Goodall v Vui [2013] WSSC 136 (20 December 2013)

SUPREME COURT OF SAMOA

GOODALL v VUI [2013] WSSC 136

Case name: Goodall v Vui

Citation: [2013] WSSC 136

Decision date: 20 December 2013

Parties: PELE GOODALL also known as PELE SAMUELU and BRUCE PEAK, both residents of Vaoala Samoa (Applicants) v GARRY VUI, Company Director and ALMYRA MOSIULA VUI Company Director, both residents of Vaivase-Uta, Samoa (Respondents)

Hearing date(s):

File number(s): CP 190/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
L Stevenson on behalf of G Stowers for applicants
M G Latu for respondents

Catchwords:

Words and phrases:

Legislation cited:
Supreme Court Civil Procedure Rules 1980

Cases cited:
Lauano v Samoa National Provident Fund Board [2009] WSCA 3
Lauano [2008] WSSC 70
Sandall v Cardna (unreported) 18^th May 1987
Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 All ER 4
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1996] 2 All ER 536, 564
Hoystead v Commissioner of Taxation [1926] AC at 165
Reed v Mataeliga [2005] WSSC 1

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 190/12
BETWEEN:
PELE GOODALL also known as PELE SAMUELU and BRUCE PEAK, both residents of Vaoala Samoa.
Applicants

AND:
GARRY VUI, Company Director and ALMYRA MOSIULA VUI Company Director, both residents of Vaivase-Uta, Samoa.
Respondents

Counsels: L Stevenson on behalf of G Stowers for applicants
M G Latu for respondents
Ruling: 20 December 2013

ORAL RULING OF NELSON J

1. This is an application for rehearing filed pursuant to rule 141 of the Supreme Court Civil Procedure Rules 1980 which relevantly provides:

“141. Rehearing – (1) The court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings: provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the Court is satisfied that the application could not reasonably be made sooner.

(2) The application shall be served on the opposite party not less than three clear days before the day fixed for hearing, and shall state the grounds thereof, which shall be verified by affidavit.

(3) The application shall not operate as a stay of proceedings unless the Court so orders.

(5) The application for a rehearing may be heard by the Judge who heard the proceedings or, if that Judge is not available, by any other Judge.

(8) The court upon rehearing may either affirm, reverse or vary the judgment.”

2. Initially the respondents applied to strike out the application but this motion has been withdrawn by respondent counsel who properly conceded the strike out procedure was inappropriate.
3. The application arises out of a judgment dated 20 June 2013 delivered by Her Honour Justice Ida Malosi. There she dismissed a similar application by the applicants to set aside the formal proof judgment entered against them by Sapolu, CJ on 28 January 2013. The formal proof followed the non appearance by the applicants to answer the respondents claim against them. The respondents claim arises out of the alleged non-payment of monies for a home entertainment system following the sale of the respondents home to the applicants. The full and detailed background of this matter is contained in Malosis judgment.
4. The law in relation to applications of this nature is well settled. This has been accepted by both counsels. It is set out in the Court of Appeal judgment in Lauano v Samoa National Provident Fund Board [2009] WSCA 3 which requires the applicant to establish three matters. Firstly that there is a substantial ground of defence. Secondly that there is some reasonable justification for the delay and thirdly that the plaintiff will not suffer irreparable harm if the judgment is set aside. These tests have been accepted and applied in many cases before the court a number of which have been cited by counsel.
5. Dealing with each limb of the test firstly that the applicant has a substantial ground of defence. As noted in the Supreme Court in Lauano [2008] WSSC 70:

“The onus of establishing a substantial ground of defence is on the defendant. And the ground of defence must be substantial, not trivial or shallow or in the language of the plaintiffs counsel “shadowy”. The defendant must show a defence of sufficient substance to justify delaying the plaintiff obtaining fruits of the judgment: Sandall v Cardna (unreported) 18th May 1987 where Hardie Boys J in the Blenheim High Court put the question this way: “Does the defendant have a defence which ought to be heard?” Not every defence would satisfy such a test and each case must be assessed on its merits.”

6. The respondents claim is based on a bill of sale dated 06 June 2011 executed on behalf of the applicants as the buyers by Pele Goodall also known as Pele Samuelu. Significantly that document provides in the last paragraph thereof:

“The Buyer has examined or had an opportunity to examine each item sold. Each item is sold and delivered in a strictly “as is” condition and the Sellers expressly disclaim all warranties expressed or implied of merchantability or fitness for particular purposes. Settlement would take place concurrently with the settlement on the land and home.”

7. The applicants attempt to circumvent the clear terms of what they signed faces several problems to say the least. Some of these difficulties are referred to in Her Honours judgment where it is also noted that a statement of defence to the claim was never filed by the applicants then lawyers. I also agree with Her Honours analysis of the implied warranties argument as set out in paragraph 30 of her judgment. As to counsels new argument that section 14 of the Sale of Goods Act has been breached, that section in my respectful view has no application. The description in the Schedule to the Bill of Sale is so inherently vague and general that almost any kind of “SKY dish” and “surround sound system” would qualify. And there still remains the hurdle of the concluding words of the Bill of Sale that the applicants must overcome. I concur with Her Honours conclusions that there is no clear evidence the applicants have a substantial ground of defence to the claim. The key word being “substantial”. On the first of the Lauano limbs the application fails.
8. As to the second ground of a reasonable justification for the delay in bringing this challenge I accept there were reasons why the applicants did not attend court at the first mention of the respondents claim on 17 December 2012 the month of Cyclone Evan. But there is no explanation why they failed to monitor or enquire into the status of the matter. They took no action until a writ of sale was issued some three months later against their vehicle. As noted by Her Honour “as the days, weeks and months ticked by it must have become apparent to them that something was amiss”. The application is deficient from this perspective as well.
9. The third and final ground. Only on this ground are the applicants successful there being no evidence that the respondents will suffer any irreparable financial harm if the judgment in question is set aside.
10. The overriding test in applications of this nature is whether notwithstanding these factors it is still just in the circumstances to set aside the judgment of the court. As in the first application the applicants place great reliance on the failures of their then counsel to attend and follow-up the proceedings. With respect to the applicants that is a matter they should take up with their then counsel. They should be reminded that they too have to accept some responsibility for the delay.
11. The applicants only fulfill one of the three Lauano criteria for re-opening this matter. From the perspective of the overall merits of their application I can only echo the conclusions already given by this court on 20 June 2013 paragraphs 41 and 42. They have chosen not to appeal those findings which should now be considered final.
12. There is one further reason the present application must fail namely the doctrine of res judicata. The applicants are in effect seeking to relitigate the same issues dealt with by Justice Malosi. No better exposition of the doctrine exists then that given by the incomparable Master of the Rolls Lord Denning in the Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 All ER 4 where he said at pages 8 and 9:

“It is a case of “issue estoppel” as distinct from “cause of action estoppel” and “fact estoppel”. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings...” (emphasis mine).

13. The development of the res judicata rule was well traversed by Lord Guest in the leading authority of Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1996] 2 All ER 536, 564:

“The doctrine of estoppel per rem judicatam is reflected in two Latin maxims, (i) interest rei publicae ut sit finis litium and, (ii) nemo debet bis vexare pro una et eadem causa. The former is pubic policy and the latter is private justice. The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is stopped in any subsequent litigation from disputing or questioning such decision on the merits.”

As originally categorized, res judicata was known as “estoppel by record”. But as it is now quite immaterial whether the judicial decision is pronounced by a tribunal which is required to keep a written record of its decisions, this nomenclature has disappeared and it may be convenient to describe res judicata in its true and original from as “cause of action estoppel”. This has long been recognised as operating as a complete bar if the necessary conditions are present. Within recent years the principle has developed so as to extend to what is now described as “issue estoppel”, that is to say where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam....

The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final, and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”

14. The matter was put more simply by Lord Blackburn many millennia ago when he said:

“The object of the rule of res judicata is always put upon two grounds. The one is public policy that it is in the interest of the state that there should be an end to litigation. And the other the hardship on the individual that he should be vexed twice for the same cause”.

15. The matter was further enhanced by the Privy Council in Hoystead v Commissioner of Taxation [1926] AC at 165 where it said:

“In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”

16. All these statements of principle have application to the present proceeding. Further exposition of the doctrines of res judicata and issue estoppel can be found in the very instructive judgment of Sapolu, CJ in Reed v Mataeliga [2005] WSSC 1.
17. If litigants are to be permitted to re-litigate essentially the same issues there would indeed be no end to litigation. Proceedings would enure ad nauseam. Allowing such applications would also have the effect of bypassing the appeal process the established mode for questioning a judicial decision or finding. Rule 141 of the Supreme Court Rules must be read subject to these matters and it could not have been Parliaments intent that Rule 141 would operate so as to provide a back door mechanism for such an enquiry. At the very least the discretion to grant a rehearing must take these factors into account. And while the discretion is unfettered it must be exercised pursuant to established bases. The applicants have failed to meet these tests.
18. It should also be noted that the other requirements of rule 141 have not been met in the instant proceeding. Thus the application has been brought well outside the 14 day time limit prescribed by the proviso to rule 141(1) and the application was not initially referred to the hearing judge as contemplated by rule 141(5). Neither was any reason given for Her Honours unavailability to deal with the matter - again refer rule 141(5). Rule 141(7) does not alter these requirements.
19. The applicants have pointed to the costliness of an appeal as justification for seeking a further rehearing. I agree there is no question appeals are a costly exercise but that is a choice available to all unsuccessful parties. Such cost can be partially defrayed in the event of a successful appeal. The issue of expense however cannot be allowed to dictate or be the determining factor of a case. There is no such thing as a cheap appeal. All appeals especially in this jurisdiction are expensive and if this were the test the court were to apply then all rehearing applications would have to be granted. Given the quantum of the sum involved and the already large legal bills the parties have no doubt accumulated in litigating their dispute before the court the proper option was probably to have their matter mediated rather than litigated. Mediation is a less costly speedier and some would argue a superior alternative to litigation. There seems to be no reason why this particular dispute even now cannot be mediated to the satisfaction of the parties.
20. The present application must be dismissed. If the respondents as the successful party wish to pursue costs then counsel are to file the appropriate memorandum within 7 days of the expiry of the coming holiday period.
    

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JUSTICE NELSON