Asian Taste Company Ltd v Ah Sam [2017] WSDC 8 (14 June 2017)

IN THE DISTRICT COURT OF SAMOA
Asian Taste Company Ltd v Ah Sam [2017] WSDC 8

Case name:	Asian Taste Company Ltd v Ah Sam
Citation:	[2017] WSDC 8
Decision date:	14 June 2017
Parties:	ASIAN TASTE COMPANY LTD (JUDGMENT CREDITOR) AND TAUTUALELEI AH SAM (JUDGMENT DEBTOR)
Hearing date(s):	24 May 2017
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa R Viane Papalii
On appeal from:
Order:	Having considered the above, it is in the overall justice of the matter that the judgment by default granted by Judge Roma on 31/07/17 be set aside. Costs is reserved on this application. Should the JC wish to proceed with its claim further then a fully particularized amended Statement of Claim must be filed and served on the JD.
Representation:	Ms K Drake - Kruse for Judgment Creditor Judgment Debtor for himself
Catchwords:	Vehicle accident – faulty vehicle - liability
Words and phrases:	Application to set aside judgment – money owed for vehicle repairs – refusal to pay (debtor) – objects claim (debtor)
Legislation cited:	Acts Interpretation Act 2015, ss. 47 Constitution of the Independent State of Samoa articles 9; 74 District Court Act 1969 s. 81 District Court Act 2016 ss. 19; 19(1)(a); 23; 44(g); 82(1)(a) Judicature Act 1961 s.3 Magistrate Court Rules 1971 rule 29 Supreme Court Civil Rules 1980 rules 140; 141
Cases cited:	Attorney General v Mervyn Chapman [2011] NZSC 110 Bloomsbury and Marylebone County [1976] 1 WLR 362 at 365 Rosara Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” (2005) 11 Canta LR Havenleigh Global Services Limited v Henderson [2015] NZHC 1762 (29 July 2015) Department of Social Welfare v Stuart [1990] 1 NZLR 697 (HC) at 703 Connelly v Director of Public Prosecutions [1964] AC 1254 (UKHL) at 1301 Taylor v Attorney General [1975] 2 NZLR 675, 681-682 AG v. Otahuhu District Court [2001] NZCA 187; [2001] 3 NZLR 740 at 746 Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (CA), [2005] 1 NZLR 666 (SC) at [35] Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 399 (CA) Mihaka v Police [1981] 1 NZLR 54, 58 Lauano v Samoa National Provident Fund [2009] WSCA 3; CA11 of 2008 (1 May 2009) Russell v Cox [1983] NZLR 654 Equitcorp v Finance Group Limited v Cheah [1988] NZCA 273; [1989] 3 NZLR 1. Lauano v Samoa National Provident Fund [2008] WSSC 70
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ASIAN TASTE COMPANY LTD a duly registered company having its registered office at Apia
Judgment Creditor

AND:

TAUTUALELEI AH SAM of Letogo
Judgment Debtor

Counsel:
Ms K Drake - Kruse for Judgment Creditor
Judgment Debtor for himself

Hearing: 24 May 2017
Judgment: 14 June 2017

DECISION ON APPLICATION TO SET ASIDE JUDGMENT

Introduction

1. This is an application by the Judgment Debtor (“JD”) to set aside judgment by default in the sum of $3480.00 against the JD granted by Judge F A Roma on 31 January 2017.

Procedural History and Background

2. The Judgment Creditor (“JC”) or Plaintiff filed an undated statement of claim (“The Claim”) with the Court registry on 12 December 2016.
3. The Claim is brief and alleges that the JD owes the JC the sum of ST$3460.00 for repair to a vehicle. It further alleges that full particulars of the debt has been made known to the JD but he has refused or neglected to pay it.
4. The quantum claimed in the prayer of relief is ST$3480.00. No other pleadings of fact are disclosed as to when, where and how the background of the claim against the JD came about. However, Ms Kruse at paragraphs 4.1 – 4.4 of their submission dated 18/04/17 summarises the facts. In the absence of an affidavit or properly pleaded facts in the claim, I cannot accept this as it is basically leading evidence from the bar.
5. The ordinary summons indicated the matter would be called for first mention on 31/01/17. The proof of service on file is unsworn and recorded that the JD refused to sign for receipt of the claim and summons. The process server was Talosaga Siaki, a senior accounts officer. As for which company is unknown.
6. On Tuesday, 31 January 2017, the matter was called for first mention before Judge Roma where the JD did not appear and judgment by default was granted in favour of the Plaintiff notwithstanding the proof of service was unsworn and contrary to s.82(1)(a) DCA.
7. The JC then proceeded to file an application for judgment summons dated 3 February 2017. The judgment summons (“JS”) dated 7 February 2017 confirmed the date of mention for the JS was 14 March 2017.
8. The proof of service for the JS sworn on 15/02/17 confirmed that the JD did receive the JS documents served on him on 14/02/17. The deponent of the affidavit of service is Talosaga Siaki.
9. At the first calling of the JS on 14/03/17 before Judge Sa’aga, the JD appeared. He must have informed the court that he objected to the claim/judgment as Her Honour then adjourned the matter to 4/04/17 for him to file an application to set aside judgment.
10. In a letter dated 27 March 2017 (“JD’s Letter”), the JD explains his version of the incident which shines some light to the facts of this matter. The JD is unrepresented by counsel and his letter is accepted as the application for setting aside judgment.
11. According to the JD, on the day in question, he was the driver of the delivery truck belonging to the JC (“The Truck”). The truck was traveling from Tiavi when the incident occurred in front of the Country Market shop at Papauta. The road was busy and he had applied the brakes and clutch but these were not functional leading to the incident.
12. After the incident the JD went to the Police Station where his statement was taken and the truck was examined. In sum the JD denies liability for the claim.
13. The JD’s letter encloses an unsigned police report dated 27/03/17 from the investigating officer, Constable Ioapo Isitolo (“The Police Report). The police report stated inter alia that when the truck was brought to the Apia Station it was examined, where it was discovered the brakes and clutch were faulty.
14. There is no record of a notice of opposition to the application to set aside being filed by the JC. But when the matter was called for mention on 4/04/17 before Judge Roma, it was then set down for hearing the application to set aside judgment on 19/04/17. On 19/04/17 the matter could not proceed due to the unavailability of the Court. It was then set down on 24/05/17 for hearing the application to set aside.
15. In the absence of a notice of opposition, the JC only disclosed its grounds of opposition in its submissions dated 18/04/17 filed by its Counsel Ms Kruse which can be summed up as follows that:
    • (i) The Court had no jurisdiction to deal with the application to set aside judgment;
    • (ii) There is no defence and the JD’s assertion of the truck having faulty brakes is unsubstantiated;
    • (iii) Similarly the Police report is hearsay and lacks credibility;
    • (iv) the JD’s no show at the first mention of the claim on 31/01/17 or his being unrepresented by a lawyer is not an excuse or valid reason to set aside judgment;
    • (v) The JD does not provide a reasonable justification for the delay in filing his application to set aside judgment.

Preliminary issue relating to jurisdiction

16. Ms Kruse for the JD argued in their submission that the application by the JD was a nugatory as there was no provision under the District Court Act 2016 (“The DCA ”) or Magistrate Court Rules 1971 (“MC Rules”) to cater for it.
17. The argument simply stated is, the District Court in the absence of any specific provision in the DCA and MC rules does not have jurisdiction to set aside a judgment.
18. However, Ms Kruse also quite properly conceded that the only saving provision that may apply is rule 29 MC Rules which states as follows:
    • “29. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Magistrates' Courts Act 1969, or the Samoa Act 1921 (N.Z.) or these rules, the Court shall dispose of the case as nearly as may be practicable in accordance with the provisions of those Acts or these rules affecting any similar case or in accordance with the provisions of the Magistrates' 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.”
19. At the outset I must say I disagree with Ms Kruse’s lack of jurisdiction argument. I am of the firm view that court proceedings do not automatically become nugatory for lack of rules or statutory provisions.
20. The JD is a party to the originating claim in this proceeding. Equity and rules of natural justice requires that he be heard on his application. Akin to this is the right of any party served with court proceedings to a fair trial which is a constitutional right enshrined in Article 9 of our Constitution; the supreme law of the land.
21. As Justice Elias remarked in Attorney General v Mervyn Chapman^[1] the principles of natural justice “is something basic to our system: the importance of upholding it far transcends the significance of any particular case”.
22. In terms of jurisdiction, I bear in mind s.3 Judicature Act 1961 which provides that:
    • “[A]ll Courts in Samoa shall within the limits of their jurisdiction administer common law and equity concurrently, and in all cases in which there is any conflict between common law and equity with reference to the same matter the rules of equity shall prevail.”
23. The word all Courts include the District Court.
24. Article 74 Constitution establishes subordinate Courts such as the District Court with its jurisdiction and powers provided by 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.
25. The originating claim in the instant case is not at issue as it is within the civil jurisdiction of this Court. But it is the lack of specific provision in the DCA for setting aside of a judgment the JC takes issue with.
26. I am of the view that the District Court has inherent powers (as opposed to inherent jurisdiction which it does not have) to deal with this application to set aside judgment even in the absence of a specific rule or statutory provision. If it did not have such power it would not have been able to effectively administer the course of justice within its jurisdiction.
27. As was stated by Lord Denning in Bloomsbury and Marylebone County^[2] “every Court has inherent power to control its own procedure, even though there is nothing in the rules about it.”

28. Rosara Joseph developed an analysis of the Court’s inherent powers in her informative article Inherent Jurisdiction and Inherent Powers in New Zealand^[3] quoted with approval by the NZ High Court decision of Havenleigh Global Services Limited v Henderson^[4]

29. I venture to say that the inherent power is implied from this Court’s civil jurisdiction under ss.19 and 23 DCA which deals with this Court’s ancillary jurisdiction recited below:
    • “23. Ancillary civil jurisdiction - When exercising their civil jurisdiction, District Courts have authority to do any of the following:
    • (a) to grant such relief, redress, or remedy (or combination of remedies), either absolute or conditional;
    • (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
    • (c) to make any order or exercise any authority or jurisdiction which, if it related to an action or proceeding pending in the Supreme Court, might be made or exercised by the Supreme Court in Chambers.”
30. In Department of Social Welfare v Stuart^[5], Wylie firmed that:

“An ‘implied power’ arises by necessary implication as being ancillary to the performance of functions, power duties conferred by the statutes. The statutory function mion must exist for the necessary power to be implied.”

31. The Court’s ancillary powers and the need for them was recognised by Lord Morris in Connelly v Director of P Pric Prosecutions^[6], when his Lordship stated^:
    • “... There can be no d no doubt that a court which is endowed with a particular jurisdiction hasrs which are necessary to e to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction.”
32. In Taylor v Attorney General^[7] Richmond J defined the distinction between the 'primary' and ‘ancillary’ sense of the word 'jurisdiction'. Jurisdiction, in its primary sense, is 'the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision'. His Honour went on further to say:
    • “..when one speaks of the inherent jurisdiction of the Court to make orders of the Court now in question, the problem really becomes one of the powers ancillary to the exercise of the courts jurisdiction in the primary sense just described. Many such ancillary powers are conferred by statute or by rules of court. But in so far as they are not so conferred, then they can only exist because they are necessary to enable the Court’s to act effectively within its jurisdiction.”
33. As the NZ Court of Appeal said in AG v. Otahuhu District Court^[8]
    • “As a statutory court of limited jurisdiction the ict Court does not have an inherent jurisdiction to make any order necessary to enable it t 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.”
34. In Zaoui v Attorney-General^[9], the SupCourt explainelained that inherent powers enabled the court to give effect to its jurisdiction
35. As shown above the inherent rent powers of this Court are incidental oillary to its substantive jurisdiction. It is therefore the ancillary or inherenherent powers of this court which enables it as a court of justice to give effect to its jurisdiction. It is the same powers which enables it to regulate its procedure, protect its proceedings, grant remedies and redress and ensure a fair trial.
36. In the NZ Appeal case of Commissioner of Police v Ombudsman, ^[10] Cooke P explained that
    • “...inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact.” It was further observed that if the courts did not have such a power, then 'the Court would be obliged to sit still and see its own processes abused for the purpose of injustice.”
37. Similarly in Mihaka v Police,^[11] Hardie Boys J declared that the discretion of the Judge “...to regulate the proceedings of his or her Court is an 'essential attribute of judicial independence”.
38. I note that the repealed District Court Act 1969 at section 81 provided for setting aside judgment. But under the new DCA this provision is absent. Instead at s. 44 (g) DCA, dealing with other matters of civil proceedings, it states that regulations made under the DCA may make provision in relation to ... “the authority of the Court to set aside a judgment made by a Judge”.
39. There are no new rules or regulations made pursuant to the new DCA. Rule 29 MC Rules 1971 therefore still applies to this proceeding which 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 must necessarily include dealing with this application to set aside judgment by default.
40. At s. 45 (1) DCA it states that a judgment of a District Court is final and conclusive between the parties unless set aside in accordance with the law. The relevant law relating to setting aside judgment is dealt with next.

Law on Applications to Set Aside

41. The law relating to applications to set aside judgment is well established in Samoa. As affirmed by the Court of Appeal in Lauano v Samoa National Provident Fund.^[12] to succeed the applicant must establish the following:
    1. 1. A substantial ground of defence.
    2. 2. A reasonable justification for the delay.

100. 3. The Plaintiff/ JC will not suffer irreparable harm if the judgment is set aside.^[13]

42. I now turn to consider these below.

Discussion

Substantive Defence

43. The onus of establishing a substantial ground of defence is on the JD/defendant. As noted by Justice Nelson in his judgment in Lauano^[14] later approved by the Court of Appeal^[15]:
44. "The onus of establishing a substantial ground of defence is on the defendant. And the ground of defence must be substantial, not trivial shallow or in the language of Plaintiffs counsel "shadowy". The defendant must show a defence of sufficient substance to justify delaying the plaintiff in obtaining the fruits of the judgment: Sandall v Cardna (unreported) 18th May 1987 where Hardie Boys J in the Blenheim High Court put the question thus – "Does the defendant have a defence which ought to be heard?" Not every defence would satisfy such a test, each case must be assessed on its merits."
45. The JD’s letter sets out his defence being that the truck had faulty brakes and clutch as he was driving it from Tiavi. The road was busy at that time. He tried to apply the brakes and clutch even changed the gear but these were not functioning.
46. The JD also told the Court he had previously informed his boss that the clutch did not work properly. On the day in question, the truck was taken to the mechanic who changed the brakes and gave the okay for it to be on the road.
47. Being mindful of the right of the JC to test this under cross examination, Ms Kruse was asked if she wanted the JD on the stand. She informed she was happy to proceed as it was without testing this evidence which in my view is capable of proof if the matter proceeds to trial.
48. The police report though unsigned at this stage is also capable of proof. It says that when the truck was brought to the police station it was examined where it was found the brakes were faulty.
49. The JD is basically saying that he is not liable for the claim as it is not his fault. If it was due to his negligence he would accept liability. But he argues it was the faulty truck brakes and clutch which caused the accident not his driving. Although, he said these were functional earlier in the morning, he started having problems as he was heading from the Tiavi way.
50. The JD further argues that the JC is claiming from him a debt owing to the third party, Valima Breweries and the JC for damage to their respective vehicles from the collision. In his view he fails to see why he should pay for an accident that was the JC’s fault being the owner of the truck.
51. The JC argues the defence is unsubstantiated and the police report was written on the same date as the JD’s letter and therefore lack credibility.
52. In my view the JD does have a substantial defence that he ought to be heard on which justifies the delay in the Plaintiff obtaining the fruits of the judgment. The first limb is therefore met.

Delay in bringing proceedings

53. Under Rules 140 & 141 Supreme Court Civil Rules 1980 (“The SC Rules”) it governs applications to set aside and for a rehearing in that Court. It also provides that an application of this nature must be filed within 14 days after the judgment unless the Court is satisfied that the application could not reasonably be made sooner.
54. I am of the view that in the absence of any specific rules as to the time frame to bring an application to set aside in the DC, I see no reason why this court cannot rely on the time frame in R.141.
55. But even if R.141 SC Rules does not apply, this Court pursuant to its ancillary powers does have jurisdiction and discretion to grant an extension of time to the JD to file his application.
56. I also bear in mind s.47 (1) Act Interpretations Act 2015 where it states that where a time is not specified for something to be done, then it must be done as soon as possible or practicable. The words ‘as soon as possible” and ‘practicable’ in my view is a matter of common sense and dependent on the circumstances of each case and nature of the something that must be done.
57. For completion section 47 is recited below:
    • “47. Time not specified - (1) If sometmung must or may be done and no time is provided for doing the thing, the thing must or may be done as soon as possible or practicable and as often as needed.
      (2) If something is required to be done, the obligation to do the thing continues until the thing is done even if:
    • the thing is required to be done within a particular period or before a particular time, and the period has ended or the time has passed;”
58. According to the JD, the first time he became aware of judgment being ordered against him was when he was served with the JS. On the first occasion when the “saiga” turned up he was busy with his job. He said he told the saiga when he approached him to sign the documents that he was busy with his job but if he could wait so he could read the document he had with him before signing.
59. After the JD attended to duties, he returned to where the “saiga” was but he had left. He said he did not read the document and a copy was not left for him. So he was therefore unaware of the contents of the document.
60. The JD said he was surprised when served with the JS on 14/02/17 (approximately 14 days after judgment) and noted judgment had already been issued against him. He went to the Court registry for assistance and was advised to attend court on 14/03/17 to inform the court he denied the claim.
61. On 14/03/17, at the first mention of the JS, the JD appeared to inform the Court he denied the claim and judgment. He was then given the opportunity to file an application to set aside. The JD filed with the Court his letter dated 27/03/17 setting out his defence.
62. From the date of judgment to the date of service of the JS it is an interval of 14 days. From the date of judgment to the first mention of the JS it is approximately 42 days and a total of 55 days to the date of the JD’s letter of 27/03/17 which I assume is the date it was filed. Going by R.141 SC Rules, it is out of time.
63. But as I said in paragraph 54 above, the Court pursuant to its ancillary powers and discretion can grant an extension of time. It did so when it allowed the JD who was unrepresented by counsel at the mention of the matter on 14/03/17 to file his application to set aside by 4/04/17.
64. The JD is not a lawyer and unaware of the procedural rules. When served with the JS, he came to the Court registry for assistance and was informed to turn up to Court on 14/03.17. The JC however argues that the JD being unrepresented by a lawyer and his unawareness of civil procedures is not a valid justification for granting a set aside of judgment.
65. In my view there is a reasonable explanation as to the delay in filing the application to set aside. Pursuant to s.47 Acts Interpretation Act 2015, the JD filed the application as soon as possible and when practicable. In any event he was granted time to file his application to set aside.
66. The JD has therefore met the second limb of the test.

Irreparable damage to the JC if judgment is set aside

67. It appears the JC did not touch much on this ground in its submission.
68. At paragraph 4.5 of its submission, it is conceded that whilst the JC does not say that it will suffer irreparable harm, there is a serious element of prejudice caused by the delay in the JC enjoying the fruits of the judgment
69. In my respectful view, the JC will not suffer irreparable harm and there is no prejudice. Even if there is harm it can be cured with an award of costs.
70. I am also of the view there will be a miscarriage of justice if the judgment by default is allowed to stand.
71. The JD has accordingly met the third limb of the test.

Other concerns

72. The Claim as noted earlier is brief and does not sufficiently particularize the cause of action and pleadings of facts. This must be cured if the JC intends to proceed with its claim.

Conclusion

73. Having considered the above, it is in the overall justice of the matter that the judgment by default granted by Judge Roma on 31/07/17 be set aside.
74. Costs is reserved on this application.
75. Should the JC wish to proceed with its claim further then a fully particularized amended Statement of Claim must be filed and served on the JD.
    

JUDGE ALALATOA R VIANE PAPALII

---

^[1] [2011] NZSC 110
^[2] [1976] 1 WLR 362 at 365
^[3] Rosara Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” (2005) 11 Canta LR

^[4] [2015] NZHC 1762 (29 July 2015)
^[5] Department of Social Welfare v Stuart [1990] 1 NZLR 697 (HC) at 703.
^[6] Connelly v Director of Public Prosecutions [1964] AC 1254 (UKHL) at 1301.

[7] Taylor v Attorney General [1975] 2 NZLR 675, 681-682.

^[8] [2001] NZCA 187; [2001] 3 NZLR 740 at 746
^[9] _{Zaoui v Attorney-General} [2004] NZCA 228_{; [2005] 1 NZLR 577 (CA), [2005] 1 NZLR 666 (SC) 60;}[35]_..

^[10]Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 399 (CA). Also see supra here Woodhouse J desc described the 'inherent jurisdiction' (which should be read as ' inherent s ') of a coua court ang procedural, rather than substantive, in nature [1988] NZCA 211; [1988] 1 NZLR 385, 399 (CA).
^{[11][1981] 1 NZLR 54, 58.
[12] Lauano v Samoa National Provident Fund [2009] WSCA 3; CA11 of 2008 (1 May 2009)
[13] Also See Russell v Cox [1983] NZLR 654 and Equitcorp v Finance Group Limited v Cheah [1988] NZCA 273; [1989] 3 NZLR 1.}

^[14] [2008] WSSC 70
^[15] Supra n 11 at 2.