Faapo v Cabinet/Caretaker Government [2016] WSSC 23 (25 February 2016)

IN THE SUPREME COURT OF SAMOA
Faapo v Cabinet/Caretaker Government [2016] WSSC 23

Case name:	Faapo v Cabinet/Caretaker Government
Citation:	[2016] WSSC 23
Decision date:	25 February 2016
Parties:	Palusalue Faapo II, of Sataoa Safata, CANDIDATE (Applicant) and Cabinet/Caretaker Government (Respondent)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	− The Attorney General's motion to strike out is granted. These proceedings are at an end, save as to costs. − Costs payable amount to: solicitors' fees of $10,912.50; Disbursements of: $1,204.00; VAGST of $1,817.47; Total payable: $13,934.00 − A copy of this decision be forwarded to the President of the Law Society
Representation:	Mr L Suatele & Mr T Tiotio for the Applicant
	Ms M Lui and Ms B Faafiti-Lo tam for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980 r.188 & 189; 70; 196; Constitution of the Independent State of Western Samoa Act 1960 articles 32(1); 33; Government Proceedings Act 1974 ss. 9; 12(a); 12(1); 2; Supreme Court (Fees and Costs) Rules 1971 r. 5;
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER
of an Application for Declaratory Judgment and Restraining Orders pursuant to Rules 188 & 189 of the Supreme Court (Civil Procedure) Rules 1980.

BETWEEN:

PALUSALUE FAAPO II, a Member of Parliament for Safata and Leader of the Opposition in the Parliamentary Term 2011 - 2016
Applicant

AND:

THE CABINET AND/OR CARETAKER GOVERNMENT, Apia
Respondent

Counsel:
Mr L Suatele and Mr T Tiotio for the Applicant
Ms M Lui and Ms B Faafiti-Lo Tam for the Attorney General

Decision: 25 February 2016

Reasons: 26 February 2016

REASONS FOR DECISION OF JUSTICE E M AITKEN

1. On 10 February 2016 the Applicant filed a Notice of Motion seeking a declaration that the Respondent does not have the legal capacity to conduct the executive functions of the government of Samoa on the grounds that the resignation of the Minister of Finance in April 2014 violated Article 32(1) Constitution of the Independent State of Western Samoa Act 1960 (the Constitution) by violating the doctrine of collective responsibility.
2. It also sought various restraining orders, including that the Respondent be restrained in its role as caretaker government from exercising any executive powers, and that all its members be restrained from applying as candidates in the upcoming general election.
3. No Statement of Claim was filed in support, only a short Affidavit from the Applicant attesting to the resignation of the Minister of Finance in 2014, and referring to general and specific claims of misuse of public monies.
4. On 16 February the Attorney General, acting for the Respondent (but arguing the wrong party has been named) file a Notice of Motion to Strike Out these proceedings on the grounds that they are defective in form, politically motivated, contrary to law, frivolous, vexatious and amount to an abuse of this Court's process.
5. The matter came before me yesterday at which time written submissions were tendered and oral arguments advanced. As will become clear, the arguments of the Applicant are largely illogical, incoherent, and without any proper procedural or substantive basis.
6. The Court acknowledges the thorough, careful and helpful submissions filed and advanced by the Attorney General.

Strike Out

7. Rule 70 Supreme Court (Civil Procedure) Rules 1980 provides:
   • 70. No Cause of Action – Where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out.
8. This Court also has inherent jurisdiction to strike out where the proceedings are frivolous, vexatious, and an abuse of process.
9. The law in this area is well settled: the discretion to strike out is to be exercised sparingly and only where the claim is so untenable it cannot possibly succeed, and is certain to fail. An abuse of process would include proceedings brought for some ulterior or improper motive, frivolous, vexatious or manifestly groundless.

DECISION

10. I am in no doubt that the proceedings brought by the Leader of the Opposition are politically motivated, have no prospect of success and amount to an abuse of the processes of this Court. My reasons can be stated with relative brevity.

Procedural defects

11. The Motion filed is defective in a number of ways including:
    1. the wrong party has been named as Respondent. Pursuant to s9 Government Proceedings Act 1974 proceedings against the Government must be initiated by or brought against the Attorney General.
    2. the Respondent was not served with the Notice of Motion.
    100. the Notice was not accompanied by a Statement of Claim, a mandatory requirement under r196 Supreme Court (Civil Procedure) Rules 1980 (the Rules).
12. Applicant counsel seemed totally unaware of the existence of the Rules, and the requirements they imposed on him. No coherent response was provided to the Attorney General's challenge as to these and other procedural defects. Such defects are, however, capable of remedy.

Injunctive relief

13. Not so the Applicant's claim for injunctive relief in which broad and far-reaching restraining orders are sought. While permissible pursuant to the Rules (specifically r193), s12(1) of the Government Proceedings Act (the Act) expressly prohibits this Court from granting an injunction against the Government.
14. When confronted with s12, Counsel for the Applicant seemed completely unaware of it and the Act as a whole, failed to appreciate its significance and, unsurprisingly in such circumstances, was unable to respond when given the opportunity.
15. Any claim for injunctive relief (restraining orders) must fail and it is unnecessary to go any further into such ill-founded claims.

Declaratory relief

16. This Court has the power pursuant to s12(1) of the Act to make 'orders' which are defined in s2 to include a declaration. Specifically the Applicant seeks a declaration that:
    • the Cabinet and or Caretaker Government does not have the legal capacity to conduct the executive functions of the Government of Samoa
17. The sole ground advance for the basis of any such declaration is that the resignation of the Minister of Finance in April 2014 violated clause 32(1) of the Constitution by violating the doctrine of Collective Responsibility.
18. As best I understand the argument, it is that once the Minister of Finance resigned, Cabinet should have resigned. By failing to do so, it acted unlawfully and with no power or authority, and it follows that the Caretaker government is equally unlawful. The Court should issue a declaration to this effect to call Cabinet to account.
19. Such an argument has no foundation in law and is verging on preposterous. Article 33 of the Constitution specifically provides for the resignation of Ministers without any such far-reaching consequences. Nor is there any evidence that, with that resignation, the number of Cabinet Ministers fell below the Constitutional requirement.
20. The Applicant's arguments around collective responsibility were incoherent and irrelevant. His so-claimed "Nuie precedent" (being a decision of the High Court of Nuie) has no relevance at all to the matter in issue. On this and all other matters of procedural and substantive relevance, Counsel for the Applicant was unable to respond to the reasonable enquiries of the Court as to the basis for the position advanced, and I concur entirely with the Attorney General (43b of her submissions) that the Applicant and his counsel have no understanding of the law in relation to their proceedings and have made no attempt to understand the [it] before the filing of proceedings.
21. Given the single basis for this Motion was the resignation of the Minister of Finance in April 2014, the Court repeatedly pressed Applicant Counsel for the reasons for the delay in bringing these proceedings but Counsel would not, or could not, provide any explanation. This absence of explanation, the incoherent nature of the arguments advanced, the lack of understanding of the procedural requirements of this Court, the profound lack of any legal basis for the remedies sought, and the nature of the submissions advanced (which were more akin to electioneering that legal submission), leave me in no doubt that these proceedings have been brought for politically motivated reasons. They are certain to fail and are a gross abuse of this Court.
22. The Attorney General's motion to strike out is granted. These proceedings are at an end, save as to costs.

Costs

23. This Court's approach to costs is well known and can be summarised briefly:
    1. Rule 5 Supreme Court (Fees and Costs) Rules 1971 confers a discretion on this Court to fix costs as it thinks fit (the scale in the Rules long since abandoned as outdated and unhelpful);
    2. Ordinarily costs should be awarded to the successful party and awarded on a party and party basis;
    100. An unsuccessful party should be required to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party, such contribution usually fixed at two thirds of such reasonable costs;
    4. In special circumstances, a higher award of costs will be appropriate or indemnity costs, where a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim; commenced or pursued its claim for an ulterior motive; or has shown willful disregard of the known facts or clearly established law.
24. For the reasons already given, these proceedings were without merit, hopeless, and pursued for an ulterior motive. Indemnity costs are appropriate.
25. The Attorney General has filed and served an itemised account. The work done and charge out rates are reasonable, with one exception. In total, 43 hours of State Solicitor time is charged to cover research into the issues raised by the Applicant's Notice of Motion. While that research was thorough, and of considerable assistance to the Court, for the purposes of taxing the bill of costs, there is likely to be some overlap in the work done over the 3 periods claimed. For that reason, the total hours charged will reduce by 13 to 30 hours. In all other respects the bill is reasonable.
26. Costs payable amount to: solicitors' fees of $10,912.50

Disbursements of $1,204.00
VAGST of $1,817.47
Total payable: $13,934.00.

27. The Attorney General raised the issue of whether costs, in whole or part, should be paid by the Applicant's counsel on the basis that, by pursing such an unmeritorious claim with no regard to the Rules of procedure and no credible legal basis at all, he has failed in his duty as an officer of the Court for which an indemnity order would be an appropriate punitive response.
28. Mr Suatele was given the chance to respond to the Attorney General's submission. He told the Court that he would be responsible for the costs incurred but did not say why he should be, either in principle or in the particular circumstances. He continued to behave as if he were making a political statement and conveyed no sense that he had any appreciation that his client or he might have been at risk on costs if the Attorney General's Strike Out application was granted.
29. I have carefully considered this issue. While there is some merit in the Attorney's argument, the Applicant is the Leader of the Opposition and can be assumed to be a man of experience who commenced these proceedings knowingly and, most regrettably, for politically motivated reasons. It may well be that he deliberately chose inexperienced counsel who would do as he was told, rather than provide the obvious advice: that the proceedings were an abuse of process and should not have been filed.
30. In the circumstances, indemnity costs should properly be paid by the Applicant and it follows that he is ordered to pay to the Respondent costs in the sum of $13,934.00.

Final remarks

31. These proceedings should never have been brought and there are valuable lessons for all counsel and the Law Society that arise. The following remarks are intended to assist in ensuring that this Court is not used for such obvious political motives.
32. Counsel for the Applicant is an employee of the firm Brunt Lawyers. Mr Brunt, to his credit, appeared before the Court when he became aware of the costs' application. He accepts he was aware from media enquiries that proceedings had been filed, and explained to the Court that he had taken steps to find out what his employees were doing but was unable to discuss this will either of Mr Suatele or Mr Tiotio. He searched the firm's documents database and could find no record of the proceedings and therefore took no further steps. It is now clear that the documents filed were not created at the officers of Brunt Lawyers, but by Mr Suatele and/or Mr Tiotio from some other place.
33. In the circumstances, no order for costs was directed against Mr Brunt - while he could have done more to enquire into what his employees were up to, I am satisfied that they deliberately chose to conduct these proceedings not from their place of employment but elsewhere.
34. The fact however remains that disingenuous ill-founded proceedings have been pursued involved the Attorney General's office and this Court in considerable time at the expense of the taxpayer's of Samoa. Such inexperienced counsel should be closely supervised by their principals, not given free rein to use and abuse the court processes as they see fit. This is particularly so where they have such an obvious personal interest in the proceedings. Mr Brunt, and other principals, need to take all such steps as may be appropriate to provide appropriate supervision of their staff.
35. This is an area where the Law Society should and does have a role - Mr Suatele was practicing on a restricted practicing certificate. I am unaware of whether his conduct on this occasion exceeded that certificate, but direct that a copy of this decision be forwarded to the President of the Law Society so that she and her council members are aware of it. They may wish to take this opportunity to review the scope of restricted certificates and/or develop guidelines (in consultation with the profession) articulating what supervision of junior staff should properly entail.
36. Finally, both Mr Suatele and Mr Tiotio should consider carefully whether they wish to continue hold a practicing certificate. If they do, they should both take immediate steps to upskill themselves, particularly around matters of procedure, and as to their obligations as officers of the court. Should they file such unmeritorious and obviously politically motivated proceedings again, I would have thought they were very much at risk of an order for costs against them personally.
    

_____________________
JUSTICE E M AITKEN