Aulalo v Tatiana Investments Company Ltd [2011] WSSC 139 (20 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

BETWEEN:

NUUALIITIA FAFO AULALO of Toamua and Wellington, New Zealand, Composer.
Plaintiff

AND:

TATIANA INVESTMENTS COMPANY LIMITED a duly incorporated company having its registered office at Apia
Defendant

Counsel: S Leung Wai for plaintiff
R Papalii for defendant

Hearing: 19 December 2011

Judgment: 20 December 2011

JUDGMENT OF SAPOLU CJ

Introduction

1. The plaintiff Nu'ualiitia Fafo Aulalo is a musical composer. He has composed a number of songs which include Seu Lo'u Pologa, Aua Le Vevesi, E Le Alofa e, Taute Lou Au, Alu Ia Oe Asoleaga, Sosefna, Sili Le Oti I le Uo, and Auauna Fia Tagata. The defendant Tatiana Investments Ltd is a company which owns the band called the RSA Band.
   
2. On 3 June 2010, the plaintiff filed a statement of claim against the defendant alleging infringement of his copyrights in the said songs in terms of the provisions of the Copyright Act 1998. He claims that in 1996 the defendant without his authority adapted and released locally and internationally in the form of compact discs (CDs) his songs Seu Lou Pologa, Aua le Vevesi and E Le Alofa e; in 1997 the defendant without his authority adapted and released locally and internationally in the form of compact discs (CDs) his song Taute Lou Au; in 1998 the defendant without his authority adapted and released locally and internationally his song Alu Ia Oe Asoleaga; and in 2000 the defendant without his authority adapted and released locally and internationally in the form of compact discs (CDs) his songs Sosefina, Sili Le Oti I le UO, and Auauna Fia Tagata. The plaintiff then seeks damages and an injunction against the defendant.
   
3. The defendant in its statement of defence filed on 16 August 2010 denies the plaintiff's claim and seeks its dismissal. Sixteen months later on Friday 16 December 2011, the defendant filed and served on counsel for the plaintiff a first amended statement of defence. In this first amended statement of defence the defendant for the first time pleads s. 6 (1) (a) of the Limitation Act 1975 which provides a limitation period of six years for an action founded on tort.
   
4. When these proceedings were called for hearing on 19 December, I decided to deal with the limitation issue first because if the defendant succeeds on its limitation defence then it is not necessary to hear the plaintiff's claim. There was uncertainty at the beginning as to whether the plaintiff's claim for infringement of copyright was an action founded on tort in order for s. 6 (1) (a) of the Limitation Act 1975 to apply. That uncertainty was soon resolved and counsel for the plaintiff submitted that if s.6 (1) (a) applies and the plaintiff's claim is time barred, then the defendant should pay for the total return airfares of NZ$1,600 for the plaintiff and his witness who have had to travel from New Zealand for this case. This is because the plaintiff and his witness had arrived from New Zealand before the defendant filed its first amended statement of defence on 16 December pleading the limitation defence for the first time.
   
5. The two issues I have to decide are, firstly, is the plaintiff's claim an action founded on tort and therefore time barred under s. 6 (1) (a) of the Limitation Act 1975 and, secondly, should the defendant pay for the return airfares of the plaintiff and his witness from New Zealand. I will deal now with those issues.
   

First issue: Is the plaintiff's claim for copyright infringement time barred under s. 6 (1) (a) of the Limitation Act 1975 as an action founded on tort?

6. The question of whether the plaintiff's action for copyright infringement is time barred under s. 6 (1) (a) of the Limitation Act 1975 as an action founded on tort may be divided into parts. The first part is whether an action for copyright infringement is an action founded on tort. The second part is, if the plaintiff's action is an action founded on tort and s. 6 (1) (a) applies then had the limitation period of six years expired before the plaintiff brought his action.
   
7. In Intellectual Property in New Zealand (2002) by S Frankel and G McLay, the learned authors state at 5.27, p. 308:
   

"Although copyright is property for a number of liability and remedy-related purposes copyright infringement is often treated as a tort. For the purpose of the Limitation Act 1950, it is a tort. Court action must therefore be commenced no more than six years after infringement occurred. Where two parties are both liable for infringing copyright in the same case they may be described as joint tortfeasors. For example, a company that infringes copyright at the hands of its controlling director may result in the company and controlling director being joint tortfeasors."

8. In PSM International plc v Specialised Fastener Products (Southern) Ltd [1993] FSR. 113 cited by counsel for the plaintiff, the Court said at p. 116:
   

"[Infringement] of copyright is and always has been treated as a tortious invasion of a property right."

9. From the above citations I conclude that the plaintiff's action for copyright infringement is an action founded on tort for the purpose of s. 6 (1) (a) of the Limitation Act 1975. Both counsel for the plaintiff and the defendant were also in agreement that that is so and the six years limitation period applies.
   
10. As to whether the limitation period of six years had expired before the plaintiff filed his claim on 3 June 2010, there was no dispute that in terms of the plaintiff's statement of claim the causes of action had accrued in 1996, 1997, 1998 and 2000 when the defendant, as alleged, adapted and released locally and internationally the plaintiff's songs in the form of compact discs. The limitation period of six years had therefore long expired in respect of each cause of action before the plaintiff brought his action. The plaintiff's action is time barred.
    

Second issue: Should the defendant pay for the return airfares from New Zealand of the plaintiff and his witness?

11. As already mentioned, the plaintiff filed his statement of claim on 4 June 2010 and the defendant filed its statement of defence on 16 August 2010. On Friday 16 December 2011 the defendant filed and served its first amended statement of defence raising the limitation defence for the first time. At that time the plaintiff and his witness had already arrived in Samoa from New Zealand for the hearing of this case. Each of them paid NZ$800 for his return airfare. They would not have come to Samoa had the defendant raised the limitation defence earlier on and the Court deals with it as a preliminary issue. Counsel for the defendant also did not oppose the application by counsel for the plaintiff for the defendant to pay the total return airfares of the plaintiff and his witness.
    
12. In the circumstances, it would be fair that the defendant pays the return airfares of the plaintiff and his witness.
    

Conclusions

13. (a) The plaintiff's action is time barred and is therefore stayed.
    

(b) The defendant is ordered to pay the total return airfares from New Zealand of NZ$1,600 for the plaintiff and his witness.

(c) In all the circumstances, the defendant is awarded costs of $500 for the outcome of these proceedings.

CHIEF JUSTICE

Solicitor
Leung Wai Law Firm for plaintiff
Papalii Law Firm for defendant