Speaker of the Legislative Assembly v Anasii [2023] WSSC 39 (25 May 2023)

IN THE SUPREME COURT OF SAMOA
Speaker of the Legislative Assembly & Anor v Anasii & Ors [2023] WSSC 39 (25 May 2023)

Case name:	Speaker of the Legislative Assembly & Anor v Anasii & Ors
Citation:	[2023] WSSC 39
Decision date:	25 May 2023
Parties:	SPEAKER OF THE LEGISLATIVE ASSEMBLY (Applicant); HUMAN RIGHTS PROTECTION PARTY a duly incorporated Political Party (Intending Second Applicant) v TU’U’U ANASI’I, Member of Parliament for the Constituency of Siumu (First Respondent); ALE VENA ALE, Member of Parliament for the Constituency of Faleata IV (Second Respondent); MAU’U SIAOSI PU’EPU’EMAI, Member of Parliament for the Constituency of Va’a o Fonoti (Third Respondent).
Hearing date(s):	5 & 24 May 2023
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- The HRPP application for joinder as the Second Applicant is declined. However, the HRPP will be granted intervener status. For the avoidance of doubt, reference to the HRPP, its leadership or members includes the HRPP government of the day, its leaders or members. - Accordingly, I make the following orders: - leave is granted to the HRPP to intervene in these proceedings restricted to responding to any allegations by the Respondents of “ulterior motives”, “bad intentions” and the like ascribed to the HRPP, its leadership or members relevant to these proceedings; - the HRPP’s intervention is limited to the filing of affidavits and evidence in response to any such allegation of “ulterior motives”, “bad intentions” or the like ascribed to the HRPP, its leadership or members; - the HRPP may make submissions limited to any allegations against the HRPP, its leadership or members by direction of the Court; and - any further participation by the HRPP in these proceedings to be by leave of the Court only. - Costs reserved.
Representation:	V Leilua for Applicant F S Ainuu Intending Second Applicant M Lui for First, Second and Third Respondents
Catchwords:	Elected Members of Parliament – resignation from political party – vacated seats - declaratory orders – application for joinder –membership (Parliament).
Words and phrases:	“right to be or remain as MPs” – “joinder as intervener”.
Legislation cited:	Constitution of the Independent State of Samoa, Articles 13; 15; 46(2); 46(3); 47; Declaratory Judgments 1908 (NZ); Declaratory Judgments Act 1988; Electoral Act 2019, ss. 141; 141(2)(a); 141(5); 142; 142(3); 143; New Zealand High Court Rules, r. 4.56; Supreme Court (Civil Procedure) Rules 1980, r. 32; 206.
Cases cited:	McClintock v Attorney General of New Zealand [2015] NZHC 1280; Mercury NZ Ltd v Maori Land Court [2023] NZHC 312; Newhaven Waldorf Management Ltd v Allen [2015] NZHC 383; Newhaven Waldorf Management Ltd v Allen [2015] NZCA 204.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

SPEAKER OF THE LEGISLATIVE ASSEMBLY

Applicant

HUMAN RIGHTS PROTECTION PARTY a duly incorporated Political Party.

Intending Second Applicant

A N D

TU’U’U ANASI’I, Member of Parliament for the Constituency of Siumu.

First Respondent

AND

ALE VENA ALE, Member of Parliament for the Constituency of Faleata IV.

Second Respondent

AND

MAU’U SIAOSI PU’EPU’EMAI, Member of Parliament for the Constituency of Va’a o Fonoti.

Third Respondent

Counsel: V Leilua for Applicant

F S Ainuu Intending Second Applicant

M Lui for First, Second and Third Respondents

Hearing Dates: 5^th and 24^th May 2023

Judgment Date: 25 May 2023

RULING (HRPP APPLICATION FOR JOINDER INTENDING AS SECOND APPLICANT)

BACKGROUND:

1. Following the April 2021 general elections, each of the Respondents were elected as Members of Parliament (“MP”) in their respective constituencies and were sworn in as Human Rights Protection Party (“HRPP”) MPs. At various times in November 2022, each Respondent resigned from the HRPP.
2. In response to the resignation of the Respondents from the HRPP, the Applicant issued a Notice of Charge against the First and Second Respondents on the 14th November 2022 and against the Third Respondent on the 28th November 2022 (collectively, “the Respondents”). The charges against the Respondents are brought pursuant to article 46 of the Constitution and sections 141 to 143 of the Electoral Act 2019 (“EA 2019”). The essence of the charges is that as sworn MPs for the HRPP and having resigned from the HRPP, the Respondents have now vacated their seats.
3. The Respondents have each denied the charges against them. In accordance with article 47 of the Constitution and section 142(3) of the EA 2019, the Applicant has referred each charge to the Supreme Court by Motion seeking declarations on the Respondents rights to be or to remain MPs. The Applicant’s motions are also brought pursuant to the Declaratory Judgments Act 1988.
4. The Respondents oppose the Applicants’ Motion for Declaratory Orders and challenge the validity of article 46(3) of the Constitution and section 141(2)(a) of the EA 2019 on the grounds that they “are unfair and go against the principles of democracy”.[1] The Respondents further plead that article 46(3) and section 141(2)(a) of the EA 2019 “were proposed and then enacted with ulterior motives and bad intentions to limit the democratic and fundamental rights of Parliamentarians guaranteed by Articles 13 and 15 of the Constitution.”[2] By subsequent motion for leave to amend pleadings, the Respondent’s propose to further allege that article 46(3) and section 141(2)(a) contain a ‘mistake’, though what the ‘mistake’ is alleged is not pleaded.
5. By Notice of Motion for Leave to be Joined as a Party, the applicant for joinder (“the HRPP”) seeks to be joined as Second Applicants to the Applicants’ motions to determine the Respondents rights to be or remain an MP. The HRPP’s motions fail to identify the legal basis upon which the application is made, whether pursuant to the Supreme Court (Civil Procedure) Rules 1980 (“the Rules”) or pursuant to the Court’s inherent jurisdiction. The grounds advanced by the HRPP for joinder are that:
   • (a) The HRPP’s joinder “will allow the Court to effectually and completely adjudicate and settle all matters involved in the present application by the First Applicant”, ie. the Speaker;
   • (b) The HRPP has standing to be a party to the proceeding on the basis that:
     • (i) the Respondents contested the general elections as members of the HRPP;
     • (ii) the Respondents were candidates of the HRPP, having been endorsed and supported by the HRPP and were successful in their election to Parliament;
     • (iii) The resignation by the Respondents as members of the HRPP triggers a vacancy in their respective constituencies;
     • (iv) the voters in the Respondents various constituencies voted for the Respondents as members of the HRPP; and
     • (v) if there is a change in the status of the Respondents, a by-election is necessary to confirm with certainty whether the Constituency agrees with the Respondent’s decision to resign.^[3]
6. In his affidavit in support of joinder in proceedings CP12/23, the Secretary of the HRPP Lealailepule Rimoni Aiafi elaborates that joinder of the HRPP is necessary to:
   • “to ensure that the Court is fully aware of the circumstances leading up to the Respondent’s resignation, so that it can make an informed finding as to the circumstances surrounding the resignation of the Respondent.
   • 15. Further, the Respondent’s rhetoric appears to reinforce the notion remaining with the HRPP was a breach of his right to choose his own political party. Therefore, the HRPP should participate as a party and be represented to respond to any allegations either to affirm or reject any allegation that may be laid against the HRPP.”^[4]
7. The HRPP through Mr Aiafi frames the basis of the HRPP’s application for joinder to each of the Respondents proceedings differently in each affidavit. However, at its core is to respond to allegations aired against the HRPP concerning the underlying reasons for the Respondents resignations from the HRPP and gleaned from the affidavits of Yonita Tuia-Tauiliili for the Applicant.
8. At the hearing of the HRPP’s application for joinder, it became apparent that the application for joinder relies on rule 32 of the Rules. Expressing reservations over the scope of rule 32 and its application to these proceedings instituted by motion, counsel were asked to file supplementary submissions and authorities on the jurisdiction of the Court to join parties. By First Supplementary Submission in Support dated 12 May 2023, the HRPP extended its original submissions arguing that if the Court declines the joinder of the HRPP as a party, the Court join the HRPP as an intervener. Neither rule 32 nor joinder as an intervener were expressly pleaded by the HRPP. The Respondents were afforded an opportunity to be heard on rule 32 and joinder as an intervener.
9. The application for joinder is not opposed by the Applicant who agrees to abide by the Court’s ruling but made brief submissions that the HRPP be joined as a third party. The HRPP’s application for joinder however is opposed by the Respondents. This ruling addresses collectively the Motions for Joinder by the HRPP to the three proceedings against the Respondents (CP11/23; CP12/23; and CP13/23).

The Law:

10. Article 47 of the Constitution provides that:
    • “47. Decisions on questions as to membership - All questions that may arise as to the right of any person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court.”
11. Section 142 of the EA relevantly provides as follows:
    • “142. Charge with vacation of seat:
    • (1) If and as soon as the Speaker has reason to believe that a Member’s seat has become vacant on the grounds set out in section 141, the Speaker must charge that Member with that vacation, and if the Legislative Assembly is then sitting must do so orally in the Assembly.
    • (2) If a Member other than the Speaker charges any other Member for vacation of his or her seat pursuant to section 141, the Member must in accordance with Standing Orders of Parliament do so.
    • (3) If a Member charged under this section does not admit to the charge in writing, the Speaker must refer the charge to the Supreme Court by motion, and it is to be determined by the Supreme Court pursuant to Article 47 of the Constitution of the Independent State of Samoa 1960.
    • (4) The Speaker must give notice of the Speaker’s motion to the Member alleged to have vacated his or her seat, unless in the case where the Speaker is excused by the Court on special grounds from doing so.
    • (5) A person with whom the charged Member is alleged to have misconducted himself or herself is entitled to be treated as a party to the motion and to be heard.
    • ...”
12. The vacancy in the Respondents seats in Parliament is said to arise due to article 46(3) of the Constitution and section 141 of the EA 2019. Article 46(2) and (3) of the Constitution provides:
    • “(2) The seat of a Member of Parliament shall become vacant: (a) upon his or her death; (b) if the Member resigns his or her seat by writing under his or her hand addressed to the Speaker; or (c) if the Member ceases to be a citizen of Samoa; or (d) if the Member becomes disqualified under the provisions of this Constitution or of any Act.
    • (3) Despite Articles 13 and 15, an Act may provide that the seat of a Member of Parliament becomes vacant during his or her term of office: (a) where in certain circumstances the Member - (i) resigns or withdraws from or changes his or her political party; (ii) joins a political party if he or she is not a member of the political party;...” (emphasis added)
13. Section 141 of the EA 2019 relevantly provides:
    • “141. Vacation of a seat in the Legislative Assembly: (1) A seat of a Member becomes vacant if the events specified in Article 46(2) (a), (b), (c) of the Constitution or subsection (2) occur.
    • (2) A seat of a Member becomes vacant if: (a) a Member becomes a Member of a political party according to section 140(1), 140(2) or 140(3)(a) and that Member resigns or withdraws from or changes his or her political party during the Parliamentary term; or...”
14. Counsel for the HRPP advances the application for joinder pursuant to rule 32 of the Rules. Rule 32 states:
    • “32. Order joining parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as appear to the Court to be just, order that the name of any party improperly joined, whether a plaintiff or a defendant be struck out, and that the name of any person who ought to have been joined or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added, whether as plaintiff or defendant provided however that no person shall be added as a plaintiff without his own consent.” (emphasis added)

Discussion:

The Motion for Joinder and Rules 32 and 206

15. In my respectful view, rule 32 does not apply to this motion for joinder brought by the HRPP. This is because rule 32 deals with joinder to proceedings that “adjudicate upon and settle all the questions involved in the action.”[5] Further, when read in context of rules 31, 33, 34 and 35 of the Rules, it is apparent that these rules apply to the joinder or correction of the names of the parties to proceedings in an “action”. Rule 11 identifies proceedings that are to be commenced by action. Proceedings to be instituted by way of action involve those for the recovery of debt or damages; land or chattels; or seeking orders for specific performance. These proceedings are not an “action” in terms of rule 11. Rule 12 provides that unless otherwise provided for by any Act, “all other civil proceedings shall be commenced by way of motion.” Section 142(3) of the EA 2019 expressly requires the referral by the Speaker of a charge to the Supreme Court to be by way of motion. These proceedings seeking declarations from the Supreme Court as to the right of the Respondents “to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court”[6] are brought by way of motion. Rule 32 does not in my view apply.
16. In circumstances where no procedure is provided for under the Rules, rule 206 states:
    • “206. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice.” (emphasis added)
17. The application of rule 206 is consistent with the inherent power of the Court to join parties to proceedings. In Ritchie v Earthquake Commission [2017] NZHC 1242 at para 24, Osborne AsJ observed in terms of applications for joinder not captured by the Rules that:
    • “[24] Beyond such specific rules, the courts also possess inherent powers to enable them to act effectively within their jurisdiction. In appropriate circumstances, a Court may, within its inherent powers, uphold or permit the joinder of multiple defendants in cases of uncertainty which do not fall squarely within a rule. Such inherent powers were recognised by Goddard CJ in Managh v Wallington...
    • ...
    • [58] ...(g) The enabling provisions of r 4.3(4) are not exhaustive — the Court pursuant to its inherent power, even in cases which fall outside the provisions of the rule, may if joinder will serve the ends of justice countenance a joinder of multiple defendants to meet a situation of uncertainty as to the liable defendant.” (emphasis added)
18. In terms of joinder, rule 206 is consistent with the inherent power of a superior court of record such as this Court to join parties in cases of uncertainty for example. The test in this case in my respectful view is whether the joinder of the HRPP to these proceedings promote the ends of justice.

The Law - Applications for Joinder as a Party and as Intervener

19. The Applicant’s motion to determine the charges against the Respondents is brought pursuant to article 47 of the Constitution, section 142(3) of the EA 2019 and the Declaratory Judgments Act 1988. In New Zealand, applications for joinder as a party to declaratory judgments proceedings are encompassed in the High Court Rules. This is because the High Court rules refers to “a proceeding” and is not limited to “the action” in the way Samoa’s rule 32 is drafted. Rule 4.56 of the New Zealand High Court Rules provide that:
    • “4.56 Striking out and adding parties
    • (1) A Judge may, at any stage of a proceeding, order that—
    • (a)...
    • (b) the name of a person be added as a plaintiff or defendant because—
    • (i) the person ought to have been joined; or
    • (ii) the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
    • ....” (emphasis added)^[7]
20. In Newhaven Waldorf Management Ltd v Allen [2015] NZCA 204, the New Zealand Court of Appeal dealt with the joinder of parties to proceedings brought under the Declaratory Judgments Act 1908 (NZ). In terms of rule 4.56(1)(b), the Court of Appeal stated:
    • “[42] We note that the first limb of r 4.56(1)(b) – “person ought to have been joined” – addresses persons whose presence is necessary for the Court to adjudicate the exact issues arising on the pleadings. The second limb, with which we are concerned here, has other and more extensive work to do.
    • [43] It is correct that in Pegang Mining Co Ltd v Choong Sam the Privy Council suggested that an appropriate test was to ask:
      • Will [the intended party]’s rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
    • But the approach in Pegang is subject to two important qualifications. The first is that in adopting it the Privy Council expressly endorsed the decision of the Court of Appeal in Gurtner v Circuit. That was a running down case where the defendant had emigrated and could no longer be found. The police attending the accident had noted that he was insured, but had not recorded by whom. The Motor Insurers’ Bureau applied to be joined so they could contest the action. They had no legal obligation to the plaintiff, but they had agreed with the government to meet any judgments against insured motorists not paid by the insurers within seven days. The obligation to the plaintiff was described by counsel for the Bureau as moral rather than legal. The Court of Appeal directed it be joined. Lord Denning MR observed:
      • It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit.
    • [44] The second, more important qualification is that the Privy Council was at pains to avoid adopting any fixed, general rule in relation to joinder, recognising the wide variation in circumstances attending any particular case. A distinction between “legal interests” and “commercial interests” was expressly rejected as unhelpful. Rather, the Privy Council observed:
      • In their Lordships’ view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.
    • Partly in consequence of that, partly reflecting Equity’s more expansive attitude to participation, and perhaps partly a reflection of the inherent jurisdiction to also permit intervention, the approach taken in New Zealand to joinder has long been regarded as liberal.
    • [45] In McKendrick Glass Manufacturing Company Ltd v Wilkinson Richmond J referred to Equity practice, citing Mitford:
      • It is the constant aim of a Court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the Court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose, all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the Court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested, and that the orders of the Court may be safely executed by those who are compelled to obey them, and future litigations may be prevented.
    • That practice was found to have made its way into the rules, governing actions of all kinds, and to underlie what is now the second limb of r 4.56(1)(b).” (emphasis added)
21. This is not a judicial review proceeding. However, in judicial review proceedings between Mercury NZ Ltd v Maori Land Court [2023] NZHC 312, Mallon J considered an application for a party to be joined as an intervener. Although judicial review proceedings are not directly on point to these proceedings, the considerations highlighted to determine the grant or refusal of joinder as an intervener are relevant. Mallon J stated:
    • “[16] The Court’s jurisdiction to grant leave to a party to intervene arises under the Court’s general powers to direct how a hearing is to be conducted. The jurisdiction is a broad one but should be exercised with restraint having regard to the risk of expanding issues, elongating hearings and increasing the costs of litigation. There must be a sound basis for departing from the traditional privity of litigation. In considering this, the Court will make a judgment about whether “the interests of justice will be promoted by allowing the intervention.””
22. In McClintock v Attorney General of New Zealand [2015] NZHC 1280, Thomas J examined intervention principles stating:
    • “[30] It is important to note at the outset that CEC does not seek to be added as a plaintiff or a defendant but as an interested party. The difference is significant. Whereas additional plaintiffs or defendants have a right to appeal, an interested party or intervener has no such right. The High Court Rules do not specifically provide for the addition of an interested party to a proceeding. However, this Court has recognised the existence of this jurisdiction both under the rules and in the exercise of the Court’s inherent jurisdiction.
    • [31] The case law does not reveal a clear test for whether the court should add interested parties or interveners in civil cases. It appears, however, that the court may be influenced by broader considerations than on applications for joinder of plaintiffs or defendants. This corresponds to the more limited rights acquired by interested parties/interveners.
    • ...
    • [33] Diagnostic Medlab Ltd v Auckland District Health Board concerned judicial review proceedings where 16 persons applied to be interveners. Lang J proposed to consider:
    • ... whether it is arguable the rights of the intended interveners will be directly affected by this proceeding. It is necessary, however, to emphasise that the fact that an applicant may have an interest in a proceeding is not sufficient to satisfy the test. The applicant must demonstrate that its rights will arguably be directly affected by it.
    • [34] Leave was granted to one entity only, whose rights and obligations were directly affected by the proceeding and who could not rely on the plaintiff to protect its rights and obligations in the proceeding. The Court considered joining that party would improve the quality of information before the Court.
    • [35] In Wilson v Attorney-General, however, the Full Court of the High Court took a wider approach, allowing joinder of an interested party where that party was indirectly affected. Wilson concerned judicial review of decisions of the Judicial Conduct Commissioner and the Attorney-General. The Full Court considered that defendants to judicial review applications should be restricted to persons or bodies whose exercise of statutory power of decision is challenged. Although it had doubts as to whether the proposed interested parties in that case could add anything to the argument, the Full Court accepted that, as the two complainants to the Commissioner, they had an interest beyond the interest every New Zealander has in the integrity of the judiciary.
    • ...
    • [36] In civil proceedings outside of the judicial review context, the courts’ approach to interveners has depended largely on the facts and nature of the particular case.”
23. Thomas J in McClintock went on to distil the authorities on joinder as an intervener stating:
    • “[44] The following propositions can be distilled from the authorities on the joinder of interveners / interested parties:
    • (a) An applicant must show that its legal rights or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.
    • (b) If the intending intervener’s presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.
    • (c) A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.
    • (d) If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will likely not be granted.
    • (e) In cases where development of the law is possible, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.
    • (f) The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.
    • (g) Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener’s interests.
    • (h) The power to grant leave to intervene is discretionary and should be exercised with restraint to avoid the risk of expanding issues, elongating the hearing and increasing the costs of the litigation.”

Applying the Law – Joinder as a Party

24. In these proceedings, there is no dispute that the Respondents have each resigned from the HRPP.[8] The resignation by the Respondents trigger article 46(3) of the Constitution and section 141(2)(a) of the EA 2019. Applying the principles that I have set out, I am satisfied that the HRPP’s application for joinder as a party should be declined. The HRPP submits that their joinder to these proceedings would assist the Court in adjudicating questions concerning (a) the circumstances of the Respondents resignation from the HRPP; and (b) responding to allegations against the HRPP underlying the Respondents resignation from the HRPP. The HRPP also submits that their joinder would also enable the Court to effectually and completely adjudicate the matters in dispute in this action (sic).
25. With respect, I do not agree. First, the circumstances of the Respondents resignation from the HRPP is not relevant to the Applicant’s motion before the Supreme Court. This is because pursuant to article 46(3) of the Constitution and section 141(2)(a) of the EA 2019, ‘resignation’ alone triggers the vacating of a Parliamentary seat. The HRPP and the Respondents all accept that the Respondents have resigned from the HRPP. While the affidavit evidence suggests that the Respondents have aired grievances about the HRPP and its leadership as a basis for resignation, the reasons that an MP resigns from his or her political party has no relevance. Therefore, responding to allegations (which have not been pleaded) against the HRPP concerning the reasons for the Respondents resignation from the HRPP is not relevant in terms of article 46(3) of the Constitution and section 141(2)(a) of the EA 2019.
26. Second and more importantly in terms of the joinder of parties as person’s whose “presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding,” the question that was framed by the Privy Council was:
    • Will [the intended party]’s rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
27. The answer to that question in my respectful view is no. The present proceedings do not entail the determination of any rights or liabilities of the HRPP. These proceedings entail the determination of the rights of the Respondents to remain MPs in accordance with article 47, not that of the HRPP. The Respondents have each resigned as members of the HRPP and it is accepted that they are no longer members of the HRPP. That question of fact is not in dispute. The sole remaining question is one of law as to whether by resigning from the HRPP, have the Respondents vacated their Parliamentary seats in accordance with section 141(2)(a). The duty of bringing that question to this Court in accordance with the EA 2019 is the Applicant.
28. In the HRPP’s Supplementary Submissions dated 12th May 2023 at paragraph 10(a), the HRPP appears to assert that the HRPP’s interest in its number of seats in Parliament constitutes a “legal right”. This is a political interest and not a legal right. The rights being determined are those of the Respondents to be or remain an MP.
29. Third, although article 47 does not prescribe who may refer matters to the Supreme Court to determine the right of a person to be or remain an MP, section 142(3) of the EA 2019 expressly gives to the Speaker of Parliament the duty of referring charges to the Supreme Court for determination. Section 141(5) also then stipulates that a person with whom the MP is alleged to have misconducted him or herself with is also entitled to be treated as a party to the motion and to be heard. The statutory schema does not give standing to a party from which an MP has resigned or withdrawn to appear and be heard.
30. Although the statutory schema does not give standing to a party from which an MP has resigned or withdrawn to appear and be heard, I accept that circumstances may arise where the joinder of parties other than those in the statutory schema may be necessary to adjudicate charges against an MP. In this context, there is no statutory prohibition on the joinder of other parties. The joinder of other parties however must promote the ends of justice. For the reasons I have set out, the joinder of the HRPP as a party to these proceedings will not in my calculation promote the ends of justice.

Joinder as an Intervener

31. I now turn to the submission by counsel for the HRPP that if not joined as a party, the HRPP be joined as an intervener. Although the jurisdiction to grant leave to a party to intervene is a broad one, it should be exercised with restraint due to the risk that joinder will expand issues, prolong proceedings and increase the costs of litigation. There must also be sound reason for departing from the privity of litigation, in this case in my view, expanding the parties beyond those set out in section 142 of the EA 2019. In terms of joinder as an intervener, the question is whether joinder of the HRPP as an intervener will promote the ends of justice. In determining this question, I am guided by the distillation of the authorities by Thomas J in McClintock.
32. Applying the distillation of authorities, I am satisfied that the HRPPs legal rights and liabilities will not be directly impacted by these proceedings for the reasons earlier stated. However, given Respondents response to the Applicants motions before the Court and the affidavit material before me, it appears that the Respondents will ascribe to the HRPP government of the day and its leadership the “ulterior motives and bad intentions to limit the fundamental rights of Parliamentarians guaranteed under Articles 13 and 15 of the Constitution.” It is due to the alleged but unspecified “ulterior motives” and “bad intentions” that the Respondents presently challenge the validity of article 46(3) of the Constitution and section 141(2)(a) of the EA 2019. Any such assertion against the HRPP and its leadership is serious and affects its reputational interests. It is also a principle ground of opposition by the Respondents to the charges brought by the Applicant which will have a direct bearing on the determination of these proceedings. The reputational interests of the HRPP together with the direct relevance of information the HRPP can offer in my view constitute exceptional circumstances in these proceedings.
33. As the Respondents opposition to the Applicant’s motion challenges the validity of article 46(3) of the Constitution and section 141(2)(a) of the EA 2019 on purported “ulterior motives” and “bad intentions” seemingly ascribed to the HRPP and its leadership, only the HRPP and its leadership can properly respond to such an assertion. The assertion goes to the heart of the Respondents defence challenging not only the validity of provisions of the EA 2019 but of the Constitution itself. The HRPP’s presence as an intervener will therefore materially improve the quality of the information before the Court to determine the important questions raised by the Respondents opposition to the charges. Further, I do not see any prejudice to the parties by granting intervener status to the HRPP restricted to responding to allegations of “ulterior motives”, “bad intentions” or the like that may be ascribed to the HRPP, its leaders or members in these proceedings. These are raised by the Respondents and the presence of the HRPP to respond to these directly will assist the Court and likely save court time.
34. Although the HRPP might potentially rely on the Applicant to respond to the allegations by the Respondents, that would involve the Applicant and Respondent working and communicating closely. This may not be practicable. The most appropriate party to respond to and assist the Court in determining any allegations made by the Respondents against the HRPP, its leaders or members is the HRPP.
35. These proceedings are novel and its determination will develop Samoa’s laws. Given the allegations that appear levelled against the HRPP and its leadership as a basis to invalidate article 46(3) of the Constitution and section 141(2)(a) of the EA 201, it would also be unjust to determine these without hearing from the HRPP. Accordingly, the HRPP will be granted intervener status. The participation of the HRPP however will be limited to responding to any allegations against the HRPP and necessary to assist the Court to determine the Respondent’s challenge to the validity of article 46 of the Constitution and section 141 of the EA 2019. The participation of the HRPP as an intervener on this basis in my calculation will promote the ends of justice.
36. If in due course, the Respondent’s better particularize their pleadings and no allegations are made against the HRPP and its leadership as a basis to challenge the validity of article 46(3) of the Constitution and section 141(2)(a) of the EA 2019, the Court may remove the HRPP as an intervener.
37. In relation to the Applicant’s submission that the HRPP be joined as a Third Party, I note only that third party procedures under rule 43 relate to circumstances where a Defendant to an action claims against a third party not a party to those proceedings. Rule 43 has no application to this application for joinder.

Result:

38. The HRPP application for joinder as the Second Applicant is declined. However, the HRPP will be granted intervener status. For the avoidance of doubt, reference to the HRPP, its leadership or members includes the HRPP government of the day, its leaders or members.
39. Accordingly, I make the following orders:
    • (a) leave is granted to the HRPP to intervene in these proceedings restricted to responding to any allegations by the Respondents of “ulterior motives”, “bad intentions” and the like ascribed to the HRPP, its leadership or members relevant to these proceedings;
    • (b) the HRPP’s intervention is limited to the filing of affidavits and evidence in response to any such allegation of “ulterior motives”, “bad intentions” or the like ascribed to the HRPP, its leadership or members;
    • (c) the HRPP may make submissions limited to any allegations against the HRPP, its leadership or members by direction of the Court; and
    • (d) any further participation by the HRPP in these proceedings to be by leave of the Court only.
40. Costs reserved.

JUSTICE CLARKE

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^[1] Respondents Notice of Opposition to Motion for Declaratory Orders dated 10^th March 2023.
^[2] Above, n. 1.
^[3] Intending Second Applicant’s Notice of Motion for Leave to be joined as a Party dated 13^th March 2023 (CP11/23, CP12/23 and CP13/23).
^[4] Affidavit in Support of Lealailepule Rimoni Aiafi in Support of the Intending Second Applicant’s Notice of Motion for Leave to be joined as a Party, 17^th March 2023 (Misc. 11/23).
^[5] Rule 32, Supreme Court (Civil Procedure) Rules 1980.
^[6] Constitution, article 47.
^[7] See also: Newhaven Waldorf Management Ltd v Allen [2015] NZHC 383.
^[8] 1^st, 2^nd and 3^rd Respondents Submissions in Opposition to HRPP Joinder, dated 4^th May 2023.