Woodroffe v Mataia [2020] WSSC 68 (31 August 2020)

SUPREME COURT OF SAMOA
Woodroffe v Mataia [2020] WSSC 68

Case name:	Woodroffe v Mataia
Citation:	[2020] WSSC 68
Decision date:	31 August 2020
Parties:	LEULUA’IALII OLINDA WOODROFFE, Barrister and Solicitor, Unit 1F/9 Upper Queen Street, Auckland. (First Plaintiff) AND COLIN JOHN WOODROFFE & OLINDA WOODROFFE trading in a law partnership known as Woodroffe Lawyers, Unit 1F/9 Upper Queen Street, Auckland. (Second Plaintiff) AND ASIATA MATAIA Retired, Vailoa, Samoa. (Defendant)
Hearing date(s):	-
File number(s):	CP49/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:	-
Order:
Representation:	O Woodroffe for first and second plaintiffs S Wulf for defendant
Catchwords:	- self-represent – indemnity costs
Words and phrases:
Legislation cited:	Evidence Act 2015
Cases cited:	Ainuu v Land and Titles Court [2011] WSSC 36 Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 at paragr Toailoa Law Office v Duffy [2005] WSDC 3 aph 47Woodroffe v Mataia [2017] WSCA 5
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

LEULUA’IALII OLINDA WOODROFFE, Barrister and Solicitor, Unit 1F/9 Upper Queen Street, Auckland.
First Plaintiff

AND:

COLIN JOHN WOODROFFE & OLINDA WOODROFFE trading in a law partnership known as Woodroffe Lawyers, Unit 1F/9 Upper Queen Street, Auckland.
Second Plaintiff

AND:

ASIATA MATAIA Retired, Vailoa, Samoa.
Defendant

Counsel:
O Woodroffe for first and second plaintiffs
S Wulf for defendant

Decision: 31 August 2020

RULING OF THE COURT
(Motion by plaintiffs to self-represent)

1. This is the last of Mrs Woodroofe’s long outstanding matters referred to me.
2. The detailed background facts can be found in the Court of Appeal decision in Woodroffe v Mataia [2017] WSCA 5. In essence, the plaintiffs in 2014 filed a defamation claim against numerous defendants including the present defendant in relation to an article alleging the plaintiffs had misappropriated monies belonging to the defendant who is a former client. The claims as against the other defendants have been settled and proceedings against them discontinued.
3. Remaining on foot is that against the defendant and a counter claim by the defendant. This despite the recommendation by the Court of Appeal in Mataia at paragraph 31 that “The opportunity to reach an out of court settlement making use of the records now available should be fully explored before still more legal costs are incurred”.
4. The present dispute centres around the plaintiffs insistence that they represent themselves in the proceedings notwithstanding that they will have to give evidence at the trial as witnesses in respect of the claim and the counter-claim.
5. The plaintiffs in their written submissions argue that s.62 of the Evidence Act 2015 permits them to appear as both counsel and witness. However, s.62 concerns the competence of witnesses not the competence of counsel to also be a witness in the same proceeding. Furthermore s.62 is subject to s.63 which in subsection (2) states:

“63. Competence of Judges, assessors and counsel- (2) A person who is acting as an assessor or counsel in a proceeding is not competent to give evidence in that proceeding except with the permission of the Judge.”

6. The plaintiffs also rely on the fact that in previous cases in this court counsels have self-represented even though they were litigants. They cite numerous examples most of them actions by the law firm of Drake & Co to recover outstanding legal fees.
7. It is notable however that in most of those cases evidence was tendered by way of affidavit and no examination in chief, cross-examination or re-examination was required.
8. Where oral evidence was tendered the practice was for Mr Drake to testify on behalf of the partnership while Mrs Drake retained her status as counsel. It is also of note that the litigant in many instances was the incorporated entity Drake & Co or Drake Solicitors Nominee Co and not the lawyers personally.
9. In the case of Toailoa Law Office v Duffy [2005] WSDC 3 cited by the plaintiffs no oral evidence was adduced by the informant or by counsel on its behalf. The argument was solely in relation to legal issues. Ainuu v Land and Titles Court [2011] WSSC 36 similarly involved a Strike Out Motion, again no oral evidence required.
10. I would have thought that Mrs Woodroffe being a member of the local Bar, the matter was placed beyond doubt by rule 7.06 of the Rules of Professional Conduct for Barristers and Solicitors of Samoa which provides:

“A practitioner must not act as both counsel and witness in the same matter.”

This is modelled on the equivalent New Zealand provision governing proceedings before the courts of that country.

11. In terms of the practice this court ought to follow I am of the respectful view the proper approach is that propounded by cases such as Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 at paragraph 47:

“It is necessary to emphasise the risk posed to the administration of justice in New South Wales by solicitors remaining on the record when they are or may be, witnesses in proceedings. This risk is heightened when they have a personal interest in the outcome of litigation beyond recovery of their fees. Courts rely on legal practitioners to discharge their duties to remain objective and professional in the preparation and presentation of proceedings. Such duties are susceptible to compromise where a practitioner is also a witness and even more so when he or she has a financial interest in the outcome; see for example the observations made by Brereton J in Mitchell v Burell [2008] NSWSC 772 at [20] where he said:

“I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545, may go somewhat further, the cases indicate – as Campbell CJ did in that case itself – that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act” (emphasis is mine).

12. There being no dispute this court has inherent jurisdiction to regulate its own proceedings, there will accordingly issue an order that the plaintiffs engage independent counsel to act for them in this matter.
13. These proceedings will be listed for mention on 14 September 2020 so that they can be progressed in a timely fashion. The plaintiffs to ensure they have retained counsel by then failing which their action will be struck out.
14. According to the court file there is currently also pending a Motion by the defendant for leave to amend his counter-claim supported by an affidavit parts of which are in Samoan and may need to be translated by the Registrar of court for the benefit of the second plaintiff Mr Woodroffe.
15. The defendant has sought indemnity costs in respect of this application. This is duly noted but costs will be reserved as costs in the cause.

JUSTICE NELSON