Stowers v Stowers [2020] WSSC 93 (18 September 2020)

THE SUPREME COURT OF SAMOA
STOWERS v STOWERS and SAMOA BROADCASTING CORPORATION LTD [2020] WSSC 93

Case name:	Stowers vs Stowers and Samoa Broadcasting Corporation Limited
Citation:	[2020] WSSC 93
Reserved Decision date:	18 September 2020
Parties:	MULIAU MATULINO STOWERS, TUPA’I FARANI MULITALO POE STOWERS and AFA MULITALO POE (Plaintiff) v JULIEANNE STOWER of Lano, Savaii (First Defendant) and SAMOA BROADCASTING CORPORATION LIMITED (Second Defendant)
Hearing date(s):
Reserved Decision (s):	18 September 2020
File number(s):
Jurisdiction:	Civil
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
Order (s):	. I find that $20,000.00 in damages would have been an appropriate award, but for the conduct of the plaintiffs which I find requires a reduction of $5000.000 in the award. . Aggravated or compensatory damages are therefore assessed in the sum of $15,000.00. The Defendants are jointly and severally liable to pay this amount to the Plaintiffs. . For the sake of completeness I do not consider that this case warrants an award of exemplary damages. -
Representation:	S Wulf for Plaintiffs A Sua and T Tuioti for the First Defendant T Leavai for the Second Defendant
Catchwords:	aggravated damages – compensatory damages – defamation – punitive – exemplary damages
Words and phrases:
Legislation cited:
Cases cited:	AG v Niania [1994] 3 NZLR 106 Malifa v Uili [1993] WSCA 6; [1980-1993] WSLR 561 Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136 Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 Shattock v Devlin [1990] NZHC 4; [1990] 2 NZLR 88 Uili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

MULIAU MATULINO STOWERS, TUPA’I FARANI MULITALO POE STOWERS and AFA MULITALO POE
Plaintiff

A N D

JULIEANNE STOWERS of Lano, Savaii
First Defendant

A N D

SAMOA BROADCASTING CORPORATION LIMITED
Second Defendant

Counsel:
S Wulf for Plaintiff
A Sua for the First Defendant
T Leavai for the Second Defendant

Reserved Decision: 18 September 2020

RESERVED DECISION OF TUALA-WARREN J ON DAMAGES

Introduction

1. This case was remitted to me to assess damages after an appeal against my decision was allowed. I had found in favour of the Defendants.
2. My apologies to the parties for the delay in delivering this decision.

Law

3. In Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136 (13 December 2011), Justice Slicer helpfully set out previous cases which dealt with damages for defamation;

“82. In Alesana v Samoa Observer Company Limited (supra), an award of $50,000 was made for the contents of an editorial. In that case the aggrieved party published a rebuttal of the editorial by the Prime Minister and the trial Judge did not seek to distinguish between general and aggravating damages. Allowance ought be made in the value in the change of money between 1998 and 2011.

83. In Mauli v University of the South Pacific (supra), the Court awarded as compensation the sum of $15,000 but the Court took into account that there had been publication to 'only a handful of people', the response did not entirely remove the sting and damages were to be assessed 'at the lower end of the scale'.

84. The case of Enosa v The Samoa Observer Company Limited & Ors [2009] WSSC 95, Nelson J awarded $25,000 as general damages limited because the Plaintiff succeeded in only part of the claim. The case involved a report and editorial of Government and its officers. Much of the material was factually correct and dealt with actions taken by police and Cabinet. The first cause of action was dismissed and the second were upheld. The second cause succeeded on the basis that an ordinary reading of the report would be that the Plaintiff was corrupt in relation to a commercial transaction in a business operated by a family, and there had been a conflict of interest. The Plaintiff had sought general damages of $800,000 and exemplary damages of $200,000. The Plaintiff had not pleaded the particulars of the claim for exemplary damages and it was accordingly dismissed. Nelson J followed the approach taken in Dingle (supra) by Lord Denning at p753 that the Plaintiff

"...has not been given by the (defendant newspaper) such a complete withdrawal as he might have been; and he was never given an apology."

85. This Court will follow in general terms the approach taken in Enosa (supra) but will depart from the quantum awarded.

86. In the cases of Uili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440 and Malifa v Uili [1993] WSCA 6; [1980-1993] WSLR 561, the Courts awarded compensation of $20,000 in each case. In the latter case, the Court found the defamation to be far less seri#82.”

4. Justice Slicer thelied the authorities to the facts of the case before him;

“87. The Court ourt will use those cases to establish a range of awards as between $20,000 for less serious defamation and $50,000 for more ssrious imputations. But it will take into account the difference in the value of money between 1998 and 2011.

88. Here there was sting but no balm.

9. The Plaintiff was a public figure. The imputations were were of a most serious nature. His reputation in commerce and politics has been tarnished. Adjusting Alesana (supra) which involved a right of reply for inflation general damages are assessed in the sum of $80,000.”

Aggravated Damages

90. The Defendants have made no apology, retraction or provided a proper right of reply. They persisted with their pleading of truth and justification up until and during trial. They persisted with a mild concession of 'could' in every available claimed defence.

91. No apology was offered by either Crichton or Farao during their evidence given at trial.

92. There was no evidence that Apia Broadcasting Limited published the apology given by Moli in May.

93. The Third Defendant breached his own Code of Ethics.

94. Their conduct, at least since May, has been nothing but denial and defiance. No Defendant sought the aid of the Act sections 14, 15 to mitigate the damage.

95. Their conduct has prolonged the personal harm to the Plaintiff and general harm of his reputation within the community.

96. The publication of the defamation to the community of Samoa was through the widest medium of communication and was repeated. The Second Defendant had the opportunity to forewarn the Plaintiff e intended publication before the Monday 'panel discussion.'

97. Aggravated damagesmages are assessed in the sum of $40,000.

Punitive or Exemplary Damages

98. The Court has considered an award of punitive damages in accordance with the principles stated in cases such as Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 (affirmed in Broome and Cassell Co. Ltd [1972] AC 1129) and Uren v John Fairfax and Sons Pty Ltd (supra) (upheld by the Privy Council on appeal in Australian Consolidated Press Ltd v Uren [1961] 1 AC 590).

99. Uren (supra) has been followed by the New Zealand Courts and ought be the law of Samoa. There are significant differences as between the decisions of the House of Lords and the Privy Council and as between the English, Australian and New Zealand courts which have refused to apply Rookes v Barnard (supra).

100. Here the circumstances would permit an award on either of the competing tests. This Court will apply the Australian and New Zealand principles where they differ from the English.

101. The Court has considered the imposition of punitive damages because of the breaches of the JAWS Code of Ethics. It will do so but take into account the existing award of aggravated damages and assess the award in the amount of $10,000.

5. Justice Slicer then held the Defendants jointly and severally liable to pay compensation to the Plaintiff in the sum of $130,000.

Discussion

6. The Court of Appeal in this case stated;

“... the Judge may wish to hear argument on the possible relevance of the appellants’ conduct in 2005 and the respondents’ reliance on the finding of a public official in 2015.”

7. The Court stated;

“The appellants appear to have been directly or indirectly responsible for all the significant entries and amendments. The 2005 episode reflects little credit on Muliau and Tuautu. It is difficult to understand why Muliau departed from normal practice and sought to remain anonymous as the instigator of the changes made at that time. Nor is it easy to understand why Tuautu would think it acceptable to change a historical document that had already been signed by another person. We agree with the Judge that all of this evidence can be dismissed as self-serving.”

8. The Court said of the Second Defendant “In this case Ms Leavai acknowledged that her client had not made an offer of amends.”
9. Like compensatory damages, the purpose of aggravated damages is to compensate the plaintiff. Aggravated damages like compensatory damages are awarded to compensate for the loss as actually experienced by the plaintiff rather than to punish the defendant as exemplary damages do.(see Shattock v Devlin [1990] NZHC 4; [1990] 2 NZLR 88 and AG v Niania [1994] 3 NZLR 106 in which Tipping J spoke of the compensatory nature of aggravated damages, a term which in his view should be discarded)
10. Therefore I will award aggravated damages as they are compensatory in nature and apply to torts which cause injury to feelings or reputation, such as defamation. As Tipping J stated in AG v Niania, “Circumstances of aggravation can justify an increase in compensatory damages just as circumstances of mitigation can justify a decreased award”.
11. I turn now to consider circumstances of aggravation and mitigation.
12. According to the foundation case for aggravated damages. Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, the Judge can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride
13. In this case, there was no malevolence or spite on the part of either defendant. The First Defendant had an honest belief, ie lack of malice. The Notice by the First Defendant was made on reliance of a decision by the Registrar of the Births, Deaths and Marriages Office correcting the records of the descendants of Charles and Paulus or Paulo with the removal of the surname Stowers. The Registrar had found that the plaintiffs are not connected by blood, marriage or adoption to the surname Stowers. .(see also Mullet v Hulton(1803)4 Esp 248 and Saunders v Mills(1829)6 Bing 213)
14. The second defendant could have handled the matter better by being more responsible for what they broadcast. But similarly there was no malice in their actions.
15. In this case, the Plaintiffs are ministers of religion. The imputations were of a less serious nature. The tarnish to their reputation was moderate, even though the publication of the defamation to the community of Samoa was through television and aired twice. No apology was offered by the First Defendant during her evidence given at trial. The SeDefendant has made no apology, retraction or provided a proper right of reply. Both defendafendants persisted in taking the matter through trial. I take these factors into account in determining quantum.
16. In Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, it was recognised that damages can be reduced if the plaintiff behaves badly. I take into account the conduct of the plaintiffs which I found was underhanded, not entirely forthright and highly questionable in relation to their conduct at Births, Deaths and Marriages Registry.
17. In the Ponifasio case, Justice Slicer said the range of awards was between $20,000 for less serious defamation and $50,000 for meriousrious imputations.
18. I find that $20,000.00 in damages would haen an appropriate award, but for the conduct of the plaintiaintiffs which I find requires a reduction of $5000.000 in the award.
19. Aggravated or compensatory damages are therefore assessed in the sum of $15,000.00. The Defendants are jointly and severally liable to pay this amount to the Plaintiffs.
20. For the sake of completeness I do not consider that this case warrants an award of exemplary damages.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN