Sititi v Samoa Life Assurance Company [2016] WSCA 12 (2 September 2016)

IN THE COURT OF APPEAL OF SAMOA
Sititi v Samoa Life Assurance Company [2016] WSCA 12

Case name:	Sititi v Samoa Life Assurance Company
Citation:	[2016] WSCA 12
Decision date:	2 September 2016
Parties:	IASONI SITITI (Appellant) and SAMOA LIFE ASSURANCE CORPORATION (Respondent)
Hearing date(s):	29 August 2016
File number(s):	CA05/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Supreme Court
Order:	The appeal is allowed. The respondent must pay the appellant’s costs in the sum of $5000 plus disbursements.
Representation:	R Drake for the appellant S Ainuu and E Soloi for the respondent
Catchwords:	Appeal against termination of employment – abuse of process
Words and phrases:
Legislation cited:	Limitation Act 1975
Cases cited:	Kirkpatrick v McIntosh and the Province of New Department of Social Welfare v Stewart [1990] Moevao v Department of Labour [1980] 1 NZLR 464, 481-482 (CA) Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481 at 498 and 499 (HL Bank of New Zealand v Savril Contractors Ltd [2004] NZCA 4; [2005] 2 NZLR 475 (CA).
Text Books	Brunswick (1989) 103 N.B.R. (2d) 248 (Q.B). Liability of the Crown (2000) 3rd ed
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 05/16

BETWEEN

IASONI SITITI
Appellant

AND

SAMOA LIFE ASSURANCE CORPORATION
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst
Hearing: 29 August 2016
Counsel:
R Drake for the appellant
S Ainuu and E Soloi for the respondent
Judgment: 2 September 2016

JUDGMENT OF THE COURT

Introduction

[1] The appellant challenges the termination of his employment with the respondent. His first Supreme Court proceedings against the respondent were struck out on the ground that they failed to comply with the notice requirements of the Limitation Act 1975. He then gave the requisite notice and began fresh proceedings. These were struck out as well on the ground that they were an abuse of process. The appellant appeals from the second of those decisions.

The background

[2] The appellant was employed by the respondent for a term of three years from 4 July 2014. After the employment had run for six months the respondent terminated the employment as from 28 January 2015.

[3] A month later, on 27 February 2015, the appellant issued Supreme Court proceedings for wrongful termination.

[4] The respondent applied to have the proceedings struck out for non-compliance with the notice requirements of s 21 of the Limitation Act 1975.

[5] Section 21 materially provides:

21. Protection of persons acting in execution of statutory or other public duty – (1) No action is to be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless:

• (a) notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and of his or her solicitor or agent (if any) in the matter is given by the prospective plaintiff to the prospective defendant as soon as practicable after the accrual of the cause of action; and
• (b) the action is commenced before the expiration of one year from the date on which the cause of action accrued:

PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased:
PROVIDED ALSO THAT the notice required by paragraph (a) may be given, and an action may thereafter be brought, while the act, neglect, or default continues:
PROVIDED FURTHER THAT any such person may consent to the bringing of such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the prospective defendant as aforesaid.
(2) Despite subsection (1), application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the intended defendant under subsection (1); and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose where it considers that the failure to give the notice or the delay in bringing the action, as the case may be, was occasioned by mistake or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the failure or delay.
(2A) No leave may be granted by a Court where an action has been commenced and no notice of the action was served under subsection (1)(a) before the commencement of the action.

[6] At the hearing of the respondent’s application, the appellant applied for a nonsuit. For reasons we cannot understand, this was refused. In its decision of 30 June 2015 the Court struck out the appellant’s proceedings. The ground for striking out was non-compliance with the notice requirements of s 21.

[7] On 1 September 2015 the appellant served the notice required by s 21 of the Limitation Act. Having cured that defect, he filed a fresh set of proceedings in the Supreme Court.

[8] The respondent again applied to strike out the proceedings. It relied on the fact that the Court had already struck out the appellant’s original proceedings. The respondent contended that the second proceedings were untenable for broadly two reasons: (i) that the matter having already been decided, the new proceedings were barred by cause of action estoppel (otherwise known as “res judicata”) and/or (ii) the Court having already struck out the previous action, the re-filing of the same action amounted to an abuse of process.

Judgment in the Supreme Court

[9] The trial judge rejected the res judicata argument. Res judicata required that the first decision be either:

(i) Final and made on the merits; or

(ii) The dismissal of the proceedings by consent.

Neither applied in this case. The earlier proceedings had not been decided on the merits. They had been struck out for non-compliance with limitation requirements. Nor had the appellant consented to the dismissal of his proceedings.

[10] However the Judge upheld the abuse of process argument. In support he relied on two Canadian sources. One was Kirkpatrick v McIntosh and the Province of New Brunswick (1989) 103 N.B.R. (2d) 248 (Q.B). We observe that that case rested on a simple failure to comply with notice requirements in the appellant’s initial proceedings. It was not an attempt to bring a second action after the defect had been cured.

[11] Secondly, the Judge referred to the Canadian text Liability of the Crown (2000) 3^rd ed by PW Hogg and PJ Monahan, at 4.6(a), pp 77-78. In that text the authors discussed limitation notices required before suing the Crown. They identified two types of notice. One is the requirement that notice be given within a stated period after the cause of action arose. The purpose of that kind of notice appears to be to give the State the opportunity to investigate the claim while the circumstances are still fresh. The second requires that notice be given before proceedings can be brought. The authors speculate that the purpose of that kind of notice is to encourage the settlement of claims before the expense of litigation has been incurred and to provide the Government with early information about potential financial liabilities. The authors go on to note that because actions against the Crown are creatures of statute, notice requirements must be strictly complied with. Otherwise the Crown is entitled to the benefit of the common law immunity which it had traditionally enjoyed.

[12] After discussing those sources the trial Judge in this case concluded that non-compliance by the appellant barred his first action which had been struck out. As to the second action he continued “it follows that the re-filing by the Plaintiff of the same action which has been struck out in the form of a fresh action is an abuse of process and should also be struck out.”

Appeal to this Court

[13] The appellant did not appeal against the decision in the first action. The focus was whether there was any reason for the Court to strike out the second action. He contended that any procedural defects had been cured by the time the second action came before the Court.

[14] We agree. By the time the second action was brought, the requisite notice before action had already been served. Accordingly the Limitation Act no longer posed any obstacle. By this stage the sole question was whether the fact that this was a second action created a new obstacle.

[15] It was for the respondent to point to some reason why the second action could not proceed. Mr Ainuu advanced essentially three arguments in response.

[16] The first of the respondent’s arguments was that it would be contrary to the spirit of the Limitation Act to allow the second action to proceed. However it should be noted that by that stage the express requirements of the Act had been satisfied. We would be slow to imply into the Act some additional barrier to access to the courts where none is expressly stated. Nor was any argument developed that such an approach would be necessary to achieve some implied policy objective to be found in the Act. On the contrary, the discretion in s 21(2) to extend time for up to six years from the date on which the cause of action accrued is an indication that limitation requirements are not to be unthinkingly imposed in every case.

[17] The respondent’s second argument was that the second action was precluded by res judicata. We agree with the Judge’s reasoning on this aspect. Mr Ainuu did not challenge the principles relied on by the Judge. He argued that the first decision was in fact made on the merits. We think it self-evident that this was not so. The action was struck out for failure to comply with a purely procedural requirement – prior service of a notice for limitation purposes – not a conclusion as to which party would succeed in the employment dispute. And even on the limitation point itself, the facts before the Court in the second action were critically different. By that stage the determining factor in the first decision – that notice had not been served – was no longer present. Res judicata cannot apply.

[18] The respondent’s third argument was that the second action should be struck out as an abuse of process. Mr Ainuu submitted that it will be an abuse of process to bring second proceedings in a matter which has already been determined.

[19] A court undoubtedly has an inherent power to prevent abuse of its processes: Department of Social Welfare v Stewart [1990] 1 NZLR 697. The courts act to prevent abuses that would strike at the public confidence in their processes and so diminish their ability to fulfil their function. The due administration of justice is a continuous process and is not confined to the determination of a particular case. Therefore when exercising its inherent jurisdiction, the court is protecting its ability to function as a court of law in the future as well as in the case before it: Moevao v Department of Labour [1980] 1 NZLR 464, 481-482 (CA).

[20] The exercise of this power can take the form of striking out second proceedings which are essentially an attempt to revisit a dispute which has already been judicially determined. The underlying public interest is that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation: Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481 at 498 and 499 (HL).

[21] Because the power to prevent abuse is a very broad one, there can be no hard and fast rule to determine whether, on given facts, abuse is to be found (Johnson at 499). Important considerations include whether the second action should be regarded as unjust harassment of the defendant (Johnson at 499), whether, notwithstanding dismissal of the first proceedings for want of prosecution, the second action has still been brought within the applicable limitation period (Birkett v James [1978] AC 297 (HL) (1977) 2 All ER 801 at 802), and whether the delay that resulted in dismissal of the original proceedings for want of prosecution had such an effect on the availability of evidence that a fair trial would no longer be possible (Bank of New Zealand v Savril Contractors Ltd [2004] NZCA 4; [2005] 2 NZLR 475 (CA).

[22] In the present case there could be no suggestion that the second action represented unjust harassment of the respondent. The first action put the respondent on notice within a month of the accrual of the cause of action. The implied policy objective of giving the State prompt notice of an impending liability, and hence the need to investigate while the evidence was still fresh, was well and truly satisfied.

[23] The requirement that the appellant serve a notice before issuing proceedings was technical in the extreme. The requirement has been abandoned in the United Kingdom, New Zealand, five of the ten Canadian provinces, and five of the six Australian states. It has rightly been characterized as a trap for the unwary. It might be doubted whether it continues to serve any useful purpose in Samoa.

[24] Taking all those considerations into account we are satisfied that the second action in this case should not have been struck out as an abuse of process. The appellant acted promptly throughout and there was no prejudice to the respondent.

Result

[25] The appeal is allowed. The appellant’s action in the Supreme Court is reinstated.

[26] In this Court the respondent must pay the appellant’s costs in the sum of $5000 plus disbursements.

Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst