Fruean v Purcell [2024] WSSC 8 (1 March 2024)

IN THE SUPREME COURT OF SAMOA
Fruean & Ors v Purcell & Anor [2024] WSSC 8 (01 March 2024)

Case name:	Fruean & Ors v Purcell & Anor
Citation:	[2024] WSSC 8
Decision date:	01 March 2024
Parties:	FIA’AILETOA PEPE CHRISTIAN FRUEAN, NU’ULOPA HILL, VAAI SIMONPOTOI, FUAIMAONO BETH ONESEMO & TUAUTU ROSS PETERS of Samoa, company directors (Plaintiffs) v LEMATUA GISA FUATAI PURCELL of Samoa, Regulator (First Defendant) & THE SAMOA OBSERVER COMPANY LTD of Samoa, Newspaper Publisher (Second Defendant)
Hearing date(s):	22 November 2023
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	The end result is that I am not satisfied that the plaintiffs claim is so clearly untenable that it could not possibly succeed that it should be struck out. Accordingly, the first defendant’s motion to strike out the first-pleaded claim in defamation against the first defendant is dismissed. The striking out of the first defendant as a party to the proceeding is also dismissed. Costs reserved.
Representation:	J D McBride and V Faasii for Plaintiffs RE Harrison KC and T Leavai for First Defendant M Lui for Second Defendant
Catchwords:	strike out defamation claim – strike out a party to proceeding – Jameel principle – qualified privilege – failure to disclose cause of action
Words and phrases:
Legislation cited:	Acts Interpretation Act 2015, s. 3; Electricity Act 2010, s. 11(1); 11(2); Government Proceedings Act 1974, ss. 6; 8; 9; National Health Service Act 2006 (repealed) ss. 4; 24(1); 24(2); Supreme Court (Civil Procedure) Rules 1980, rules 32; 70.
Cases cited:	Crispin v District Court of New Zealand [1986] NZHC 836; [1986] 2 NZLR 246 (CA); Jameel v Dow Jones & Co Inc [2005] EWCA CIV 75, [2005] QB 946; McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019); Public Bodies (Performance and Accountability) Act 2003, s. 3; Su’a v Attorney General [2013] WSSC 1; Wilson v Department of Corrections [2018] NZHC 2977; Woodroffe v Mataia [2017] WSCA 5 (31 March 2017); X v Attorney General (No. 2) [2017] NZAR 1365.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FIA’AILETOA PEPE CHRISTIAN FRUEAN, NU’ULOPA HILL, VAAI
SIMONPOTOI, FUAIMAONO BETH ONESEMO & TUAUTU ROSS PETERS of Samoa, company directors.

Plaintiffs

A N D:

LEMATUA GISA FUATAI PURCELL of Samoa, Regulator.

First Defendant

A N D:

THE SAMOA OBSERVER COMPANY LTD of Samoa, Newspaper Publisher.

Second Defendant

Counsel: J D McBride and V Faasii for Plaintiffs

RE Harrison KC and T Leavai for First Defendant

M Lui for Second Defendant

Hearing: 22 November 2023
Judgment: 1 March 2024

JUDGMENT (MOTION TO STRIKE OUT)

1. These proceedings concern an application by the first defendant to strike out the plaintiff’s pleaded claim against the first defendant in defamation and alternatively, as a party to the proceeding pursuant to rules 70 and 32 of the Supreme Court (Civil Procedure) Rules 1980.
2. The first defendant’s application to strike out the claim is advanced on the grounds that, in the order addressed in submissions:
   • (a) pursuant to s 11(1) of the Electricity Act 2010 (“the Act”), the plaintiff’s claim made against the first defendant as Regulator was required to be made under the Government Proceedings Act 1974 (“GP Act 1974”), with the necessary consequence that by virtue of ss 6, 8 and 9 (in particular) of that Act, the defamation claim made against her (if viable, which is denied) should have been brought against the Attorney General sued in respect of the Government;
   • (b) the claim fails to disclose a cause of action against the first defendant by virtue of the first defendant having immunity from suit pursuant to s 11(2) of the Act for all acts or omissions in connection with the responsibilities, functions or duties imposed on her by the Act; and
   • (c) the only publication alleged against the first defendant is the letter to the Minister of Communications, that alleged publication was indisputably, having regard to her responsibilities, functions and duties under the Act, made on an occasion of qualified privilege: there being no allegation in the statement of claim, other than to the extent (inadequately) pleaded in para 15, that the letter was published by the first defendant with malice.
3. In support of the strike out motion, the first defendant filed two affidavits.

Pleaded Statement of Claim:

4. In summary, the plaintiffs are either directors or former directors of the Electric Power Corporation (“EPC”) and have significant business and personal reputations in Samoa. The first defendant is the Regulator who exercises responsibilities, functions and duties conferred by the Electricity Act 2010 and other applicable laws.
5. On or about the 15^th December 2022, the Regulator wrote to the Minister of Communications demanding dismissal and replacement of the Chairman and Board of EPC, being and understood to be references to the plaintiffs. Editorial articles were then published in the Samoa Observer appearing on the 19^th and 21^st February and 3^rd and 9^th March 2023. Relevant to the first defendant, her letter includes statements:
   • “...E solitulafono uma nei mea sa fai e le Chairman of the Board of Directors of the EPC and former Cabinet...”

“I recommend to review and replace the Chairman and Board of EPC. We need people who have regards to the Electricity Act 2010 of the Government and people who are passionate to ensure cost of living is affordable for the people of Samoa. E le manaomia nit (sic) tagata e le amanaia le Tulafono, e soli Tulafono.”

6. On 17^th March 2023, the plaintiff Pepe Christian Fruean was advised that his directorship of the EPC would not be renewed.

The Law

7. In McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019), the Court of Appeal succinctly stated the principles applicable to strike out motions:
   • “The principles applicable to strike out applications can be summarized as follows:
     • (a) The Court derives its jurisdiction to strike out all or part of a statement of claim or counterclaim from either r 70 of the Supreme Court (Civil Procedure) Rules 1980, or its inherent jurisdiction, or both. In either case a ground for striking out is that the pleading discloses no arguable cause of action.
     • (b) The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
     • (c) For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied upon is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
     • (d) The same applies to any other incontrovertible source of fact such as an independently recorded transcript of court proceedings.
     • (e) The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
     • (f) It follows that the jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.”
8. I would only add to this that “in assessing the case, the Court proceeds on the assumption that the facts pleaded in the claim are capable of proof.”^[1]
9. Though not pleaded in her motion to strike out, the first defendant has invited the court to apply the Jameel principle, an approach developed from the English Court of Appeal decision in Jameel v Dow Jones & Co Inc applying to strike out applications in defamation claims,. ^[2] The English and Wales Court of Appeal stated:^[3]
   • “If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle; it will not have been worth the wick.”
10. The Jameel principle has also been adopted and applied in New Zealand. In X v Attorney General (No. 2), Simon France J explained the principle as follows:^[4]
    • “The defendant seeks to strike out the defamation claim on the basis of what is called the Jameel principle. In that case, the English Court of Appeal held that there are occasions where an otherwise tenable claim that potentially meets the requirements for a defamation cause of action may be struck out or stayed because the litigation is just not justified. The harm allegedly involved, the damages likely to be awarded and the vindication likely to be achieved will be minimal, even if the claim is successful. On these occasions it can be assessed that the proceeding would pose a disproportionate burden on the defendant and absorb a disproportionate share of limited public resources. If that is the Court's assessment the proceeding should be stopped. The underlying jurisprudential principle is that such a proceeding is an abuse of process.”
11. At this juncture, it is not necessary nor do I think this the case to decide whether or not the Jameel principle should be applied as part of Samoan law. First, it is said that the court in England and Wales was “more ready to entertain a submission that pursuit of a libel action is an abuse of process” attributable to “two recent developments”: the introduction of new civil procedure rules; and the coming into effect of the Human Rights Act.^[5] Such an analysis of Samoa’s Supreme Court (Civil Procedure) Rules 1980 or Part II fundamental rights guaranteed under the Constitution has not been undertaken. In my respectful view, a more detailed analysis specific to Samoa’s legal landscape should be undertaken before this Court adopts and applies the Jameel principle.
12. Second, even if the Jameel principle were to apply to this case, it would not warrant the striking out of the plaintiffs’ defamation claim against the first defendant. I proceed on the assumption that the facts pleaded in the Statement of Claim are capable of proof. The plaintiffs were, it is pleaded, directors or former directors of the EPC. They have significant business and personal reputations in Samoa and overseas. The first defendant, Samoa’s electricity sector Regulator has stated in terms of the plaintiffs that, amongst other alleged statements (referred to also above at [5]):
    • “I recommend to review and replace the Chairman and Board of EPC. We need people who have regards to the Electricity Act 2010 of the Government and people who are passionate to ensure cost of living is affordable for the people of Samoa. E le manaomia nit (sic) tagata e le amanaia le Tulafono, e soli Tulafono.”
13. Approximately four months after the letter was written and publications were made in the Samoa Observer, Mr Fruean was not re-appointed as Chairman or as a director of the EPC. I cannot conclude on the pleadings that the reputational harm to the plaintiffs stemming from the first defendant’s letter were no more than minimal. Further, I am also not satisfied “that the proceeding would pose a disproportionate burden on the defendant and absorb a disproportionate share of limited public resources.”

Discussion:

Grounds of Strike Out Motion
Government Proceedings Act 1974 and Claim to be Brought Against the Attorney General

14. I now turn to the specific ground raised by the first defendant. The first ground advanced by the first defendant to strike out the plaintiff’s claim is that the plaintiff’s claim against the first defendant must be brought against the Attorney General. This ground relies on section 11(1) of the Act which states:
    • “11. Civil liability – (1) Claims made by or against the Regulator are to be made under the Government Proceedings Act 1974.”
15. By virtue of section 11(1) of the Act, this then is alleged to trigger sections 6, 8 and 9 of the Government Proceedings Act 1974. Section 6 provides for the liability of government in tort. Section 8 then provides that subject to the GP Act 1974 or any other Act, “all civil proceedings which must be taken by, or may be brought against, the Government under this Act may be commenced, heard, and determined in the same Court and in like manner in all respects as in suits between subjects.” Section 9(1), headed, “Method of making the Government a party to proceedings”, provides:
    • “9(1) Subject to this Act and any other Act, civil proceedings under this Act are instituted by and against the Attorney-General.” (emphasis added)
16. Section 3 of the Acts Interpretation Act 2015 defines “government” to mean:
    • ““Government” means the Executive Government of Samoa, and includes: (a) the Cabinet; and (b) the Prime Minister; and (c) Ministers; and (d) all Ministries, departments and other administrative units of a Ministry or the Government, however described or established, including its officers and employees; and (e) any government statutory body or government corporation or other government entity.”
17. The first defendant refers to and relies on Su’a v Attorney General [2013] WSSC 1, a case involving a tortious claim against the National Health Service to support the proposition that these proceedings should have been brought under the GP Act 1974. In those proceedings, Sapolu CJ dismissed a strike out by the Attorney General seeking to remove the Attorney General as the defendant on behalf of the National Health Service.
18. The plaintiff’s submission is that at common law, the Crown is not directly liable in tort, on the historic basis that “the Crown can do no wrong.” The rule in Samoa, as it is in England and New Zealand, remains that the “Crown” cannot be sued in tort for direct liability. However, the Crown can be sued in tort for the vicarious acts committed by its servants or agents, liability though “on the part of a Crown servant must be established first.”.^[6] The purpose of the GPA 1974 is thus to provide for government’s liability for civil wrongs committed by its servants or officers in their official capacities, in the course of their employment. This does not preclude actions being taken against the public official who allegedly committed the tortious wrong, doing so by name directly if it so wishes.
19. The plaintiff says that claims against “Crown” servants or agents for tortious acts or omissions can be brought in three ways:^[7]
    • (i) action directly against the government under the Government Proceedings alleging vicarious liability on the part of the government;
    • (ii) action directly against the individual employee or employees who allegedly committed the tort. This names the employee personally; and
    • (iii) where a statute or subordinate legislation so permits, action against the holder of an office named simply as such holder.
20. Turning to section 11(1) of the Act, the plaintiffs’ submission is that if the plaintiffs wish to sue the government for vicarious liability for the acts of the Regulator, it will need to name the Attorney General. There is however no obligation to do so and it is permissible for the plaintiffs to sue the Regulator in her own name personally, as they have done in this case.
21. In my respectful view, Su’a v Attorney General (supra) can be distinguished from this case for at least three reasons. First, that was a strike out application by the Attorney General, ultimately dismissed. The Attorney General was correctly cited as a party. It was a case, as Sapolu CJ identified, where “the Attorney General would be the appropriate defendant for the purpose of these proceedings where a claim is made against the NHS for the alleged negligence of its servants and/or agents resulting in the death of the deceased.” (emphasis added) It was clearly a vicarious liability claim seeking to hold the government responsible for the allegedly negligent acts or omissions of the NHS through its servants or agents.
22. Second, that judgment in my respectful view does not go so far as to say that bringing claims against servants or agents of the government personally could not be maintained, in the terms stated in Crispin v District Court of New Zealand (supra).
23. Third, the statutory provision referring to the initiation of proceedings under the GP Act 1974 contained in section 11(1) of the Act is different to section 24(1) of the National Health Service Act 2006 (repealed)(“NHS Act 2006”). Section 24(1) of the NHS Act 2006 stated:
    • “24. Protection from liability – (1) Claims made by or against the Service shall be made under the Government Proceedings Act 1974.” (emphasis added)
24. Where the National Health Service established pursuant to section 4 of the NHS Act 2006 was to be sued (as opposed to a servant personally), it was to be brought pursuant to GP Act 1974. Section 24(2) then quite separately dealt with the protection of persons exercising functions under NHS Act 2006 from personal liability, provided anything done or omitted to be done was in good faith.
25. The question seems to me, on this first ground of the strike out application, to be whether section 11(1) of the Act precludes actions in tort against the Regulator in her personal capacity in the terms set out in Crispin. In my respectful view, section 11(1) of the Act does not do so as it does not expressly prohibit bringing proceedings against the Regulator in her personal capacity. This conclusion in my view is supported by the terms of section 11(2) of the Act which provides that:
    • “...no suit or proceeding for an act or omission in connection with the responsibilities, functions or duties imposed on the Regulator by this Act is to be brought or maintained against a person who: (a) has been or is the Regulator where such person has been or is acting in good faith; or (b) has been or is acting under the authority of the Regulator under the Act where such person has been or is acting in good faith.”
26. Section 11(2) contemplates suits or proceedings being brought or maintained against a person, but precludes them from personal liability, if they acted in good faith. Put another way, a person personally may be sued but has a good defence to the suit or proceeding if they have acted in good faith. This schema is similar to that adopted for example in sections 24(1) and (2) of the NHS Act 2006. The first sub-section deals with how to make government a party to proceedings; and then the next subsection addresses immunity from suit of persons personally. I do not view that the first defendant is wrongly sued on the basis that it is the Attorney General that must be named.

Failure to Disclose a Cause of Action Against First Defendant

27. This alternative ground of the first defendant’s strike out motion is that the plaintiffs’ pleadings alleging that the first defendant did not act “in good faith” are not in fact or law particulars of actions not undertaken “in good faith”. In this context, the plaintiffs particulars “do not assert in factual terms any (or any relevant) mental state on the part of the first defendant as Regulator, capable of qualifying as acting without ‘good faith’, in terms of the s 11(2) immunity from suit.”^[8] Further, that the first defendant’s letter to the Minister “falls fairly and squarely within this section of the Act” (section 6(1)) in relation to her functions and powers. Dr Harrison submits that “because she is responsible for the proper and effective administration of her Act and that if the Act is not being observed, not being administered, properly, then she not only entitled to act but must act.” Dr Harrison also referred to the first defendant’s obligation to advise being also derived from sections of the Act such as 11, 23, 26 and 49.
28. The plaintiffs for their part submit that the threshold requirement for the section 11(2) immunity defence to apply, namely, that that the first defendant’s letter was written in connection with responsibilities, functions or duties imposed on her as Regulator has not been met. Further, that if the first defendant had any genuine concerns with the conduct of the plaintiffs, her statutory obligation under section 53 of the Act was to report the suspected breaches to the Attorney General and advise which prosecutions she viewed ought to be brought against a person or persons, none of which the first defendant undertook.
29. Pleadings will only be struck out where the Court is satisfied on the most favourable interpretation of the facts pleaded or available that the plaintiff could not succeed in law. The jurisdiction to strike out “is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.”
30. First, addressing the plaintiffs’ contention that the pleadings are not in fact or law particulars of actions not undertaken “in good faith”, Sapolu CJ in Sua v Attorney General [2013] WSSC 1 (15 January 2013) addressed this question. Sapolu CJ stated:
    • “[62] It is clear from the wording of s.24(2) of the NHS Act that if the alleged acts or omissions with which the servants or agents of the NHS are sued in negligence were done or omitted to be done in good faith, then that constitutes a good defence. That being so, it is for the defendant to assert, plead, and prove good faith. I am, therefore, not able to accede to the contention by counsel for the Attorney General that the plaintiff should have asserted and pleaded good faith.”
31. Even if it is accepted that the facts as pleaded by the plaintiffs could not amount to the absence of “good faith”, it is generally for the first defendant to assert, plead and importantly, prove good faith for the purposes of section 11(2) of the Act.
32. In my respectful view, it is also not plain “on the most favourable interpretation of the facts pleaded or available that the plaintiff could not succeed in law” in terms of the first defendant’s acts or omissions complained of falling beyond her responsibilities, functions and powers. There is, it seems to me, genuine contention as to whether or not her responsibilities, functions and powers included (a) providing advice and recommendations to the responsible Minister concerning the composition of the Board of the EPC and their replacement; and (b) making findings conveyed to the Minister in terms of the plaintiffs’ conduct. While I accept that the first defendant “is responsible for the proper and effective administration of this Act” and is to advise the Minister and Cabinet on matters of electricity sector policy; whether the advice concerned matters of policy and was within the responsibilities of a Regulator is not clear at this juncture.
33. Submissions were also made in terms of section 53 of the Act by both counsel, a section headed “Reporting of offences to the Attorney General”. Subsection 53(1)(a) provides that the regulator “must report all breaches of this Act to the Attorney General;” Subsection 53(1)(b) then goes on to state that the Regulator must “advise the Attorney General as to any necessary prosecutions which the Regulator believes ought to be pursued against a person.” Dr Harrison submits that the reporting obligations under section 53 is limited to suspected offences and is not concerned with institutional competency concerns. Mr McBride submits that it was the first defendant’s mandatory duty to report the alleged breaches to the Attorney General but instead, wrote to the Minister. The letter makes plain in paragraphs 1 and 2 allegations of an alleged offence having been committed. Not much more however can be said at this juncture concerning section 53, the determinative questions really in terms of this strike out grounds addressed in the foregoing paragraphs above.

Occasion of Qualified Privilege

34. The final ground for strike out raised by the first defendant is that on the facts pleaded in the Statement of Claim, the first defendant has an unanswerable defence of qualified privilege. The first defendant relies on Wilson v Department of Corrections [2018] NZHC 2977 at [54] – [57] and submits at [66] that:
    • “Likewise in the present case, the plaintiffs’ claims against the first defendant have no prospects of success, by reason of the law of qualified privilege. Thus given the content of the Letter; the fact that its publication was solely to the responsible Minister; and that the first defendant was plainly and unarguably acting as Regulator in pursuance of her statutory responsibilities and reporting duties, the communication sued on must, ‘even on the most favourable interpretation of the facts pleaded available’, have been made on an occasion of qualified privilege.”
35. Wilson v Department of Corrections (supra) involved proceedings brought by an unrepresented plaintiff serving a prison term, the pleadings described by Cooke J at paragraph [6] as which “can fairly be criticised for a number of reasons.” In terms of Mr Wilson’s defamation claim, Cooke J found at [56]:
    • “...In the present case, what was involved was Departmental staff and psychologists making file notes in relation to prisoner behaviour. The file notes were made to communicate information to other officers and psychologists concerning Mr Wilson. Such communication is consistent with the duties of such staff under the Corrections Act, including to ensure the “safe custody and welfare of prisoners” under s 14(1)(a). These seem quite clearly to be occasions of qualified privilege as recognised by the well-established principles. Qualified privilege would attach to communications amongst staff, and communications by staff to the Parole Board. It also seems to me to apply to communications by staff to other inmates if the staff were concerned to protect the position of other inmates.”
36. In this case, there is in my respectful view, a live issue whether or not the allegedly defamatory statements attributed to the first defendant falls within her responsibilities, functions or duties. Further, as the plaintiff points out, the Minister to whom the Letter was written is not the Minister responsible for Public Enterprises, which the EPC falls under. Of note also is section 3 of Schedule 3 of the Public Bodies (Performance and Accountability) Act 2003 which sets out the ‘terms and conditions’ under which a director may be removed from office. It is also not plain or clear that the plaintiffs alleged conduct falls within section 3 for example.
37. The advice given by the first defendant in terms of the allegedly defamatory statements concerning the review and replacement of the plaintiffs from the board of the EPC is not clearly, it seems to me, an occasion of qualified privilege so as to strike out the claim at this preliminary juncture. That being the case, it is for the first defendant to raise and prove that the occasion of publication is one of qualified privilege.^[9]

Result

38. The end result is that I am not satisfied that the plaintiffs claim is so clearly untenable that it could not possibly succeed that it should be struck out. Accordingly, the first defendant’s motion to strike out the first-pleaded claim in defamation against the first defendant is dismissed. The striking out of the first defendant as a party to the proceeding is also dismissed.
39. Costs reserved.

JUSTICE CLARKE

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^[1] Woodroffe v Mataia [2017] WSCA 5 (31 March 2017) at [17].
^[2] [2005] EWCA CIV 75, [2005] QB 946.
^[3] At [69].
^[4] [2017] NZAR 1365 at [12].
^[5] Above, n1 at [55].
^[6] Plaintiff’s Submissions in Opposition to First Defendant’s Notice of Motion for an Order Striking Out the Claim Against the First Defendant or Striking Out the First Defendant as a Party to the Proceeding (“Plaintiff’s Submissions), para [57].
^[7] Crispin v District Court of New Zealand [1986] NZHC 836; [1986] 2 NZLR 246 (CA) at 255.
^[8] Plaintiffs’ submissions, para [49].
^[9] Brooks v Muldoon [1973] 1 NZLR 1;