Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015)

SUPREME COURT OF SAMOA
Tafililupetiamalie v Attorney General [2015] WSSC 62

Case name:	Tafililupetiamalie v Attorney General
Citation:	[2015] WSSC 62
Decision date:	30 June 2015
Parties:	TAFILILUPETIAMALIE VA’AFUSUAGA TAUAFIAFI FALEMALAMA IUTOI of Auckland, New Zealand, retired public servant. Plaintiff A N D ATTORNEY GENERAL on behalf of the Land and Titles Court. Defendant
Hearing date(s):	17 June 2015
File number(s):	CP 132/14
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:	Court of Appeal – Land and Titles Court
Order:	- On the basis of the common law principle of judicial immunity as I have already pointed out, the plaintiff’s claim for damages is plainly untenable and cannot possibly succeed. It is therefore struck out. - Counsel to file memorandum as to costs in ten (10) days if that has not already been done.
Representation:	L O Woodroffe and L I Tanielu for plaintiff K Seuseu and E Soloi for defendant
	Strike out motion - amended statement of claim – cause of action – judicial immunity – right to a fair trial
Catchwords:
Words and phrases:
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980
Cases cited:	Attorney General v Chapman [2011] NZSC 110 Blair v Upper Hutt City Council [2006] NZHC 705, Calder v Halket Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Forrester v White [1988] USSC 3; (1998) 484 US 219 Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668Sirros v Moore [1975] QB 118 Slipper Island Resort Ltd v Number One Town and Country Planning Appeal Board [1981] 1 NZLR 143 Telecom New Zealand Ltd v Christchurch City Council [2005] NZCA 36 Wentworth v Wentworth [2000] NSW CA 350
Legal text books	Constitutional and Administrative Law in New Zealand (2001) 2nd ed by P A Joseph Judicial Review of Administrative Action (1995), 5th ed 1 Halsburys Laws of England 4th ed,(now at 4th ed, reissue, 2001) vol 1(1) ) Administrative Law at 5(2)(i) [197] and [201]: Constitutional and Administrative Law in New Zealand (2001) 2nd ed by P A Joseph at pp. 887 – 889, para 23.6, Re McC (A Minor) [1985] 1 AC 528 Judicial Review of Administrative Action (1995), 5th ed by de Smith, Woolf, & Jowell
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 132/14

IN THE MATTER

of the Land and Titles Act 1981 and the Constitution of the Independent State of Samoa.

BETWEEN

TAFILILUPETIAMALIE VA’AFUSUAGA TAUAFIAFI FALEMALAMA IUTOI of Auckland, New Zealand, retired public servant.
Plaintiff

A N D

ATTORNEY GENERAL on behalf of the Land and Titles Court.
Defendant

Counsel:
L O Woodroffe and L I Tanielu for plaintiff
K Seuseu and E Soloi for defendant

Hearing: 17 June 2015

Judgment: 17 June 2015

Reasons for Judgment: 30 June 2015

REASONS FOR JUDGMENT OF SAPOLU CJ

Introduction

1. The Court is here concerned with a motion by the defendant to strike out the plaintiff’s unsigned and undated amended statement of claim. After hearing submissions from counsel on 17 June 2015, I upheld the strike out motion and struck out the amended statement of claim. At the same time, I indicated to counsel that my reasons will be reduced to writing and delivered to them in due course. These are those reasons.

Background

(a) The 1968 Land and Titles Court (LTC) proceedings

2. In 1968, the Land and Titles Court (LTC) dealt with a petition regarding the title Tafilipepe in Falevao. In its decision in LC 3059 dated 1 August 1968, the LTC determined:

(1) The Court believes that the title Tafili in Falevao has been divided into two branches (fuaifale) of Tafili Puleesea (the petitioners) and Tafili Aigaletaulele’a (the respondents).

(2) The Court also believes that each of the said two branches will no longer have the right to interfere in the deliberations of the other branch.
(3) The Court accepts the resignation of Tafili Puleesea Sione from the title Tafili in Falevao.
(4) The Court also confirms the appointment of Mita’i, Tumua Sagaga, Esau, Sofa’i, and Tuiga to the title Tafilipepe in Falevao.
(5) Court costs of $5.00 to be paid by the respondents within 21 days of date of the decision.

3. It appears from the 1968 decision of the LTC that the name “Tafilipepe” and “Tafili” are being used interchangeably and that the name “Tafili” is the abbreviated form of the name “Tafilipepe”.
4. Counsel for the defendant submitted that Tafilipepe Taulafo who was the leader of the respondent party in the LTC proceedings in 1968 was the uncle of the plaintiff. There was no objection to this from counsel for the plaintiff. What is worthy of note here is that the plaintiff’s uncle went by the title “Tafilipepe” and not “Tafililupetiamalie” in the 1968 proceedings.
5. After the decision by the LTC on 1 August 1968, the then pulenuu of Falevao on 5 August 1968 provided saofai certificates to the registrar of land and titles for the names of Mita’i, Tumua Sagaga, Esau, Sofa’i, and Tuiga to be registered under the title “Tafililupetiamalie” instead of the title “Tafilipepe” which was the subject of the 1968 proceedings. Consequently, those people were registered as holders of the title Tafililupetiamalie.

(6) The 1986 directions to the registrar from the then president of the Land and Titles Court (LTC)

6. On the basis of the affidavit of the registrar of the LTC and the relevant Court records, counsel for the defendant pointed out that by letter dated 26 March 1986, Tafililupetiamalie Taufafo, the uncle of the plaintiff who was the leader of the respondent party in the 1968 LTC proceedings using the name “Tafilipepe”, wrote to the registrar of land and titles to cancel the 1968 LTC decision. This was rejected by then president of the LTC as it was too late. At the same time, the then president of the LTC directed the registrar to correct the register of matais to show that the matai title held by Mita’i, Tumua Sagaga, Esau, Sofa’i, and Tuiga is “Tafilipepe” as determined by the LTC on 1 August 1968 and not “Tafililupetiamalie”. In consequence, the registrar corrected the register of matais by deleting the reference to the title “Tafililupetiamalie” and inserting the title “Tafilipepe”. The relevant saofai certificates were also corrected.
7. The then president of the LTC also stated in his directions that there was nothing to prevent Tafililupetiamalie Taufafo, the plaintiff’s uncle, from filing a petition to determine the pule of the title “Tafililupetiamalie”. It is implicit in this direction that the then president of the LTC must have thought that the title Tafililupetiamalie is different from the title Tafilipepe.
8. It is also clear from the 1968 LTC decision, as already mentioned, that in those proceedings, the plaintiff’s uncle used the name “Tafilipepe” but in his letter of 26 March 1986 he used the name “Tafililupetiamalie”. He also did not challenge the 1968 LTC decision which refers to the title “Tafilipepe” as wrong until his letter of 26 March 1986 to the registrar when it was too late.

(7) 1987 letter from Alii and Faipule of Falevao

9. By letter of February 1987, the Alii and Faipule of Falevao wrote to the then president of the LTC that there is no matai title in Falevao called “Tafilipepe” but only the matai title “Tafililupetiamalie” or “Tafili” for short. This letter was also many years after the 1968 LTC decision on the title Tafilipepe and was in conflict with that decision which effectively confirmed that there is a title Tafilipepe in Falevao. The plaintiff’s uncle who was the leader of the respondent party in the 1968 proceedings had gone by the title Tafilipepe in those proceedings.

(8) The 1997 Land and Titles Court decision on the publication of a pulefaamau

10. In the issue of the Savali newspaper of 31 June 1995, Tafililupetiamalie Taufafo (the plaintiff’s uncle) and Tafililupetiamalie Iutoi (the plaintiff) published a pulefaamau to the title “Tafililupetiamalie”. In that publication, Tafililupetiamalie Taufafo and the plaintiff proclaimed that the pule of the title Tafililupetiamalie in Falevao is vested in the heirs of Tafililupetiamalie Aigaletaulele’a and there is no other branch of the title Tafilupetiamalie. There was no objection lodged against that publication within the time allowed for objections.
11. In consequence, the LTC confirmed the publication and the pule of the title Tafililupetiamalie as published in the Savali.

(9) The 2010 proceedings before the LTC at first instance

12. As shown from the affidavit of 31 October 2014 by the registrar in support of the strike out motion, the plaintiff and others filed a petition in the LTC to revoke the appointment of one Mulimuli Mafoa Siaki to the title Tafililupetiamalie on the ground that the heirs of the title Tafililupetiamalie have not agreed to that appointment.
13. At the first instance hearing in 2010 before the LTC comprising of a deputy president, two Judges and two Assessors , the LTC on 24 September 2010 confirmed the appointment of Mulimuli Mafoa Siaki to the title Tafililupetiamalie for the following reasons as set out in the affidavit of the registrar of 31 October 2014:
    • (a) That the petitioners, which included the plaintiff, and the respondent Mulimuli Mafoa Siaki were from the same family which was the Aigaletaulele’a family which holds the pule over the title Tafililupetiamalie as per the 1968 LTC decision.
    • (b) The heirs and matais of the title Tafili have already met and agreed for Mulimuli Mafoa Siaki to hold the title.
    • (c) The LTC also took into account that the respondents had withdrawn their objection to the bestowal of matai titles on Fatu and Tu’u proposed by the plaintiff on the understanding that Mulimuli Mafoa Siaki will be bestowed the title Tafililupetiamalie.
14. Following the decision of the LTC at first instance on 24 September 2010, the plaintiff appealed to the appellate division of the LTC which dealt with that appeal in 2013. It appears from the record of the appeal hearing that it was a full rehearing of proceedings before the LTC at first instance in 2010.

The 2013 appellate division proceedings of the LTC

15. At the hearing of the appeal, the appellate division of the LTC comprising of the president and two Judges, after detailed examination of the parties, confirmed in its decision of 9 August 2013 the appointment of Mulimuli Mafoa Siaki to the title Tafililupetiamalie for the following reasons:
    • (a) The Court was satisfied that there was an agreement between the appellants and the respondents to the appointment of Mulimuli Mafoa Siaki to the title Tafililupetiamalie and the appointments of Tui and Fatu to the title Aigaletaulele’a.
    • (b) The Court also rejected the allegation of bias against the deputy president who presided over the proceedings of the LTC at first instance in 2010.

The plaintiff’s amended statement of claim

16. Following the decision of the appellate division of the LTC on 9 August 2013, the plaintiff filed a claim citing the president of the LTC as defendant for alleged breaches of the plaintiff’s right to a fair trial under Article 9 of the Constitution and claiming $1,000,000 compensation. It is not necessary to set out the three causes of action in the statement of claim as the statement of claim has been replaced with the amended statement of claim.
17. The amended statement of claim cites the Attorney General as defendant on behalf of the LTC. I will not comment at this stage on the appropriateness of suing the Attorney General on behalf of the LTC for damages for an alleged breach of the right to a fair trial provided under Article 9 of the Constitution.
18. I will now refer to the causes of action in the amended statement of claim.
    • (a) First cause of action
19. It is alleged in the first cause of action that the plaintiff has a right to a fair hearing under Article 9. This duty includes the duty on the LTC to make decisions in accordance with previous decisions of the Court and a duty to make clear its decisions without confusion and contradiction. I must point out here that if there is any confusion it was not started by the LTC. The 1968 proceedings and decision about the title “Tafilipepe” must have been based on the petition and evidence presented by the parties. The plaintiff’s uncle who was the leader of the respondent party also went by the name “Tafilipepe”. So there was in 1968 clear recognition by the parties to the 1968 proceedings that there is a title “Tafilipepe” in Falevao. However, when the matais were registered pursuant to the 1968 decision it was done under the name “Tafililupetiamalie” because of the saofai certificates presented by the pulenuu of Falevao to the registrar. In 1986, the plaintiff’s uncle now going by the name “Tafililupetiamalie” wrote to the registrar to cancel the 1968 decision. This was rejected as too late but the register of matais was corrected by deleting the name “Tafililupetiamalie” and substituting the name “Tafilipepe” in order to comply with the 1968 decision. However, in 1987 the Alii and Faipule of Falevao wrote to the president of the LTC that there is no title “Tafilipepe” in Falevao but only the title “Tafililupetiamalie”. This was clearly contrary to the 1968 decision.
20. It is further alleged in the first cause of action that the 2010 LTC decision confused the names Tafili, Tafilipepe, and Tafililupetiamalie as the same name when it is not. As already pointed out, the confusion, if any, was not started by the LTC. It is also alleged that the 2010 LTC decision failed to follow the 1968 LTC decision and the direction given on 18 June 1986 by the then president of the LTC even though that direction was clearly aimed at the plaintiff’s uncle that there was nothing to prevent him from filing a petition to determine the pule of the title Tafililuputiamalie. It is then pleaded that as a result of the 2010 decision the plaintiff has suffered loss because the title Tafililupetiamalie of the plaintiff’s family has been confirmed to a person who is not an heir and the plaintiff has had to engage legal counsel. An order is then sought to quash the 2010 decision and damages of $50,000 are claimed against the defendant.

(b) Second cause of action

21. Under the second cause of action, it is again alleged that the plaintiff’s right to a fair hearing under Article 9 of the Constitution has been breached because (a) the 2013 decision confused the names Tafili, Tafilipepe and Tafililupetiamalie as one and the same but it is not, (b) the 2013 decision failed to follow the direction of 18 June 1986 given by the then president of the LTC, and (c) the 2013 failed to follow the 1968 decision. I must point out here that if the LTC in 2013 had followed the 1968 decision then the correct matai title should have been Tafilipepe and not Tafililupetiamalie
22. It is then further alleged that as a result of the 2013 decision, the plaintiff has suffered loss because the title of his family has been confirmed to a person who is not an heir and the plaintiff has had to engage legal counsel for assistance. An order is then sought to quash the 2013 decision and damages of $50,000 are claimed against the defendant.

(c) Third cause of action

23. The wording of the third cause of action for alleged breach of the Article 9 right to a fair trial is the same as that of the second cause of action. This is somewhat confusing. I presume in favour of the plaintiff that the second cause of action relates to the actual decision made on 9 August 2013 by the appellate division of the LTC but the third cause of action is based on the allegation of perceived bias made in the amended statement of claim against the president of the LTC who presided with two other Judges over the 2013 hearing of the plaintiff’s appeal from the 2010 decision.
24. It is alleged in the amended statement of claim that the president of the LTC is related to Mulimuli Mafoa Siaki who was confirmed by the Court as a holder of the title Tafililupetiamalie but the plaintiff was not aware of this family connection until after the 2013 decision which dismissed his appeal. It is also said that Mulimuli Mafoa Siaki is a first cousin of the late father of the president of the the LTC.
25. In the supplementary affidavit of the registrar dated 11 June 2015, it is there stated that the great, great grandfather of the president of the LTC had a daughter (the great grandmother of the president) and a son named Faale. The great grandmother of the president also had a daughter (the grandmother of the president).
26. On the other hand, Faale the great granduncle of the president had two daughters Tulili and Asovale. Tulili was married to one Fatili Vaetoa Siauvale and her sister Asovale was married to one Taesali Ikapoti. Asovale and Taesali Ikapoti had a son named Siatu who was adopted by Tulili and her husband. Taesali Ikapoti the husband of Asovale, had a brother named Aigaletaulele’a Siaki who is the father of Mulimuli Mafoa Siaki. So there is no blood or family connection between the president of the LTC and Mulimuli Mafoa Siaki whose appointment to the title Tafililupetiamalie was confirmed in the 2010 decision of LTC at first instance and again in the 2013 decision of the appellate division of the LTC.
27. The plaintiff in his third cause of action then again claims $50,000 damages for the alleged breach of his constitutional right to a fair hearing and an order to quash the 2013 decision.

The defendant’s motion to strike out the amended statement of claim

28. The defendant’s strike out motion is brought pursuant to r 70 of the Supreme Court (Civil Procedure) Rules 1980 and the inherent jurisdiction of the Supreme Court.
29. The grounds of the strike out motion may be stated as follows:
    • (a) The president and Judges of the LTC involved in the 2010 and 2013 decisions of the Court are protected by judicial immunity.
    • (b) The LTC should have been cited as the allegations are made against the president and Judges of the LTC involved in the 2010 and 2013 decisions.
    • (c) The plaintiff’s claim does not contain valid causes of action.
    • (d) There have been no breaches of the plaintiff’s right to a fair trial under Article 9 of the Constitution.
30. The other ground raised in the submissions of counsel for the defendant is that the relief of a quashing order sought by the plaintiff in all of his three causes of action is in effect an order for certiorari which is an extraordinary remedy under r 195 of Part XIX of the Supreme Court (Civil Procedure) Rules 1980 and should have been sought by way of a motion for judicial review instead of by way of an action in a statement of claim.

(a) Judicial immunity

31. I have decided to deal with the ground of judicial immunity first because it is a threshold issue. If the Judges involved in the 2010 and 2013 decisions of LTC are immune from personal liability for their judicial actions then that should be the end of the plaintiff’s claim for damages. That is because even though the Attorney General is sued as defendant on behalf of the LTC, in truth the claims for damages are directed against the president and the other Judges of the LTC who made the 2010 and 2013 decisions.
32. In Sirros v Moore [1975] QB 118 which is the leading English authority on judicial immunity, Lord Denning MR said at p.132 D-H:
    • “Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a Judge for anything said by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such steps to reverse his ruling. Of course if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal Courts. That apart, a Judge is not liable to an action for damages. The reason is not because the Judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear... Those words apply not only to Judges of the superior Courts, but to Judges of all ranks, high or low”
33. In respect of the Judges of the inferior Courts, Lord Denning MR went on to say at p.136 A-E:
    • “In the old days, as I have said, there was a sharp distinction between the inferior Courts and the superior Courts. Whatever may have been the reason for this distinction, it is no longer valid. There has been no case on the subject for the last hundred years at least. And this time our judicial system has changed out of all knowledge. So great is this change that it is now appropriate for us to reconsider the principles which should be applied to judicial acts. In this new age I would take my stand on this: as a matter of principle the Judges of superior Courts have no greater claim to immunity than the Judges of the lower Courts. Every Judge of the Courts of this land – from the highest to the lowest – should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure ‘that they may be free in thought and independent in judgment’, it applies to every Judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn to the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be held liable in damages?’. So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly believes it to be within his jurisdiction, he should not be liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it”.
34. Ormrod LJ, the third member of the Court, agreed with Lord Denning MR and said at p.149 D-H:
    • “There is no ground today for drawing a distinction between Judges of different status or between Judges and magistrates...
    • “I, therefore, agree with Lord Denning MR that it is impossible to maintain double standards in so important a matter as a personal liability of Judges and that, accordingly, the old rules should be modified by giving Judges of inferior Courts (including magistrates) enhanced protection. In my judgment the second formulation suggested... by Parke B in Calder v Halket”, 3 Moo.P.C. 28, 74 should now be adopted, namely, a Judge should be protected ‘... where he gives judgment, or makes an order, in the bona fide exercise of his office, and under the belief of his having jurisdiction, though he may not have any’. With a fully developed appellate structure, supplemented by habeas corpus and the other prerogative writs, and made accessible to all, or nearly all, by the legal aid scheme, there is no longer any necessity to preserve, in its old form, the remedy by way of personal actions against Judges.”
35. In Re McC (A Minor) [1985] 1 AC 528, pp. 540 – 541, Lord Bridge said:
    • “It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But as Lord Esher MR said in Anderson v Gorrie [1894] UKLawRpKQB 161; [1895] 1 QB 668, 670:
      • “ ‘the question arises whether there can be an action against a Judge of a Court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.’
    • “The principle underlying this rule is clear. If one Judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest Judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.
    • “If the old common law was different in relation to justices of the peace, I suspect the different rule had its origin in society’s view of the justice, reflected in Shakespeare’s plays, as an ignorant buffoon. How long this view persisted and how long there was any justification for it, I am not a good enough legal or social historian to say. But it clearly has no application whatever in today’s world either to stipendiary magistrates or to lay benches. The former are competent professional Judges, the latter citizens from all walks of life, chosen for their intelligence and integrity,... They give unstinting voluntary service to the community and conduct the major part of the criminal business of the Courts. Without them the system of criminal justice in this country would grind to a halt. In these circumstances, it would seem to me a ludicrous anachronism that, whilst a Judge sued for an act within his jurisdiction alleged to have been done maliciously is entitled to have the proceedings dismissed in limine, a magistrate, in the like case, should have to go to trial to defend himself against the accusation of malice. It follows that, in my opinion, the old common law ‘action on the case as for a tort’ against justices acting within their jurisdiction maliciously and without reasonable and probable cause no longer lies”.
36. In Australia in the case of Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, pp 185 – 186, Gleeson CJ, after referring with approval to the principle of judicial immunity as explained by Lord Denning MR in Sirros v Moore [1975] QB 118, 132, and Lord Bridge in Re McC [1985] AC 528, 540, said:
    • “This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the advantage of Judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J, speaking for the Supreme Court of the United States, said in Forrester v White [1988] USSC 3; (1998) 484 US 219, 226 – 227, that Court on a number of occasions has ‘emphasised that the nature of the adjudicative function requires a Judge frequently to disappoint some of the most intense and ungovernable desires that people can have.’ She said that if Judges were personally liable for erroneous decisions, the resulting avalanche of suits... would provide powerful incentives for Judges to avoid rendering decisions likely to provoke such suits”.
37. There are many Australian cases on judicial immunity but it is not necessary to refer to any more of them except, perhaps, to Wentworth v Wentworth [2000] NSW CA 350, [260], where Heydon J A said:
    • “The old cases turned not so much on the protection of the judiciary from claims which might ultimately fail or succeed, but from any claim. They recognised a freedom from ‘continual calumniations’...and ‘from action and question at the suit of an individual’...The rule was established to secure the independence of the Judges, and prevent their being harassed by vexatious actions’...The importance of the judicial immunity as recognised in the older cases lies in its absolute and non-qualified character – its capacity to be pleaded in bar to suits at the outset, so as to secure their dismissal at that point, rather than permitting the allegations to be tried”.
38. In the New Zealand case of Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668, p 671, pp. 678 – 679, Eichelbaum CJ and Henry J when dealing with the judicial immunity of a Judge of a superior Court of record adopted the following statements of principle from 1 Halsburys Laws of England 4th ed,(now at 4^th ed, reissue, 2001) vol 1(1) ) Administrative Law at 5(2)(i) [197] and [201]:
    • “212. Persons protected. Persons exercising judicial functions in a Court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process. A further protection arises from the rule that the record of a Court of record cannot, if subsisting and valid upon its face, be traversed against the Judge of that Court.
    • ...
    • “216. Nature of protection. Wherever protection of the exercise of judicial powers applies, it does not matter that the Judge was under some gross error or ignorance, or was actuated by envy, hatred and malice. The protection applies provided the Judge acts in the bona fide exercise of his office and in the belief (though mistaken) that he has jurisdiction”.
39. In the more recent New Zealand case of Attorney General v Chapman [2011] NZSC 110 McGrath and William Young JJ in a joint judgment, with which Gault J concurred, delivered in the New Zealand Supreme Court, accepted that the respondent’s rights to an appeal and to natural justice under ss.25 (h) and 27 (1) of the New Zealand Bill of Rights Act 1990 had been breached when the Court of Appeal dismissed the respondent’s appeal against conviction. The issue the New Zealand Supreme Court had to deal with was whether the respondent had a viable claim against the Attorney General for compensation under the Bill of Rights Act for those breaches or whether such claim is precluded by the principle of judicial immunity which would exclude a direct claim by the respondent against the Judges who dealt with his case. At para [97] of their judgment, McGrath and William Young JJ said:
    • “[97] We consider that Baigent (and the other New Zealand cases relied on) do not establish that public law compensation can be sought from the Attorney General for judicial breaches of the Bill of Rights Act...Judicial immunity gives effect to systemic public interest considerations, the most important of which is judicial independence. As we will explain, allowing a claim of this kind to proceed would be as inimical to those public interest considerations as allowing a personal claim against Judges. Given this and our view that there is no particular need for the provision of financial remedies for judicial breaches of the Bill of Rights Act, we conclude that the claim is not available”.
40. Further on McGrath and William Young JJ said at para [161]:
    • “[161] At common law the Judges of superior Courts have always had immunity from suit. In Nakhla v McCarthy[1978]1 NZLR 291, the Court of Appeal held that the immunity was absolute in respect of actions taken in the discharge of judicial responsibilities, involving execution of judicial functions, as opposed to individual acts not done in the course of office. Such actions were outside the Judges jurisdiction and not protected by immunity within which Judges must act. In 1999, the Court of Appeal confirmed the wide scope of common law judicial immunity in Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668”.
41. Further on at paras [165] and [166] their Honours said:
    • “[165] The Court of Appeal’s decision [in Harvey v Derrick] meant that the position of District Court Judges differed notably from that of the Judges of Courts above the District Court in the hierarchy. This was because, unlike the Judges of the higher Courts, they were not given authority to determine their jurisdiction. This distinction no longer applies by reason of amendments to the District Courts Act 1947 and it is difficult to discern any principled reason supporting it. Given the nature of their role and functions the policy reasons supporting the immunity apply equally to the Judges of the District Court as they do to those of the higher Courts”.
    • “[166] [Allowing] claims against Judges would provide an opportunity for disappointed litigants to harass those who had decided cases against them. It would also provide an opportunity for such litigants to put in issue the correctness of, and thus collaterally attack, earlier judgments. Given that half of all litigants are likely to be dissatisfied (and sometimes irrationally) with decisions made by Judges, there would be many who would take up such opportunities. In this context, allowing claims to be made against Judges would:
      • (a) have the tendency to distract Judges from their duty to deal with cases dispassionately;
    • (b) result in Judges spending time responding to suits against them;
    • (c) discourage judicial recruitment; and
    • (d) by permitting collateral attack, undermine the finality of judgments.

“The principles of judicial immunity are the result of a balancing exercise. On the one hand is the problem of a disappointed litigant with a genuine grievance but no remedy. On the other hand there are the undesirable consequences of permitting claims against Judges. The response of the Courts in cases such as Nakhla and Gazley has been to allow the latter consideration to trump the former”

42. Finally at paras [204] and [205], McGrath and William Young JJ said:
    • “[204] [We] hold that the public policy reasons which support personal judicial immunity also justify confining the scope of Crown liability for governmental breaches of the Bill of Rights Act to actions of the executive branch. Such liability should not be extended to cover breaches resulting from the actions of the judicial branch. This does not, of course, mean that judicial immunity itself is being extended. Rather it is a recognition that the public law cause of action against the Crown, held in Baigent to be implicit in the Bill of Rights Act, would not appropriately be extended to cover the breaches of the judicial branch. As discussed, the desirability of finality in litigation and the importance of judicial independence and public confidence in that independence are here of particular importance. Relevant also is the extensive protection against judicial breach afforded by the justice system and in particular the current appellate process.
    • “[205] However, having examined the contention that Baigent damages should apply to judicial breaches, we are satisfied that step is unnecessary. It would be destructive of the administration of justice in New Zealand and ultimately judicial protection of human rights in our justice system”.
43. Even though I have cited at some length from the joint judgment of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110, it is recommended to counsel that the judgment be read in full in order to get its full flavour.

Discussion

44. The LTC was established pursuant to Article 103 of the Constitution which provides “There shall be a Land and Titles Court”. The composition and jurisdiction of the LTC are set out in the Land and Titles Act 1981. It is the most important Court in the eyes of most Samoans because it deals with disputes relating to matai titles and customary land – two matters that a dear to the hearts of the Samoan people.
45. The Judges of the LTC are appointed by the Head of State on the advice of the Judicial Service Commission by reason of character, ability, standing and reputation pursuant to s.28 of the Act. Most of the present Judges of the Court are men and women who had held very senior positions in the public service and the police service. They are also holders of matai titles of high status in their respective villages and possessed of profound knowledge and experience of Samoan custom. While only the president and one of the deputy presidents are legally trained, the other Judges of the LTC make up for their absence of legal training with their experience, deep knowledge of Samoan customs, and common sense. Without them, the work of the LTC would come to a grinding halt so that the LTC might as well be closed down. This will have a severely devastating impact on the overall administration of justice in Samoa.
46. When the LTC sits as a Court of First Instance, its membership must include at least one Assessor. An Assessor has the same qualifications for appointment as a LTC Judge. In terms of s.63, an Assessor also has equal voice as a Judge in the decisions of the Court.
47. Whether or not it is appropriate to refer to the LTC as an inferior Court of record is immaterial for present purposes. On the basis of the judgments of Lord Denning MR in Sirros v Moore [1975] QB 118 and Lord Bridge in Re McC (A Minor) [1985] AC 528, it is clear that the common law principle of judicial immunity from liability in a civil suit for damages which applies to the Judges of the superior Courts of record would also apply to the same extent to the Judges of the inferior Courts of record. The same immunity should also apply to the Judges and Assessors of the LTC.
48. Even though in New Zealand, as pointed out in the judgment of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110, para [165], the judicial immunity which applies to Judges of the superior Courts has been extended by amendments to the District Courts Act 1947 (NZ) to Judges of the District Court, their Honours stated that it is difficult to discern any principled reason for the previous distinction in New Zealand between Judges of the superior Courts and Judges of the District Court. The common law on judicial immunity in Samoa should be the same as the current law in New Zealand in the sense that the principle of judicial immunity should apply to the Judges of the District Court as it does to the Judges of the Courts above the District Court.
49. It would also be clear from the judgment of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110, that reliance by the plaintiff on Article 9 of the Constitution for the alleged breaches of his right to a fair trial cannot sustain his claim for damages in the face of the principle of judicial immunity.
50. It must follow from all of this that the plaintiff’s claim is plainly and obviously untenable and cannot possibly succeed. It is therefore struck out. That concludes these proceedings. But out of deference to the submissions by counsel for the defendant, I will refer briefly to the remaining grounds of the defendant’s strike out motion.
    • (a) Is the Attorney General the proper defendant in these proceedings
51. In motions for judicial review that have been brought before this Court against decisions of the LTC or its president, the LTC or the president of the LTC has been cited as respondent. These are not proceedings for judicial review. It is a claim for damages. The claim should have been framed as a claim for public law compensation for alleged breaches of the plaintiff’s right to a fair trial under Article 9 of the Constitution: see Simpson v Attorney General [Baigent’s Case] [1994] 3 NZLR 667; Attorney General v Chapman [2011] NZSC 118.
52. Whether the Attorney General is the proper defendant in these proceedings for the alleged breaches of the plaintiff’s right to a fair trial, McGrath and William Young JJ said in Attorney General v Chapman [2011] NZSC 118, para [116]:
    • “If the State is required to provide public law compensation for judicial breaches of the Bill of Rights Act, the Courts would have to be able to identify an appropriate defendant. We are not able to think of anyone other than the Attorney General who could adequately represent the State; this despite legal uncertainties as to the juristic nature of the State in domestic law and the constitutional awkwardness of the Attorney General being sued for the actions of Judges (given his or her membership of the executive).”
    • (b) There is no breach of the plaintiff’s right to a fair trial
53. It is clear from the plaintiff’s amended statement of claim and submissions by counsel on both sides that the plaintiff was given the opportunity to be heard and present evidence in support of his petition and there was an actual hearing before the LTC at first instance in 2010. When he appealed the decision of the LTC at first instance to the appellate division of the LTC, he was again given the opportunity to be heard and there was an actual hearing of his appeal before the appellant division of the LTC in 2013. To that extent, there was plainly no breach of the plaintiff’s right to a fair trial under Article 9 of the Constitution.
54. Counsel for the plaintiff also submitted that there has been a breach of the constitutional rights to a fair trial because the decisions of the LTC in 2010 and 2013 were not made in accordance with the decision of the LTC in 1968. It is alleged that the Courts in 2010 and 2013 had confused the titles Tafili, Tafilipepe, and Tafililupetiamalie. This is not a breach of procedural fairness or natural justice or the plaintiff’s right to a fair trial. Being confused, or confusion, is not a breach of natural justice. In any event, any confusion in this matter, as already pointed out, was not started or created by the LTC. I have also pointed out that if the Courts in 2010 and 2013 had made their decisions in accordance with the decision in 1968, then the correct matai title would be “Tafilipepe” as decided by the Court in 1968 and not “Tafililupetiamalie” which was not the subject of the 1968 proceedings.
55. Under the traditional review grounds of illegality, procedural fairness, and irrationality, if there was any error as submitted by counsel for the plaintiff, it is likely to come under illegality. That is because the failure of a decision maker to take into account, or correctly take into account, a relevant consideration is an aspect of illegality, not of procedural fairness or natural justice. What is submitted here for the plaintiff, therefore, does not amount to a breach of the plaintiff’s right to a fair trial.
56. In relation to the decision of the LTC in 2010, that decision went on appeal to the appellate division of the LTC. In accordance with the practice of the appellate division of the LTC, as it also appears from the appeal record in this case, there was a rehearing de novo before the appellate division of the LTC, that is to say, there was a complete rehearing of the evidence and of all the parties on appeal. If it is, therefore, assumed for the sake of argument that there was a breach of natural justice or the right to a fair trial at the hearing before the LTC at first instance in 2010, such breach would have been cured by the rehearing de novo held at the appellate division of the Court in 2013. On this point about a natural justice defect in the original decision being curable on appeal, I refer to Slipper Island Resort Ltd v Number One Town and Country Planning Appeal Board [1981] 1 NZLR 143, per Cooke J at p.145; Blair v Upper Hutt City Council [2006] NZHC 705 per Clifford J para [59]; Telecom New Zealand Ltd v Christchurch City Council [2005] NZCA 36 per Chambers J at para [59]; and the relevant discussions in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by P A Joseph at pp. 887 – 889, para 23.6, and Judicial Review of Administrative Action (1995), 5th ed by de Smith, Woolf, & Jowell at pp. 488 – 491, paras 10–020 - 10–024, which are the only editions of those texts available to me. The principle involved here is that an original decision which is defective for breach of natural justice may be curable on appeal depending on the circumstances of the particular case.
57. I would also add that the proper remedy for the plaintiff if he was dissatisfied with the 2010 LTC decision was to appeal to the appellate division of the LTC which he had already done. His remedy is not to sue the Judges of the LTC at first instance for damages or compensation.
58. It is further alleged in the amended statement of claim that there is perceived bias in respect of the president of the LTC in the 2013 appellate proceedings as Mulimuli Mafoa Siaki whose title Tafililupetiamalie was confirmed on appeal is a first cousin of the president’s late father. This is strongly denied by the defendant through the affidavit filed by the registrar. For the purposes of a strike out motion, the facts pleaded in the amended statement of claim would have to be assumed to be true, that is to say, capable of proof. So evidence would have had to be called to resolve this conflict between the allegation by the plaintiff of family connection and the denial on behalf of the president of the LTC. However, I have already decided to strike out the amended statement of claim on the ground of judicial immunity.
    • (c) The plaintiff’s claim does not contain a valid cause of action
59. I have already dealt above with this ground. Suffice to say that I agree with the submissions of counsel for the defendant that the quashing orders sought in the prayers for relief in the amended statement of claim are in the nature of orders for certiorari. As such, certiorari is an extraordinary remedy under r.195 of Part XIX the Supreme Court (Civil Procedure) Rules 1980. In terms of the Rules, the plaintiff should have filed a motion seeking an order for certiorari.

Conclusion

60. On the basis of the common law principle of judicial immunity as I have already pointed out, the plaintiff’s claim for damages is plainly untenable and cannot possibly succeed. It is therefore struck out.
61. Counsel to file memorandum as to costs in ten (10) days if that has not already been done.
    

Chief Justice Sapolu