Public Trustee v Sanft [2018] WSSC 27 (1 March 2018)

SUPREME COURT OF SAMOA
Public Trustee v Sanft [2018] WSSC 27

Case name:	The Public Trustee v Sanft
Citation:	[2018] WSSC 27
Decision date:	01 March 2018
Parties:	THE PUBLIC TRUSTEE, a corporation sole established by the Public Trust Office Act 1975 as the Executor or the estate of SUSIE BROWN lately of Alamagoto near Apia, Samoa, Deceased. (Plaintiff) AND KENE SANFT sued on his behalf and on behalf of his family members presently occupying the estate land at Alamagoto near Apia, Samoa. (Defendant)
Hearing date(s):	26 February 2018
File number(s):	CP 154/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	H Hoglund for plaintiff D Kerslake for defendant
Catchwords:	Application to adjourn - ready to proceed – vague description – counter-claim – unsatisfactory - resolve litigation – struck out – bear their own costs.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE PUBLIC TRUSTEE, a corporation sole established by the Public Trust Office Act 1975 as the Executor or the estate of SUSIE BROWN lately of Alamagoto near Apia, Samoa, Deceased.
Plaintiff

AND:

KENE SANFT sued on his behalf and on behalf of his family members presently occupying the estate land at Alamagoto near Apia, Samoa.
Defendant

Counsel:
H Hoglund for plaintiff
D Kerslake for defendant

Hearing: 26 February 2018

Ruling: 01 March 2018

RULING OF NELSON J
(Application to adjourn)

1. This matter was scheduled for hearing before me on 26 February 2018. On that day counsel for the defendant appeared in support of an application by plaintiffs counsel for an adjournment. The application was made by letter only sighted by me on the morning of 26 February 2018. The basis of the application was said to be “due to family and personal reasons as a result of the past 2 weeks” with some reference to office issues resulting in the overseas departure of instructed counsel Mrs Faasau. A very vague description not amplified upon by Mr Kerslake.
2. It appeared the application was a joint one made with defence counsels consent as there were “other issues pertaining to the proceedings that needs further consultations between counsels.” Again a very vague reference to issues that if they existed, should have been resolved by counsels before the matter was set down for trial. In any event if there were actual or potential problems with the assigned hearing date, these should have been communicated before or at the latest during Callovers last week. That is the purpose of having Callovers. It is noted these proceedings were set down for hearing on 02 October 2017 some 5 months ago. Instead the parties indicated they were ready to proceed to trial as the file is marked “Ready to proceed for hearing before His Honour Justice Nelson on Monday 26 February 2018 at 10:00 am.”
3. In considering the application I reviewed the history of this matter which dates back to August 2016. I note it had been referred for a Judicial Settlement Conference on two occasions: the first before Tuala-Warren, J was rescheduled and at the second before Tuatagaloa, J, plaintiffs counsel on the day of hearing sought and was granted an adjournment due to the unavailability of his client. A third Judicial Settlement Conference before Tuala-Warren, J was set but on the allocated date, there was no appearance by the plaintiff or his counsel. The judge ordered costs and noted on the file “Unacceptable non-appearance without any communication from plaintiff.” The following day plaintiffs counsel and Mr Kerslake appeared before Her Honour and as she was available, she conducted a Judicial Settlement Conference. Which was not successful. The matter was accordingly adjourned to set a trial date and on 02 October 2017 was adjourned to 26 February 2018 for hearing before me. As per normal it was called at Callovers on 22 February 2018 and was noted “Ready to proceed.”
4. A most unsatisfactory leadup to the present application and as there is a Counter-Claim, indicative of a failure by both parties to pursue their actions with some diligence. As indicated to defence counsel I reject the application for an adjournment and as there was no appearance by the plaintiff or any representative thereof, the claim will be struck out. Counsels should never assume that an agreed course of action will automatically receive the approval of the court. The court is obliged to consider wider interests such as the necessity to resolve litigation expeditiously and the corresponding duty on counsels to ensure cases are properly prepared and presented for trial. In both I have found counsels to be lacking.
5. As counsel for the defendant had already agreed to an adjournment, clearly he was in no position on 26 February 2018 to proceed with the counter claim either. I have therefore come to the conclusion that too should also be struck out.
6. I recommend to counsels they fully prepare their respective claims and resolve any and all “further issues pertaining to the proceeding that needs further consultations between counsels” before bringing these matters back to court.
7. In the circumstances, each party will bear their own costs.
   

JUSTICE NELSON