Fuimaono v Public Trustee [2016] WSCA 2 (19 February 2016)

COURT OF APPEAL OF SAMOA
Fuimaono v Public Trustee [2016] WSCA 2

Case name:	Fuimaono v Public Trustee
Citation:	[2016] WSCA 2
Decision date:	19 February 2016
Parties:	Vavae Fuimaono and Lucia Elisapeta Fuimaono (Appellant) and Public Trustee as the Administrator of the Estate of Teariki (1st Respondent), Public Trustee as the Administrator of the Estate of Patu Afaese Hunter (2nd Respondent), Heirs of Lili and Tiresa being the Sister of Teariki (3rd Respondent).
Hearing date(s):	17 February 2016
File number(s):	CA12/15
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Aitken
On appeal from:	Fuimaono v Public Trustee (Supreme Court matter)
Order:	The appeal is dismissed with costs to the third respondents in the sum of $3000 plus disbursements.
Representation:	R Drake for Appellant M Hunter-Betham for 3rd Respondent
Catchwords:	Succession to land -
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 12/15

BETWEEN

VAVAE FUIMAONO and LUCIA ELISAPETA FUIMAONO
Appellants

AND:

PUBLIC TRUSTEE as the ADMINISTRATOR OF THE ESTATE OF TEARIKI (1^st Respondent), PUBLIC TRUSTEE as the ADMINSTRATOR OF THE ESTATE OF PATU AFAESE HUNTER (2^nd Respondent), HEIRS OF LILI & TIRESA BEING THE SISTER OF TEARIKI (3^rd Respondent)
Respondents

Court:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Aitken
Hearing: 17 February 2016
Counsel:
Mrs Drake for the Appellant
Mrs M Hunter-Betham for the 3^rd Respondent
Judgment: 19 February 2016

JUDGMENT OF THE COURT

Introduction

[1] The parties to this appeal are involved in ongoing Supreme Court proceedings over succession to land. In a Supreme Court decision of 9 September 2015 Nelson J dismissed the Appellant’s application to disqualify Ms Hunter-Betham from representing the third Respondents. The Appellants appeal against the dismissal of that application.

Factual Background

[2] At the heart of the substantive proceedings in the Supreme Court is a dispute between the descendants of Valeriano Lafoia, on the one hand, and descendants of two women, Lili and Tiresa, on the other. The dispute turns on the relationship of those individuals to Teariki Apai who once held the land now in dispute.

[3] The appellants allege that Valeriano succeeded to the land by virtue of his relationship to Teariki as Teariki’s son. They deny that Lili and Tiresa were Teariki’s sisters. As the descendants of Valeriano they say that they are now entitled to the land.

[4] The respondents allege that Teariki had no son and that Lili and Tiresa succeeded to the land as Teariki’s sisters. They say that as the descendants of Lili and Tiresa, they are now entitled to the land.

[5] Mrs Hunter-Betham is one of the descendants of Lili and Tiresa. Consequently she shares, with a number of other such descendants, an interest in resisting the proceedings brought by the Appellants.

[6] The descendants of Teariki’s sisters instructed Mrs Hunter-Betham to represent the third respondents in the substantive proceedings. The Appellants objected to her involvement as counsel. In the Supreme Court they argued that she should be disqualified as counsel by virtue of her relationship to witnesses and interest in the outcome.

[7] In his judgment dismissing this application Nelson J made the points that:

(a) Art 9(1) of the Constitution guarantees to all persons a fair and public hearing of determinations of their civil rights and obligations;
(b) Although the Courts have an inherent jurisdiction to disqualify a barrister or solicitor from acting, it is an extraordinary and drastic remedy to be exercised in only the most extraordinary of circumstances;
(c) Although Mrs Hunter-Betham would be representing her own family in the proceedings, in a small jurisdiction like Samoa that might be justified to avoid or reduce the costs of legal representation.

[8] In all the circumstances the Judge was not persuaded that Mrs Hunter-Betham should be disqualified from acting.

The Appeal

[9] In this court there was no real argument over the jurisdiction and principles to applied on an application of this sort.

[10] It is common ground that the court has the power to disqualify counsel from representing a party in proceedings before it as an incident of the inherent jurisdiction to control those proceedings.^[1]

[11] The principles to be applied in exercising that discretion have been established in a series of decisions.^[2] Since parties have a presumptive right to counsel of their own choosing they are not to be deprived of that choice except in the most extraordinary of circumstances.^[3] In deciding whether the circumstances are so serious that the Court must intervene, the following will be included among the adverse considerations:

(a) A significant conflict between the interests of counsel and those of a present or former client.
(b) A conflict of sufficient seriousness between the duty of candour and objectivity which a counsel owes to the court and the personal interest which the counsel may have in the outcome of the proceedings.
(c) A personal relationship between counsel and a witness where the sensitive nature of the evidence which the witness will give is such that it might interfere with the process of obtaining evidence that is genuine and freely given.
(d) The risk of a public perception that conflicts and relationships of that nature might interfere with the proper administration of justice.

[12] However in traversing considerations of that kind it will also be important not to overlook the starting point that in the absence of strong reasons to the contrary, parties are entitled to the counsel of their choice. There will also be room to take into account such considerations such as the size and availability of the local bar, the likelihood of cross-relationships in a relatively small community, the desire of some families to be represented by a legally qualified family member and the understandable wish to reduce costs where practicable.

[13] These are positive considerations to be weighed in the balance against the adverse considerations referred to in the earlier paragraph. Ultimately a value judgment will need to be exercised having regard to the facts of the particular case.

Application of principles to the present case

[14] In well-prepared submissions Mrs Drake relied upon essentially two grounds for the disqualification of Mrs Hunter-Betham: (i) that she was related to witnesses who would need to give evidence and (ii) that she had a direct personal interest in the outcome.

[15] As to witnesses Mrs Drake drew attention to the fact that evidence would be given by Mrs Hunter-Betham’s mother, aunt and brother. The mother and aunt would give evidence as to the genealogical connection of current family members to Lili and Tiresa. That evidence will be important but not of special sensitivity in terms of dishonesty or misconduct.

[16] Mrs Hunter-Betham’s brother, who is a lawyer will be called by the appellants as a witness under sub poena to give evidence concerning the circumstances in which he arranged for the Births Deaths and Marriages register to be rectified. On exploring this matter during the hearing, however, we concluded that this is very much a collateral issue. At the substantive hearing the Court will be concerned with the best evidence available as to actual lines of descent, not the second-hand version recorded in the Births Deaths and Marriages register. The register is no more than a reflection of the evidence which each of the current parties to this litigation has provided to the Registrar in recent times. We cannot see that any evidence which Mrs Hunter-Betham’s brother might give on that topic will be particularly significant, let alone of a highly sensitive nature.

[17] Mrs Drake’s other ground of objection to Mrs Hunter-Betham’s role as counsel was her personal interest in the outcome of the litigation. There is no denying the factual basis for that objection. Mrs Hunter-Betham does have a personal interest in the outcome. However this is mitigated to some degree by the fact that independent counsel will be acting for the second respondents. The interests of the second respondents are aligned with those of the third respondents. As to the duties of independence and candour which counsel owe to the Court, the Court and the public may be fortified by the knowledge that broadly the same interests are also represented by independent counsel. That ought to increase public confidence that proper processes such as the discovery of adverse documents and the provision of adverse legal authorities to the Court will be followed.

[18] Finally we pay some regard to the size of the Samoan bar, the inevitable cross-relationships in a relatively small community, the desire of the third respondent family to be represented by their own family member and the understandable desire to minimise legal costs. These considerations could never be decisive in themselves but that may be included in the overall evaluation.

[19] In the end a broad value judgment is required. We are not persuaded that we should interfere with Nelson J’s refusal to disqualify Mrs Hunter-Betham.

Result

[20] The appeal is dismissed with costs to the third respondents in the sum of $3000 plus disbursements.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE AITKEN

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[1] See, for example, Brezeal v Lam [2008] WSSC 31; Intracor Commodity Exports Ltd v Schwartz Constructions Ltd and others [2014] WSSC 51; Black v Taylor [1993 3 NZLR 403 (CA) at 406; Apia Quality Meats Ltd v Westfield Holdings Ltd [2006] WSSC 65.
[2] Brezeal v Lam above; Apia Quality Meats, above.
[3] Constitution art 9 (right to fair and public hearing); Black v Taylor above at 406; Apia Quality Meats, above.