Mataafa v Ministry of Revenue [2017] WSDC 14 (21 August 2017)

THE DISTRICT COURT OF SAMOA
Mataafa v Ministry of Revenue [2017] WSDC 14

Case name:	Mataafa v Ministry of Revenue
Citation:	[2017] WSDC 14
Decision date:	21 August 2017
Parties:	FAA’IU MATAAFA of Saleapaga Samoa v MINISTRY OF REVENUE of Apia Samoa
Hearing date(s):	21 June 2017
File number(s):
Jurisdiction:	Civil Claim
Place of delivery:	The District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	It is in the overall justice of the matter that the claim be struck out and it is accordingly struck out. The parties are ordered to file memorandum as to costs within 7 days.
Representation:	Plaintiff for Himself D Talouli and A Tumua for the Defendant
Catchwords:	application to strike out statement of claim being frivolous – vexatious – abuse of process – untenable at law with no prospect of success due to ss 6 (statute barred) and 21 Limitation Act 1975 (no notice), s9 Government Proceedings Act 1975 (not citing AG as Defendant; tax was legally deducted pursuant to ss 4, 47, 48 Tax Act 1974; Jurisdiction of District Court to Strike Out Claim pursuant to its ancillary powers under s23 District Court Act, Rule 29 Magistrate Rules 19 1971 & inherent powers.
Words and phrases:
Legislation cited:	District Court Act 2016 section 23 (b) Limitation Act 1975 section 6 and 21 Government Proceedings Act 1975 section 9 Income Tax Act 1974 section 2, 4, 7, 47 and 48 Income Tax Act 2012 section 59 and Schedule 2 Tax Administration Act 2012 section 29 Magistrate Court Rules 1971 Rule 19
Sources cited:	Asian Taste Company Ltd v Ah Sam [2017] WSDC 8 Knewbuhl v Liugalua [2000] WSSC 29 Lawrence v Lord Norreys (890) 15 AC 210 Enosa v Samoa Observer Company [2005] WSSC 6 (29 April 2005) Peter Meredith Co Ltd v Drake Solicitors [2001] WSSC 32 Bluesky Communications Ltd v AG [2007] WSSC 58 AG v Prince [1998] 1 NZLR 262 Couch v AG [2008] NZSC 45 Toailoa v Duffy [2005] WSSC 7 (17 May 2005) Havenleigh Global Services Limited v Henderson [2015] NZHC 1762 (29 July 2015) Attorney General v Leapai [2017] WSSC 105 (31/07/17) AG v Otahuhu [2001] NZCA 187; [2001] 3 NZLR 740 McMenamin v AG [1985] 2 NZLR 274 Norman v Mathews ( 1916) 85 LJKB 857 NZ Fire Service Commission v NZ Professional Firefighters Union Inc [2011] NZCA 177 Peerles Bakery Ltd v Watts [1966 NZLR 339; R v Lucas & Son Ltd v Obrien [1978] 2 NZLR 289; Takaro Properties ltd v Rowling [1978]2 NZLR 314 Mackrell v Universal College of Learning HC Palmerston North CIV 2005 -485-802, 17 August 2005; Godinet v Chan Mow & Drake & Co [2007] WSSC 65 (16 August 2007) Johns v Johns and Halloway [2004] NZCA 42 Nanai Tokuma v Samoa Land Corporation & Others [2017] WSSC 57 (29 May 2017) Sititi v Samoa Life Assurance Corporation [2016] WSCA 12 at para 16. Northshore City Council v AG [2012] NZSC 49 Rosara Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” (2005) 11 Canta LR
Summary of decision:

THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

FAA’IU MATAAFA of Saleapaga Samoa

Plaintiff

AND

MINISTRY OF REVENUE of Apia Samoa
Defendant

Representation:
Plaintiff for Himself
D Talouli and A Tumua for Defendant

Hearing: 21 June 2017
Supplementary Submissions: 14 August 2017
Judgment: 21 August 2017

JUDGMENT ON APPLICATION TO STRIKE OUT CLAIM

Introduction

This Proceeding

1. This proceeding is concerned with an application by the Defendant (“MOR”) to strike out the Plaintiff’s Statement of Claim dated 28/10/16 (“The Claim”) in its entirety based on a number of grounds set out in the strike out motion (“The Strike Out Application”)

The Claim (“The Claim”)

2. The claim is brief and seeks MOR pays the Plaintiff “the sum of $15,000 being the outstanding amount of money illegally taken away by the Defendant as taxes from the Plaintiff’s salary”
3. There are no other pleadings of fact as to how and when the allegation came about. But this became clearer in the affidavits submitted by both sides and during oral submission.

Strike out Application

4. The strike out application dated 24/01/17 seeks to strike out the claim pursuant to section 23 (b) District Court Act 2016 (“DCA”) and /or alternatively in accordance with the inherent jurisdiction of this Court to regulate its own procedure from claims that are frivolous, vexatious, and an abuse of process and those that are not maintainable at law with no prospects of success.
5. The grounds advanced are:
   1. The claim is statute barred by section 6 Limitation Act 1975 (“LA”);
   2. The Plaintiff failed to comply with s21 (1) & (2) LA which deals with service of a written notice on MOR informing it of the intention to bring this proceeding;
   3. The Plaintiff did not comply with s9 Government Proceedings Act 1975 (“GPA”) by not naming the Attorney General as the correct party;
   4. The Plaintiff sued the wrong Defendant;
   5. The Plaintiff’s wages was legally deducted pursuant to s48 Income Tax Act 1974; and
   6. The failure by the Plaintiff to better particularise the claim is prejudicial to MOR hampering its ability to prepare a proper defence leading to the claim being clearly untenable and an abuse of the Court’s process.
6. The Plaintiff objects to the strike out application in his response dated 7/01/17. I believe there is an error in the month as the matter was mentioned before Judge Saaga on 21/01/17 where MOR informed the Court it had filed a strike out motion and the learned Judge then adjourned the matter to 7/02/17 for the Plaintiff to respond. So the correct date should be 7/02/17.

Hearing

7. I heard submissions from both sides on 21 June 2017 then adjourned the matter for my reserved decision. However, during the course of writing this judgment, it became clear at paragraphs 11 and 25 of MOR’s written submission that the gist of its argument really was the claim ought to be struck out for being frivolous, vexatious, an abuse of the Court’s process and not maintainable at law with no prospect of success.
8. I saw this as an inherent jurisdiction argument which as stated in MOR’s strike out application was one of the sources it relied on from which this Court derives its jurisdiction to strike out the claim. But as I already observed in Asian Taste v Ah Sam^[1] (“Asian taste”), the District Court as a subordinate Court does not have inherent jurisdiction unlike the Supreme Court.
9. Being mindful of the parties’ right to be heard on the issue, I gave them the opportunity to conduct further research and submit supplementary submissions by 14/08/17^[2]. This was received from MOR on 16/08/17. I note the Plaintiff filed his submission on 11/08/17.
10. The Court was meant to deliver its decision on Friday, 18/08/17 but due to the late receipt of MOR’s supplementary submissions this was deferred to Monday 21/08/17. This is the Court’s judgment.

LAW

Issue

11. The preliminary legal issue to answer is whether this Court has jurisdiction to entertain this strike out application. A nexus to this is the question of the approach to apply where an application to strike out is lodged in this Court. If we get over this hurdle and I find there is jurisdiction then we will move to the second question of whether or not the claim should be struck out.

Jurisdiction of District Court to strike out Proceedings

12. As I said in 7 above, at paragraphs 11 & 25 of MOR’s submissions, the primary ground advanced is that the claim is frivolous, vexatious; an abuse of the court’s process, not maintainable at law with no prospect of success. At first glance, these principles are implicit in a strike out motion brought before the Supreme Court relying on the inherent jurisdiction of that Court as illustrated in the following case.
13. For instance, in Knewbuhl v Liugalua^[3] the learned Justice Wilson cited as applicable in Samoa the legal position from Lawrence v Lord Norreys^[4] at page 219 per Lord Herschell as follows:-
14. What constitutes frivolous, vexatious and an abuse of process of the Court in a strike out application, has been judicially considered in our Supreme Court over the years. I do not wish to traverse to the approach and principles applicable in Samoa as it is settled law suffice to refer to the following case to illustrate the meaning of the words frivolous vexatious and abuse of process.
15. In Enosa v Samoa Observer Company ^[5] the Supreme Court adopted with approval the following principles:

“In Bullen, Leake and Jacobs Pleadings and Precedents 12thedn at pl 45,it is there stated that a pleading or an action is frivolous when it is without substance, groundless, fanciful, wasting the Court’s time or not capable of reasonable argument. A pleading or an action is said to be vexatious when itis lacking in bona fides, hopeless, without foundation, cannot possibly succeed or oppressive.

“In relation to abuse of process in the context of an action for defamation, I refer to the English case of Goldsmith v Sperrings Ltd (1977) 2 A11 ER 566. In the Court of Appeal, all three Judges agreed on the relevant legal principles to be applied but they differed on the application of those principles to the facts. Lord Denning MR who was in the minority on that point, said at p.574:

“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The Judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will damages against the wrongdoer.” (Emphasis added).

16. Our approach to a strike out application mirrors other jurisdictions. In NZ for instance the principles to strike out are found in AG v Prince^[6] and includes, firstly that the pleaded facts whether or not admitted are assumed to be true. However, this does not extend to pleaded allegations which are entirely speculative and without foundation. Second, the cause of action or defence must be clearly untenable. Third, the jurisdiction is to be applied sparingly and only in clear cases thus reflecting the Court’s reluctance to terminate a claim or defence otherwise than on its merits. Fourth, the court should be slow to strike out a claim in any developing area of law such as negligence.
17. As I said earlier, it is settled law that our Supreme Court does have inherent jurisdiction to strike out proceedings on the grounds of frivolous, vexatious and abuse of process. But does the same apply in this Court given the absence of an inherent jurisdiction? I see no reason why it should not and I explain this below.
18. Article 74 of our Constitution establishes subordinate Courts such as this Court with its jurisdiction and powers conferred by statute law namely the DCA. Section 19 (1) (a) DCA provides for the civil jurisdiction of this Court to deal with a claim in tort or contract to the limit of SAT$20,000. This is not at issue.
19. In Asian Taste^[7] a case concerning an application to set aside judgment granted by default, a challenge was put forth by the judgment creditor that this Court has no jurisdiction to set aside judgment there being no specific provision allowing this in the DCA or Rules. I disagreed with that argument and held that equity and rules of natural justice required that a party be heard on an application before any Court. A corollary to this is the right of any party served with court proceedings to a fair hearing which is a constitutional right enshrined in Article 9 of our Constitution; the supreme law of the land.
20. In Asian Taste ^[8] I accepted that this Court does not have inherent jurisdiction unlike the Supreme Court.^[9] But what it does have as a court of justice is inherent powers implied from its civil jurisdiction under s.19 DCA. Furthermore it has ancillary powers under s.23 (b) DCA cited below:

“23. Ancillary civil jurisdiction - Whercising their civil juil jurisdiction, District Courts have authority to do any of the following:

(b) to give effect to every ground of defence or counterclaim (equitable or legal), which the Court considers ought to be granted or given in the like case by the Supreme Court; and...”

21. I also referred in Asian Taste to an article by Rosara Joseph where she developed an analysis of the Court’s inherent powers in her informative article Inherent Jurisdiction and Inherent Powers in New Zealand^[10] quoted with approval by the NZ High Court decision of Havenleigh Global Services Limited v Henderson^[11]. I encourage anyone who wishes to be enlightened more on this topic to read this article. I note the same article was recently referred to with approval by CJ Sapolu in Attorney General v Leapai^[12].

22. I also made reference to the NZ Court of Appeal case of AG v Otahuhu District Court^[13] adopted by the learned CJ Sapolu in Duffy v Toailoa^[14] where the learned Justices of that Court said:

>“As a stat statutory court of limited jurisdiction the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the powers of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures and to prevent an abuse of its process.”

23. The learned CJ Sapolu in Duffy^[15] observed that the NZ Court of Appeal has held that “the NZ District Court has the necessary power to control its own proceedings to ensure fairness, determine preliminary questions of law and fact, and prevent abuse of process.” He also referred to McMenamin v AG^[16] where it was said:

“An inferior Court has the right to do what is necessary to enable to exercise the functions, powers and duties conferred on it by state. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of process.”

24. I bear in mind that there are no new rules under the DCA so the savings and transitional provision kicks in which means Rule 29 Magistrate Court Rules 1971 still applies to this proceeding. This rule imposes a mandatory duty on this Court to dispose of this proceeding in a manner as it deems best calculated to promote the ends of justice. This in my view, must necessarily include dealing with this strike out application. Rule 29 is cited below:

“29. Procedure in matters not provided for - If any case arises hich nich no form of procedure has been provided by the Magistrates' Courts Act 1969, or the Samoa Act 1921 (N.Z.) or these , the CourtCourt ourt shall dispose of the case as nearly a be practicable in accordance with the provisions of those hose Acts or these rules affecting any similar case or in accordance with rovisions of the Magistratetrates' Courts Rules 1948 (N.Z.) for the time being in force in that country affecting any similar case, and, if there is no such provision, then in such manner as the Court deems best calculated to promote the ends of justice.”

25. I concluded in Asian Taste that if this Court did not have inherent and ancillary powers to deal with its proceedings, it would not be able to effectively administer the course of justice within its jurisdiction.
26. I also draw a similar conclusion here in that it is the same inherent and ancillary powers which enable this Court as a court of justice, to deal with this application, to see to it that its process is used fairly and to prevent a potential abuse of process.
27. Lush J in Norman v Mathews^[17] had this classic statement of law to say which is directly on point:

“There is an inherent power in every court to stay and dismiss actions or applications which are frivolous and vexatious and abusive of the process of the court...In order to bring a case within the description, it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court.”

28. In NZ Fire Service Commission v NZ Professional Firefighters Union Inc^[18] it concluded that where a claim dependent on a question of law is capable of decision on material before it, the court is obliged determine the question at strike out stage even if extensive argument may be necessary to resolve it. The Court of Appeal said:

“We can see no reason for the employment Court to approach, strike out applications on any other basis other than that applying in the high court”^[19] . Applying the well settled principles and approaching the matter on the assumption that the allegation in the claim are factually correct that they might be expected to be amplified at any hearing of the action but as pleaded they gave fair notice of the substance of the Plaintiff’s claim, the action must necessarily fail in law. I will follow the same principles.”

29. In Mackrell v Universal College of Learning^[20] Wild J held that a tribunal has a wide discretionary power provided by statute to strike out or to dismiss a proceeding brought before it and the exercise of this power will be appropriate in situations similar to those contemplated by r15.1 High Court Rules.
30. I am of the view the principles and approach to a strike out application adopted in our Supreme Court similarly applies here where frivolous, vexatious, abuse of process and the claim being untenable at law with no prospect of success is alleged as grounds to strike out or to ‘stay and dismiss an action’
31. I now move to consider the merits of the arguments advanced by both sides.

SUMMARY OF PLAINTIFF’S ARGUMENTS

32. As alluded to above, the claim is sparse and brief. It alleges MOR had illegally deducted taxes from the Plaintiff’s salary. He claims compensatory damages in the sum of $15,050 inclusive of costs. On the current pleadings it is a tort action either for negligence for either breach of a statutory duty, misfeasance and or abuse of public office or maybe replevin and trover.
33. I must say however, it was difficult to follow and make sense of the claim by the Plaintiff and his arguments; but I also understand the Plaintiff is self represented and he is not a lawyer. In fairness to him I have read his claim together with his oral and written submissions to give a clearer picture of his arguments. But I am well aware that at this preliminary stage, the focus is on the pleadings in the claim.
34. The Plaintiff’s sworn affidavit of 19/05/17 (“The Plaintiff’s Affidavit”) shed some light to this proceeding but I place no weight on paragraphs 5, 7, 8, 9 as the matters deposed there is hearsay and inadmissible. Paragraph 10 is speculative and no affidavits have been filed to support it.
35. From what I can discern from the Plaintiff’s affidavit and oral submission, the Plaintiff is a qualified marine engineer. Between 24/11/2003 to 23/08/2005 he was employed by a foreign shipping company called Mediterranean Shipping Company (“MSC”) based in Europe which he says was unregistered in Samoa. According to the Plaintiff Samoa Shipping Services (“SSS”) was MSC’s local agent and responsible for his wages.
36. The Plaintiff says that during his employment with MSC, 10% of his wages was deducted to his NPF contribution by SSS as opposed to the statutory 5% and about $800 to $900 to his salary tax. He argues SSS should not have done this as it was illegal as he worked for an overseas company that was not legally registered in Samoa.
37. According to the Plaintiff, he left Samoa in September 2005 and only returned to reside here in June 2016 where he discovered other seafarers working for overseas vessels, no longer pay taxes or NPF. There is no factual evidence capable of proof before this Court to support this. So it is merely speculative. In any event, according to the Plaintiff, upon this finding, he then embarked on pursuing this claim. A letter of demand was issued to MOR on 8/09/16 prompting discussions but obviously there was no resolution. The Plaintiff then filed the claim.
38. In his oral submissions he asks that the Court considers if MOR applied the law correctly. I informed him there was no application of that nature before me and even if there was, this Court has no jurisdiction to entertain it as such an application should either be in the form of a judicial review or motion for declaratory orders and only the Supreme Court has jurisdiction to hear it. For completion purposes, I have however still touched on this.
39. In his written submission dated 11/08/17 the Plaintiff seeks that this Court should consider the Income Tax Act 1974 (“ITA 1974) which he says did not allow MOR to deduct tax from his wages as MSC was an overseas company. He argues that since the Income Tax Act 2012 (ITA 2012”), effectively ceased the tax payments for companies like MSC, it meant government realized it was wrong and therefore the taxes deducted from his wages during his employment was illegal. This suggests the Plaintiff is of the belief the ITA 2012 has retrospective effect and applies to his situation.

SUMMARY OF MOR’S ARGUMENTS

40. MOR submitted an affidavit by Avila Ah Leong (“Ah Leong’s Affidavit”), an ACEO for its Legal and Technical division. Her duties include handling all incoming legal matters pertaining to MOR. Ah Leong deposes that she received the letter of demand from MJCA for MOR to pay within 14 days $15,000 of tax claimed to be unlawfully deducted from the Plaintiff’s wages. As she was unfamiliar with the file, she arranged a meeting with the Plaintiff. At the meeting the Plaintiff explained that MOR had illegally deducted tax from his wages when he used to work for an overseas company in 2003 to 2006. From a monthly salary of $4000, SSS deducted about $800 for his salary and wage tax and 10% towards his NPF Contribution.
41. MOR argues the claim ought to be struck out as it is frivolous vexatious, an abuse of process, not maintainable at law with no prospect of success for the following reasons. Firstly it is statute barred under s6 Limitation 1975 (“LA”). Second, the Plaintiff did not issue a notice in writing to the defendant under s.21 LA warning it of his intention to bring this proceeding. Third, the Plaintiff did not comply with s9 Government Proceedings Act 1974 (“GPA”) in not naming the AG as the defendant. Fourth, the Plaintiff sued the wrong party. Fifth, the claim has no merits and untenable at law as the Plaintiff is subject to pay tax pursuant to ss4, 47 & 48 ITA 1974. Lastly, that the claim is not properly particularised and therefore prejudicial to MOR.

DISCUSSION

Sixth (Last) Ground: Deficient Pleadings

42. I will deal briefly with the last ground.
43. As counsel for MOR is well aware, the remedy where pleadings are deficient is for MOR to seek an order for further and better particulars. That avenue was open to MOR prior to filing the strike out application but was not taken. So I will not strike out the claim on that ground alone. This ground is dismissed

Second Ground: Section 21 Limitation Act 1975

44. I now deal with the second ground.
45. MOR filed an affidavit by Foinijancey Fesolai (“Fesolai’s affidavit”), records supervisor for the office of the Attorney General (“AG’s Office”). She deposed that according to the AG’s database record, no notice was received from the Plaintiff regarding this proceeding.
46. It is for MOR to establish its proposition conclusively that the claim ought to be struck out on limitation grounds. In Godinet v Chan Mow & Drake & Co,^[21] the learned CJ Sapolu adopted with approval the following passage from Johns v Johns and Holloway^[22] a NZ Court of Appeal case concerning, inter alia, an application to strike out causes of action in a statement of claim on limitation grounds pursuant to the Limitation Act 1950 (NZ). Tipping J in delivering that judgment stated:

"As the case is one involving strike out, the facts upon which the Court must act are those alleged in the plaintiff’s pleadings, which must for present purposes be taken as capable of proof. Causes of action or aspects thereof should only be struck out before trial on the basis that they are statute or otherwise barred, if the defendant can establish that proposition conclusively. If there is any real doubt about the matter, the case should be allowed to go to trial where all issues of fact and law can be fully explored. This is no more than the ordinary strike out principle applied in the context of a strike out application which is based on limitation grounds."

47. I am well aware of Supreme Court cases where a strike out motion brought under s21 LA has both been successful and unsuccessful. Justice Vaepule Vaai in the recent case of Nanai Tokuma v Samoa Land Corporation & Others^[23] made a similar observation.
48. Section 21 provides:

“21. Protection of persons acting in execution of statutory or public duty – (1) No action shall be brought against any person (including 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:

1. 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 to the prospective plaintiff o the prospective defendant as soon as practicable after the accrual of the cause of action; and
2. The action is commenced before the expiration of one year from the date on which the cause of action accrued”....

(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 actions, 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.

49. Subsection (2) above gives the Court discretion to extend the time to file a notice for up to six years from the time the cause of action accrued. In the words of the Court of Appeal in Sititi v Samoa Life Assurance Corporation^[24] “...the discretion in s21(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 unthinkably imposed in every case”
50. Sititi^[25] was an appeal against a decision to strike out under s21 LA and res judicata and the learned Justices observed that:^[26]

“The requirement that the Appellant serve notice before issuing proceedings was technical in the extreme. The requirement has been abandons in the United Kingdom, New Zealand, five of the ten Canadian provinces and five of the six Australian States. It was rightly characterized as a trap to the unwary it might be doubted if it continues to serve any useful purpose in Samoa”.

51. I share the above view and hold this ground cannot be upheld. The procedural failure to give notice under s21 goes to form and not the substance of the claim. It is a ‘trap to the unwary’ and this is even truer in this case where the Plaintiff is unrepresented by counsel and unaware of such procedural steps he must undertake.
52. I also note the purpose of s21 LA is to give government prompt notice of an impending claim, a potential financial liability and ample time to investigate and to encourage settlement, if necessary, before the expense of costly litigation.^[27]
53. It is my firm view that access to justice should not be denied purely on non conformity with such procedural technicality. Given the observation by the Justices of the Court of Appeal above that other countries have done away with this provision and their doubts that it would continue to serve any useful purpose in Samoa, perhaps it is timely too, our Parliament looks at abolishing this provision all together.
54. In any event, even if I am wrong in holding this ground unsuccessful on the technicality point, the fact of the matter is the Plaintiff did serve MOR with a letter of demand dated 6/09/16.
55. There is no set form prescribed by s21 as to how the notice should be effected other than in writing. But at the last paragraph of the Plaintiff’s demand letter MOR was forewarned that in the event of non compliance with paying the sum demanded, the Plaintiff would file a law suit in Court. The demand letter did prompt MOR to investigate as per Ah Leong’s affidavit. It did put MOR on notice of the potential proceeding. The claim was filed on 28/10/16 so the demand letter was contemporaneous to the claim.
56. I place no weight on Fesolai’s affidavit as the implied policy of s21 LA is for the notice in writing to be served on the government ministry involved or prospective defendant. It does not necessarily mean the AG’s office. Obviously where the AG is named as the defendant then it makes sense to serve the notice on him.
57. In my view the demand letter constitutes notice sufficient to meet the purposes of s21 LA. Justice Slicer made a similar finding in Afolau Construction v SSFA^[28] where he held a letter from the Applicant to SSFA was sufficient to constitute notice. This ground therefore fails.

Third Ground: S9 Government Proceedings Act 1974

58. In terms of the third ground that the Plaintiff did not name the AG as the correct Defendant pursuant to s9 GPA, again this is not fatal. There have been cases brought before the Supreme Court where the AG was not named but the government Ministry as the party involved and it proceeded to trial.^[29]
59. I reiterate that I am conscious of the public’s access to justice. If procedural and technical formalities are applied strictly, it may well impede access to justice and the ability of potential claimants to be heard on their claims or applications. This ground is dismissed.

First, Fourth & Fifth Grounds: Claim is statute barred under s6 Limitation Act; Suing the wrong person and claim is untenable at law with no prospect of success

60. I now turn to consider the above grounds together (but not in the same order) as they intertwined and form the basis of the conclusion I have reached. This necessarily also requires an assessment of the merits of the claim as it stands at this prima facie stage to determine its prospects of success.
61. Section 6 LA where relevant provides as follows:

“6. Limitation of actions of contract and tort, and certain other actions

(a) Actions founded on simple contract or on tort;”...

62. The word “except” connotes that a cause of action in tort generally accrues from the time the Plaintiff suffers damage except for torts which are actionable per se, for example, libel, trespass to the person and land and false imprisonment.
63. The Plaintiff started working for MSC from 2003 to 2005 with SSS as its local agent and it was SSS which deducted taxes and NPF payments from his wages. The Plaintiff’s affidavit at paragraph 3 deposes that from the period of 24 November 2003 to 23 September 2005, he was paying 10% to his NPF contribution and approximately $800 to $900 to MOR. He does not say if this is weekly, fortnightly or monthly. But according to Ah Leong’s affidavit, at the meeting she had with the Plaintiff, she was told the Plaintiff received $4000 a month. From this salary 10% was deducted to SNPF and $800 to 900 to his salary and wages tax.
64. Assuming the above is capable of proof, it means then that at the time of the Plaintiff’s employment with MSC, the legislation applicable was the ITA 1974. This is confirmed by s1 (2) ITA 1974 which provides for the commencement date of the Act being on 1 January 1975 and it applied to taxable income from that commencement date and subsequent years.
65. Section 4 provides for income tax liability. Subsection (2) is a mandatory provision and provides that “income tax shall be assessed and levied on the taxable income of every tax payer at such rate or rates as may be fixed from time to time by Acts to be passed for that purpose”
66. Taxpayer is defined in s2 as meaning a person chargeable with income tax whether on his or her own account or as agent or trustee of any other person and includes executor or administrator of a deceased taxpayer. Income tax is defined in s2 as income tax imposed by Act but does not include salary and wage tax. Salary and wage income is also defined in s2.
67. Section 7 provides for situations that were exempted from tax under the repealed ITA 1974. The provision is lengthy and I do not wish to recite it in full suffice to say that having analyzed that provision, I form the view none of the exempted situations apply to the Plaintiff.
68. Section 47 ITA 1974 is key to MOR’s argument and states as follows:

“47. Liability of income for assessment – (1) Subject to this Act, all income derived by any person who is resident in Samoa at the time when he or she derived that income shall be assessable for income tax whether it is derived from Samoa or elsewhere.

(2) Subject to this Act, all income derived from Samoa shall be assessable for income tax whether the person deriving that income is resident in Samoa or elsewhere.

(3) Subject to this Act, no income which is neither derived from Samoa nor derived by a person then resident in Samoa shall be assessable for income tax”

69. The Plaintiff says that his claim has nothing to do with the ITA 1974 as he relies on the ITA 2012 in particular s59 (1) to (3) as follows:

59. Salary and wage income tax imposed – (1) ct to this Act, salary and and wage income tax is to be levied and paid for the use of the Government for each tax year.

(2)

(3) alary and wand wage income tax imposed on an employee under subsection (1) for a fortnight is to be computed by applying the rate or rates of tax applicable to mployee under Schedule 1 to the gross amount of salary and and wage income received by the employee during the fortnight.

(4) The y and wage iage income tax payable by an employee under this section is discharged if the tax has been withheld from the payment of the salary and wage income under section 93. (5) For urposes of the sala salary and wage income tax, each fortnight commences on a Monday.

70. In saying that the ITA 1974 does not not apply, the Plaintiff is basically arguing the ITA 2012 has retrospective effect. But such an argument is clearly against the policy of the Act, would open floodgates and has no merits. Section 1 ITA 2012, deals with the short title of the Act and says the Act commences on 1 January 2013 and it applies to tax years effective from that date. The only exceptions to this commencement period are those set out in s(1) (4) (a) & (b) relating to certain situations in paragraph 1 Part A (1)^[30] schedule 2 that has different commencement times and are retrospective. I have had a close look at Part A (1) (v) , (w) (x) & (y) and none of those situations apply to the Plaintiff as it relates to Unit Trust Samoa and government shares in the Virgin Australia airline.
71. With respect to the Plaintiff, I do not see s59 ITA 2012 as helping his case at all. Had his cause of action arose in 2013 it might have helped. But it does not. This provision does not have retrospective effect rather it is prospective. Maxwell on Interpretation of Statutes said that^[31] “...if the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed prospectively.” Section 59 ITA 2012 is clear in its language and so does s(1)(4).
72. Section 20 (f) Act Interpretations Act 1974 provides that the repeal of an Act shall not revive anything not in force or existing at the time when the repeal takes effect. The same provision is mirrored in s21 (b) and (c) Act Interpretation Act 2015. This applies here.
73. At the relevant time between 23/11/2003 to 14/09/2005, when the Plaintiff was employed by MSC the legislation which applied was the ITA 1974. The short title of this Act clearly states that the ITA 1974 comes to force on 1 January 1975 and applies to taxable income commencing that date onwards. The ITA 2012 commenced on 1 January 2013 and applies to income from that date and subsequent years. As I said above, except for the situations stipulated in s(1) (4)ITA 2012, that are retrospective other provisions are not.
74. As it was the ITA 1974 which applied, the tax payments allegedly deducted from the Plaintiff’s income was allowable by law as per ss4, 47 and 48 of that Act. Therefore, this claim said to be brought pursuant to the ITA 2012 for a cause of action that arose between 2003 to 2004 when the repealed ITA 1974 was still in force is clearly untenable in law, cannot be sustained and has no prospect of success. In that sense it is therefore frivolous and vexatious. Other factors also contribute to this conclusion.
75. Apart from this on the pleaded facts, I cannot discern where and how the sum of $15,000 in the prayer of relief came about. Also in the Plaintiff’s affidavit at paragraphs 3, 4 & 5, he refers to NPF contributions wrongly deducted. The Plaintiff was asked if the sum claimed included these contributions and he replied it was only the tax compensation. But I still could not see how the taxes deducted could add up to such a sum over the period of 2003 to 2005.
76. This exercise is made even more difficult given there is no proof of income earned during this time or P4s to render some support that the Plaintiff has an arguable case. I also bear in mind that pursuant to 29 Tax Administration Act 2012, SSS is only obliged to hold its tax records for up to 7 years. In the absence of any records from the Plaintiff himself, it would be impossible to fish out such records from SSS.
77. It would seem more to me that the claim also included NPF contributions given paragraphs 3, 4 & 5 of the Plaintiff’s affidavit. But as we all know, NPF contributions has nothing to do with MOR. It is the Plaintiff’s superannuation fund and he retains its benefits. As he left the jurisdiction to reside in NZ there is always the possibility he might have withdrawn his NPF entitlement. If the sum claimed includes compensation for NPF then MOR should not have been sued.
78. In terms of the limitation period argument, for an action on tort as provided under s6 (1) (a) LA, the time to bring such an action is six years from the time the cause of action accrued. I pinpoint the cause of action to accrue from the time the tax was allegedly deducted by SSS and moved to MOR, if it did at all. So this would be from November 2003 to when the Plaintiff left his employment in September 2005.
79. I am very much aware that private companies and government ministries file their annual tax returns and PAYE P4 forms with MOR. For the latter it depends on the pay period whether it is weekly, fortnightly or monthly. Only those who earns above the threshold of $15,000 pay salary and wage tax.
80. According to the Plaintiff, before he left Samoa to reside in Auckland NZ sometime in September 2005, he met with the Prime Minister and the then Minister for MOR (Faumuina Liuga) about this matter. Another meeting was held with the CEO (Elon Betham) and assistant CEO of SSS. He alleged there was a promise to investigate. There is no affidavit evidence from these people to confirm such a meeting and what might have transpired other than the Plaintiff’s word.
81. In June 2016, the Plaintiff returned to Samoa to reside here where he said he discovered seafarers no longer pay tax or NPF contributions since the commencement of the ITA 2012. He then decided to pursue this claim. Be that as it may, the fact of the matter is whatever might have happened later on in life under the ITA 2012, it does not matter given my finding that at the material time it was the ITA 1974 which applied to the Plaintiff.
82. The Plaintiff confirmed that during the time period of September 2005 from when he left to when he returned in 2016, he did not follow up on his claim. He also confirmed there was no acknowledgement from MOR it owed a debt to him during this time frame to enable him to revive his claim.
83. Assuming that PAYE P4s and SSS’ tax returns was in fact lodged by SSS with MOR between November 2003 to 2005, then the cause of action is clearly outside of the 6 year time period this tort action should have been brought pursuant to s6(1) (a) LA. It is therefore time barred. Even if I were to grant the discretion to extend the time under subsection (2) it would still be time barred.
84. Apart from the time bar issue and the claim being untenable at law with no prospect of success, it is clear that it was SSS the agent for MSC which deducted the tax payments from the Plaintiff’s salary. There is no evidence capable of proof before this Court that PAYE P4 forms for the Plaintiff was lodged by SSS with MOR back in 2003 to 2005. There is no evidence either of any tax payments being received by MOR. Even if it did, it was legally deducted. It is crystal clear that the Plaintiff the sued the wrong party.
85. I am mindful, that at this preliminary stage of this proceeding it is necessary to be cautious to prevent injustice to the Plaintiff, given the long standing practice that for the purpose of a strike out, the court assumes that the pleaded facts will be established in evidence.
86. However, with respect, the Plaintiff has not been able to advance a formidable case. He was met with cogent corresponding arguments by MOR. Although the court should not assess the veracity of or weight of the evidence on a strike out application even taken at face value, the evidence, sparse as it was, in my view has no merits, groundless frivolous and vexatious.
87. On the concern of an abuse of process, the Court of Appeal in Sititi said this:^[32]

“A court undoubtedly has an inherent power to prevent abuse of its processes: Department of SoWelfare fare v Stewart [1990] 1 NZLR 69. TM v Department of Labourabour [1980] 1 NZLR 464, 481-482 (CA).&#8/i>

I find that there has been an abuse of the Court’s process in bringing this action which is not only time barred, but is also not bona fide and untenable in law with no prospect of success. If anything, it has brought unjust harassment to MOR. This Court must act to prevent abuses that would strike at the public confidence in its processes and to function in law, not only in the case before it but the future.

This Court as traversed elsewhere in this judgment has the inherent power to dispose of this proceeding in a manner best calculated to promote the cause of justice pursuant to R 29 Magistrate Rules. It also has ancillary powers to give effect to any defence advanced pursuant to section 23 DCA. It has a duty to see to it that its process is used fairly and to prevent an abuse of process.

In Northshore City Council v AG^[33] Elias CJ said:

“[25] It is not necessary to traverse again the approach to exercise the strike out jurisdiction. It is enough for me to say of the pre-emptory procedure here adopted that a claim is not suitable for summary dismissal ahead of trial and before discovery unless, even on repleadng it is clearly untenable as a matter of law in which case the pleadings should be struck out or unless there is a complete incontrovertible answer on the facts in which case summary judgment must also be entered for the defendant”

91. As I repeatedly say, I am conscious that Plaintiff’s right of access to the court is not to be lightly denied, unless his claim is so plainly untenable that it cannot possibly succeed or be cured by amendment.
92. In my view, the Plaintiff’s claim is imbued with his own passion for compensation premised on his wrong interpretation of the law. In that sense its true purpose is not justice but to exert pressure on MOR so as to achieve an improper end. The fact he slept on his claim then opt to resurrect it based on his wrong interpretation of the law aggravates the abuse of process. The fact too that he has no proper legal grievance substantiated by facts capable of proof that he is entitle to bring before this Court against MOR compounds the abuse. This must be stopped at the earliest stage.
93. In this particular case, there is no other alternative. A re pleader will not cure the fact that the cause of action is time barred, untenable in law, without merits, frivolous vexatious and an abuse of process. It is therefore accordingly struck out.

CONCLUSION

94. It is in the overall justice of the matter that the claim be struck out and it is accordingly struck out.
95. The parties are ordered to file memorandum as to costs within 7 days.
    

_____________________________________

JUDGE ALALATOA R VIANE PAPALI

---

^[1]Asian Taste Company Ltd v Ah Sam [2017] WSDC 8 (14 June 2017)
^[2]I note this was Father’s day public holiday but was not drawn to my attention.
^[3]Knewbuhl v Liugalua [2000] WSSC 29
^[4]Lawrence v Lord Norreys (890) 15 AC 210
^[5]Enosa v Samoa Observer Company [2005] WSSC 6 (29 April 2005). The same approach is stated in similar terms in Peter Meredith Co Ltd v Drake Solicitors Nominee Co Ltd [ 2001] WSSC 32;Bluesky Communications Ltd v Attorney-General [2007] WSSC 58.
^[6]AG v Prince [1998] 1 NZLR 262 (CA at 264 endorsed by the NZ Supreme Court in Couch v AG [2008] NZSC 45 at 33.
^[7]Supra n 1
^[8]Ibid
^[9] Note the learned CJ Sapolu in Toailoa v Duffy [2005] WSSC 7 (17 May 2005)
also formed the same view
^[10]Rosara Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” (2005) 11 Canta LR

^[11]Havenleigh Global Services Limited v Henderson [2015] NZHC 1762 (29 July 2015)
^[12]Attorney General v Leapai [2017] WSSC 105 (31/07/17)
^[13]AG v Otahuhu [2001] NZCA 187; [2001] 3 NZLR 740 at 746
^[14] Supra n 9
^[15] Ibid.
^[16]McMenamin v AG [1985] 2 NZLR 274 at 276

^[17]Norman v Mathews (1916) 85 LJKB 857, 859:
^[18] NZ Fire Service Commission v NZ Professional Firefighters Union Inc [2011] NZCA 177
^[19]Also see Peerles Bakery Ltd v Watts [1966 NZLR 339; R v Lucas & Son Ltd v Obrien [1978] 2 NZLR 289; Takaro Properties ltd v Rowling [1978]2 NZLR 314
^[20]Mackrell v Universal College of LearningHC Palmerston North CIV 2005 -485-802, 17 August 2005 at 48;
^[21]Godinet v Chan Mow & Drake & Co [2007] WSSC 65 (16 August 2007)
^[22]Johns v Johns and Halloway [2004] NZCA 42 at para 2
^[23] Nanai Tokuma v Samoa Land Corporation & Others [2017] WSSC 57 (29 May 2017)
^[24]Sititi v Samoa Life Assurance Corporation [2016] WSCA 12 at para 16.
^[25]Ibid
^[26]Ibid at paragraph 23
^[27]Ibid
^[28] Unreported decision of Justice Slicer on s.21 Limitation Act 1975, where a letter of demand was held to constitute notice and leave granted to the Plaintiff to continue proceedings.
^[29]For instance Savea Sano Malifa v Registrar of Lands and Titles Court (CP36/15): Unreported but concluded successfully at mediation on 1 & 4/04/16.
^[30] Part A (1) (v) and (w) relating to Unit Trust Samoa with a commencement time of 1/01/2010 and has retrospective effect & Part A (1) (x) & (y) relating to government shares in Virgin Australia Airline with a commencement time of 1/01/08 .
^[31] Maxwell on Interpretation of Statutes (9^th Edition) at 222. Quoted in Nauer v Luteru [1954] Sam Law Rpt 2
^[32] Supra n 24 at para 19.
^[33]Northshore City Council v AG [2012] NZSC 49. I note the jurisdiction to strike out of special Courts and Tribunals in NZ like the Environment Court, Employment Court, Human Rights Review Tribunal of NZ are entirely by statute