Otemai v Airport Authority [2002] WSSC 25 (30 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LIU OTEMAI

Plaintiff
AND:

AIRPORT AUTHORITY

Defendant

Counsel: Mr TK Enari for the plaintiff
Mr R Schuster for the Defendant

Sentence: 30 August 2002

JUDGMENT OF JUSTICE COOPER

This is an application to bring proceedings out of time. The claim is for unfair dismissal. It has agreed that the cause of action arose on the 5^th June 1996, being the date that the proposed plaintiff was dismissed from his employment with the Airport Authority.

There are two proposed defendants. In respect of the second defendant, no claim has been filed within the six years limitation period and the action against him as statute barred now in any event. In relation to the proposed first defendant, the Airport Authority - claims against that body are covered by section 21 of the Limitation Act 1975. Section 21 1(a) and (b) of that Act reads as follows:-

"No action shall be brought against any person (including the 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 solicitor or agent (if any) in the manner is given by the prospective plaintiff to 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."

Notice by the intended plaintiff was not given as required by section 21 1(a) and proceedings were not commenced as required by section 21 1(b). That is not the end of the matter, however because relief is provided to a proposed plaintiff by virtue of section 21 (2) of the Limitation Act 1975 which reads:

"Notwithstanding the foregoing provisions of the section, 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 whether it considers that the failure to give the notice or the delay in bringing the action, 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."

The present application for leave to bring the proceedings out of time was filed in February 2001, which was within the six years from the date the course of action accrued. I refer. I refer to the judgment of J Bisson in Farani Posala v Attorney General, SC Samoa, Misc. 23121 15/04/1998. The learned judge in that case referred to the authority of the Auckland Harbour Board v Kalhe 1962 NZLR. 68. The passage from the judgment reads as follows:-

"When a question arises as to whether a notice has been given as required by s 23 of the Limitation Act 1950, the principal matters of substance (as opposed to questions of procedure) that fall to be considered are: - (1) Was a notice given as soon as practicable? (2) If not, should the failure to give notice be excused by reason of mistake or other reasonable course, or, alternatively, was the defendant materially prejudiced by the failure? (3) If there be a reasonable cause for the failure or no material prejudiced to the defendant, is it just for the court to excuse the failure?"

In the present case, no notice was given in terms of 21(1)(a). The proceedings were not filed as required by section 21(1)(b). There is no reasonable cause for the failure on the proposed plaintiff’s part to abide by those provisions, but the two central issues in this are whether the proposed defendant has been prejudiced by the delay and is it just for the court to excuse the proposed plaintiff’s failure?

As to the issue of whether the defendant has been prejudiced, first of all the defendant would have been aware of the circumstances of the plaintiff’s claim from the outset. This is because of the complaint made to the Ombudsman on the 17^th September 1996. This was investigated and a report prepared dated the 30^th September 1996. By consent of counsel I have sent that report.

I make no comment on the merits discussed in that report but I do note that extensive submissions were made to the Ombudsman by the proposed defendant. Therefore the matter was investigated by the proposed defendant at an early stage. Then later in 2000, there was some seemingly rather casual attempt to settle the matter. Witnesses are no longer employed by the airport Authority but they are still resident in Samoa and therefore, readily available to give evidence.

In any case, there will be some prejudice arising to the parties because of delay because of the dimming memories. This is particularly so in a case depending of recollections of incidents on specific dates at specific places compared for e.g. to claim based primarily on documentary evidence. But as Mr Enari submits, this is the position in any claim and had the proposed defendant been a private individual compared to the statute authority the claim could have been made within six years without objection. No particular prejudice has been alleged by the proposed defendant.

I conclude, therefore that such prejudice as exists is not materially prejudice and the issue then becomes whether in the interest of justice, the proposed plaintiff should be debarred from bringing his claim. I have come to the conclusion that the claim can go forward but on certain strict conditions. Leave is granted to the proposed plaintiff to bring his claim out of time subject to -

1) The proposed plaintiff paying costs to the proposed defendant on the application for leave to being the proceedings out of time in the sum which I fix at $500.00, this sum to be paid by 4pm on the 13^th of September 2002.

2) The proposed plaintiff is to file and serve his substantive proceedings by 4pm on the 13^th September 2002.

3) Failure by the proposed plaintiff to abide by these conditions will result in him being barred from taking any further step in the proceedings and the proceedings will be struck out.

JUSTICE COOPER