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Fauolo v Gray [1997] WSSC 1; CP 364 1995 (5 August 1997)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

CP. 364/95

BETWEEN:

SOOLETAUA FAUOLO
of Malua Theological College,

PEREISE VIKI and EVELINA FUATAGA,
both of Malua, Trainee Pastors' wives for and on behalf of the
LITERACY GROUP.
PLAINTIFFS

AND:

TAUALOGOMAI GRAY
formerly of Malua, now of Auckland, New Zealand, married woman
DEFENDANT

Counsel: T Malifa for plaintiff So'oletaua Fauolo
PA Fepuleai for plaintiffs Pereise Viki and Evelina Fuataga
O Woodroffe for defendant

Hearing: 1 August 1997
Judgment: 5 August 1997

JUDGMENT OF SAPOLU CJ

Before the Court is an application to rescind an interim injunction which was granted ex parte on 1 December 1995 and to strike out the two statements of claim filed on behalf of the plaintiffs. For convenience I will refer in this judgment to the party making the application as the defendant and the parties against whom the application is made as the plaintiffs. Also for convenience I will deal first with that part of the application which relates to striking out the plaintiffs' statements of claim and then with that part of the application which relates to rescinding the ex parte interim injunction.

By way of background, after the aforesaid interim injunctions were granted, the case was set down for the substantive hearing. As that hearing was not completed on the days set aside for it, it was adjourned part heard. Before the hearing was to resume, the then counsel for the defendant was elected to Parliament and became Minister of Justice. The defendant therefore had to look for another counsel. Her new counsel sought a further adjournment which was granted. New counsel also applied for the hearing to start afresh for reasons which I do not need to refer to. By consent of counsel for the plaintiffs Pereise and Evelina and without any objection from counsel for the plaintiff Sooletaua, the application for the hearing to start afresh was granted. However, the defendant's new counsel subsequently withdrew from the case so that the defendant who is now residing in New Zealand had to engage a New Zealand counsel who is now acting for her.

For clarity, one of the two statements of claim in this case was filed on behalf of the plaintiff Sooletaua and the other on behalf of the plaintiffs Pereise and Evelina. The basis of the defendant's application to strike the plaintiffs' statements of claim is that both statements of claim do not disclose a cause of action. The principles which apply to a striking out application have been dealt with by this Court in a number of cases, the most recent being Sua Rimoni Ah Chong v The Legislative Assembly and others (1996) (CP 196/95) a judgment of this Court delivered on 23 January 1996)

I will turn now to the statements of claim. Here I have to assume for the purpose of the strike out application that the facts which are pleaded in the statements of claim are true. In both statements of claim, the material facts which are pleaded are substantially the same so that it facilitates dealing with both statements of claim together. The remedies sought in both statements of claim are also the same, namely, various injunctions and damages.

It is alleged in both statements of claim that between 1983 and 1993 the plaintiff Sooletaua, who is the wife of then principal of the Malua Theological College of the Congregational Christian Church of Samoa, initiated and organised classes for wives of pastor trainees of the year one and year two of the college to work on the idea of re-establishing the teaching and writing methods which originated from the work of the early missionaries in Samoa. One of the projects this class was to work on was the Samoan alphabet known as Ole Pi Tautau. A group of the wives of the pastor trainees known as the literacy group was also set up under the guidance of the plaintiff Sooletaua to re-establish the Ole Pi Tautau. The defendant, whose husband was a pastor trainee at the Malua Theological College, was appointed a member of the literacy group. There is nothing in the pleadings in both statements of claim which expressly states that the plaintiffs Pereise and Evelina were members of that literacy group.

It is also alleged in the statements of claim that various ideas, contributions, suggestions and so forth came from each member of the literacy group for the purpose of re-establishing the Ole Pi Tautau. Therefore ownership of the product of the collective effort of the literacy group does not belong to any particular member of the group. It is further alleged that the plaintiffs did ask two pastor trainees for assistance in their work and the pastor trainee, Victor Pouesi, who was approached by the plaintiff Sooletaua to contribute to the art work and sketches for the Ole Pi Tautau gave assistance. However the project was still incomplete when Victor Pouesi left for Fiji for further theological studies.

It must be said here that it is far from clear on the pleadings what were the ideas, contributions and suggestions which were made by each member of the literacy group, which included the defendant, towards re-establishing of the Ole Pi Tautau. This is in addition to what I have already said, that it is not clear from the pleadings whether the plaintiffs Pereise and Evelina were actually members of the literacy group.

It is then further alleged that the defendant without the authority or knowledge of the plaintiffs had caused the original of the Ole Pi Tautau to be printed under her name. Two hundred copies are alleged to have been printed and were being sold by the defendant. It is then alleged that the defendant had unlawfully taken the original and all work bearing on the Ole Pi Tautau as her own work and was selling two hundred printed copies.

Here again it must be said that there is vagueness on what is meant by the original of the Ole Pi Tautau. It is common knowledge throughout the country that many generations of Samoans were taught the Samoan alphabet by the pastors and their wives from the Ole Pi Tautau which existed during the time of the early missionaries who came to Samoa from the London Missionary Society. Whether the original as mentioned means the first Ole Pi Tautau that was created at the time of the early missionaries or the first compilation of the so-called re-established Ole Pi Tautau is rather vague.

No discourtesy is intended towards both counsel for the plaintiffs, but for the purpose of the application to strike out the statements of claim as disclosing no cause of action the state of the facts pleaded is a very important consideration.

Both counsel for the plaintiffs asserted that the plaintiffs' actions are founded on copyright. In reply, counsel for the defendant submitted that there is no statutory or common law copyright in Samoa. I accept that there is no copyright legislation in Samoa and therefore no statutory copyright. On the question whether there is a common law copyright in Samoa, counsel for the plaintiff Sooletaua urged the Court to declare that there is a common law in Samoa on copyright. However, counsel was not able to make any submission on what is that common law. After all this is the first case on copyright that has come before the courts.

In the absence of full and proper legal submissions, it is not necessary to decide whether to develop the common law so that it extends to this area of copyright in Samoa. But even if one were to assume for the purpose of this case that there is a common law on copyright in Samoa, I have come to the clear view that both statements of claim are embarrassing for lack of sufficient clarity in the pleadings and they do not disclose a cause of action for infringement of copyright and that they should be struck out.

During the hearing of these proceeding, counsel for the plaintiffs accepted orally that the plaintiffs' claims are founded in copyright. But if one looks at the statements of claim there is no mention of the word copyright at all or an allegation of infringement by the defendant of the plaintiffs' copyright. It is also not clear what work or part of it to which the plaintiffs are claiming a copyright. If it is the original of the Ole Pi Tautau to which the claims relate, then obviously the plaintiffs cannot claim to have a copyright subsisting in that work because the original of the Ole Pi Tautau was a literary work created at the time of the early missionaries. But if what is meant here is the original of the so-called re-established Ole Pi Tautau, then there is no allegation of infringement of copyright and the legal basis of the claims is not clear from the pleadings.

If the basis for the claims is the ideas, contributions and suggestions alleged to have been made by the literacy group to re-establish the Ole Pi Tautau, then I accept the submission made by counsel for the defendant that there is no copyright in an idea. That is very clear from all the judgments of the members of the House of Lords who presided in the case of Ladbrooke (Football) Ltd v. William Hill (Football) Ltd [1964] All ER 465. It should follow that there is no copyright in a suggestion. As for the alleged contributions by members of the literacy group, the nature of those contributions are not clear from the pleadings. If the alleged contributions refer to the leadership role of one of the plaintiffs in the literacy group or the request made by the plaintiffs to pastor trainee Victor Pouesi to contribute to the art work and sketches for the Ole Pi Tautau, then leadership and the act of making a request are not matters susceptible of copyright. Any art work or sketches drawn by Victor Pouesi would also be his work and not the plaintiffs'.

Counsel for the defendant in her submissions also pointed out that even if the plaintiffs had alleged with clarity in their statement of claim that the defendant has reproduced their work, that alone would not be sufficient to create a cause of action for infringement of copyright. She referred to an Australian case on this point which applied what was said in two previous English cases. I will refer first to the English cases. In Ladbrooke (Football) Ltd v. William Hill (Football) Ltd [1964] All ER 465, Lord Pearce at p. 481 of his judgment said:

"Did the appellants reproduce a substantial part of it? Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the Courts will hold its reproduction to be an infringement."

That passage was adapted and applied by Plowman J in the subsequent case of Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508, at 532, and by Young J in Easyfind (NSW) Pty Ltd v Peterson (1987) 10 IPR 464 at 470, which is the Australian case that was cited by counsel for the defendant. All those cases were decided under the copyright legislations of the countries concerned.

It will be seen that the question of substantial reproduction has not been pleaded in the statement of claim or addressed orally on behalf of the plaintiffs.

Therefore, even if I were to accede to what counsel had urged me to do and develop a common law for Samoa in the area of copyright, the statements of claim still fall short of disclosing a cause of action for infringement of copyright. They are therefore struck out.

That brings me to that part of the application to rescind the interim injunction which was granted ex parte against the defendant on 1 December 1995. Rule 196(1) of the Supreme Court (Civil Procedure) Rules 1980 provides:

"Any request for the assistance of the Court by way of extraordinary remedy shall be made by motion accompanied by a statement of claim and a supporting affidavit."

An injunction is an extraordinary remedy. And the statements of claim which accompanied the plaintiffs' motion for an interim injunction have now been struck out. Counsel for the defendant has put forward several grounds for rescinding the interim injunction. The first of these grounds is that there is no serious question to be tried. As already stated there is no Samoan legislation on copyright. The English common law is also far from clear in this area of copyright as the subject of copyright in England has been dealt with by statute for so many years. That is evidenced by the existence of such old English Statutes as the Copyright Act 1911 and the Copyright Act 1956. To what extent any English common law still exists in view of the statutes which have been enacted in this area is far from clear: see also the definition of "law" in Article 111 of the Constitution.

I have given due consideration to the assertion by counsel for the plaintiffs that there should be developed a common law for copyright in this country. No legal submissions or arguments were put forward for that assertion. In any event the field of intellectual property, which includes copyright, is a very specialised field and other familiar common law jurisdictions like England, Australia and New Zealand have for many years chosen to deal with this area of the law by legislation.

For instance, English legislation in this area goes as far back as 1911 and New Zealand legislation, as counsel for the defendant pointed out to the Court, goes as far back as 1913. So it appears that the development of copyright law in other familiar common law jurisdictions has been by legislation. The steps we have so far taken, in this area of intellectual property have also been by way of legislation, for instance, our legislations on patents, trademarks and industrial designs. In my view, in such a specialised area of the law as intellectual property, it is preferable that any legal development in the area of copyright should also be by legislation.

In saying that, I do not wish to be understood that this case might not have had a chance of success under some other area of the law. But that is only a possibility which in any event may or may not turn out to be a reality.

Having considered what was said by counsel for the plaintiffs as well as the supporting affidavits filed by the plaintiffs and the statements of claim which have been struck out, I have come to the view that there is no serious question to be tried. There is no need to deal with the other grounds given in support of the application to rescind. The interim injunction which was granted ex parte on 1 December 1995 is rescinded.

This means the work in dispute together with its copies are to be returned to the defendant.

Notwithstanding the conclusion I have reached on the material before the court, I am of the view that this case brings home the need for urgent action to be taken to enact copyright legislation to protect the interests of our people with literacy and artistic works.

Counsel to file submissions in writing in 10 days on the question of costs.

TFM Sapolu
CHIEF JUSTICE