Tuia v Public Trustee [2002] WSSC 18 (19 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEALA VAA TUIA,

retired person of Vaitele, Penati Tuia, Education Administrator of Vaeloto,
and KALITE TUIA,

house-person of Vailoa.
First Plaintiffs

MAFUTAGA SALESA TUIA,

house person of Vailoa, Faleata, and

SYDNEY LAIKUM

retired person of Vailoa, and

MUAVA’A ATI MISA SOO TUIA,

Businessperson of Honolulu
Second Plaintiffs
AND

PUBLIC TRUSTEE,

officer of the Public Trust, a Government Authority
established under the Public Trust Office Act 1975
First Defendant

REVEREND OKIRISI TUIA

as administrator of the estate of the late Reverend Sione Isaako Tuia
Second Defendant
AND

THE ESTATE OF THE LATE ELIA I’AMALEAVA,

Administrator of the estate of the late Falute I’a nee Va’a Tuia
Third Defendant
AND

STEVENSON, NELSON & MITCHELL,

Barristers and Solicitors of Apia
Fourth Defendant
AND

ULIANA LUALIMA,

housewife of Vailoa, Faleata
Fifth Defendant

Counsel: Ms O Woodroofe for Plaintiffs
Mr Hoglund for 1st Defendant
Mr A Roma for 2nd Defendant
Mr H Schuster for 3rd Defendant
Ms S. Hazelman for 4th Defendant
Mr TK Enari for 5th Defendant

Hearing: 19 August 2002

MINUTE OF JUSTICE COOPER

I have today been considering an application by the defendants for an order that the plaintiffs provide security for costs in this case. After some considerable time spent in argument, it has become apparent that there is really inadequate material on the file for the court to make a proper assessment in respect of the applications made by the defendants.

This is in two particular respects. First – only two defendants have filed statements of defence and, secondly – there is inadequate evidence before the court as to the financial position of those plaintiffs said to be resident outside the jurisdiction.

It appears from the argument advanced today that there are three plaintiffs who reside outside of Samoa, Leala Vaa Tuia, Penati Tuia, and Muava’a Ati Misa Soo Tuia. Counsel for the plaintiffs sought to persuade the court that construed in a modern context, these three plaintiffs could not be said to be ordinarily residing outside Samoa. That is an argument, which finds little favour with me but that is not one that I need to conclusively rule on today because of the necessity to adjourn these proceedings.

Counsel for the defendants object to the proceedings being adjourned stating that the plaintiffs have had adequate opportunity to provide the court with the relevant information concerning the financial circumstances of the plaintiffs.

In response to that, let me refer firstly to the judgment of Hammond J in Hamilton v Papakura District Council [Security for Costs] [1997] NZHC 1109; (1997) 11 PRNZ 333. That authority of course, is not binding on this court, it is persuasive authority only. The learned judge there in dealing with Rule 60 of the New Zealand rules which has a parallel in Rule 30 in the Samoan Rule said –

"The words of the rule necessarily raise a threshold test; but I respectfully agree with those authorities which hold that what is required is a broad overall assessment under that head. Further in my view, that exercise is not one to be conducted in a vacuum: the court has to have regard to the real situation of the parties, the nature of the proceeding and to cast a realistic eye over the course which the proceeding has and will likely take."

In the case of Lunn v Fourth Estate Holdings Ltd (1997) 11 PRNZ 316 – Master Faire said–

"the discretion is not to be put into a straightjacket by considerations of burden of proof."

I refer to the commentary to Rule 60 in the McGechan on Procedure where the learned author says under the heading – "Non-disclosure of financial circumstances."

"Non-disclosure by a Plaintiff of its financial circumstances may give rise to an adverse inference as to its ability to meet costs if unsuccessful, but not necessarily or invariably so. Whether such adverse inference should be drawn is a question to be determined having regard to the character of the litigation and the evidence before the Court. There must be some evidential foundation for the allegation before a Court will draw an adverse inference from the absence of evidence from a plaintiff. Accordingly, it is always prudent for a defendant to advance all available evidence as to the plaintiff’s inability to pay costs if unsuccessful: Arklow Investments Ltd v MacLean (1994) 8 PRNZ 188 and Nikau Holdings Ltd v BNZ (1992) 5 PRNZ 430 and the Annual Report of judgment of Edwards v Harlick 2/6/98, Porter J, HC Auckland M229/98."

(My emphasis)

So I mention that to indicate that it is not simply a matter where there is an onus on a plaintiff alone to provide at this sort of financial material although obviously a plaintiff is in a better position to provide the information required than the defendant. There is no information really from either the plaintiff or the defendant to assist the court in this area and there should be.

The next point I make is that, its clear that in the exercise of its discretion the Court is required to assess the merits of the case. I have been advised by counsel that in Samoa applications for security for costs are invariably made before a statement of defence is filed.

An application for security of costs of course can be made at any time preferably the earlier the better. I do not want to cut across what may be the practice in Samoa but I simply observe that in a case which is as multi-faceted as the present one appears to be, statements of defence would be of assistance to the court in undertaking that analysis of the merits of the case.

Statements of defence have been filed by two defendants only. In the case of the 5^th defendant, one can readily understand why no statement of defence has been filed because the statement of claim in respect of the 5^th defendant is outrageously inadequate. Apart from a reference to the 5^th defendant in a cover sheet of the pleadings, there is no reference to the 5^th defendant whatsoever in the pleadings himself, nor is the 5^th defendant included in any cause of action or in any prayer for relief. So the 5^th defendant certainly can be excused for not filing a statement of defence when she has nothing to plea to. But be that as it may, a proper assessment of this application for security of costs in the context of the present case cannot be made in my view in the absence of statements of defence where appropriate and in the absence of full details of the financial circumstances of those three plaintiffs who appear to be ordinarily resident outside the jurisdiction.

For these reasons, I have to come the conclusion of the application has to be adjourned. I do so reluctantly because a good deal of the court’s time is being taken up today and a lot of the argument today will necessarily have to be repeated before another judge.

Accordingly this application is adjourned for a new date to be fixed, that will be adjourned to the mention on the 9^th of September. Except for the 5^th defendant, those defendants who have not yet filed statements of defence are to file their statements of defence, and the three plaintiffs who appeared to be resident overseas and Hawaii, American Samoa and New Zealand are to file affidavits setting out in detail their financial circumstances with particular reference to their assets and liabilities in Samoa which may be available to meet any award of costs should the plaintiffs be unsuccessful in their claim.

JUSTICE COOPER