Siliato v Board of Trustees of the Methodist Church of Samoa [2003] WSSC 21 (20 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SARASOPA SILIATO
of Asaga Savaii, Unemployed.
Plaintiff

AND

THE BOARD OF TRUSTEES OF THE METHODIST CHURCH OF SAMOA
a Charitable Trust having its registered office at Matafele, Apia.
First Defendant

AND

THE ATTORNEY GENERAL
sued for and on behalf of the Department of Education.
Second Defendant

AND

JUNIOR TANIELU MUAVAO
First Third Party

AND

TAAMILO TOLEAFOA
of Fasitoo-uta and Mulifanua, Bus Driver.
Second Third Party

AND

TNN TOLEAFOA COMPANY LIMITED
Third Third Party

Counsel: A Roma for plaintiff
R Drake for first defendant and first third party
D Clarke and A Pasikale-Faasau for second defendant
M Leung Wai for second third party
RT Faaiuaso for third third party

Hearing: 15 October 2003
Judgment: 20 October 2003

JUDGMENT OF SAPOLU CJ

Background

In these proceedings the Court has to deal with a motion by the plaintiff to strike out the amended statement of defence filed on behalf of the second defendant. Essentially, the strike out motion is directed at paragraph 5 of the second defendant’s amended statement of defence. The other parties are not really affected by these proceedings and their respective counsel did not make any submissions.

The relevant circumstances, as may be gathered from the plaintiff’s statement of claim and the second defendant’s statement of defence, show that the plaintiff was employed by the Department of Education, the second defendant, as the foreman for its electricians. A flatbed truck owned by the first defendant, which is not involved in these strike out proceedings, was hired by the second defendant for the transportation of its employees during the course of their employment. The truck was at all material times driven by a driver employed by the first defendant. On 5 February 2001 whilst the truck was being driven along the West Coast road to take the plaintiff and other employees of the first defendant to the wharf at Mulifanua, it became involved in an accident. As a consequence, the plaintiff who was sitting at the back of the truck sustained a fractured spine with a resulting spinal injury which has made him completely paralysed in the legs.

On 13 February 2002 the plaintiff commenced civil proceedings against the first defendant and the second defendant seeking damages for his injury. In his statement of claim the plaintiff alleges against the first defendant that his injury was caused as a result of the negligence of the first defendant’s driver who was driving the truck at the time of the accident. It is also alleged by the plaintiff against the second defendant that his injury was caused by the negligence of the second defendant in failing to provide a safe and proper vehicle for the transportation of the plaintiff during the performance of his duties as an employee of the second defendant. It is not necessary to go into the details of these allegations in this judgment.

What is important for present purposes is paragraph 5 of the statement of claim where it is alleged by the plaintiff:

"The said accident was further caused by the negligence of the second defendant in failing to provide a proper and safe vehicle to convey the plaintiff."

In response to the statement of claim the second defendant filed a statement of defence on 5 April 2002 denying liability. In paragraph 5 of its statement of defence, however, the second defendant pleads:

"That it admits the allegations in paragraph 5 [of the statement of claim] to the extent that it did fail to provide a proper and safe vehicle to convey the plaintiff but denies the allegation that the second defendant caused the accident and repeats paragraphs 3 and 4 above."

When one turns to paragraphs 3 and 4 of the second defendant’s statement of defence, the second defendant is in effect alleging in paragraph 3 that it was the negligence of the first defendant’s employee who was driving the truck which caused or contributed to the accident. In paragraph 4 of its statement of defence, the second defendant is in effect alleging that it was the second third party who caused or contributed to the accident by turning his bus which was parked on the side of the road, on to the road, whilst the truck on which the plaintiff was travelling was passing that bus. Thus paragraph 5 of the second defendant’s statement of defence would appear to be saying that the second defendant failed to provide a proper and safe vehicle to convey the plaintiff but it was not that failure of the second defendant which caused the accident; the accident was caused either wholly or in part by the negligence of the first defendant’s driver or wholly or in part by the action of the second third party.

Further to its statement of defence, the second defendant also filed a motion in April 2002 for joinder of new parties as defendants or as third parties. That motion was first mentioned on 22 April 2002 and then adjourned for an interlocutory hearing. At that hearing on 7 June, the motion was further adjourned to 24 June for hearing. That hearing of 24 June took place before Cooper J and His Honour ruled that the additional parties may be joined as third parties. However, in the course of that interlocutory hearing, counsel who was then appearing for the second defendant, told the Court that the second defendant admitted that it failed to provide a proper and safe vehicle to convey the plaintiff as pleaded in its paragraph 5 of its statement of defence. The substantive hearing for this case was then finally set down for week commencing 9 June 2003. However, further adjournments followed. Then on 8 June 2003 present senior counsel for the second defendant advised counsel for the plaintiff that he would be making application to the Court, before the substantive hearing of this case commences the following day, to amend the second defendant’s statement of defence. The substantive hearing did not proceed the following day and no application was made to amend the second defendant’s statement of defence. When the case was called on 16 June, it was again adjourned. Then on 10 September counsel for the plaintiff was served with a copy of the second defendant’s amended statement of defence dated 9 June 2003. That amended statement of defence was filed with the registrar without an application for leave to amend. The particular part of the amended statement of defence which is the focus of the strike out motion is paragraph 5 which now provides:

"That it [the second defendant] admits the allegations in paragraph 5 [of the statement of claim] to the extent that the first defendant did fail to provide a proper and safe vehicle to convey the plaintiff but denies the allegation that the second defendant caused the accident and repeats paragraphs 3 and 4 above".

(italics mine).

Thus whilst the second defendant in its statement of defence admits that it did fail to provide a proper and safe vehicle to convey the plaintiff, it is now saying in its amended statement of defence that it was the first defendant, the owner of the vehicle concerned, that failed to provide a proper and safe vehicle to convey the plaintiff.

In consequence of the proposed amendment, counsel for the plaintiff filed a motion dated 6 October 2003 to strike out the amended statement of defence. A number of grounds was given in support of that motion. These grounds are that: (a) the second defendant has not sought leave to amend its statement of defence, (b) the plaintiff has not consented to any amendment of the second defendant’s statement of defence, (c) there is no valid ground for amendment, (d) there have been no new facts to justify an amendment, and (e) the late filing of the amended statement of defence is prejudicial to the case for the plaintiff. Further grounds in support of the strike out motion are set out in the memorandum to the Court by counsel for the plaintiff and it includes the advice given by the then counsel for the second defendant during the interlocutory hearing on 24 June 2002 that the second defendant admits that it failed to provide a proper and safe vehicle to convey the plaintiff as pleaded in paragraph 5 of its statement of defence.

Procedure for amending statement of defence

Part of the reason for the problem which has arisen in this case is that whilst the Supreme Court (Civil Procedure Rules) 1980 makes provision for the amendment of a statement of claim, it does not make any provision for the amendment of a statement of defence. Thus a defendant who wants to amend his statement of defence will not find any express guidance from the Rules as a plaintiff who wants to amend his statement of claim. Rule 14 provides that a plaintiff may at any time before or during a trial amend his statement of claim with the leave of the Court. There is no similar provision for the amendment of a statement of defence. How r206 which provides for the procedure in respect of matters not covered in the Rules states:

"If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice."

Given the wording of r206, I am of the view that if the Supreme Court (Civil Procedure Rules) 1980 has given a plaintiff the right to amend his statement of claim with leave of the Court at any time before or during a trial, then in the interests of justice a defendant should also have the right to amend his statement of defence or his counterclaim with leave of the Court at any time before or during a trial. This will necessarily be the case where leave has been granted to a plaintiff to amend his statement of claim and it becomes necessary for a defendant to make a consequential amendment to his statement of defence. But the right of a defendant to amend his statement of defence by leave is not to be restricted to that kind of situation. A defendant may amend his statement of defence with leave of the Court at any time before or during a trial even if there has been no amendment to the plaintiff’s statement of claim.

What has happened in this case

What has happened in this case is that the second defendant has filed an amended statement of defence without first seeking leave to amend. The plaintiff does not consent to the amended statement of defence being filed. In view of the procedure I have stated for the amendment of a statement of defence, the amendment is not in order. The second defendant must first seek leave of the Court to amend. In that way, the onus will be on the second defendant to satisfy the Court that leave to amend its defence should be granted. The plaintiff may, of course, oppose the granting of leave. As a consequence of the plaintiff moving to strike out the amended statement of defence which has now been filed without leave, the onus of satisfying the Court has been shifted to the plaintiff to satisfy the Court that its motion should be granted instead of the second defendant bearing the onus to satisfy the Court that leave should be granted to amend its statement of defence.

As it happened in the course of submissions, counsel for the plaintiff concentrated on satisfying the Court to strike out the amended statement of defence whilst counsel for the second defendant responded by concentrating on resisting the motion to strike out. The question of whether leave should be granted to amend the statement of defence was not addressed. Thus the reason or reasons for the second defendant wanting to amend its statement of defence never became clear.

I have therefore come to the view that the correct procedure to be followed is to order the second defendant to make application for leave to amend its statement of defence. It will then bear the onus of satisfying the Court that leave should be granted. The plaintiff may then oppose the application for leave relying on the same grounds advanced in its strike out motion or on additional or different grounds. In this way the procedure followed in this case will be consistent with the procedure for amending a statement of defence that I have stated. As matters presently stand, the amended statement of defence cannot be validly before the Court as no leave to amend has been sought and granted. I can have it rejected now. But the second defendant may come back with an application for leave to amend its defence which will only further prolong this matter. I have also considered the plaintiff’s motion and its grounds, but I have decided to follow the procedure that I have set out. This will provide a better procedure for dealing with proposed amendments to a statement of defence.

I have not overlooked that the Court has an inherent jurisdiction to strike out pleadings which are shown to be frivolous or vexatious or a defence which has been shown to be an abuse process. However, as I understand the submissions by counsel for the plaintiff, they were not presented on the basis that the amended statement of defence was frivolous, vexatious or an abuse of process. Certainly those grounds were not expressly mentioned, and perhaps counsel for the plaintiff had reason for not doing so. I have therefore decided not to consider the strike out motion on any of those grounds. This should not, however, preclude the plaintiff from relying on any of those grounds in resisting an application by the second defendant for leave to amend its statement of defence.

Conclusion

The second defendant is ordered to file and serve on the plaintiff or his counsel no later than 24 October 2003 an application for leave to amend its statement of defence. The plaintiff may oppose leave to amend relying on the grounds advanced in support of his strike out motion or on new grounds. In the meantime any further proceedings by the second defendant on its amended statement of defence are stayed until further order of the Court. This matter is adjourned for re-mention on Monday, 27 October 2003.

Costs reserved.

CHIEF JUSTICE

Solicitors:
Ameperosa T Roma for plaintiff
Drake & Co Law Firm for defendant and first third party
Attorney General’s Office for second defendant
Leung Wai Law Firm for second third party
Richard’s Law Firm for third third party