Paina v Public Trustee [1999] WSSC 52 (15 January 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TAIENE PAINA
of Eva, Matai as the Administrator
of the estate of TaienePouono Paina, deceased
Plaintiff

AND:

PUBLIC TRUSTEE
as the Administrator of the
estate of Patu Tauvela Paniani Hunter, deceased:
Defendant

Counsel: R Drake for plaintiff
P Tanielu for defendant

Hearing: 11 November, 17 & 21 December 1998
Judgment: 15 January 1999

JUDGMENT OF SAPOLU, CJ

The plaintiff is a grandson of one Taiene Pouono Paina (Taiene) of Eva, deceased, and is also the administrator of his grandfather's estate. The defendant is the Public Trustee who is being sued as the administrator of the estate of one Patu Tauvela Paniani Hunter (Hunter).

These proceedings are concerned with a motion by present counsel for the Public Trustee to strike out the plaintiff's second amended statement of claim. Previous counsel for the Public Trustee had also brought a motion to strike out the plaintiff's first amended statement of claim on the ground that it disclosed no cause of action. The outcome of the first motion for the Public Trustee to strike out the plaintiff's first amended statement of claim is the second amended statement of claim to which the present strike out motion is directed. The grounds of the present motion are twofold, namely, that:

(a) the Attorney-General should have been cited as defendant in the second amended statement of claim as she is the proper defendant to be sued in terms of section 9 of the Government Proceedings Act 1974;

(b) as the Attorney-General is the proper defendant to be cited, the plaintiffs action is barred by section 21 of the Limitation Act 1975 in that no notice in terms of that provision has been given to the Attorney-General prior to the action being filed.

I will now refer to the facts which are alleged and pleaded in the second amended statement of claim. Taiene was a pastor at the village of Eva in the district of Anoamaa. Hunter was a surveyor. They became friends when Hunter used to stop for a rest at Taiene's place during the times he went out t do survey field work. In 1940 during one of his stops at Taiene's place, Hunter agreed to find a piece of freehold land near Apia for Taiene to buy for the use of Taiene's family at times they came to Apia. Hunter located a piece of freehold land of about 3a.0r.10p at Tanumaleko, Vailima, with a price of 100 pounds which Taiene agreed to buy. The land was at the time part of the estate of one Trood which was administered by the Public Trustee.

From December 1940, Taiene started making instalment payments to Hunter for onward payment to the Public Trustee for the price of the land. The purchase price of the land including survey fees was paid in full by Taiene to Hunter in April 1945. In 1946 Taiene's children, acting on the belief that their father was the owner of the land, moved onto the land and they have been occupying the land up to now. After the purchase price was paid off in 1945 until he died in 1964, Taiene made many requests to Hunter for a deed of conveyance of the land, however, no such deed was ever provided. Unknown to Taiene the land had been registered by Hunter under his name on 3 September 1945. Hunter died in 1971 and the plaintiff says that it was only recently that it was discovered that the land had been registered under Hunter's name in 1945. It was also only recently that the plaintiff discovered that Hunter had mortgaged the land to the Public Trustee in 1969.

The plaintiff's causes of action are twofold. The first is for breach of an implied trust alleged to have existed between Taiene and Hunter. The second cause of action seems to be based on constructive trust and seeks a declaration that the Public Trustee as the administrator of Hunter's estate holds the land in question as constructive trustee for the plaintiff as the administrator of Taiene's estate. Orders are also being sought against the Public Trustee to payoff and discharge Hunter's mortgage on the land and to transfer the title to the land to the plaintiff as the administrator of Taiene's estate.

I turn now to the first ground of the motion to strike out, namely, that the Attorney General should have been cited as defendant in the statement of claim as she is the proper defendant in these proceedings in terms of section 9 of the Government Proceedings Act 1974. The relevant provisions of section 9 are subsections (1), (2) and (3). They provide:

"(1) Subject to the provisions of this Act and any other Act, civil proceedings under this Act shall be instituted by and against the Attorney-General.

(2) The Government may be joined as a plaintiff to any civil proceedings to which it could be a plaintiff under this Act by joining the Attorney-General as a plaintiff.

(3) The Government may be joined as a defendant or third party to any civil proceedings to which it could be a defendant under this Act by joining the Attorney-General as a defendant or third party".

It is clear from sections 9(1), (2) and (3) that the words "civil proceedings under this Act" appear in all three subsections. Counsel for the plaintiff submitted that "civil proceedings under this Act" relate back to civil proceedings provided in section 3 of the Act. Section 3(2), which is the relevant provision, provides that "subject to the provisions of this Act and any other Act" any person may enforce by civil proceedings taken against the Government in accordance with the Act any claim against the Government in respect of specified causes of action.

I am of the view that the answer to the first ground of the motion to strike out is to be found in the provisions of the Public Trust Office Act 1975. Section 3 of that Act establishes the Public Trust Office. Section 4(1) then provides for the appointment by the Public Service Commission of a Public Trustee to administer the Public Trust Office and section 4(2) constitutes the Public Trustee as a corporation sole with perpetual succession and a seal of office. Section 87 which provides for the special powers which may be exercised by the Public Trustee then provides in paragraph (f):

"Where the Public Trustee is executor, administrator, trustee, guardian or otherwise authorised to act in the administration of an estate, then unless a contrary intention is expressed in this Act or any relevant instrument, the Public Trustee may at his discretion, but without restricting any other powers, exercise the following powers:

(f) bring or defend any action, suit or other proceeding, and suffer judgment to go by default or consent to any judgment, decree or order in the action, suit or proceeding upon such terms and conditions as the Public Trustee thinks fit".

The expression "instrument" used in section 87 is defined in section 2 of the Act to include an Act of Parliament.

Section 87(f) is clear that where the Public Trustee is the administrator of an estate or authorised to act in the administration of an estate, then unless a contrary intention appears elsewhere in the Public Trust Office Act 1975 or any other Act, the Public Trustee has the power to do the following:

(a) bring or defend any action, suit or other proceedings;

(b) suffer judgment to go by default; or

(c) consent to any judgment, decree or order in the action, suit or proceeding upon such terms and conditions as he thinks fit.

I have looked at the other provisions of the Public Trust Office Act 1975 for a 'contrary intention' to section 87(f) and there is none. I have also looked at the provisions of the Government Proceedings Act 1974 including section 9 and there is no 'contrary intention' to the specific provisions of section 87(f) expressed in that Act. As section 87(f) of the Public Trust Office Act 1975 gives express and special powers to the Public Trustee in his capacity as the administrator of an estate to do certain things, and there is no 'contrary intention' expressed in any other provision of that Act or in any other Act. I am therefore of the clear view that the Public Trustee being the administrator of Hunter's estate, he, himself, has the power to defend the plaintiff’s action. That means the plaintiff can sue him direct as Public Trustee without having to cite the Attorney-General as defendant. I am reinforced in this view by section 126 of the Public Trust Office Act 1975 which deals with the relationship between that Act and other Acts and instruments. Section 126(3), in particular, concludes with these words:

"the express provisions of this Act shall not be restricted by any other Act or law".

Now section 9 of the Government Proceedings Act 1974 deals with the method of making the Government a party to civil proceedings under that Act which is by suing the Attorney-General as defendant or third party, or the Attorney-General suing as plaintiff on behalf of the Government. It does not deal with any special powers of the Public Trustee which is the subject matter that is expressly and specifically dealt with by section 87 of the Public Trust Office Act 1975. I am, therefore, of the view that the provisions of section 9 of the Government Proceedings Act 1974 which deal with a different subject matter cannot, as they presently appear, be held to express a 'contrary intention' to the express and specific provisions of section 87 which give special powers to the Public Trustee. Section 9 of the 1974 Act and section 87(f) of the 1975 Act can exist independently of one another. The same can be said in respect of section 3 of the Government Proceedings Act 1974 which deals with claims enforceable by or against the Government under that Act and not with any special powers of the Public Trustee acting as the administrator of an estate.

Counsel for the plaintiff in her written submissions also emphasised that the opening words of section 9(1) of the 1974 Act are "subject to the provisions of this Act or any other Act". The phrase 'subject to the provisions of this Act' or 'subject to the provisions of any other Act' is a standard device used by a draftsman of legislation to indicate which provision is to prevail where there is a conflict between provisions of the same Act or which provision is to prevail in a conflict between provisions of separate Acts. It does not, however, indicate whether there is in fact a conflict. A conflict is to be ascertained from construing the statutory provisions and the legislation or legislations under consideration. As Cooke J pointed out in the New Zealand Court of Appeal in the case of Harding v Coburn [1976] 2 NZLR 577 at 582:

"The qualification 'subject to' is a standard way of making clear which provision is to govern in the event of a conflict. It throws no light, however, on whether there would in truth be a conflict without it. As was said by Megarry J in C & J Clark Ltd v Inland Revenue Commissioner [1973] 1 WLR 906; [1973] 2 All ER 513, 520,

'where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail' ".

In a decision of our own Court of Appeal in Attorney-General v Saipaia Olomalu (1980-1993) WSLR 41 where the Court dealt with the phrase 'subject to' in relation to certain provisions of the Constitution, Cooke P stated at p.61

"The qualification' subject to' is a standard way of making clear which provision is to govern in the event of a conflict. It throws no light, however, on whether there would in truth be a conflict without it: see Harding v Coburn [1976] 2 NZLR 577,582, citing C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All ER 513. The conclusion in Harding v Coburn was approved by the Privy Council in Ross v Anderson [1979] AC 196, 209".

In the present case, I do not find any conflict between section 9 of the Government Proceedings Act 1974 which deals with the method of making the Government a party to civil proceedings under that Act and section 87 of the Public Trust Office Act 1975 which expressly provides for the special powers of the Public Trustee. The two provisions can exist independently of one another. The same point can be made in relation to section 3 of the Government Proceedings Act 1974 which also uses the phrase 'subject to the provisions of this Act and any other Act'. In essence all this means that the special power of the Public Trustee as the administrator of an estate under section 87(f) of the 1975 Act to bring or defend an action, suit or other proceeding remains, and therefore the plaintiff can sue him direct as a defendant as it has been done in this case.

Now counsel for the plaintiff in her written submissions dealt extensively with sections 2, 9 and 14 of the Government Proceedings Act 1974 in order to demonstrate that the Attorney-General is not the proper defendant to be cited in these proceedings. In view of the conclusion I have already reached which is in favour of the plaintiff, it is not strictly necessary for me to deal with those submissions. However, because those submissions raise issues of importance in relation to sections 2, 9 and 14 of the Government Proceedings Act 1974, I have decided to deal with them.

In essence counsel for the plaintiff submitted that section 2(2) of the Government Proceedings Act 1974 refers to section 14 of that Act, but when the two provisions are read and considered together they do not make any sense and lead to absurdity. Counsel then said that looking at the provisions of section 9 and the history of the Government Proceedings Act 1974, the legislature must have intended the reference in section 2(2) to section 14 to mean section 9. However, when section 2(2) and section 9 are considered together they also do not make any sense. Counsel therefore further submitted that the expressions 'Government Department' or 'Department' used in section 2(2) of the Act are redundant.

Now section 2(2) provides:

"Any reference in this Act to Government, in relation to any civil proceedings, or in relation to any order or judgment debt or costs in connection with any civil proceedings shall be construed as including a reference to the Attorney-General or any Government Department or officer of the Government where the Attorney-General, Department or officer is a party or third party to the proceedings in accordance with section 14 of this Act".

For clarity, the material words of section 2(2) for the purpose of present proceedings are the words:

"Any reference in this Act to the Government, in relation to any civil proceedings, shall be construed as including a reference to any Government Department where a Department is a party or third party to the proceedings in accordance with section 14 of this Act".

The expressions 'Government Department' or 'Department' are defined in section 2(1) to mean the Public Trustee and every other Department or instrument of the Executive Government of Samoa. It follows that the expressions 'Government Department' or 'Department' as they are used in section 2(2) must include the Public Trustee.

The first difficulty as submitted by counsel for the plaintiff is that while section 2(2) speaks of proceedings to which a government department is a party or third party in accordance with section 14, section 14 deals only with interest on a judgment debt due from and to the Government and interest on costs awarded to or against the Government. It does not deal at all with any proceedings to which a government department is a party or third party. The two provisions, sections 2(2) and 14, when read together are absurd and do not make sense, and it was therefore further submitted that the reference in section 2(2) to 'section 14' is a drafting error.

Counsel then referred to the relevant provisions of the New Zealand Crown Proceedings Act 1950 which is the predecessor of our Government Proceedings Act 1974 and submitted that the legislature must have intended the reference to section 14 in section 2(2) of our Act to mean section 9. I accept that the history of a legislation and the provisions of a prior legislation on the same subject matter can be a useful aid to the interpretation or construction of an existing legislation in order to ascertain the intention of a provision of the existing legislation.

The New Zealand Crown Proceedings Act 1950 used to apply to Samoa until its application was repealed by section 25 of our Government Proceedings Act 1974 when it came into force. Our Act is also based on the New Zealand legislation. Section 2(1) of the New Zealand legislation defines the expressions 'Government Department' or 'Department' in the same terms as those expressions are defined in section 2(1) of our legislation except that the New Zealand legislation uses the term 'New Zealand' and contains a reference to 'the Maori Trustee' whereas our legislation uses the term 'Samoa' and does not contain a reference to the Maori Trustee.

Section 2(2) of the New Zealand legislation is also identical in terms to section 2(2) of our legislation except that the New Zealand provision uses the term 'Crown' whereas our provision uses the term 'Government'. Both provisions also provide that a reference to the Crown (Government) in relation to any civil proceedings must include a reference to a government department where a government department is a party or third party to proceedings in accordance with section 14. This is where the problem arises. While section 14 of the New Zealand provision contains express provision as to civil proceedings in which a government department is a party or third party, section 14 of our legislation deals with interest on a judgment debt due from or to the Government and interest on costs awarded to or against the Government which are very different subject -matters.

The only provision in our legislation which comes anywhere close to section 14 of the New Zealand legislation is section 9. But the problem, as counsel for the plaintiff also recognised, is that section 9 contains no mention at all of any civil proceedings to which a government department is a party or third party. So even if the expression 'section 14' in section 2(2) of our legislation is replaced with 'section 9', the two provisions, sections 2(2) and 9, would still not make sense when read together.

I accept that the wording or language, but not the underlying policy, of a legislative provision can be modified in order to correct an error that is apparent from the wording of a provision. This can be achieved by the application of the golden rule of statutory interpretation. As Lord Wensleydale stated in Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106:

"I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further".

I would have applied the golden rule to modify the wording of section 2(2) of the Government Proceedings Act 1974 by replacing '14' with '9' in order to remove the absurdity already referred to in this judgment. The difficulty is; if I do that, it will only lead to further absurdity. The reason, as already pointed out, is that section 2(2), if it is made to refer to section 9 would still make no sense if the two provisions are read together.

I have therefore refrained from applying the golden rule to the present problem.

I have also considered the mischief rule as stated in Heydon's case [1584] EngR 9; (1584) 3 Co Rep 7(a) at 7(b), now sometimes called the old 'purposive' approach, as well as the modern 'purposive' approach to the interpretation and construction of legislations as stated by Dawson J in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 215 and McHugh JA in Bermingham Services Commission of NSW (1988) 15 NSWLR 292 and they do not assist me in resolving the present problem.

The difficult question now is what should be done. I refrain from reading the provisions of section 14 of the New Zealand legislation which are quite lengthy into section 9 of our legislation in order to arrive at some sense. Counsel for the plaintiff’s proposed solution is to regard the expression 'Government Department' in section 2(2) of our Act as redundant. But I am very doubtful whether that would achieve the desired purpose unless more words in section 2(2) are also to be considered redundant and more words are to be read into section 9. In any event, the Courts for a long time have, as a matter of principle, held themselves not to be at liberty to treat any word of a statute to be superfluous, redundant or meaningless. Every word of a statute must prima facie be given some meaning and effect.

In these circumstances where no useful assistance can be gained from the other rules of statutory interpretation, the safe thing to do, in my view, is to follow the literal rule. As Kirby P put it in Avel Pty Ltd v Attorney-General for New South Wales (1987) 11 NSWLR 126 at 127 in relation to the Gaming and Betting Act 1913 (NSW):

"The legislation relevant to the present appeal... is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread running through it all, it would seem to be nothing more than revenue-raising.

This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A purposive approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes".

The outcome of all this is that the present provisions of sections 2(2) and 9 of the Government Proceedings Act 1974 cannot sustain an argument that the proper defendant to be cited where proceedings are taken against the Public Trustee as the administrator of an estate is the Attorney-General rather than the Public Trustee himself.

In view of the conclusion I have reached, it is not necessary for me to go further to consider the submissions for the plaintiff which are said to be based on issue estoppel or abuse of process. No discourtesy is thereby intended to those submissions. But from the cases cited by counsel for the plaintiff and other cases I have considered, it is clear to me that issue estoppel and the doctrine enunciated by Wigram V-C in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 114 upon which counsel for the plaintiff placed special emphasis are still in a sate of development. In fact the scope of the doctrine in Henderson v Henderson is yet to be clarified by the English Courts. The Court also did not have the benefit of submissions from counsel for the defendant on those issues. I have therefore decided to leave those issues for consideration in another case as a decision on them will not now be necessary to the outcome of these proceedings.

I turn now to the second ground of the strike out motion, namely, as the Attorney-General is the proper defendant to be cited, the plaintiffs action is barred by section 21 of the Limitation Act 1975 in that no notice in terms of that provision has been given to the Attorney-General prior to the action being filed.

Section 21 (1), as relevant, provides:

"21. Protection of person acting in execution of statutory or other public duty - (1) No action shall be brought against any person (including the Government) for any act done in pursuance of 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 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."

Section 21(3) then provides:

"21. (3) Where notice has to be given to the Government under this section it shall be given to the Attorney-General, and may be so given by leaving it at his office in Apia or by sending it by post in a registered letter addressed to him at his said office".

As I am of the view that this is not an action against the Government as such or against the Government in terms of sections 2(2), (3) and 9 of the Government Proceedings Act 1974, there is no requirement for the plaintiff to give notice to the Attorney-General in terms of sections 21(1) and 21(3) of the Limitation Act 1975.

Counsel for the plaintiff emphasised the opening words of section 21(1) and submitted that unless an action falls within the categories of actions provided in section 21(1), that provision does not apply. She then submitted that even though the Public Trustee is a 'person', within the meaning of section 21 (1), this action by the plaintiff is not brought against the Public Trustee:

(a) for any act done in pursuance or execution or intended execution of any any Act of Parliament;

(b) for any act done in pursuance or execution or intended execution of any public duty or authority, or

(c) in respect of any neglect or default in the execution of any such Act, duty or authority.

The first category, which seems to be the one emphasised by counsel, causes me real difficulty. The pleadings in the statement of claim show that Hunter mortgaged the land in question to the Public Trustee in 1969. The relevant legislation that applied at that time in Samoa was the New Zealand Public Trust Office Act 1957. The act that was done by the Public Trustee in 1969 was that of entering into a mortgage with Hunter over the land in question as security. In order to determine whether the Public Trustee's act of entering into that mortgage in 1969 was an act done in pursuance or execution of an Act of Parliament, I am of the view that one must refer to the New Zealand Public Trust Office Act 1957 for that was the Act that applied at the time the mortgage was concluded. However no copy of the New Zealand Act was given to the Court and I have not been able to find a copy of that Act myself. The other reason why I have referred to the New Zealand Act is that our own Public Trust Office Act 1975, which replaced the New Zealand Act, is based on the New Zealand Act. And our Act contains provisions which empower the Public Trustee in certain circumstances to enter into a mortgage. That provides a reasonable ground to suspect that the New Zealand Act must contain similar provisions. Perhaps some assistance may also be gained by referring to the mortgage document itself to see whether it shows the source of the Public Trustee's power to enter into that mortgage.

Even if it is found that the Public Trustee when he entered into the mortgage in 1969 did so in pursuance or execution of an Act of Parliament or some other authority and section 21 of the Limitation Act 1974 therefore applies to him as a 'person', I am still not clear whether notice was in fact given by the plaintiff to the Public Trustee in terms of section 21(1)(a).

Given these uncertainties and the conclusion I have reached that the Attorney-General is not the proper defendant to be cited, I am not prepared to grant the motion to strike out the second amended statement of claim on the second ground of the motion. The Public Trustee who moved the motion to strike out has not demonstrated that this is a plain and obvious case to be struck out on the second ground. As a matter of principle, the jurisdiction to strike out must be exercised sparingly.

As section 21 is the only provision of the Limitation Act 1974 that was raised in support of the motion to strike out, I have confined myself to that provision.

In view of the conclusion I have reached, it is not necessary to consider the other submissions by counsel for the plaintiff related to the second ground.

Accordingly, the motion to strike out is dismissed.

The question of costs is reserved.

CHIEF JUSTICE

Solicitors:
Drake & Co., Apia, for plaintiff
Attorney-General's Office, Apia, for defendant