing law" and article 114(a) of the Constitution apply in Samoa unless otherwise abrogated by statute. Unlike New Zealand, the Defamation Act 1992/1993 has not altered this part of the law.

4.5.35. I have noted above that the Report erred in taking the significant step without further evidence of casting "serious implications on the CEO’s motives, his professional ethics and overall conduct." Those words with due respect to the authors of the Report were not warranted by the known facts and were not ones that a fair-minded person could reasonably have used based on the known facts. The defamation was compounded by the fact that the comments were made and published without further inquiry and without reference to either Mrs Sinefu Enosa-Reupena or the plaintiff. On this basis the defence fails in relation to the publication of 22 May 2005.

4.5.36. The publication of 24 May 2005 is a little different. The words complained about are a mixture of facts and comment and I have already concluded the unsatisfactory nature of the investigation was such that the facts relied on by the Report cannot be said to be true. But s.10 of the Defamation Act 1972/1993 provides that the defence does not fail merely because the truth of every allegation of fact is not established. The defence is to be considered on the basis of those facts that have been proven to be true and the fairness of the comments are to be weighed as against those facts.

4.5.37. I am of the view s.10 does not save the defence. The essential basis for the Reports allegation of fraudulent practices involving the plaintiff in the Warehouse procurements is the fact that the Ty1 and Ty11 MOH Registers were incomplete and/or missing and the fact that no concrete evidence was provided to the investigators to confirm full or even partial supply and delivery of paid for goods. But evidence of supply and delivery of the goods would have definitively settled the matter. At least it would have clarified the central more important issue of whether paid for goods had been supplied. The relevant records were at all times available from the Warehouse, there being no suggestion Mr Scanlan or any of the companys employees were withholding or concealing them. The records were subsequently willingly handed over to the Police. The failure of the investigators to diligently pursue these records led to the incorrect findings of this part of the Report and there are therefore no facts proven to be true upon which a fair comment can be said to be based. In terms of the Cockburn test, there are no grounds for the imputations made, there is no factual foundation for the conclusions reached by the Report. Any comment based thereon can therefore hardly be said to be fair as there were no essential facts supporting what was said and published by the defendants. The defence in relation to the publication of 24 May 2005 likewise fails.

4.5.38. There is a final matter that for completeness I need to refer. As mentioned in my ruling of 19 May 2008 I have always understood the amended Statement of Defence as raising a defence of fair comment on a matter of public interest. However in case I have misinterpreted the defendants case and what the defendant is really raising is a stand alone constitutional defence of freedom of speech and expression pursuant to article 13(1)(a) of the Constitution, I say this: the same argument was raised substantially by the same defendants in the context of political discussion in Alesana v Samoa Observer Co. Ltd [1998] WSSC 1. The decision on that argument is noted in the third passage of the courts judgment quoted in paragraph 4.5.7. above. I respectfully adopt the reasoning and conclusions of Sir Gordon Bisson in holding that the constitutional right to freedom of speech and expression is no greater than a mans right to his reputation and is not deserving of greater protection. As observed by Steward, J in Rosenblattt v Bear [1966] USSC 25; (1966) 383 US 75:

"The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty."

4.5.39. Freedom of speech and freedom of the press are cherished rights which the courts will always protect. But they are not absolute rights and the courts are ever wary of the potential for abuse. Thus it is that the defendants article 13(1)(a) right is subject to the general law of defamation and to the Defamation Act 1992/1993. Thus it is that freedom of speech and freedom of the press are by themselves no defence to a claim for defamation.

4.5.40. The defendants second cause of action succeeds. It is a question then of assessing the damages that should be awarded to the plaintiff.

4.6. Damages:

4.6.1. In the recent case of Mauli v USP & others [2008] WSCA 8 the Court of Appeal said that the assessment of general damages for defamation "is not a matter of precise calculation." The exercise conducted by the court in that case bears this out.

4.6.2. The difficulty in assessing the plaintiffs damage is compounded by the fact that he called no witnesses other than himself on the issue. He did not follow the course adopted in cases like Jensen v Clark [1982] 2 NZLR 268 where the head of the History Department at Waikato University called a number of professional colleagues to testify as to the effect the defamatory publications had on his standing and reputation. A similar course was followed in Tauiliili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440 where the plaintiff Vice-Chancellor of the National University of Samoa called a number of friends and associates "among them persons of substance and integrity in Samoan society" to testify as to the effect the defamatory statements had on them. Here the plaintiffs daughter was the only other character witness but she talked more about the effect the statements had on her and the family generally, rather than specifically in relation to the plaintiff.

4.6.3. The plaintiff is a person of some status in the community. He is a graduate of the Fiji School of Medicine and is a duly qualified surgeon with 38 years medical experience. He served as Chief Surgeon at the National Hospital for 12 years and as Director General of the Health ministry for 10 years. He is a member of a number of international and regional organizations, a fellow of the Royal Australasian College of Surgeons and his evidence was he is well reputed in New Zealand and Australia as well as throughout the Pacific. He was president and chairman of many local institutions including the Lions Club and the Samoa Medical Association.

4.6.4. The plaintiffs evidence was that some of his friends and colleagues begun avoiding him as a result of the Observer publications and that he stopped attending social functions. He also referred to the ruinous effect they had on his reputation overseas but again no other witness testified to this. It appears his membership in various offshore organizations has continued unaffected and there is no evidence before the court that his reputation has been tarnished. His election to the post of Chancellor of the Oceania University of Medicine in 2008 suggests his professional and personal standing remains intact. As noted in some previous cases damage in this regard can have a tendency to be more perceived than actual.

The plaintiff also referred to developing high blood pressure and heart palpitations as a result of stress from this matter but again no medical or other evidence was placed before the court supporting his claims of health problems as a result of the publications. Claims about similar health issues in respect of her were made by the plaintiffs daughter but she is not the plaintiff.

In cross examination it was put to the plaintiff that any injury to his reputation was cured by the subsequent publicity the defendants gave to his exoneration by the Police (front page article in the Observer of 24 December 2006 and editorial) and to the Ombudsmans report clearing the plaintiff, that report being published in its entirety by the Samoa Observer under the unequivocal headline acknowledgment that the plaintiff had been "Gravely Wronged" (Sunday Samoan of 12 August 2007). Quite properly evidence of this was objected to by plaintiffs counsel because bane and antidote even if it was pleaded has no application as the purported antidote comes well after the alleged defamatory articles of 2004 and 2005. A further ground for objection to admissibility would be that they occurred post these proceedings which were commenced in June 2005.

The evidence however is not completely irrelevant. It can go toward mitigation of a plaintiffs damage that a defendant has published conclusions reached by an appropriate investigating authority clearing the plaintiff of all allegations of misconduct. See for example Associated Newspapers v Dingle [1962] 2 All ER 737. It should not be totally excluded and will be admitted for that limited purpose.

The plaintiff seeks general damages of $800,000 and exemplary damages of $200,000. Damages for defamation are normally compensatory only but in exceptional cases an award of exemplary or punitive damages punishing the defendants conduct may be made. An award may be made in respect of each category but it is a single award as against all defendants and the court is not required to apportion damages amongst co-defendants. The plaintiff is also seeking an injunction prohibiting the defendants from writing printing and publishing any further defamatory statements about him. Costs as well are sought.

4.6.9. As stated earlier, I have found no persuasive evidence that in effecting these publications, the defendants or any of them were actuated by malice. Exemplary or punitive damages as they are sometimes known are awarded to punish and deter a defendant where the defendant has acted in flagrant disregard of the rights of the plaintiff: Uren v John Fairfax and Sons Pty. Ltd. [1966] HCA 40; (1966) 117 CLR 118 (High Court of Australia) and Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81 (CA). But such cases are rare and the common law authorities show this will only be awarded in exceptional circumstances. There are no such exceptional circumstances present, there is nothing in my view in the defendants conduct requiring punishment or justifying an award of exemplary or punitive damages.

4.6.10. The plaintiffs claim for such damages is not assisted by the failure to plead the basis upon which he seeks exemplary damages. As stated in Peter Meredith & Co. Ltd v Drake Solicitors Nominee Co. [2001] WSSC 32:

"A claim for exemplary damages and the facts on which it is based should be pleaded with sufficient particularity to enable the defendants to prepare a proper reply. A mere inclusion of exemplary damages as a separate item of damages in the prayer for relief is not enough..........

In Television New Zealand Ltd v Quinn [1996] 3 NZLR 24, 30, Lord Cooke made it clear that a plaintiff must signal its intention to claim exemplary damages, and why. The general rule of modern 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 plaintiffs 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."

The claim for exemplary damages fails.

4.6.11. As to general or compensatory damages I refer again to Todds ‘Law of Torts in New Zealand’ 3rd edition at paragraph 16.6.1. where the learned authors have this to say:

"(a) Compensatory damages:

The purpose of an award of "compensatory" damages is to restore the plaintiff to the position he or she would have been in if the defamation had not occurred. However, damage to reputation is obviously difficult to assess in terms of money, and any assessment of what a defamatory statement is "worth" will to some extent include subjective factors. It is difficult to resist the conclusion that damages awards in defamation cases, although avowedly compensatory, often include elements of (i) vindication of the plaintiff to the world, and (ii) consolation for the wrong done. The hurt to the plaintiffs feelings is compensatable as well as damage to reputation in the strict sense."

This is consistent with the essential goals of an award identified by Lord Hailsham in Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027, 1070 (HL) when he said that a man defamed does not get compensation for his damaged reputation but because he was publicly defamed. Compensation by way of damages thus serves not only as consolation for the wrong done but as a vindication of the plaintiff in the eyes of the public.

Todd cites the following as relevant to assessing compensatory damages:

(i) Special damages for example for loss of income.

(ii) Defendants behaviour:

If the defendant has been high-handed, malicious or insulting, either in publishing the statement or in the conduct of the trial, this may cause the plaintiff additional hurt justifying a high award. An unsuccessful plea of truth or justification as it is known in this jurisdiction can sometimes have this effect.

(iii) Nature of the defamatory statement:

The more serious the allegations in the defamatory statement the more damage is done to the reputation and feelings of the plaintiff.

(iv) Extent of the publication:

Publication to only one or two persons causes less damage to reputation than publication in the news media which brings the defamatory material to the notice of many.

As to (i), no special damage has been pleaded or sought. As for (ii), while I would not categorise the defendants conduct as high-handed, insulting or malicious it is clear there has been no retraction or apology for the defamation. No doubt occasioned by the defendants mistaken belief that they did no wrong in publishing verbatim excerpts from the 3rd Treasury Report. A belief pursued at trial through their defences of justification and fair comment. As to (iii) there is no question the allegations made are probably the most serious that can be made against a person in the plaintiffs position. And for (iv), the extent of the publicity was maximum given the wide circulation and internet availability of the defendants newspapers.

4.6.14. There is one factor however mitigating the damage suffered by the plaintiff and it is in my assessment a significant one. This is the defendants subsequent actions and publications referred to in paragraph 4.6.6. above. For it has been said:

"The jury in assessing the damages are entitled to look at the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before the action, after the action and in court at the trial of the action": Lord Esher MR in Praed v Graham [1889] UKLawRpKQB 176; (1889) 24 QBD 53, 55."

4.6.15. While in the words of Lord Radcliffe in Associated Newspapers v Dingle [1962] 2 All ER 737, 747 it is a "sad truth that no apology retraction or withdrawal can ever be guaranteed to undo completely the harm that the defamatory statements have done or the hurt it has caused," publication of these exonerations does go some way towards assuaging the damage and grief caused. But the value of this factor should not be over emphasized. As Lord Radcliffe cautioned in Dingle, such publications do not necessarily amount "to a complete clearance or vindication" of the plaintiff. They can be and in that case he found it was, a case of the defendant newspaper being "too much the reporter of other peoples exculpations and too little concerned in putting its own authority and its own regrets behind the required vindication of the respondent." Dingle itself was a case where the plaintiff as town clerk of the city of Manchester was defamed in a report published by the defendant newspaper suggesting he had acted inappropriately and fraudulently in relation to the acquisition of certain shares. Subsequently after a full inquiry, the defendants under the headline ‘Town clerk cleared’ published a statement by the Attorney General absolving the plaintiff and advising there would be no prosecution for fraud or any other matter and in succeeding editions gave much prominence to a statement from the corporation concerned in the transaction fully exonerating the plaintiff.

Along similar lines was the judgment of Lord Denning who at page 753 stated:

"The (trial) judge said that there was ‘a very ample clearance and a very ample vindication’ (in these publications). I do not think that there was such an ‘ample clearance’ or ‘ample vindication’ as these words would suggest. Mr Dingle was cleared of any criminal offence and of any dishonest concealment, but he was not given by the (defendant newspaper) such a complete withdrawal as he might have been; and he was never given an apology."

The defendants subsequent publications fall into this category. They go some way towards undoing the damage caused but fall short of the newspaper itself fully and unreservedly absolving the plaintiff. And even after reports clearing the plaintiff were published no apology was tendered by the newspaper or the defendants. Lord Radcliffe’s description is apt: the newspaper became too much the reporter of other peoples exculpations and too little of its own.

In assessing suitable damages, I bear these in mind as well as the fact that the defendants were not the original authors of the defamatory statements, only its publishers. And I have accepted Mr Malifa’s evidence that no malice was intended but publication was motivated by a genuine desire to inform the taxpayer of malpractices and irregularities said to be occurring at the MOH. It is also my strong impression having seen and heard the plaintiff that what is most important to him is vindication in the eyes of his colleagues, his good friends and the world at large. He has suffered as a result of these publications and seeks consolation for the wrong done. These seem to be more important to him than actual compensation for damage to his reputation. In any event as observed above there would seem to be only minimal damage to his reputation. There was no cogent evidence to the contrary.

Victory in the present proceedings would be the best form of vindication for the plaintiff coming on top of the exonerative Police and Ombudsmans investigations. A substantial damages award is not given all these circumstances in my respectful view therefore required. I also keep in mind the level of awards handed down in previous cases but recognizing that each case has its own circumstances and peculiarities.

4.6.19. Injunctive relief should also issue but in view of this judgment I doubt very much the defendants will publish any further statements defamatory or otherwise about the plaintiff and his time at the MOH.

4.6.20. As to costs, the plaintiff being successful is entitled to these. Counsel has sought leave to file a memorandum concerning same and I anticipate full costs on a party to party basis would be sought. In Tauiliili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440 Ryan, CJ had this to say on the matter:

"As to costs, Ms Sapolu has now asked for an award in excess of the scale. It is true that the scale seems quite out of date but I have no doubt that the excessive damages claimed by the plaintiff were such that any hope of settling the dispute was negated and indeed that the litigation was prolonged and probably inflamed by such a claim. The Plaintiff like any other litigant should have considered this aspect of matters when formulating his claim. In addition of course the Plaintiff has failed to a significant degree with part of his claim – a part which I must say took up the greater part of the hearing. The application for costs in excess of scale is refused."

The position here is similar. The quantum of the claim is grossly excessive and would have operated against a realistic settlement. But Tauiliili was a case where the plaintiff failed to establish a significant portion of an inflated claim, a portion which "took up the greater part of the hearing". No doubt this heavily influenced the Chief Justices decision to refuse an award in excess of scale.

4.6.21. Not so here. The plaintiff has succeeded in respect of part of the claim. Costs are ultimately at the courts discretion. Normally they follow the event. There is no reason to depart from that rule. A useful recent discussion of the jurisdiction and basis for an award is contained in Westpac Bank Samoa Ltd v Tapusoa [2005] WSSC 51 where Vaai, J. said:

"The general rule assumes that where the applicant succeeds it will have incurred costs because the Respondents conduct made it necessary for the applicant to bring the proceedings.

The complexity, the protracted nature of the proceedings and the conduct of the parties are only some of the factors to be considered when determining the quantum of costs."

4.6.22. This case took four days to hear and final submissions were filed in writing. Rather than subjecting the parties to further delay and expense I will deal with costs in this judgment.

5. The Defendants counter claim:

5.1. The final matter requiring determination is the defendants counter claim. In it they allege the claim has been brought in bad faith and maliciously in the hope of damaging the First Defendants business and forcing it into bankruptcy. The defendants rely on the truthfulness of the third Treasury Report and allege distress and anxiety brought on by the lawsuit. They seek exemplary as well as general damages and costs.

5.1.2. There is no merit in the Counter Claim. There is no evidence other than Mr Malifas supporting the allegations of bad faith malice and an ulterior motive on the part of the plaintiff. That evidence is insufficient to draw the necessary inferences. As for the Report the courts views have been made clear, it cannot be relied upon to establish the truth of its conclusions relevant to this case.

6. Summary

Judgment is to issue as follows:

(i) Compensatory damages in the sum of $25,000 are awarded to the plaintiff as against all defendants;

(ii) The claim for exemplary damages is dismissed;

(iii) An injunction is to issue restraining the defendants from publishing any further extracts from the third Treasury Report insofar as they relate to the plaintiff;

(iv) Costs to the plaintiff in the sum of $5,000 plus reasonable disbursements as fixed by the Registrar;

(v) The defendants Counter Claim is dismissed.

JUSTICE NELSON