Vaivaimuli Corporation Ltd v National Pacific Insurance Ltd [2021] WSSC 4 (10 February 2021)

SUPREME COURT OF SAMOA
Vaivaimuli Corporation Limited v National Pacific Insurance Limited [2021] WSSC 4

Case name:	Vaivaimuli Corporation Limited v National Pacific Insurance Limited
Citation:	[2021] WSSC 4
Decision date:	10 February 2021
Parties:	VAIVAIMULI CORPORATION LIMITED, a private company carrying manufacturing activities (Plaintiff) AND NATIONAL PACIFIC INSURANCE LIMITED, a public Company carrying financial and insurance carrying activities with its head office at Apia. (Respondent)
Hearing date(s):	27 January 2021
File number(s):	CP 8/19
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I accordingly ordered on 27 January 2021 that an Amended Statement of Defence be filed and served by the defendant within 14 days thereof. Proceedings were also by consent adjourned to the court list of 15 February 2021for mention. Costs are reserved as costs in the cause.
Representation:	C Vaai for plaintiff K Koria for respondent
Catchwords:	Motion to strike out - Amended Statement of Claim – extension of time - Statement of defence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

VAIVAIMULI CORPORATION LIMITED, a private company carrying manufacturing activities
Plaintiff

AND:

NATIONAL PACIFIC INSURANCE LIMITED, a public Company carrying financial and insurance carrying activities with its head office at Apia.
Respondent

Counsel:
C Vaai for plaintiff
K Koria for respondent

Hearing: 27 January 2021

Decision: 27 January 2021

Reason: 10 February 2021

DECISION OF THE COURT

1. On 16 July 2020 Justice Tuala-Warren denied the defendants Motion to Strike Out the plaintiffs claim and ordered an Amended Statement of Claim be filed and served by 10 August 2020 “when the matter will be mentioned in the Supreme Court”. For reasons not clear from the file but said by the plaintiff to be due to a disruption to the court list on 10 August 2020 because of Covid, the matter was not called as directed. The plaintiffs Amended Statement of Claim was only filed and served seven (7) days later on 17 August 2020.
2. There is now a dispute as to whether the plaintiff should be granted an extension of time to file its Amended Statement of Claim. Regrettably due to further disruptions to the courts schedule caused by the court having to prioritise the hearing of pre-election petitions against 2021 General Election candidates, this matter has only now been able to be dealt with.
3. Having heard counsels and considered their Submissions I have reached the following conclusions:
   • (i) There is no obvious or demonstrable prejudice caused to the defendant by the seven (7) day delay.
   • (ii) It is common ground that the court has a discretion to grant leave to extend time for filing of an Amended Statement of Claim in accordance with rule 17 of the Supreme Court Civil Procedure Rules 1980 which provides:

“17. Amendment of statement of claim – A plaintiff may at any time before or during the trial amend his statement of claim with the leave of the Court.”

There is also power for the court to extend time under rule 69 which says:

“Enlargement or Abridgment of Time – (1) Subject to the provisions of these rules, any of the times fixed by these rules for –

(a) Taking any steps in any proceedings; or
(b) Filing any document; or
(c) Giving any notice –

May be enlarged or abridged by consent of all parties or by the Court on the application of any party.

(2) An order enlarging time may be made although the application therefor is not made until after the expiration of the time allowed or appointed.”

(iii) It is unnecessary to embark on a discussion of how the court has in previous cases exercised its discretion. Suffice to note that prejudice is as it should be a key component to consider as well as the reasons and the length of the delay. Ultimately it is an issue of whether the interests of justice require the discretion to be exercised.
(iv) 2020 was a year of great flux when the Covid Pandemic followed on from a deadly Measles Epidemic in late 2019. The declaration of a still ongoing National State of Emergency has impacted all facets of life in Samoa including the work of the courts. This resulted in many matters not proceeding or being adjourned and in some cases, dropping off the court lists altogether. That is most likely what occurred here.
(v) Absent any clear prejudice, it is in the interests of justice the application be granted and the plaintiff is granted retroactively a further seven (7) days to file its Amended Statement of Claim.

4. I accordingly ordered on 27 January 2021 that an Amended Statement of Defence be filed and served by the defendant within 14 days thereof. Proceedings were also by consent adjourned to the court list of 15 February 2021for mention.
5. Costs are reserved as costs in the cause.
   

JUSTICE NELSON