Board of Trustees of the Executive Board of The General Council of The Good Samaritan Church of Jesus Christ v Woodroffe [1999] WSCA 2; 06 1999 (27 August 1999)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 6/99

BETWEEN

THE BOARD OF TRUSTEES OF THE EXECUTIVE BOARD OF THE GENERAL COUNCIL OF THE GOOD SAMARITAN CHURCH OF JESUS CHRIST (Incorporated)
Appellant

AND

OLINDA WOODROFFE, GLORIA HANIF, ROGER MOTU,
DEBBIE FUIMAONO, CHRISTINE (MEREDITH) MOTU, SUSANA MOTU
as the descendants of OLIVA MOTU
Respondents

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 26 August 1999

Counsel: A Pereira, for Appellant
Olinda Woodroffe in person
G J Thwaite for Respondents Gloria Hanif and Roger Motu
No appearance for other Respondents

Judgment: 27 August 1999

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

On 12 February 1998 Sapolu C.J. gave a judgment in favour of the respondents (in this judgment called "the family") ordering the appellant (called "the Church") to vacate land claimed to be owned by the family within two months and to remove buildings it had erected, and he granted a permanent injunction restraining re-entry and awarded damages of $9800 against it. The Church was granted leave to appeal by the learned Chief Justice on 12 June 1998 on an application made outside the time limit of 30 days from the time the appellant first had notice of the decision, as laid down in Rule 18, Court of Appeal Rules. This point was taken by the respondents at the hearing of the application along with a number of other objections, but His Honour granted leave and ordered a stay of the judgment and fixed security for costs, which was duly paid. Although he made no mention of extending time for appeal, it is clearly implicit from the terms of his decision on leave that this must have been done. In any event this Court has power under Rule 18 to enlarge the time for giving notice and makes an order accordingly if necessary. The preliminary objection on this point raised by the respondents at the appeal hearing was purely technical and they presented full argument on the merits of the appeal itself.

There has been a long-running dispute between the parties about the Church's occupation of land at Faatoia where it built a church in 1994, said by its pastor to have been done with the consent of family members given to them by a son Michael (now deceased), who was the only one occupying the land at the time. Title is registered in the name of their late mother Oliva Motu who died in 1990 intestate, and we were informed by Mrs Woodroffe (appearing on her own behalf) that although she has applied for administration, it has not yet been granted. There were 11 children, and she told us that all the survivors except two support the family's claim to have the Church evicted. Mr Thwaite appeared as Counsel representing two of the respondents, namely Gloria Hanif and Roger Motu, but there was no appearance by the others.

There had been negotiations undertaken by Mrs Woodroffe for some form of occupation agreement or tenancy by the Church, but it seems these came to nothing and in July 1997 the present action for eviction was brought in the Supreme Court. On the family's application for an interim injunction the Chief Justice made an order on 30 September 1997 restraining the Church from constructing anything further on the disputed land, and directing the filing of an amended statement of defence to an amended statement of claim by 6 October 1997, when the matter was to come before him for mention. On 20 October he set the trial date for 10 and 11 February 1998. According to the chronology provided by the respondents, they served an order for discovery on 10 December 1998, and their affidavit of documents on 28 January 1998.

The Church did not appear when the trial date was set, but the Registrar informed its solicitors on 20 October of the fixture and followed it up with a reminder on 6 February. His Honour recorded that when the case was called on 10 February for trial, Mr Vaai (then counsel for the Church) told the Court that he was not ready to proceed as his witnesses, or some of them, resided overseas, and he wanted an adjournment. In the face of strong opposition from Mrs Woodroffe for the plaintiffs, His Honour decided to allow them to proceed with formal proof of their claim, and he recorded that defendant's counsel then withdrew. There were no reasons given for his refusal of the adjournment sought.

Evidence was adduced by affidavits supported by testimony from witnesses confirming them, and was completed on 10 February without any further appearance by the Church. On 12 February 1998 the learned Chief Justice delivered the judgment under appeal but did not give reasons. The Church complains that it did not get a fair hearing, in support of which Mr Pereira (who now acts for it) invoked the Constitutional guarantee of a fair trial in s.9 of the Constitution. The essential point for our consideration is whether the learned Chief Justice properly exercised his discretion in refusing to grant the adjournment sought by Mr Vaai, and we have been assisted by an affidavit from the latter and by information about the circumstances leading up to the trial made available to us by counsel and Mrs Woodroffe. We also have the notes recorded by His Honour, in which he refers to the time the Church had since the trial date was fixed to prepare for the hearing, and to the fact that its counsel should have known that all the plaintiffs resided in New Zealand. They were in Court that morning ready to give evidence. One in particular was about to leave for Paris and it would be difficult to bring him back for a later hearing, and this point was made forcefully to us again by Mrs Woodroffe. These appear to be the considerations on which His Honour exercised his discretion against granting the adjournment, and if they were the only ones to be taken into account this Court would not be justified in interfering with his decision.

However, in the light of the further information made available to us, it appears that His Honour did not have the full picture before him. In his affidavit of 13 March 1998 Mr Vaai deposed that there had been ongoing settlement negotiations and that, in the week preceding the trial, he had advised Mrs Woodroffe that he would be applying for an adjournment. He went on to depose that on the date of the trial he was still seeking instructions from the Church headquarters in Honolulu about a settlement proposal which he had received the previous day from the plaintiffs. Furthermore, he had received documents only the week before from them which required investigation. (On this aspect, as noted above, they had served their affidavit of documents as late as 28 January 1998, so that delay was not solely on the part of the Church.)

There was an exchange of correspondence about settlement which we accepted for the purpose of assessing the circumstances leading up to the adjournment request, from which it is clear that in spite of vigorous assertions by Mrs Woodroffe that the hearing would proceed on 10 February, Mr Vaai appears to have believed that a negotiated lease was still possible and was working to that end throughout and, as noted above, he had clearly signalled his intention to apply for an adjournment on 6 February. He also deposed that he told the Court his client would consent to an order for costs if the plaintiffs were inconvenienced by it.

We are satisfied that in the light of this additional information, this Court on appeal should revisit the exercise by the learned Chief Justice of his discretion to refuse an adjournment. The Church and its members are obviously heavy losers as a result of the orders made, and there is a natural reluctance to see the machinery of justice operate in a way that achieves such a result without them having been heard, unless their default in all the circumstances was so serious that they deserve no further consideration. On the face of it, we think the Church should not be regarded as a hard-headed commercial entity clearly capable of looking after its own business interests.

There was no undue delay in the way the action progressed to the date of trial, and this was the first adjournment sought. The interim injunction preserved the property so that apart from being kept out of any occupancy rights they might wish to exercise (and we gather the family largely reside elsewhere), there would be no real inconvenience from an adjournment, although we do take note of Mrs Woodroffe's concern over the cultural implications of the Church's occupancy. A new trial at an early date will add little to what has already been endured under this heading. The payment of costs and expenses incurred in the attendance of witnesses and of Mrs Woodroffe at the hearing on 10 February will recompense them for their financial loss if a new trial is ordered. There is concern over the witness who has gone to live in Paris, but such difficulties are not uncommon and there are appropriate procedures for the presentation of evidence in such circumstances.

The state of affairs disclosed in Mr Vaai's affidavit and in the correspondence and information given to us by counsel and Mrs Woodroffe satisfies us that the lack of readiness by the Church to proceed on 10 February was not due to default by it or its counsel serious enough to justify refusing a fair hearing of its side of the case, in the absence of any irreparable damage or loss to the plaintiffs if the judgment is set aside and a new trial ordered. At worst, it may be said that Mr Vaai was over-optimistic in his expectation that a negotiated settlement would be achieved as the obviously sensible course, and that a trial would not be necessary.

In the result, the appeal is allowed; the orders made on 12 February 1998 are set aside and a new trial is ordered at a time to be fixed by the Supreme Court, to which the case is remitted to give appropriate directions for the prompt disposal of any outstanding procedural matters. The interim injunction pending trial granted on 30 September 1997 is ordered to be re-instated if such a course is necessary. The appellant Church is ordered to pay all reasonable costs and expenses incurred by the witnesses and Mrs Woodroffe for travelling and accommodation in attending the hearing on 10 February 1998, and to refund any Court disbursements incurred by the respondents exclusively in connection with that hearing, the amounts of such costs, expenses and disbursements to be settled by the Registrar if the parties cannot agree.

In the circumstances, we make no order as to costs on this appeal.

Solicitors:
A T Pereira, Apia, for Appellant
Woodruffe & Keil, Auckland, for Respondents