McCarthy v National Provident Fund [2021] WSCA 7 (10 December 2021)

IN THE COURT OF APPEAL OF SAMOA
McCarthy v National Provident Fund [2021] WSCA 7 (10 December 2021)

Case name:	McCarthy v National Provident Fund
Citation:	[2021] WSCA 7 (10 December 2021)
Decision date:	10 December 2021
Parties:	THERESA McCARTHY (Appellant) v NATIONAL PROVIDENT FUND (Respondent)
Hearing date(s):	06 December 2021
File number(s):	CA 12/20
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Honourable Justice Blanchard Honourable Justice Harrison
On appeal from:	Supreme Court of Samoa
Order:	The adjournment is granted until the next sitting of the Samoa Court of Appeal in the week commencing 7 March 2022 on the strict conditions that; (1) The appellant is to file and serve the full record on appeal by 7 February 2022; (2) The appellant is to pay the costs of this application of $250 by 7 February 2022 (3) The appellant is to file and serve her synopsis of submissions by 21 February 2022. The appellant is being granted a considerable indulgence. These dates are final and are not open to any applications for variation. The time for compliance is of the essence. The appellant must understand that any failure to meet this timetable will likely result in dismissal of the appeal.
Representation:	O. Woodroffe for the Appellant S. Leung-Wai for the Respondent
Catchwords:	Decision for final adjournment
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Summary of decision:

CA 12/20

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

THERESA McCARTHY

Appellant

A N D:

NATIONAL PROVIDENT FUND

Respondent

Coram: Honourable Chief Justice Perese
Honourable Justice Blanchard
Honourable Justice Harrison

Counsel: O. Woodroffe for the Appellant
S. Leung-Wai for the Respondent

Hearing: 06 December 2021

Judgment: 10 December 2021

JUDGMENT OF THE COURT

1. This appeal against the judgment of Clarke J was listed for hearing in the week commencing 06 December 2021.
2. Mrs Woodroffe for the appellant, Mrs McCarthy, has applied for an adjournment on the ground that Mrs McCarthy is not presently in a financial position to pay the costs of disbursements necessary to prepare the formal record on appeal. Mrs McCarthy intends to seek funding from family members in New Zealand which she anticipates will be available early in 2022. Mrs Woodroffe says that she has not had an opportunity to advise Mrs McCarthy fully on the merits despite the lapse of time since the Supreme Court judgment was delivered on 20 July 2020.
3. The appeal has a long history. It was first called in this Court on 20 September 2020. Mrs McCarthy has not taken any meaningful steps to prosecute the appeal since that date. She has failed to file a record of appeal or a particularized notice of properly arguable points of appeal. Her dilatory conduct is most unsatisfactory and does not justify a further indulgence.
4. Nevertheless, with considerable reluctance, we grant the application. The litigation between the parties is long running. The interests of justice require finality. The judgment under appeal is comprehensive and adverse to Mrs McCarthy on a number of grounds. We recognize the importance of a measured analysis of the merits by Mrs McCarthy’s counsel to identify any truly arguable points on appeal.
5. The adjournment is granted until the next sitting of the Samoa Court of Appeal in the week commencing 7 March 2022 on the strict conditions that;
   1. The appellant is to file and serve the full record on appeal by 7 February 2022;
   2. The appellant is to pay the costs of this application of $250 by 7 February 2022
   3. The appellant is to file and serve her synopsis of submissions by 21 February 2022.
6. The appellant is being granted a considerable indulgence. These dates are final and are not open to any applications for variation. The time for compliance is of the essence. The appellant must understand that any failure to meet this timetable will likely result in dismissal of the appeal.
   

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON