IN THE COURT OF APPEAL OF SAMOA
Stowers & Ors v Stowers & Anor [2018] WSCA 15

Case name: 	Stowers & Ors v Stowers & Anor	
		
Citation: 	[2018] WSCA 15	
		
Decision date: 	25 October 2018	
		
Parties: 	MULIAU MATULINO STOWERS, TUPAI FARANI MULITALO POE STOWERS and AFA MULITALO POE (Appellants) and JULIEANNE STOWERS (First Respondent) and SAMOA BROADCASTING CORORATION (Second Respondent	
		
Hearing date(s): 	19 October 2018	
		
File number(s): 	CA15/18	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Sapolu
Honourable Justice Fisher
Honourable Justice Harrison	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is allowed. The judgment for the respondents in the Supreme Court is quashed. The case is remitted to the Supreme Court to assess damages. The award and quantum of costs in the Supreme Court are for that Court to determine.	
		
Representation: 	Shane Wulf for the Appellants 
Alexander Sua for First Respondent
Leota Leavai for Second Respondent	
		
Catchwords: 	Public notice – defamation – family surname – genealogy – connection to surname – lawful use of surname – church records – Births, Deaths and Marriage Office records – descendants - $1,000,000 lawsuit for damages.	
		
Words and phrases:		
		
Legislation cited:	Defamation Act 1993 s.8; 
Land and Titles Act 1981 s.34(2)(a); 	
		
Cases cited:		
		
Summary of decision:		

CA 15/18

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

MULIAU MATULINO STOWERS, TUPAI FARANI MULITALO POE STOWERS and AFA MULITALO POE
Appellants

AND:

JULIEANNE STOWERS
First Respondent

AND:

SAMOA BROADCASTING CORORATION
Second Respondent

Court:		Honourable Chief Justice Sapolu
		Honourable Justice Fisher
		Honourable Justice Harrison

Hearing: 	19 October 2018

Counsel:	Shane Wulf for the Appellants 
		Alexander Sua for First Respondent
		Leota Leavai for Second Respondent

Judgment: 	25 October 2018

JUDGMENT OF THE COURT
Introduction
1.	The respondents published a notice alleging that the appellants were not entitled to use the first respondent’s surname “Stowers”. The appellants sued for defamation. Following a defended hearing in the Supreme Court the Judge upheld the respondents’ defence of truth. We have found that the defence cannot be sustained. The appeal is therefore allowed. Our reasons follow.
Factual background
2.	As the case turns on genealogy we begin with a summary of the Stowers family history.
3.	In 1839 John Stowers arrived in Samoa from England. He lived with a Samoan woman named Maria (also known as Malia).  They were married in the Roman Catholic Church on 19 September 1871. They and their descendants have lived on their property at Lano, Savaii, ever since.
4.	John Stowers and Maria had a number of children before they married. These included Charles (also known as Sale or Salesa), born in 1848 and Harry born in 1870. 
5.	On 9 October 1871 Paulo (also known as Paulus Paulo, Sua Paulo and Paulus Sua) was born. The appellants are his descendants. The critical issue in the appeal is whether Paulo was the son of Charles Stowers, and therefore entitled to use the surname “Stowers”. It is not disputed that if Paulo was entitled to use that name, the same must apply to his descendants, including the appellants.
6.	Charles Stowers died in 1875 and his father John Stowers in 1884.
7.	Paulo and his first wife Talaesea had two children, Farani and Petelo. After Talaesea died, Paulo remarried on 21 January 1924. His second wife was Asia (Gautavai). They had four children, Fonofili, Paulo II, Palepa and Poe. Paulo died on 21 October 1950.
8.	Although the descendants of Paulo lived on the Stowers land at Lano, they did not use the name “Stowers”. 
9.	Matters began to change in 1992. From that year the appellants and their families were responsible for a series of changes in the records of the Department of Births Deaths and Marriages (“BDM”). These began in 1992 when Fonofili, the adoptive mother of the first-named appellant (“Muliau”), took him to the BDM. Until then the name “Stowers” had not appeared on the record of Muliau’s birth. Fonofili was successful in having the record changed to insert “Stowers” as his surname. He began using that surname from 1992.
10.	A similar process followed with the other appellants and members of their family. They included Afa (birth registered in 1968, “Stowers” added in 2003), Farani (birth registered without “Stowers” and that name added later) and Poe (registered without “Stowers” in 1959 and that name added later).
11.	On 3 March 2005 Muliau obtained from his church a baptism certificate for Paulo showing “Charles” as Paulo’s father and “Cecilia Kalifonia” as his mother. He took this to BDM where he dealt with the then BDM Deputy-Registrar, Tuautu Kalepo. Tuautu’s wife was the great-granddaughter of Paulo and the granddaughter of Fonofili. Fonofili was Muliau’s adoptive mother and the person who had taken Muliau to the BDM in 1992. Muliau was therefore dealing with the husband of Fonofili’s granddaughter. On the other hand Tuautu was also related to the family of the first respondent. 
12.	Muliau and Tuautu completed a birth registration form known as a “B12”. A B12 normally includes the name of the relative who provides the information and it is normally signed by that relative. In this case the name of the relative was left blank. Nor was it signed by Muliau. Tuautu says the reason for this is that “Muliau handed in the form, I filled it out, but he had a meeting to attend and quickly left that day”. The B12 purported to register Paulo’s birth on 9 October 1871. It gave the father as “Charles Stowers” and the mother as “Sesilia Stowers”, maiden name “Leaumoana Kalifonia” both of Lano. This was the first time the BDM records linked Paulo to Charles Stowers. 
13.	Tuautu then located the 1950 BDM entry for Paulo’s death on 
21 October 1950. This was a printed form (8624) with handwritten entries in the spaces indicated. The handwriting originally included particulars of the deceased, (Paulo Sua of Lano aged 80) name of spouse (Asia), father “(Petelo of Lano), and mother (Sesilia of Lano). It is dated 22 October 1950 (the day after Paulo’s death) and is signed by the Pulenu’u (village mayor) Mulitalo. The evidence was that in these cases the information in the form would come from the Pulenu’u. 
14.	Fortified by the B12 form provided by Muliau, Tuautu altered the original BDM entry for Paulo’s death. Tuautu wrote brackets around the name “Petelo” (until then shown as the name of Paulo’s father) and wrote in the further word “Salesa”. “Salesa” was one of the names used for Charles Stowers. Without a close examination of the change in handwriting, anyone looking at document 8624 would have thought that the name Salesa had formed part of the original document. 
15.	When the first respondent and her family learned of the appellants’ use of the name “Stowers” they objected to it. They said that the appellants had no connection with the Stowers family by blood, marriage or adoption.
16.	Matters came to a head in 2010 when the first respondent’s family instructed a lawyer to write to the Registrar at BDM questioning the appellants’ use of the name. There followed a series of dealings between representatives of the appellants and the first respondent on the one hand, and the BDM Registrar on the other. The Registrar carried out an investigation. In 2015 he decided to remove the various modifications recording a line of descent from John Stowers via Charles Stowers and Paulo, to the appellants. 
17.	With the support of other family members, the first respondent prepared a notice stating that the appellants were not entitled to use the name “Stowers”. The notice was addressed to the three appellants and called upon them to “stop unlawfully using the surname Stowers.”  It continued:
A decision has been made 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. This decision was made after carrying out an investigation and the Registrar found that these people are not connected by blood, marriage or adoption to the surname Stowers. 
This decision has been confirmed with a supporting letter from the Registrar that was given to the Summit Lawyers Office on the 08th May 2015. The decision was also made in accordance with the Births, Deaths and Marriages Registration Act 2002. 
We now officially declare taking into account the decision reached by the Registrar as mentioned above, we forbid the unlawful use of the surname Stowers by the descendants of Charles or Paulus or Paulo. Not adhering to this announcement will lead to being charged under the law for carrying out or planning to record misleading or wrong information. 
18.	The first respondent took the notice to the second respondent’s television station. The second respondent broadcast the notice on 20 and 21 August 2015. 
Court Proceedings
19.	When the appellants saw the televised notice, they issued defamation proceedings against the respondents. They claimed $1 million in damages, pleading that the broadcast notice carried the following meanings:
a)	The plaintiffs are illegally using the surname;
b)	The plaintiffs have no blood, marriage or adoptive connection to the family Stowers;
c)	The Plaintiffs are dishonest and deceiving in their use of the surname Stowers;
d)	The Plaintiffs are untruthful and untrustworthy as they have made out to be someone that they are not; and
e)	The plaintiffs acted illegally and in breach of the law.
20.	The first respondent pleaded several defences of which the significant one was truth. The second respondent pleaded innocent publication in reliance on s 8 of the Defamation Act 1993.
21.	A hearing followed in the Supreme Court. Six witnesses were called for the plaintiffs, six for the first respondent and one for the second respondent. The Judge and counsel visited the office of the Archdiocese of Samoa to view the original church records. The parties approached the case on the basis that the only significant issue was whether the appellants were descended from Charles Stowers and therefore entitled to use that surname. 
22.	The appellants’ case was that Paulo was the son of Charles Stowers and his wife Kalifonia Sesilia. It was common ground that if Paulo was entitled to use the name, the same applied to his descendants including the appellants. They submitted that the full name of John Stowers’ wife was Maria Toga Sua.  They regarded this as confirmation that Paulo had derived his Sua title from his grandmother, namely the wife of John Stowers.
23.	The first respondent’s case was that Charles Stowers had not married Kalifonia Sesilia but instead had married Silifono and that Charles and Silifono had five children – Vui Ausa’i, Kegi Kegi, Koke, Fa’apisa and Peleseuma. These did not include Paulo. While acknowledging that Paulo was also known as “Sua Paulo”, the first respondent submitted that the village of Saipipi had given the Sua title to Harry Stowers in gratitude for a building he had erected for them. Harry had in turn gifted the title to Paulo. 
Supreme Court Judgment
24.	The Judge noted that two essential elements in the appellants’ claim were not in dispute. The respondents did not deny that they were responsible for publication of the notice or that on its face the notice was defamatory. The only question was whether it was true. 
25.	On reviewing the evidence the Judge accepted the credibility of two witnesses in particular, Meipo and Silifono Vui. They both said that Paulo was not the son of Charles Stowers. 
26.	The Judge discounted any reliance on the appellants’ various modifications to BDM records. She regarded them as “highly unreliable and unsafe”.  She could see no credible documents that Paulo was the son of Charles Stowers. The critical church documents on which the appellants relied did not help because the name Stowers did not appear on any document relating to Paulo. 
27.	After weighing the evidence for both parties, the Judge expressed the clear view that the appellants were not descendants of the Stowers family. It followed that the defence of truth had been established and that the defamation claim failed against both defendants.
Issues on Appeal
28.	As in the Supreme Court, the parties in this Court focused on the question whether the appellants were descendants of John Stowers. Before turning to that question we mention two preliminary points. 
29.	One is that in most Western societies a person can arbitrarily adopt a surname whether or not connected to someone of that name. Counsel and the Judge have approached this case on the basis that in Samoa names can be used only if there is a connection with the name through blood, marriage or adoption. We are content to approach the appeal in the same way for the purpose of this defamation case. 
30.	The second preliminary point is that the Supreme Court had jurisdiction to determine the genealogy question notwithstanding s 34(2)(a) of the Land and Titles Act 1981. That provision gives the Land and Titles Court exclusive jurisdiction in all matters relating to Samoan names. It is agreed that this does not apply because Stowers is not a Samoan name. 
31.	Although the appellants raised 14 detailed grounds of appeal, the significant one was their challenge to the Judge’s factual finding that the appellants were not descendants of the Stowers family. It will be convenient to begin by examining the evidence on that subject. 
Nature of the genealogical evidence
32.	The central issue – whether Paulo was the son of Charles Stowers – turned on the circumstances in 1871 when Paulo was born. Charles Stowers died in 1875 and his father John in 1884. As is usual in cases of this kind, there are now no living witnesses as to the events with which this case is concerned.  It is no criticism of either party, therefore, that neither could call any witnesses able to give direct evidence on the central fact in issue. In lawyers’ terms, it was a circumstantial evidence case.
33.	In such cases the sources of evidence the Court can resort to are normally confined to the following:
a)	Contemporaneous documents. By “contemporaneous” we mean documents prepared at the time when the event referred to in the document occurred. Documents of this kind usually represent the most powerful source of evidence because (i) memories are fresh when they are prepared and (ii) usually (although not always) they are prepared before anyone had an incentive to falsify the information provided in the document. 
b)	Documents prepared after the event. The probative value of a document prepared by subsequent generations is usually minimal because (i) memories are no longer fresh when the document is prepared, (ii) the information provided is only as good as the sources relied on in order to prepare the document; and (iii) those responsible for preparing the document may have an incentive to falsify.  
c)	Oral evidence as to the way in which family members have acted since the critical events. The probative value of this evidence is usually low because there is much opportunity for subsequent conduct to be either misinterpreted or influenced by wishful thinking. 
d)	Hearsay. In genealogy cases witnesses are usually permitted to give hearsay evidence as to information that has been passed down to them from earlier generations. Under s 10 of the Evidence Act 2015 the two principal requirements for admitting such evidence are (i) the unavailability of the original maker of the statement (easily satisfied in these cases) and (ii) reliability (which is usually more challenging). The evidence is usually admitted but its probative force is inherently low because of (i) the opportunity for misreporting from one generation to the next and (ii) the incentive of each generation to interpret the evidence in a way which would favour a particular line of descent. 
34.	Each case must be considered on its own merits. However it follows that in many genealogy cases contemporaneous documents will have a stronger part to play than other sources of evidence. In this case we will deal with the four sources in turn. 
(a) Contemporaneous documents
35.	The four contemporaneous records that are material in this case are as follows:
a)	Charles 1871 marriage certificate. This records a marriage between “Charles, son of Jacques of Britanica” in Lano (Vaovai) and “Kalifonia Cecilia” of Vaasili (m Sua). The certificate was issued by the Archdiocese on 1 July 1982. 
b)	Paulo’s 1871 baptism certificate. This certified that “Paulus Sua”, the son of “Charles” and “Cecilia Kalifonia” was born at Lano on 9 October 1871. This certificate was issued by the Archdiocese on 3 March 2005. 
c)	Charles’s 1875 death certificate. This records that “Sale Charles, son of J. Stowers and Malia of Lano” died in 1875. This certificate was issued by the Archdiocese on 7 March 2005. 
d)	Paulo’s 1950 entry of death in the BDM records. Before it was interfered with in 2005, this record gave the deceased as “Paulo Sua” of Lano aged 80, name of spouse “Asia”, father “Petelo” of Lano, and mother “Sesilia” of Lano. The alteration made in 2005 was to change the name of Paulo’s father from “Petelo” to “(Petelo) Salesa”. 
36.	Although the Archdiocese certificates were issued in 1982 and 2005, they were checked against the original records of the Archdiocese during the trial. They must therefore be accepted as authentic for present purposes. 
37.	As the Judge pointed out, none of these four documents includes the name “Stowers” and the name “Paulo” in the same document. So none of the documents considered individually advances the case for the appellants.   However, we do not think the inquiry can stop at that point. As Mr Wulf submitted, the real significance of these documents lies in their combined effect. 
38.	The logical starting point is Paulo’s 1871 baptism certificate. It indicates that Paulo’s parents were “Charles” and “Cecilia Kalifonia”. 
39.	The 1869 marriage certificate records a marriage between “Charles” and “Kalifonia Cecilia”. Mr Sua submitted that this might be some man named Charles who was not the son of John Stowers. But the Charles in this document was described as “son of Jacques (Britannia) in Lano”.  “John” and the French name “Jacques” have often been treated as interchangeable. “Britannia” is another name for Great Britain. Great Britain coincides with the known English origin of John Stowers. There is also the common reference to Lano. The chances of having two men named “Charles” who lived in Lano with English fathers named John, or its French equivalent Jacques, are astronomical. The same is true of the common reference to “Kalifonia Cecilia”. So that alone is very strong evidence linking Paulo’s baptism certificate to the Charles who was the son of John Stowers.  
40.	The link between John Stowers and the “Charles” referred to in the other two documents is strengthened by Charles’s 1875 death certificate. It expressly refers to the death of “Sale Charles son of J. Stowers and Malia of Lano”. This was clearly Charles Stowers. The possibility that the Charles referred to in the baptism certificate was a different Charles seems so remote that for all practical purposes it can be disregarded. 
41.	The fourth contemporaneous document is Paulo’s 1950 BDM entry of death (no. 8624). The respondents rightly disregard the result of the reprehensible tinkering with that document in 2005.  They point out that in its original form the entry records Paulo’s father as “Petelo”, not “Charles” or any of the other names used for Charles Stowers. There is substance in that submission but two points may be made in response. One is that even in that document, Paulo’s mother is shown as “Sesilia” of “Lano”. The other documents show that a Sesilia of Lano was married to Charles Stowers. So there would need to be another extraordinary coincidence if this was a reference to a different Sesilia of Lano. Secondly, this document did not come from one of the family members involved. It was provided by the Pulenu’u of Paulo’s village 79 years after the birth in question. As Paulo’s descendants did not use the surname Stowers until very recently, it is entirely likely that Paulo did not use that name either. It would be natural for the Pulenu’u to use the surname that Paulo appears to have been using at the time of his death (Petelo) rather than that of Paulo’s biological father. 
42.	Taken together, these four documents strongly support the appellants’ case. 
(b) Documents prepared after the event
43.	The many changes made in the BDM records since 1992 do not advance the matter. 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.
(c) Oral evidence as to the way in which family members have acted since the critical events
44.	It is not disputed that Paulo’s descendants did not use the surname Stowers until recently. That is a significant point in support of the respondents’ case. On the other hand it is far from decisive. People with multiple names do not always use the last one as their surname in daily life. 
45.	Meipo gave direct evidence about Paulo. At the time of giving evidence she was 79 years old. Her grandfather was Harry Stowers, son of John Stowers and brother of Charles Stowers. She remembered Paulo whose surname she knew as Petelo. When Paulo’s first wife, Talaesea, died, Paulo and his two children came to find refuge with Harry because Talaesea’s family had chased him out of that family. Paulo was piggy-backing Farani (because Farani was crippled) and Petelo was walking. Meipo says she was very little at the time. At Paulo’s request, Harry allowed Paulo to live on the Stowers land.  She said the graveyard on the Stowers’ land was only for the Stowers family. Paulo and his second wife Asia are buried there only because of his service to their family. 
46.	The appellants point to two inconsistencies in Meipo’s account. She had originally joined with others in a statutory declaration that John Stowers did not have a son named Charles Stowers but rather that Charles was John’s grandchild. That does not seem to affect her credibility given that, as with the other witnesses, she was merely trying to reconstruct events from other sources for which she was not responsible. Further, the descendants of Charles would have had the right to use the name Stowers whether he had been a son or grandchild of John Stowers. 
47.	More significant was Meipo’s age when Paulo came to live on the Stowers land. She confirms that Paulo’s son is Petelo, that Petelo’s son is Matulino and that Matulino is older than her by 2 years. That is not easy to reconcile with her impression that when Paulo arrived on the Stowers land he was accompanied by his own two children. 
48.	We do not overlook the favourable impression that Meipo made on the Judge. That must be given due weight. However her direct evidence as to the circumstances in which Paulo arrived on the Stowers land has inescapable difficulties over relative ages as the Judge noted. 
(d) Hearsay as to what witnesses were told by earlier generations.
49.	Both sides gave evidence as to what they were told by more senior members of their family. In this the Judge preferred the evidence of Meipo and Silifono. They both said what they were told by their families. They also said what they regarded as the correct genealogy. 
50.	For reasons discussed earlier, relatively little weight can be given to evidence of this kind, at least where it conflicts with contemporaneous documents.  The genealogical evidence given by the witnesses could never have been more than a mixture of hearsay and reconstruction after the event.  It was not direct evidence. 
(e) Other sources
51.	Other factors fell into the category of conduct consistent or inconsistent with Paulo’s connection with Charles Stowers.  On the one hand the appellants had resided on Stowers land at Lano for many years and Paulo and his wife were buried there. This is consistent with the appellants’ case.  On the other hand, Paulo and his descendants did not use the name “Stowers” until the change of heart beginning in 1992. That is consistent with the respondents’ case. These factors are broadly self-cancelling. 
52.	We asked counsel for both sides in this case to provide us with the family trees for which each contended. This is good practice in all genealogical cases. We found the family trees helpful. The competing family trees were based on evidence given in the trial. 
53.	Two details in the respondents’ family tree might be thought to reinforce the appellants’ case. One is the respondents’ acknowledgment that one of the names by which the wife of John Stowers was known was Malia Vui Seinafolava “Paulo”. That seems another coincidence given the respondents’ contention that Paulo had no relationship with that woman. Secondly in their family tree the respondents acknowledge that the wife of another of John’s sons, Joseph, was married to a woman named “Sesilia or Cecilia”. That seems another coincidence given the clear evidence that Paulo’s mother was called “Sesilia or Cecilia”. Paulo and his descendants would have been entitled to use the surname Stowers whether emanating from Joseph Stowers or Charles Stowers.  
54.	The onus of proving the truth of the defamatory meanings lay on the respondents. They had to show that on the balance of probabilities Paulo and his descendants were not related to John Stowers by blood, marriage or adoption. The contemporaneous records point strongly the other way. The BDM entries made after 1992 do not assist. The oral evidence is either unreliable or unsubstantiated hearsay. 
55.	We are satisfied that the defence of truth cannot be sustained on the evidence provided at trial. As the other ingredients of defamation were uncontested, it must follow that the cause of action against the first respondent succeeds. 
The second respondent
56.	The essential elements for a defamation claim were also established against the second respondent.  It relied on the affirmative defence of innocent publication (otherwise known as unintentional defamation).  In that regard s8 of the Defamation Act which provides:
8. Unintentional Defamation – (1) A person who has published words alleged to be defamatory of another person may, if he or she claims that the words were published by him or her innocently in relation to that other person, make an offer of amends under this section; and in any such case:
(a) if the offer is accepted by the party aggrieved and is duly performed, no action for defamation shall be commenced or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);
(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it is a defence, in any action by him or her for defamation against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.
(2) Subsection (1)(a) does not apply to the publication by a person of any word of which the person is not the author unless the person proves:
(a) that the author did not intend to write or publish them of and concerning the party aggrieved, and did not know of circumstances by virtue of which they might be understood to refer to him or her; or
(b) that the words were not defamatory on the face of them, and the author did not know of circumstances by virtue of which they might be understood to be defamatory of the party aggrieved; 
and that in either case the author exercised all reasonable care in relation to the matter.
(3) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published innocently in relation to the party aggrieved; and for the purposes of a defence under subsection (1)(b) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.
(4) An offer of amends under this section shall be understood to mean an offer:in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;
where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his or her part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.
(5) Where an offer of amends under this section is accepted by the party aggrieved:(a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the Court whose decision thereon shall be final;
(b) the power of the Court to make orders as to costs in any action by the party aggrieved against the person making the offer in respect of the publication in question, or in any proceedings in respect of the offer under paragraph (a), shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred by that party in consequence of the publication in question; and, if no such action or proceedings as aforesaid are taken, the Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in any such action or proceedings.
(6) For the purposes of this section words shall be treated as published by 1 person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say:
(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him or her; or
(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person; 
and in either case the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.
(7) For the purposes of this section “Court”, in relation to the publication of any words, means the Court in which any action in respect of the publication has been taken, and, if no such action has been taken, means the Supreme Court. 
57.	It will be seen that the statutory defence of unintentional defamation is created by s 8(1). Section 8(1) recognises the defence only where the defendant has satisfied two conditions:
a)	The defendant published the words innocently (introductory words to s 8(1) repeated in s 8(1)(b)); and  
b)	The defendant made an offer of amends as soon as practicable after receiving notice that the words were or might be defamatory of the plaintiff (s 8(1)(b)). 
58.	The detailed requirements for each of those two conditions are set out in the remainder of s 8. For example the requirements for the first condition, that the publication was innocent, are amplified in s 8(6). Broadly speaking the requirements for innocent publication can be satisfied only if the defendant shows either lack of intention to identify the plaintiff (s 8(6)(a)) or lack of appreciation that the words were defamatory (s 8(6)(b)). In either case the defendant must have exercised reasonable care. 
59.	In this case Ms Leavai acknowledged that her client had not made an offer of amends. Consequently the first of the two conditions imposed by s 8(1) – an offer of amends – was not satisfied. 
60.	Ms Leavai explained that she was not relying on s 8(1). She sought to rely on s 8(6)(b) alone. But this is a misunderstanding of s 8. Section 8(6)(b) does not offer a defence in itself. It is merely an amplification of one of the two requirements under s 8(1). 
61.	This defence therefore fails. There being no other defence, the appellants’ defamation claim succeeds against the second respondent also.  
Damages
62.	The case will need to be remitted to the same Supreme Court Judge to assess damages. It would be wrong for us to say anything definitive on that subject. However 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.
Result
63.	The appeal is allowed. The judgment for the respondents in the Supreme Court is quashed. The case is remitted to the Supreme Court to assess damages. The award and quantum of costs in the Supreme Court are for that Court to determine. 
64.	There will be no order for costs in this Court. This is no criticism of Mr Wulf who conducted the appeal with competence. However much of the appeal was concerned with the ultimately irrelevant implications of steps taken by the appellants in the Office of Births Deaths and Marriages in and after 1992. 

HONOURABLE CHIEF JUSTICE SAPOLU
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON