Vaii v Attorney General [2010] WSSC 42 (16 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CA 13/09

BETWEEN:

ASIATA SALEIMOA VAAI
of Siusega and Satupaitea, Member of Parliament
Appellant

AND:

THE ATTORNEY GENERAL
for and on behalf of the Minister of Finance, the Financial Secretary, Cabinet

AND:

THE PRIME MINISTER
and the SPEAKER OF THE HOUSE OF ASSEMBLY
Respondents

Presiding Judge: Justice Slicer

Counsel: F Vaai-Hoglund for the Appellant
D Kerslake for the Respondents

Hearing: 8 April 2010
Judgment: 16 April 2010

JUDGMENT OF THE COURT

On 7 April 2008 the Applicant made eight separate applications seeking declaratory orders against the Attorney General on behalf of a number of institutions of government, the Speaker of Legislative Assembly and the Prime Minister. They can be described as relating to three categories; Financial (CP 58/08, CP 99/08, CP 102/08 and CP 103/08), Parliamentary Standing Orders (CP 57/08, CP 59/08) and Administrative Appointments (CP 100/08, CP 101/08).

Briefly stated the nature of the proceedings were:

(1) Financial

(a) That payments made from the Totaliser Board to charitable institutions, discretionary payments and sponsorships were unlawful and unconstitutional.

(b) Authorization of provision for unforeseen expenditure under the Public Finance Management Act 2001 and the Appropriation Acts since 2002 was unlawful and/or void.

(c) Discretionary and/or ex gratia payments or debt and write off authorizations provided for by government were void.

(2) Standing Orders

• (a) Parliamentary Standing Order 18 relating to the provision of a certificate by the Clerk of the Legislative Assembly for the purpose of appointing the Prime Minister offended Article 32 of the Constitution was invalid.
  
• (b) Appointments of the Prime Minister made on 23 November 1998, 15 March 2001 and 20 April 2006 were unconstitutional and void.
  

(3) Appointments

• (a) The Public Service Act 2004, Sections 12, 13 and 35 were void and unconstitutional.
  

(b) All appointments of Chief Executive Officers made in accordance with that legislation were void.

There have been historic tensions between parliaments and assemblies and the Courts with neither admitting the full jurisdiction of the other. In so far as Standing Orders are concerned Courts have long acknowledged that the parliament or assembly has the right of control over its own proceedings and a Court will not interfere with the interpretation of a Standing Order governing the proceedings of the House or Assembly (see generally In re Parliamentary Privilege Act 1770 [1958] UKPC 1; [1958] AC 331 c/f Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2).

In the United Kingdom the Parliament Acts 1911 and 1949 provide through Section 3 that the Speaker's Certificate

"shall be conclusive for all purposes and shall not be questioned in any Court of Law."'

The Samoan equivalent is the Parliamentary Privilege and the Legislative Powers and Privileges Ordinance 1960, Section 31 which provides;

"'Neither the Speaker of the Assembly nor any officer shall be subject to the jurisdiction of any Court in respect of any power conferred on or vested in him by or under this Ordinance or the Standing orders of the Assembly."

The privilege asserted by the legislature is that it has the right to regulate its own constitution and proceedings.

In Aiafi v Speaker of the Legislative Assembly [2009] WSSC 65 the learned Chief Justice had reason to consider the import of a Standing Order of the Legislative Assembly specifically Standing Order 20. But he was dealing with an amendment to the Electoral Act which purported to provide for the expulsion of a member of Parliament. He determined the matter on the interpretation of an amendment which was not supported by the primary provisions in the Act itself namely Section 15 (f). There is nothing in that judgment which advances the argument of this Applicant.

The matters came before this Court for hearing on 5 May 2009. On 4 May the hearing Judge was provided with 150-pages of written submissions on behalf of the Respondents, detailed submissions of the Applicant and four volumes of legislation, authorities and other material. Commendably he gave his decision and reasons comprising 48-pages, when transcribed, on 8 May 2009 before (as I was told by counsel from the bar table) his terms of appointment lapsed. The judgment, given the complexity of the issues, the volume of material tendered and the time constraints is cogent and comprehensive. These proceedings concern an application for leave to appeal against that decision.

The Respondents met the applications by way of a Strike out motion which comprised:

(1) The failure of the Applicant to give notice of the actions as required by the Limitation Act 1975, Section 21.

(2) The wrongful joinder of certain of the parties.

(3) Certain of the actions had no reasonable prospect of success and were futile as provided for by the Supreme Court (Civil Procedure) Rules 1980, R 70 (Enosa v Samoan Observer Company Limited [2005] WSSC 6, Blue Sky Communication Limited v Attorney General [2007] WSSC 58).

(4) The pleadings themselves, in some instances, did not identify the legal basis upon which they claimed remedy or declaration was sought.

(5) Much of the affidavit material contained innuendo not factual material, personal comment or implied assertion, and provided no legal basis for the claimed remedy or declaration.

(6) An impugned provision had been repealed and replaced making it futile to grant the declaration sought (Air Canada v British Columbia [1989] Can L II 95 (S.C.C).

The Court accepts as a useful summary of the grounds of each action, the strike out grounds of the Respondents and the reason given by the learned primary Judge in the précis prepared by counsel for the Respondents and attached to the written submissions. It is not necessary to repeat them in the body of this Judgment.

It was common ground that the Applicant had not given notice within the time prescribed by the Limitation Act, Section 21. Instead the Applicant relied on the proviso to the Section which states:

"PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased:

PROVIDED ALSO THAT the notice required by paragraph (a) of this subsection may be given, and an action may thereafter be brought, while the act, neglect, or default continues..."

The learned primary Judge upheld the strike-out applications. He found that the failure to give notice within the statutory period barred the maintenance of the applications. In doing so he applied, correctly, the canons of construction in determining that the second proviso was not optional to the Applicant but 'permissive' of notice being given before the cessation of the wrongful act complained of.' He rejected the contention that Section 21 breached Article 9 of the Constitution. The learned primary Judge concluded that:

"...Section 21 of the Limitation Act is fatal to each of the proceedings and they should be struck out for that reason."

But in doing so he conceded:

"...that the applicant's argument is not completely untenable, and for that and other reasons I consider it to be appropriate to consider the other issues raised on this application."

He then dealt with the issues earlier identified in these reasons. He pronounced his ruling and stated his reasons orally on 8 May 2009.

On 7 July the Applicant filed a Notice of Appeal concurrent with a Motion for Leave to Appeal. The Notice of Appeal contained 17 grounds each framed in terms that the decision to strike out the eight applications was wrong in low. No attempt was made to distinguish between the differing applications or to identify the error or errors claimed. The Motion claimed in general terms that the questions, unidentified, were;

"...by reason of their general or public importance or magnitude of the interests affected ought to be submitted to the Court of Appeal for a decision."

The reasons for the decision of the learned primary Judge, given orally on 8 May 2009 were provided in written form on 8 June and the appeal notices filed within 29 days of the latter date. Such would not in many instances be fatal to a discretionary grant of leave to appeal out of time. Leave could be readily obtained since time ought be allowed to more closely study the detail and frame the grounds accordingly. Here no such attempt was made. In re Bankruptcy of MG Meredith [2003] WSSC 29 Vaai J held that time for the appeal period commenced on receipt of the written notice where the written decision was received 7 days after pronouncement of the order. But on 14 August 2009 the Respondents filed a Notice of Opposition to the Motion for Leave to appeal claiming (inter alia) that the Motion failed to identify any error of law or fact and as a result its terms so vague and embarrassing as to prejudice the parties on the hearing.

The Applicant did nothing further until 15 March 2010 when he sought to enlarge time for the giving of notice seeking leave to appeal out of time. No attempt was made to more clearly identify the grounds of appeal, other than the general claims of error. The task of this Court in exercising a discretionary extension of time is not whether it agrees with the decision appealed but whether there are cogent reasons to allow an extension of time.

The Court of Appeal Rules R 18 provides;

"No appeal to the Court of Appeal from any decision of the Court shall be brought after the expiration of 30 days from the time when the Appellant first had notice thereof unless the Supreme Court or the Court of Appeal shall enlarge the time for giving notice of appeal."

The words are clear. It is the decision which is appealed and the time commences as and from the date of notice. In International Financial Society v City of Moscow Gas Company [1877] UKLawRpCh 327; [1877] 7 Ch D 241 the Court of Appeal was required to determine the meaning of Order LVIII R 15 which provided;

"no appeal from any interlocutory order, except by special leave of the Court of Appeal, shall be brought after the expiration of 21 days."

The question was whether dismissal of a bill came within the meaning of the Rule, a result similar to a successful strike out application. In relation to that issue Baggallay L.J. said at 246;

'That is to be the general rule as regards both, but there is an alternative expressed as follows: "or in the case of refusal of an application from the date of such refusal." It has been suggested that the word "application" used in the above sentence, has a limited meaning, and that it does not include a motion for decree at the hearing. I can see no ground whatever, in the ordinary grammatical construction of the rule, to give it so limited a meaning, and certainly if we refer to other portions of the Order and the several rules under the Orders, we shall find the word "application" and the word "apply" constantly used with reference to every class of application. One need turn to no other than the title of Order LIII, which speak of "motions and other applications," clearly implying that a motion is an application. Under these circumstances, it is impossible to hold that this appeal was presented within the time required.'

Thesiger L.J. agreed stating at 246-7;

'Then I come to the clause of the rule upon which the contention in this case arises, and giving words their grammatical force and signification, we must apply the words "'the said respective periods"' to the subsequent words used, namely, "'in case of the refusal of the application."' And lastly, it being admitted that there are some final judgments and order which do come within the words "'in case of the refusal of the application,"' for that has been practically admitted, it seems to me to reasonably follow that all judgments or orders, whether final or interlocutory, should be included in those words, and consequently that an appeal against the refusal of an application of whatever sort should date from the time when the decision is given, and not from the time when an entry of that decision is made."

The time for the commencement of the time period is the date of dismissal of the application. Rule 18 provides a more flexible approach adopting the requirement of notice of the decision. Here the Applicant had notice on 8 May both of the decision and the reasons, orally expressed. In some instances, especially when there is urgency in the outcome, a Court will announce the decision or determination and state that it will later publish reasons. In such instances and extension of time would be granted to an apposite time to enable filing or if ready to amend the notice so as to properly state the grounds. Here the Applicant filed the Motion 29 days after receipt of the written reasons but did nothing further to specify the grounds or refine the appeal. That failure is relevant to the exercise of discretion.

The Judicature Ordinance 1961 ("The Ordinance"), Section 51 relevantly states:

"An appeal shall lie in any action, cause or matter, not being a criminal proceeding, to the Court of Appeal from the Supreme Court: ...

(b) With leave of ... the Supreme Court if in the opinion of (the) Court the question involved in the appeal is one which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision."

The terms of the Section have been given a wide reading by Nelson J in Vaai v Sivanila [2008] WSSC 73 with the term 'other reason' to mean 'for any other sufficient reason'.

The 'Ordinance', Section 54 further provides;

"54. (1) No such appeal, whether as of right or not, shall be brought except in pursuance of an order of the Supreme Court granting leave to appeal: PROVIDED THAT, subject to ...... the Supreme Court shall grant such leave in every case where the appellant is entitled to appeal as of right."

It is not necessary to consider any tension which might exist within the wording of the section. Here the Court is engaged in a discretionary exercise to grant leave out of time. For the purpose of this determination the Court accepts that the matters generally raised by the Motion are of public importance. The problem is that it is difficult to discern what are the questions sought to be agitated before the Court of Appeal. The complication is that the Motion seeks to agitate eight actions within the one appeal without distinguishing the differing issues or grounds advanced.

The Respondents contend that the Notice of Appeal is frivolous vexatious or an abuse of process. The Court accepts that some portions of the appeal, considered as a whole, taint the others as frivolous or are but a vehicle or device to agitate questions which are properly the province of the Parliament or its procedures. Conversely some of the Applicant's arguments are but generalized claims that an impugned decision or legislative enactment offends the Constitution simply because it is asserted in general terms. The Court will not decide this leave application on either of those bases. Nor will it attempt to revisit the competing layers within the arguments advanced before the learned primary Judge. Recourse to general inchoate principle absent a factual basis or relevant and material connection between the assertion and the statute or constitutional provision is insufficient to ground a grant of leave.

The Applicant seeks review by the Court of Appeal. Here, since he has not complied with the preconditions to the exercise of a right afforded by the Ordinance, Section 45 mere invocation of public interest or mere importance is insufficient. The application is an indulgence not an indulgence not an exercise of right (Alii and Faipule v Samoa Trust Supreme Court, Samoa unreported 14 October 2009). It is for the Applicant to set out the legal foundation of the claim of error.

There is a further problem associated with the grounds of appeal. The learned primary Judge made findings of fact that there had been a lack of any factual basis in support of the claims. Any appeal would require the Court of Appeal either to hear fresh evidence or attempt to make findings of its own. It is for the Applicant to have clearly identified the claim of error in law in the making of the finding (See generally Benmax v Austin Motor Co. Ltd [1955] 1 All ER 326).

The Court is not persuaded that it should exercise discretion in a grant of leave. Matters which are significant to that refusal are:

(1) Time elapsed between the decision and the application for leave to appeal out of time.

(2) Failure to identify grounds of appeal which identify the error claimed.

(3) Failure to identify grounds of appeal specific to each of the eight actions or at least three classes of actions which are dissimilar.

(4) The determination of the Court of Appeal would require recourse to further factual material or to make findings of its own on whether there was a lack of factual basis in the maintenance of the claim.

(5) In some instances such as the validity of appointments made long ago the point raised and the remedy sought is academic only at best or is intended as a political statement rather than legal remedy (King v Attorney General and The Visiting Judge at Paparua Prison [2006] NZCA 73).

The Application is dismissed.

JUSTICE SLICER