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Alisi v The Fire and Emergency Services Authority [2023] WSSC 11 (23 March 2023)

IN THE SUPREME COURT OF SAMOA
Alisi v FESA & Ors [2023] WSSC 11 (23 March 2023)


Case name:
Alisi v FESA & Ors


Citation:


Decision date:
23 March 2023


Parties:
FAAFETAI ALISI of Palisi, Manager, Corporate Services (Plaintiff) v THE FIRE AND EMERGENCY SERVICES AUTHORITY, a body corporate established under section 3 of the Fire and Emergency Service Act 2007 (First Defendant); THE OMBUDSMAN, an independent corporate sole established under section 5 of the Ombudsman (Komesina o Sulufaiga) Act 2013 (Second Defendant); THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF FINANCE (Third Defendant); THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF PUBLIC ENTERPRISES (Fourth Defendant).


Hearing date(s):
28 September 2022


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
For the foregoing reasons:

(i) the fourth and sixth causes of action grounded in ultra vires and breach of article 9 of the Constitution are struck out as against the Second Defendant.
(ii) Plaintiff and Second Defendant to agree as to costs, failing which, Second Defendant is at liberty to file and serve memorandum as to costs within 14 days and Plaintiff to file and serve a response within a further 7 days.
(iii) the seventh and eighth causes of action for breaches of article 9 of the Constitution against the Third and Fourth Defendants are struck out;
(iv) adjourned for mention to Monday, 27th March 2023 at 2.00pm to set a hearing date.


Representation:
K. Kruse for the Plaintiff
D. Fong, C. Faitele, L. Tavita & T. Sofe for Defendants


Catchwords:
Strike-out motion – initial suspension & then termination of employment – alleged misappropriation of funds – breach of plaintiff’s right to natural justice; right to a fair trial – defamation – employment dispute – ultra vires – plaintiff seeking damages.


Words and phrases:


Legislation cited:
Constitution of the Independent State of Samoa 1960, Article 9; 9(1);
Defamation Act 1993, s. 18(1);
Ombudsman (Komesina o Sulufaiga) Act 2013, ss. 2; 6; 18; 31; 31(2);
Public Bodies Act 2001
Public Finance Management Act 2001, s. 14(3);
Supreme Court (Civil Procedure) Rules 1980, r. 70.


Cases cited:
Ah Him v Brunt [2014] WSCA 2;
British Columbia Development Corporation v Friedmann [1984] 2 SCR 447;
Brooks v Muldoon [1973] 1 NZLR 1;
Hill v Church of Scientology of Toronto [1995] 2 SCR 1130;
Malielegaoi & Ors v Speaker of the Legislative Assembly [2022] WSSC 35 (30 August 2022);
McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019);; The Laws of New Zealand, (online looseleaf edn, Lexis Nexis) Damages in Administrative Law;
X (minors) v. Bedfordshire CC [1995] UKHL 9 (29 June 1995).


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


FAAFETAI ALISI of Palisi, Manager, Corporate Services


Plaintiff


A N D:


THE FIRE AND EMERGENCY SERVICES AUTHORITY, a body corporate established under section 3 of the Fire and Emergency Service Act 2007


First Defendant


A N D:


THE OMBUDSMAN, an independent corporate sole established under section 5 of the Ombudsman (Komesina O Sulufaiga) Act 2013


Second Defendant


A N D:


THE ATTORNEY GENRAL for and on behalf of the MINISTRY OF FINANCE.


Third Defendant


A N D:


THE ATTORNEY GENRAL for and on behalf of the MINISTRY OF PUBLIC ENTERPRISES.


Fourth Defendant


Counsel: K. Kruse for Plaintiff
D. Fong, C. Faitele, L. Tavita and T. Sofe for Defendants


Hearing: 28 September 2022
Judgment: 23 March 2023


JUDGMENT (MOTION TO STRIKE OUT)

A. Introduction

  1. First, my apologies to the parties for the delay in handing down this judgment.
  2. The Second, Third and Fourth Defendants apply to strike out the Plaintiff’s Statement of Claim either in its entirety or in part pursuant to:
  3. In support of the strike out motions:
  4. The Plaintiff has not filed an affidavit in support of its Notice of Opposition to the strike out motions. The Second Defendant has also not filed an affidavit in support of its motion to strike out.

B. Statement of Claim:

  1. The Plaintiff pleads that on 22nd September 2017, she entered into an employment contract with the First Defendant (“FESA”) as Manager of Corporate Services (first agreement). The contract commencement date was 1 October 2016 and was for a term of 3 years expiring 30 September 2019. The contract terms included a provision for the payment of overtime outside of working hours, which may be determined by FESA.
  2. When the Plaintiff’s employment contract ended in September 2019, she re-applied for her position and was successful (second agreement). Re-appointment was on the same terms and conditions as the first agreement, however, the written agreement was never completed by the Office of the Attorney General and therefore, a written agreement was not signed.
  3. During both the first and second agreements, the Plaintiff was paid overtime at rates agreed to with FESA. During the term of the second agreement, the overtime was approved by the Commissioner of FESA.
  4. During the course of the second agreement, a complaint or complaints were lodged against the Plaintiff with the Second Defendant (“the Ombudsman”). The Plaintiff was required to attend an interview with the Ombudsman in or around November 2020. The Plaintiff was not informed about what the allegations were or the identity of any complainants. At the interview with the Ombudsman, the Plaintiff was then not:
  5. By letter dated 17 December 2020, the Plaintiff was suspended by FESA from her employment citing the investigation conducted by the Ombudsman. On about 15 January 2021, the Plaintiff’s suspension was extended by a further two weeks, however, her payments were then also ceased. Following the completion of the Ombudsman’s investigation, the Plaintiff was not provided with a copy of the Ombudsman’s report either by the Ombudsman or FESA.
  6. On or about 20 January 2021, the Plaintiff was informed that the report by the Ombudsman dated 30 November 2020 had implicated her and that the MOF had initiated an investigation into the allegations of alleged misappropriation of public funds and property. On the 21st January 2021, she was then asked to attend an interview with the MOF relating to their investigation. She however was not informed of any allegations, accusations or charges so that she could be informed prior to the MOF interview.
  7. Accompanied by her then solicitor, the Plaintiff attended the MOF interview on the 26th January 2021. The interview was with representatives of MOF and MPE. At that interview, the Plaintiff alleges that MOF and MPE “were incapable of identifying or particularizing the allegations, accusations or charges (if any)...” but she understood from statements made to her that it arose from allegations of misappropriation of funds” from the payment of her overtime.[1] Following the interview, the Plaintiff’s suspension continued without pay.
  8. Having heard nothing further from FESA, MOF or the MPE, the Plaintiff wrote to FESA in June 2021 seeking an update. FESA responded on the 4th August 2021 terminating her employment “based on findings of misappropriation of funds and recommendations made in reports from MOF and MPE.”[2] The Plaintiff alleges that FESA, MOF and the MPE did not inform her of their findings or recommendations nor did they disclose the reports to her at that time.[3]

Claim Against Second Defendant: Ombudsman

  1. Two causes of action are pleaded against the Ombudsman. The first is that the Ombudsman breached the Ombudsman (Komesina o Sulufaiga) Act 2013 (“OA 2013”) by acting outside of jurisdiction:[4]
  2. The Plaintiff ultra vires cause of action is advanced on the basis that “there was no actual jurisdiction or authority for the Second Defendant to investigate in the first place”[7] and that the Plaintiff “has a cause of action or reasonable cause of action against the Second Defendant for having acted ultra vires...”[8]
  3. The second cause of action is an alleged breach of her fundamental rights protected by article 9 of the Constitution. The Plaintiff grounds her article 9 claim on the Ombudsman’s alleged failures referred to in paragraph 13(b) above as constituting a breach of her civil rights and her right to natural justice.[9]
  4. As a result of the Ombudsman’s Report, FESA suspended the Plaintiff and MOF and MPE then conducted a further investigation.[10] The Plaintiff alleges that by reason of the Ombudsman’s actions, she suffered loss and damage:

Claims Against Third and Fourth Defendants: MOF and MPE

  1. The Plaintiff’s causes of action against MOF and MPE are founded on (a) alleged breaches of her right to a fair trial guaranteed by article 9 of the Constitution; and (b) defamation. Against both MPE and MOF, the Plaintiff also claims damages in identical terms as against the Ombudsman.

C. The Law

  1. The principles governing the Court’s exercise of the jurisdiction to strike out are well settled. These were perhaps most succinctly summarized by the Court of Appeal in McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019) stating:

D. Discussion

  1. Fundamentally, this is an employment dispute involving the suspension and subsequent termination of the Plaintiff by FESA. The Ombudsman, the MOF and the MPE are sued as a result of alleged investigations and reports by each of these Defendants into the Plaintiff’s workplace performance. The MOF and MPE are also sued for alleged defamation concerning statements allegedly contained in their reports.

Strike Out Motion – Ombudsman

  1. The Ombudsman applies to strike out the Plaintiff’s cause of action ultra vires on the grounds that, in summary:
  2. Section 18 of the OA 2013 provides:
  3. Section 2 of the OA 2013 defines an ‘administrative decision’ as:
  4. In British Columbia Development Corporation v Friedmann [1984] 2 SCR 447 at 474, the Canadian Supreme Court considered the phrase “a matter of administration” in the context of the jurisdiction of the Ombudsman Act of British Columbia and stated:
  5. The Plaintiff contends that there was no administrative decision for the Ombudsman to investigate. Accordingly, “there was no such administrative decision [by the Plaintiff] that affected the [to date, unidentified] complainant in his/her personal capacity.”[11]
  6. The Ombudsman also relies on section 31 of the OA 2013 to contend that the claim against the Ombudsman cannot be brought. Section 31states:
  7. Where the Ombudsman is alleged to be acting or have acted outside of the jurisdiction conferred by section 18 of the OA 2013, there is no question that the proceeding or decision by the Ombudsman is amenable to review by the Supreme Court. Although section 31(2) of the OA 2013 is a privative clause restricting judicial oversight of decisions or actions undertaken by the Ombudsman, it does not oust the jurisdiction of the Court to review proceedings or decisions made by the Ombudsman that are allegedly ultra vires. Section 6 of the OA 2013 relevantly provides:
  8. In these proceedings, the Plaintiff is seeking damages against the Ombudsman for allegedly acting ultra vires of the OA 2013. The Plaintiff submits that she:
  9. By the Ombudsman allegedly carrying out the investigation into the complaint received that was in breach of section 18 of the OA 2013, the Plaintiff allegedly suffered harm and claims damages. Ultra vires however is a doctrine of administrative law. It is applied to the judicial review of administrative decisions as opposed to constituting a cause of action in private law to seek damages. This is because damages “are not available as a remedy in administrative law without behavior that is tortious in its own right.”[13]
  10. In X (minors) v. Bedfordshire CC [1995] UKHL 9 (29 June 1995), Lord Browne-Wilkinson at page 4 in terms of private law causes of action for an alleged breach of statutory duty addressed this same question. His Lordship stated:
  11. Damages are not available as a remedy for an alleged breach of a public law right. The Plaintiff must plead a private law cause of action. A private law cause of action however has not been pleaded. Even if a private law tortious cause of action was pleaded against the Ombudsman (without determining the questions definitively as argument was not heard on this point), such a cause of action would potentially run afoul of section 31(2) of the OA 2013.
  12. In all, I am satisfied that the purported cause of action for damages arising from the Ombudsman allegedly acting ultra vires in the absence of an expressly pleaded private law cause of action is untenable and bound to fail. Accordingly, the “Fourth Cause of Action” as against the Ombudsman will be struck out.

Breach of Article 9 by the Ombudsman

  1. I now turn to the sixth cause of action pleaded against the Ombudsman, that is the Ombudsman breached the Plaintiff’s civil rights guaranteed by article 9 of the Constitution. I understand this cause of action to be for alleged breach of article 9(1) of the Constitution.[14] Article 9(1) provides:
  2. The Plaintiff alleges that the Ombudsman breached her article 9(1) rights by:[15]
  3. Article 9(1), as it may relate to these proceedings, is concerned with the right to a fair trial in the “determination” of a person’s civil rights. It guarantees to a person “a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law”, when the person’s civil rights are being determined.[16] The Ombudsman however has no power to conduct a hearing to determine a person’s civil rights. The Ombudsman can only investigate,[17] report, refer and make recommendations.[18] Unlike the Constitutional guarantees enshrined in article 9(1) that apply when a person’s civil rights are being determined, the conduct of the Ombudsman’s investigation (which does not determine any civil rights) must be in private and the Ombudsman “is not required to hold a hearing.”[19] Although a person who may be adversely affected by a report or recommendation by the Ombudsman does have a right to heard in terms of any such report or recommendation, this does not trigger article 9(1). This is because the Ombudsman’s report and/or recommendations do not involve the determination by the Ombudsman of any civil rights.
  4. The Plaintiff refers and relies on Malielegaoi & Ors v Speaker of the Legislative Assembly [2022] WSSC 35 (30 August 2022) for the proposition that article 9(1) applies to the Ombudsman. Malielegaoi & Ors v Speaker of the Legislative Assembly however is not on point. In those proceedings, the Court at paragraph 105 stated:
  5. Unlike the Legislative Assembly “which was charged with making the decision” on the penalty that was imposed on Mr Malielegaoi and Mr Rimoni, the Ombudsman was not a decision maker nor did the Ombudsman determine any of the Plaintiff’s civil rights or her employment.[20] Article 9(1) does not apply. Malielegaoi v Speaker of the Legislative Assembly does not assist the Plaintiff.
  6. I am satisfied that this cause of action is so clearly untenable that it could not possibly succeed. It will accordingly also be struck out.

Strike Out Motion: Ministry of Finance and Ministry for Public Enterprises

  1. The Plaintiff’s causes of action against MOF and MPE are (a) breach of article 9 of the Constitution;[21] and (b) defamation.[22] In summary, MOF and MPE ground their application to strike out the Plaintiff’s claim on the grounds that:

Breach of Article 9

  1. The MOF and MPE submit that the enquiries and investigations carried out by both Ministries into alleged misappropriation or loss were carried out pursuant to the Public Finance Management Act 2001 (“PFMA”) and Public Bodies Act 2001 (“PBA”).
  2. I accept that the claim by the Plaintiff against the MOF and MPE is misconceived. As I have stated, article 9(1) is concerned with the right to a fair trial in the “determination” of a person’s civil rights. That hearing must be conducted before an independent and impartial tribunal.
  3. The investigations carried out by the MOF, subject of the Plaintiff’s complaint, did not entail any determination of the Plaintiff’s civil rights. In the case of the MOF, it was an investigation into allegations of alleged misappropriation of public funds and properties.[23] By virtue of section 14(3) of the PFMA, the Financial Secretary is duty bound to act to protect public monies, including conducting an inquiry. The Plaintiff’s authority to operate or access or deal with government accounts and property is not a civil right. Following the MOF investigation, it was recommended that disciplinary action be taken against the Plaintiff.[24] Disciplinary action might entail the determination of the Plaintiff’s civil rights, however, that was not a matter involving the MOF.
  4. Similarly, the MPE did not determine any civil rights of the Plaintiff. The MPE carried “out an investigation into the Plaintiff arising out of the Ombudsman’s Report dated 30 November 2020, and MPE issued its own Report dated 17 February 2021.”[25] The MPE then allegedly recommended that the Plaintiff’s employment be immediately terminated.[26] The Plaintiff’s termination was by FESA.[27] This similarly does not trigger article 9 of the Constitution.
  5. These causes of action for alleged breaches of article 9 of the Constitution by the MOF and MPE are also untenable and bound to fail. They will accordingly also be struck out.

Defamation

  1. The Plaintiff alleges that she was defamed by MOF and MPE in reports prepared by each and circulated to the Prime Minister and respective responsible Ministers. The alleged defamatory statements or imputations principally relate to findings by MOF and MPE that the Plaintiff misappropriated public funds and received entitlements and allowances to which she was allegedly not entitled. The MPE recommended that the Plaintiff be terminated and the Plaintiff was then subsequently terminated by FESA. The pleadings must be taken as capable of proof.
  2. The MOF and MPE apply to strike out the Plaintiff’s defamation claim on the grounds that, in summary:
  3. Although the MOF and MPE rely on qualified privilege as a grounds for striking out the Plaintiff’s claim, neither identify the specific grounds of qualified privilege relied on either under common law or pursuant to the Defamation Act 1993.
  4. Under Samoan law, it is accepted that to establish defamation, a Plaintiff must prove:
  5. I accept that the Plaintiff’s claim for defamation against the MOF and MPE may be difficult. However, based on the pleadings and the material before me, I cannot conclude that the Plaintiff’s case in terms of the elements necessary to establish defamation which I have set out above in paragraph 47(a) – (c) above are bound to fail. The MOF and MPE also claim that qualified privilege applies to the publications. This is for the Defendant to prove.[29] It then becomes the duty of the Plaintiff to prove that the publication is “made with ill will.”[30] Malice may not be limited to spite or ill will to which it is commonly understood but may extend to “any indirect motive or ulterior purpose” or where “the Defendant spoke dishonestly, or in knowing or reckless disregard for the truth.”[31] Based on the pleadings and the material before me, I am not satisfied that the Plaintiff’s claim is bound to fail by virtue of the defence of qualified privilege. That is a matter for the trial proper.

Result

  1. For the foregoing reasons:

JUSTICE CLARKE


[1] Statement of Claim dated 17 December 2021 (“SOC”), para. 22 and 23.
[2] SOC, para. 26.
[3] SOC, para. 27.
[4] SOC, para. 49.
[5] SOC, para. 49.
[6] SOC, para. 50.
[7] Plaintiff’s Written Submissions dated 27th September 2022 at para 7.5.6.
[8] Plaintiff’s Written Submissions dated 27th September 2022 at para 7.5.9.
[9] SOC, para. 58 – 59.
[10] SOC, para. 51.
[11] Plaintiff’s Written Submissions, 27th September 2022 at para. 7.5.2.
[12] Plaintiff’s Written Submissions, 27th September 2022 at para 7.5.6.
[13] The Laws of New Zealand, (online looseleaf edn, Lexis Nexis) Damages in Administrative Law at [216].
[14] See also: Plaintiff’s Written Submissions, 27th September 2022 at para 8.1.
[15] SoC, para [58].
[16] Article 9(1), Constitution.
[17] See sections 18, OA 2013.
[18] Section 28, OA 2013.
[19] Section 24, OA 2013.
[20] Reference: right to be heard not part of employment law
[21] SoC, paras [60] – [74].
[22] SoC paras [75] – [82].
[23] SoC, para 17.
[24] SoC, para 63(ii).
[25] SoC, para 67.
[26] SoC, para 71.
[27] SoC, para 26.
[28] Ah Him v Brunt [2014] WSCA 2 at para. 20.
[29] Brooks v Muldoon [1973] 1 NZLR 1 at p.7.
[30] Defamation Act 1993, s.18(1).
[31] Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 at para 145.

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