Tupu v Beta Multimedia Investments Ltd [2015] WSSC 34 (4 February 2015)

SUPREME COURT OF SAMOA
Tupu vs Multimedia and Tamati and Onesemo [2015] WSSC 34

Case name:	Tupu vs Multimedia and Tamati and Onesemo
Citation:	[2015] WSSC 34
Decision date:	4 February 2015
Parties:	Faatoia Tupu of Sinamoga , Information Technology Officer for plaintiff Beta Multimedia Investments Co. Ltd a duly incorporated company having its registered office at Saleufi Mall, Vaimauga Sisifo, Samoa and carrying on business as a media publisher for first defendant Tuiloma Bismarck Tamati of Vaiusu-uta, Newspaper Editor for second defendant Talauega Lafi Onesemo of Apia, Journalist for third defendant
Hearing date(s):	28 January 2015
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	(a) The application by the defendants for security for costs is granted. The plaintiff is ordered to pay to the Registrar of the Court the sum of $12,000 as security and such sum shall be deposited into a term deposit with a local bank until further order of the court. (b) The plaintiff’s claim is stayed until security is given.
Representation:	S H Wallwork for plaintiff A Suá for defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Malifa v Sapolu
	Wilex Cocoa and Coconut Products Ltd v Electric Power Corporation Kirita Maria-Kolotita Pune v Ruby Drake & Others Nikau Holdings Ltd v Bank of New Zealand Alaiasa v Samoa Broadcasting Corporation A S McLachlan Ltd v MEL Network Ltd
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

FAATOIA TUPU of Sinamoga, Information Technology Officer
Plaintiff

AND

BETA MULTIMEDIA INVESTMENTS CO. LTD a duly incorporated company having its registered office at Saleufi Mall, Vaimauga Sisifo, Samoa, and carrying on business as a media publisher
First Defendant

AND

TUILOMA BISMARCK TAMATI of Vaiusu-uta, Newspaper Editor
Second Defendant

AND

TALAUEGA LAFI ONESEMO of Apia, Journalist
Third Defendant

Counsel: S H Wallwork for Plaintiff
A Su’a for Defendants
Hearing: 28 January 2015
Judgment: 4 February 2015

JUDGMENT OF THE COURT

1. By statement of claim dated the 5^th September 2014 the plaintiff sought general damages of $200,000 and punitive damages of $100,000 against the three defendants for publishing articles in the newspaper which the plaintiff claimed were defamatory of the plaintiff.
2. The defendants deny that the publications were defamatory. Other defences like fair comment and justification are also pleaded.

Security for Costs Application

3. The application by the defendants for security for costs is advanced on the basis that the defendants have reason to believe that the plaintiff will be unable to meet an order for costs in favour of the defendants in the event that the plaintiff’s claim fails.
4. The plaintiff opposes the application.

Inherent Jurisdiction to Order Security for Costs

5. It is common ground that the court has inherent jurisdiction to make an order for security for costs against a plaintiff resident within the jurisdiction. See Malifa v Sapolu [1998] WSSC 2; and Wilex Cocoa and Coconut Products Ltd v Electric Power Corporation [2009] WSSC 35.

Ability to pay costs

6. It is also common ground that this young unemployed plaintiff has no assets and will be unable to meet any adverse order for costs.

Exercise of discretion

7. I turn now to consider whether an order for security for costs would be just in all the circumstances.
8. In a judgment which I delivered earlier today in Kirita Maria-Kolotita Pune v Ruby Drake & Others (CP 114/14, 4 February 2015) concerning an application for an order for security for costs I discussed the principles which the court applies to applications for security for costs. Those principles can be summarised as follows:

(i) The ordering of security for costs is discretionary.

(ii) There is no burden one way or the other.

(iii) The interests of both the plaintiff and the defendant should be considered.

(iv) The defendant should be protected against the risk of a cost award that is of no value and the plaintiff should not be denied access to the court by reason of an order for security for costs.

9. Factors which the court should take into account in exercising its discretion include the merits and bona fides of the plaintiff’s claim; whether the making of an order might prevent the plaintiff from pursuing a bona fide claim, and whether there are grounds for thinking that the defendants are using the application oppressively to prevent the plaintiff’s claim from coming before the court.
   • These principles and factors are also referred to and discussed in Nikau Holdings Ltd v Bank of New Zealand (1992) 5 PRNZ 430, and Wilex Cocoa and Coconut Products Ltd v Electric Power Corporation [2009] WSSC 35.
10. The plaintiff’s claim for defamation appears at this early stage to have some merit although I do not consider that it can be stated more strongly than that.
11. Defamation cases in this jurisdiction is presided over by a judge sitting alone who must first determine whether the words complained of are capable of bearing a defamatory meaning, and if resolved in the affirmative the next step is for the judge to decide whether the words do in fact bear such meaning attributed to it by the plaintiff.
    • Failure by the plaintiff to clear the first hurdle will be fatal to his claim. See Alaiasa v Samoa Broadcasting Corporation [2006] WSSC 36.
12. Defences of jurisdiction and fair comment are advanced by the defendants.
    • In terms of the pleadings and submissions, it is my view that the merits and bona fides of the parties are evenly balanced.
13. The application for security for costs was promptly made after an unsuccessful judicial settlement.
    • The plaintiff’s personal circumstances strongly suggests that he will fail to meet any order for costs awarded against him.
14. On balance I consider that an order for security would be just in all the circumstances.

Quantum of Security

15. The plaintiff seeks $20,000. Trial time is estimated at 3 days. Costs in the region of $30,000 could readily be incurred by the defendants to defend the claim.
16. The court is required to make an assessment which is just in the circumstances of the particular case: A S McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 at [15] – [16].
17. Although the plaintiff is presently not generating income he has the ability to do so and according to his affidavit he has the support of his parents and family in the United States of America who did pay for his passage over for a holiday.
18. I consider that an order for security for costs in the sum of $12,000 is appropriate.

Orders:

(1) The application by the defendants for security for costs is granted. The plaintiff is ordered to pay to the Registrar of the Court the sum of $12,000 as security and such sum shall be deposited into a term deposit with a local bank until further order of the court.
(2) The plaintiff’s claim is stayed until security is given.

JUSTICE VAAI