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Ropati v Attorney General [2024] WSSC 43 (17 June 2024)

IN THE SUPREME COURT OF SAMOA
Ropati v Attorney General & Ors [2024] WSSC 43 (17 June 2024)


Case name:
Ropati v Attorney General & Ors


Citation:


Decision date:
17 June 2024


Parties:
LETUFUGA ATTILA MANUTOIPULE ROPATI
in his capacity as the removed President of the Land and Titles Court (Plaintiff) v THE ATTORNEY GENERAL, on behalf of the Prime Minister,
the HONOURABLE FIAME NAOMI MATAAFA (First Defendant); JUSTICE LESATELE RAPI VAAI, in his capacity as the incumbent President of the Land and Titles Court (Second Defendant) & THE ATTORNEY GENERAL, on behalf of the GOVERNMENT OF THE INDEPENDENT STATE OF SAMOA (Third Defendant)


Hearing date(s):
27, 28 May 2024


File number(s):
CP 103/22


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Hon. Justice Whitten KC


On appeal from:


Order:


Representation:
Mr S. Ainu’u and Mr M. Lemisio for the Plaintiff
The Attorney General, Ms S. H. Wallwork, and Mr D. Fong for the Defendants


Catchwords:



Words and phrases:


Legislation cited:


Cases cited:


Summary of decision:

CP 103/22


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


Article 70(1)(b), Part IX and Article 104 of the CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA


DECLARATORY JUDGMENTS ACT 1988


GOVERNMENT PROCEEDINGS ACT 1964


BETWEEN:


LETUFUGA ATTILA MANUTOIPULE ROPATI, in his capacity as the removed President of the Land and Titles Court


Plaintiff


A N D:


THE ATTORNEY GENERAL, on behalf of the Prime Minister, the HONOURABLE FIAME NAOMI MATAAFA


First Defendant


A N D:


JUSTICE LESATELE RAPI VAAI, in his capacity as the incumbent President of the Land and Titles Court


Second Defendant


A N D:


THE ATTORNEY GENERAL, on behalf of the GOVERNMENT OF THE INDEPENDENT STATE OF SAMOA


Third Defendant


Coram: Honourable Justice Whitten KC


Counsel: Mr S. Ainu’u and Mr M. Lemisio for the Plaintiff

The Attorney General, Ms S. H. Wallwork, and Mr D. Fong for the Defendants


Hearing: 27, 28 May 2024
Judgment: 17 June 2024


JUDGMENT OF THE COURT

Introduction

  1. In July 2016, the Plaintiff was appointed President of the Land and Titles Court (“LTC”) pursuant to what was then s 26A(1) of the Land and Titles Act 1981 (“LTA 1981”).
  2. In 2020, the then Government passed a triumvirate of Bills[1] designed, relevantly, to restructure the LTC. In March 2021, a month before the general election that year, two of those enactments - the Constitutional Amendment Act 2020 (“CAA 2020”) and the Land and Titles Act 2020 (“LTA 2020”) - came into force.
  3. The CAA 2020, inter alia, restructured the LTC and instituted a new basis and process for the appointment of its President.
  4. The LTA 2020 repealed[2] and replaced[3] the LTA 1981. At the heart of the present case is ss 67(6) of the LTA 2020 which provides that an appointment under the repealed Act that is not provided for in the new Act is revoked at the commencement date of the new Act.
  5. When it was first assented to, the LTA 2020 did not contain any provisions for the appointment of any judges to the new LTC.
  6. In October 2022, and in purported consequence of ss 67(6), the new Prime Minister informed the Plaintiff that his position as President of the LTC had been revoked and he was required to vacate his office. A few days later, the Second Respondent was sworn in as the new President of the new LTC.
  7. In this proceeding, the Plaintiff initially claimed that his removal, and the appointment of the Second Defendant (who was over the statutory retirement age of 68 when appointed), were in contravention of the Constitution and therefore unlawful. He also sought an order reinstating him as the President of the LTC. Alternatively, he claimed damages of more than WST$3 million.
  8. The Attorney General, on behalf of the First and Third Respondents, has denied the claims on the basis that the Plaintiff’s removal as President was authorised by operation of ss 67(6) and was therefore lawful.
  9. The Second Respondent is content to abide the decision of this Court.
  10. The LTC legislative reforms of 2020 have given rise to a number of related proceedings instituted by the Plaintiff for interim or interlocutory relief. They were decided by this Court in April 2022[4] and October 2022[5] with the latter decision being reviewed by the Court of Appeal in July 2023.[6] On that occasion, the Court of Appeal identified, but could not then determine, the key legal issues[7] and potential arguments for and against the Plaintiff’s claims,[8] and noted that they would have to await determination by this Court in the substantive proceedings.[9]
  11. The only evidence adduced for the trial of this, the substantive proceedings, was from the Plaintiff. During the trial, the Attorney General tendered an affidavit of a Deputy Registrar of the LTC on a discrete issue which arose during oral submissions. No other evidence was filed by or on behalf of any of the Defendants. The Attorney General raised objections as to admissibility of parts of the Plaintiff’s affidavit evidence. The objections were resolved, largely by consent, without any significant impact on the ultimate issues for determination.[10] The Attorney General did not require the Plaintiff for cross-examination. As such, the trial was conducted almost entirely by way of legal argument.
  12. Shortly prior to the commencement of the trial, at the direction of the Court, the parties filed an agreed list of issues for determination.
  13. During the trial, the Plaintiff abandoned his challenge to the validity of President Vaai’s appointment and his consequential claim to be reinstated as the President of the LTC.
  14. The remaining issues therefore concerned principally the lawfulness of the Plaintiff’s removal from office and his claim for damages.
  15. Those issues bear heavily on the doctrine of the separation of powers and one of its concomitants: judicial independence. As will be seen, the importance and relative complexity of those issues are a reflection of the fact that, certainly in Samoa, (and it would appear, the vast majority of Pacific island nations), the relevant events within Parliament, the legal conundrums which have sprung from them, and their impact on the judicial career of a senior judge, are unprecedented.

Summary of findings

  1. For the reasons which follow, I have concluded that:

Background

  1. Like the passage of the legislation from which it has arisen, this dispute has had a checkered history and taken different forms.
  2. The following uncontroversial background facts have been distilled from the pleadings, the relevant legislation, the affidavit material,[11] the related decisions of this Court and the Court of Appeal and the parties’ agreed facts and written submissions.[12]

History of the LTC

  1. Prior to the reforms of 2020, Article 103 of the Constitution established the LTC “with such composition and such jurisdiction in relation to Matai titles and customary land as may be provided by Act”. The principal Act at that time was the Native Land and Titles Ordinance 1934. As a Court of record, the LTC originally consisted of a President, being the Chief Judge of the High Court (as it was then constituted), and Assessors and Samoan Commissioners, having exclusive jurisdiction over Samoan names, titles, customs and native lands.[13] In 1952, the name of the governing instrument was changed to the Samoan Land and Titles Ordinance. By 1966, Samoan Judges were able to preside over sittings of the Court.[14] The Court was then comprised of the Chief Justice, Assessors and Samoan Judges, and any Supreme Court Judge authorised by the Chief Justice to preside.
  2. In March 1981, the LTA 1981 repealed the Samoan Land and Titles Ordinance[15] but declared that: [16]
  3. The composition of the Court then became a President – being the Chief Justice, or a Judge of the Supreme Court as appointed under the Constitution – Deputy Presidents, Samoan Judges appointed in accordance with the Act, and Assessors.
  4. The Court comprised:
  5. Decisions of the LTC were amenable to judicial review by the Supreme Court and appeals to the Court of Appeal.
  6. The appointment of the President of the LTC became governed by s 26A which provided, relevantly, that the Head of State, acting on the advice of Cabinet, upon the recommendation of the Judicial Service Commission, may appoint as President a person qualified to be appointed a Judge of the Supreme Court under Article 65 of the Constitution or a Samoan Judge qualified under s 28 of the LTA 1981. A Samoan Judge so appointed was required to have at least five years of relevant work experience in a senior position in the administration of justice and hold such qualifications as may be determined by the Judicial Service Commission by Notice.
  7. Section 29(2) provided that each Samoan Judge held office until he or she attained the age of 65 years.
  8. Otherwise, ss 26D(2) provided that a Samoan Judge appointed as President may be suspended or removed in the same manner as provided for a Judge of the Supreme Court under what was then Article 68 of the Constitution. Apart from prescribing a retirement age for Judges of the Supreme Court of 68, Article 68(5) provided that a Judge of the Supreme Court:

2016: Plaintiff’s appointment

  1. The Plaintiff commenced his professional life in 1992 as a Senior Research Officer for the LTC. In 2001, he was appointed Assistant Registrar for the LTC. In 2002, he took up a position as an Associate at Petaia Law Chambers. In 2004, he was employed as Corporate Manager for the Samoa Ports Authority. From 2008 to 2016, he was employed as a Clerk of the Legislative Assembly.
  2. On 12 July 2016, the Plaintiff was appointed President of the LTC.

2019: Attempted removal

  1. In December 2017, the Plaintiff was involved in an altercation with a security guard at a Ministry social event. As a result, he pleaded guilty in the District Court to one count of intentionally causing actual bodily harm, for which he was discharged without conviction subject to conditions. The Prosecution appealed that result to the Supreme Court which quashed the discharge order and remitted the case back to the District Court for further consideration.[19] The Attorney General appealed that decision. The Court of Appeal allowed the appeal, entered a conviction and imposed a fine.[20] In doing so, their Honours presciently observed:
  2. Subsequently, the Plaintiff was suspended from duty by the Judicial Services Commission, which also recommended his removal from office. A motion to terminate his position was addressed before the Legislative Assembly. The motion failed to pass the required two-thirds majority and the Plaintiff was reinstated as President of the LTC.

2020: Legislative reform

  1. On 15 December 2020, the Constitution Amendment Act[21] and the new Land and Titles Act[22] were passed. On 5 January 2021, the Head of State assented to the Acts.

CAA 2020

  1. The long title to the CAA described it as an Act to amend the Constitution on matters relating to the Civil and Criminal Courts and the Land and Titles Court, and related purposes. Relevantly, Article 68 was replaced by a new Article 67 entitled “Tenure, suspension and removal of office”. Sub-article (6) provides that The Chief Justice shall not be removed from office, except by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the grounds of stated misbehaviour or infirmity of the body or mind, or as prescribed by Act. However, the previous provisions of sub-article 68(5) for removal of a Supreme Court Judge were not included in the new Article 67. Instead, sub-article 67(7) provided that the conditions for tenure, suspension and removal of a Judge of the Supreme Court from office were to be provided for in Article 79, which is entitled “Judicial Service Commission”. However, sub-article 79(4) (the only provision of possible application) merely provides that:
  2. Whatever that Article was intended to prescribe, it would appear, as the Attorney General alluded to during oral submissions, that at present there are no operative Constitutional provisions for the conditions of tenure, suspension or removal from office of Judges of the Supreme Court.
  3. Of greater relevance to the instant case was the insertion in Part IX – Land and Titles - of Articles 104 to 104G. Those Articles substantially reformed and restructured the LTC. As the Attorney General helpfully explained in her written submissions:
  4. More specifically, Article 104 established three courts within the new LTC: the Land and Titles First Court, the Land and Titles High Court and the Land and Titles Court of Appeal and Review. All appointments within, and the jurisdiction of, the new LTC are now provided by Part IX or an Act of Parliament. Article 104(2) described the new LTC as having:
  5. The jurisdiction and constitution of each of the three Courts in the hierarchy is set out in Articles 104A to C respectively. The LTC is still headed by a President but he or she only sits on the High Court and Court of Appeal and Review. Another key feature of the new LTC is its self-contained or unitary jurisdiction, which means that its decisions are no longer amenable to review by the Supreme Court or appeal to the Court of Appeal.[26]
  6. The President’s role has also been extended to include that of Chairperson of the newly established Komisi o Auaunaga a le Faamasinoga o Fanua ma Suafa (“Komisi”), sitting with a Supreme Court Judge nominated by the Chief Justice and the Chairperson of the Public Service. The Komisi’s functions, within Part IX, include the provision of advice by which the Head of State may extend the retirement age of a President of the LTC beyond 68 (for periods of 12 months at a time),[27] or exercise the power to appoint, remove, and to determine the terms and conditions of the appointment of any Deputy President, Vice President, and Judges of the Land and Titles First Court.[28]
  7. The Constitutional amendments also altered the manner and process by which the President of the LTC is appointed. Article 104D(1) now provides:
  8. While there is an infelicitous disconnect in the drafting between the end of the chapeau to Article 104D(1) and the subparagraphs which follow, it appears tolerably clear that the first two are intended to be qualifications or criteria for appointment as President, namely, that the person has been a practising Samoan lawyer for not less than 10 years, and who holds a matai title and has rendered matai services to his or her village for not less than seven years.
  9. The process and bases for removal of the President of the LTC is also now provided for in Part IX, albeit in substantially the same terms as the former Article 68. Article 104D(3) provides that:

LTA 2020

  1. In its original from,[29] the long title to the LTA 2020 described it simply as “An Act to replace the Land and Titles Act 1981”.
  2. Among the interpretations in s 2, President is defined as the President of the Court appointed under Part IX of the Constitution. Deputy President and Vice President are defined as persons appointed by the Head of State on the advice of the Komisi. There is no reference, either express or by necessary implication, to the position or role of Assessors in the new Act.
  3. There are parallels in the early parts of the structure of the old and new Acts. Each dealt with preliminary matters, administration, customary land and matai titles. But that was where the similarities ended.
  4. Part 6 of the LTA 1981 was entitled “Land and Titles Court”. As noted above, that Part commenced with provisions for the appointment, salaries and allowances, suspension and removal of the President, Judges and Assessors of that Court.[30] The following Divisions provided for matters such as the jurisdiction, sittings and proceedings before the Court, practice and procedure and interim orders. Part 7 concerned preliminary hearings but had earlier been repealed. Part 8 dealt within the decisions and orders of the Court. Part 9 dealt with appeals.
  5. In the LTA 2020, Part 5, entitled “Proceedings” simply dealt with the manner in which proceedings could be commenced and progressed in each of the three Courts. Part 6 provided for the making of rules of procedure and regulations. However, unlike Article 104D, in respect of the President, neither the CAA 2020 or the LTA 2020 then contained any provisions for the appointment (including qualifications or criteria for eligibility), suspension or removal of Judges, Deputy Presidents or Vice Presidents of the new LTC,[31] which had been provided for in Part 6 of the repealed LTA 1981.
  6. Part 8 is entitled “Miscellaneous”. It commences with s 66 which provides that the LTA 1981 is repealed. Next, s 67, which is central to the present case, provides:
  7. On 15 March 2021, approximately a month before the general election, both the CAA 2020 and LTA 2020 came into force.
  8. It is now apparent that, for a short time at least, the LTC continued its normal operations with the same judges and the Plaintiff continuing as its President. During that time, the legislative lacuna in the omission in the LTA 2020 of provisions for appointment, suspension or removal of all other judges[33] of what was supposed to be the new LTC, as well as the purported effect and operation of ss 67(6), seem to have gone unnoticed.

December 2021

  1. Later in 2021, and in accordance with Article 104E(1)(a) of the amended Constitution, the Plaintiff, as President of the LTC, also served as the Chairperson of the Komisi. According to the Plaintiff,[34] by December that year, the LTC was urgently “short” a Deputy President, a Vice President and a Judge for the Court to manage its “increasing workload” and “operate more efficiently and properly in order to administer justice for” the country. As a result, the Komisi selected three suitably qualified candidates and prepared warrants for their appointment for execution by the Head of State.
  2. However, on 2 December 2021, the Komisi received a letter from the Minister of Justice and Court Administration ("the Minister”) directing that no appointments should be made because, at that time, in light of the reference in Article 104E of the Constitution to “as may be provided by an Act”, the Minister was unable to find any appointment provisions in the LTA 2020. This “fundamental drafting error and defect in the 2020 Act”, as the Minister described it, led her to believe that no appointments could be made to the new LTC, and no current judges could be suspended or removed.
  3. On 13 December 2021, the Attorney General provided advice to the Government, in terms, that although Article 104E(4) conferred a general power of appointment on the Head of State to make judicial appointments to the LTC on the advice of the Komisi, the Constitution did not provide for any qualifications or processes for appointments, suspension of removals of Deputy Presidents, Vice Presidents or Judges of the LTC, and that until an Act was passed to “activate” them, the Komisi could not exercise its “powers”. As a result, the Head of State refused to sign the warrants of appointment. The Plaintiff then opined that that state of affairs undermined the LTC’s ability to carry out its “core functions and duties under the Constitution” and “greatly affect[ed] the independence of the Judiciary”.[35] He also formed the view that he could not wait for “any necessary legislation to be passed” to address the lacuna in the Constitution and so he proceeded, purportedly pursuant to Article 104F(3), to schedule the swearing in of the successful appointees, by him, for 17 December 2021.

Proceeding MISC 381/21

  1. On 14 December 2021, the Plaintiff commenced proceedings in this Court (MISC 381/21) by Notice of Motion, on a ‘pickwick’ basis,[36] seeking urgent declaratory orders essentially enforcing the appointment of the three proposed new members of the LTC by requiring the Head of State to execute the proposed warrants of appointment. The Respondent was named as the “Attorney General sued for an on behalf of the Independent State of Samoa, made in relation to the refusal of the Head of State to execute warrants of appointments for judicial offices”.
  2. The grounds for the application included reliance upon Article 104E(4) of the Constitution which was said to provide for the Head of State to appoint a Deputy President, Vice President and Judges of the LTC on the advice of the Komisi, which had been properly given.
  3. In his affidavit in support, the Plaintiff deposed, inter alia, that:
  4. By Notice dated 15 February 2022, the Attorney General opposed the application on the following grounds, in summary:

February 2022: Minister’s request to cease all LTC proceedings

  1. Also on 15 February 2022, a week before the LTC intended to resume work following the end of year vacation, the Minister sent a letter to the Registrar of the LTC headed:
  2. In her letter, the Honourable Minister:
“While we await the Committee's report and findings, it has been brought to my attention that the appointment of the President, Vice Presidents and Judges of the LTC who were all appointed under the Land and Titles Act 1981 (Repealed Act) were all revoked on 15 March 2021 when the LTA 2020 was enforced (see section 67(6) of the LTA 2020).”
  1. On 18 February 2022, the Plaintiff rejected the Minister’s request. He opined, inter alia, that:
  2. Notwithstanding, the Plaintiff noted that as the LTC had been left without support staff, cases scheduled for hearing in February and March 2022 had to be adjourned to await the outcome of the Parliamentary enquiry.
  3. On 22 February 2022, the Minister replied that she had been advised by the Attorney General that the issues concerning the legislative process might impact the legitimacy of the three Bills which purported to provide the new framework for the LTC. She denied, however, giving any direction in relation to the operation of the LTC and stated that there was no intention on the part of the Executive to encroach on the work of the Judiciary.
  4. On 24 February 2022, the Plaintiff confirmed to the Minister his rationale for adjourning the LTC cases as being due to not having any administrative support. However, he added that with the “clarification and assurance of no intervention from the Minister or the Executive”, the LTC could go ahead with hearings scheduled for March 2022.
  5. Despite that, on 28 February 2022, the Minister replied, inter alia:

Proceeding MISC 41/22

  1. As a result, on 2 March 2022, the Plaintiff commenced further proceedings in this Court (MISC 41/22) by Notice of Motion, again on a pickwick basis, against the Attorney General on behalf of the Minister. There, the Plaintiff complained that ‘his Court’ could not carry out its business because the Executive had prohibited Ministry staff from providing administrative support which constituted a violation of the doctrine of the separation of powers. He sought declarations that the Minister’s prohibition on administrative assistance being provided to the LTC was unlawful, and an order prohibiting the Minister from issuing any further such directives.[37]
  2. The Plaintiff’s stated grounds for that second application included, relevantly:
  3. In his supporting affidavit, the Plaintiff deposed that he was the President of the LTC[38] and averred, relevantly:

April 2022 decision

  1. On 14 March 2022, and because it concerned Constitutional issues, the application was heard by a three member Bench comprising, Chief Justice Perese, Justice Nelson and Justice Tuatagaloa.[39]
  2. Counsel for the Plaintiff (then Ms L Vaa-Tamati) relied upon submissions which echoed the grounds for the application and the Plaintiff’s affidavit evidence.
  3. In opposition to that application, the Attorney General submitted that the Minister:
  4. The Attorney General also noted that “the issue with the appointment of the Judges for the LTC [was] also problematic” and that the lacuna in the LTA 2020, by which all appointments under the LTA 1981 had been revoked without provision in the new Act for the appointment of new judges, was “unsatisfactory and need[ed] to be remedied” by Parliament.
  5. On 14 April 2022, their Honours delivered judgment: The President of the Land and Titles Court v Attorney General [2022] WSSC 8 (“April 2022 decision”).
  6. After providing a brief overview of the relevant legislative background, the Court considered the terms of the LTA 2020. There, it was observed that neither the LTA 2020 nor the CAA 2020 contained any definition for the office of “Judge”. However, their Honours further opined that:
  7. Their Honours then identified the issues for determination as being whether:[40]
  8. In answer to the first question, the Court considered the principles of judicial independence as being “a matter of considerable public interest”.[41] They identified the essential conditions for that independence as security of tenure, financial security and institutional independence.[42] Of particular note to the instant case was the Court’s reference to the decision of Glazebrook J in Claydon v Attorney-General,[43] in which Her Honour described tenure in judicial office as one of the means of ensuring judicial independence, and that:
  9. The Court also cited the work of Professor Phillip A Joseph on Constitutional and Administrative Law, [44] and his discussion on institutional independence by reference to the Beijing Statement of Principles of Independence of the Judiciary (referred to further below).
  10. After accepting the fact of the Plaintiff’s complaints, the Court concluded that the Executive had failed to provide administrative staff for the operation of the LTC, which amounted to a breach of the Plaintiff’s judicial institutional independence.[45]
  11. On the second issue, the Plaintiff relied on the doctrine of de facto officer and Article 111(6) of the Constitution, which provides:
  12. Their Honours did not consider it necessary to consider either Article 111(6) or the doctrine of de facto officer. Rather, they considered that the issue of whether the President and the Judges continued to have jurisdiction were matters that could be resolved by ordinary principles of statutory interpretation.[46]
  13. On the proper interpretation of ss 67(6), the Court considered the rules of statutory interpretation prescribed by ss 7 and 25 of the Acts Interpretation Act 2015,[47] the common law principles guiding the interpretation of savings and transitional provisions,[48] and concluded, in summary, that:[49]
  14. On that basis, the Court declared that the Plaintiff was entitled to relief from the Executive by the Ministry’s immediate resumption of the provision of support services to enable the Plaintiff and Judges of the LTC to carry out their normal business in accordance with the abovementioned transitional provisions of the LTA 2020.
  15. Neither party appealed that decision.

MISC 381/21 discontinued

  1. Later that month, his then Counsel advised the Attorney General that the Plaintiff intended to discontinue proceeding MISC 381/21. She also requested the Attorney General to “expedite the necessary amending legislation” to enable the LTC to "fulfil its inherent expectations as a Court” and to deal with “urgent matters now restricted by” the Supreme Court’s April 2022 decision.
  2. In consenting to the discontinuance, the Attorney General stated:[50]
  3. On 5 May 2022, a Notice of Discontinuance in respect of proceeding MISC 381/21 was filed by consent. The notice stated that the discontinuance was “on the ground that the parties have settled this matter and reached mutual agreement". In her submissions in this proceeding before me, the Attorney General denied any agreement in relation to the substantive issues which were the subject of proceeding MISC 41/22 or relating to judicial appointments. She described the Plaintiffs’ Motion in proceeding 381/21 as “ill-conceived from the outset as it was an attempt to seek Declaratory Orders against the Head of State” and that the decision to discontinue it was a “sensible one”.

August 2022: investigation of issues with the text of the CAA 2020 and LTA 2020

  1. As noted above, the CCA 2020 and LTA 2020, as originally passed, did not contain any provisions for the appointment of Judges to the new LTC. Issues arose as to the “authenticity of some versions” of those Acts[51] and potential differences between the version passed by Parliament compared to that assented to by the Head of State. A Special Parliamentary Committee of Enquiry was established to investigate the matter.

October 2022: re-assenting the CAA and LTA 2020

  1. After the version issues of the two Acts had apparently been resolved, Parliament in turn resolved to “de-assent” and “re-assent” them. Their commencement dates of 15 March 2021 remained. So too did the lacuna in the LTA 2020.

The Plaintiff’s ‘removal’

  1. Meanwhile, between May and October 2022, that is, following the April 2022 decision, the Plaintiff proceeded to hear 30 applications for leave to appeal and 41 appeals.[52]
  2. Then, on 20 October 2022, in a letter to the Plaintiff entitled “Annulment and cessation of appointment as President of Lands and Titles Court”, the Honourable Prime Minister wrote:
  3. On 21 October 2022, the Plaintiff responded, inter alia, by reference to paragraph 74 of the April 2022 decision, in which the Court opined:

He then asked the Prime Minister to instruct the Attorney General to seek further clarification from the Court on the status of ss 67(6) as per its April 2022 decision.

  1. At a meeting on 24 October 2022, the other Judges of the LTC confirmed to the Plaintiff that they had not received any similar notices from the Prime Minister. They continued to be paid and have had access to the Court building, their offices, secretariat services and the other benefits of office.
  2. On 28 October 2022, the Prime Minister replied to the Plaintiff’s letter in the following terms:

This proceeding commences

  1. On 29 October 2022, the Plaintiff commenced the present proceedings by Notice of Motion seeking judicial review of the Prime Minister’s ‘decision’ to remove him as President of the LTC.
  2. The original grounds for the Plaintiff’s challenge may be summarised, relevantly, as:
  3. The Plaintiff then sought a declaration that the Prime Minister’s decision was unlawful, illegal and unconstitutional; an order quashing the decision; and a declaration that he remained the President of the new LTC unless and until he is removed from office in accordance with Article 104D of the Constitution.
  4. On the same day, the Plaintiff also filed an ex parte Notice of Motion seeking urgent interim declaratory orders,[55] to effect that:

October 2022 decision

  1. Chief Justice Perese directed that the Plaintiff’s ex parte application be heard on 31 October 2022 and for the Attorney General to be served on a pickwick basis. After hearing argument that afternoon, his Honour delivered his ruling: Ropati v Attorney General [2022] WSSC 76 (“October 2022 decision”).
  2. His Honour was satisfied as to the existence of serious issues to be tried, namely:[56]
  3. As to the balance of convenience, His Honour noted that normally, where Government is involved, the conventional wisdom is that damages is an adequate remedy. However, his Honour (initially) considered it difficult to see how any award of damages could ever compensate for the harm which would be caused to the independence of a person such as the Plaintiff holding the office of President of the LTC.[57] Against that, the Attorney General submitted that it was imperative that the new President (the Second Defendant), whose warrant was to be signed by the Acting Head of State the next day, be allowed to begin leading the new judicial system brought into existence by the CAA 2020 and LTA 2020.[58] She also submitted that membership of the Judicial Services Commission was complete, and that body would be able to appoint new Judges to sit in the new jurisdiction, once the appointment criteria was added to the LTA 2020, which was hoped to be amended in the December sitting of Parliament.
  4. His Honour’s reasoning may then be summarised as follows:[59]
  5. Accordingly, the Plaintiff’s application was dismissed.
  6. The Plaintiff appealed that decision.
  7. On 2 November 2022, the Second Defendant was sworn in as the President of the new LTA.

December 2022: amendments to the LTA

  1. On 21 December 2022, the Land and Titles Amendment Act 2022 was assented to by the Head of State. The amendments included a definition in s 2 of “judge” as meaning a Judge of the LTC appointed under Part 5A.
  2. The insertion of the new Part 5A was designed to fill the lacuna in the original version of the Act. Sections 61A to 61H thereof provide for the appointment of Deputy Presidents, Vice President and Judges, their respective and requisite qualifications for appointment, immunity, tenure of office, suspension and removal. [60] There was still no mention of Assessors. Further, and notably:
  3. It will be recalled that new Article 104D(3), concerning removal of a President of the new LTC, contained the additional final phrase: “or as prescribed by an Act”. Section 61I of the amended LTA 2020 expanded the grounds for removal of a President for stated misbehaviour to include a criminal conviction; behaviour which brings, or is likely to bring, the office of the President or the Court into disrepute; or behaviour which may affect the confidence of the public in the LTC.
  4. Section 61J provided for salaries and allowances of all judicial officers of the LTC with the added protection in ss (3) that they may not be diminished during office, unless as part of a general reduction of salaries applied proportionately to all persons whose salaries are determined “by Act”.
  5. Section 7 of the Amendment Act inserted a new ss 67(8) which preserved the entitlement of Deputy Presidents and Judges who transitioned from the old LTC to their new designations in the new Court, pursuant to ss 61D(3) and 61E(2) respectively, to continue to be paid the same salaries and other benefits received before the commencement of the new Act until the Head of State fixes salaries, allowances and other benefits pursuant to s 61J.
  6. Section 8, headed “Savings and transitional”, provided that any decision or act done or purported to be done for the purpose of the principal Act, between 15 March 2021 and 21 December 2022 (the date of assent of the Amendment Act), is validated as if it was made under the Amendment Act.
  7. The revision notes to the consolidated and corrected versions of both the amended Constitution and the LTA 2020 confirmed that, notwithstanding their de-assent, correction and re-assent, and in the case of the LTA 2020, its amendment in December 2022, their commencement dates, relevantly, remained 15 March 2021.
  8. None of the ‘corrections’ or amendments to the LTA 2020 altered the terms of ss 67(6). Nor did they introduce any provisions for or concerning the appointment of the President of the LTC.

July 2023 appeal

  1. On 11 July 2023, the Plaintiff’s appeal against the October 2022 decision was heard.
  2. A week later, judgment was delivered: Ropati v Attorney General [2023] WSCA 2 (“July 2023 decision”). The Court of Appeal[67] described the Plaintiff’s appeal as touching on “extremely difficult and serious issues” as to the LTC,[68] and on the “tenure of a senior judge and thus the independence of the judiciary.[69] Their Honours also described the issues as “difficult” due to “a lack of clarity in the language of the CCA 2020 and LTA 2020”, as well as “procedural complexities” as to whether the April 2022 decision of the Supreme Court precludes the Plaintiff’s current claim (i.e. whether the doctrine of res judicata or issue estoppel applies).
  3. As the appeal was against an interlocutory judgment, the Court of Appeal was unable to determine the substantive issues in the litigation. However, their Honours proposed to provide “something of a road map for their ultimate resolution and also deal with what should happen between now and that ultimate resolution”.[70]
  4. The Court considered the legislative and factual background, the allied proceedings and previous decisions of the Supreme Court, and more recent events in the litigation. In particular, their Honours noted that:[71]
  5. After determining that the Court had jurisdiction to hear appeals from interlocutory judgments of the Supreme Court,[72] their Honours turned to consider issues of res judicata; whether the Plaintiff had a serious arguable case; and what, if any, interim relief was appropriate in the circumstances.
  6. The Court described the “res judicata argument”, on its face, as “substantial”, because, in summary:[73]
  7. However, the Court also noted that:
  8. Ultimately, in light of the limited argument available on that aspect of the case, their Honours were not in a position to determine conclusively, one way or the other, whether the Plaintiff’s substantive claim to be President of the new LTC was precluded by res judicata. That, they opined, would have to be determined in the substantive proceedings in the Supreme Court.
  9. As to whether the Plaintiff had a serious arguable case, the Court of Appeal held, that on its proper interpretation, legislation which removed the Plaintiff from office would not be unconstitutional. However, that still left for determination whether the combined effect of the CAA and LTA 2020 is that the Plaintiff lost his position as President of the LTC.[74]
  10. Their Honours went on to observe that the roles of President and Judges of the new LTC “correspond broadly” to the roles of President and Samoan judge of the old LTC. In contradistinction, however, the role of Assessor within the old LTC was not carried through to the new LTC.[75]
  11. Against that background, their Honours considered that it was possible to construe s 67 so that the Plaintiff became President of the new LTC. They then outlined a non-exhaustive list of interpretative arguments for and against that proposition, namely:
  12. In considering what, if any, interim relief should be granted pending the final hearing and determination of the substantive proceedings, the Court of Appeal recognised that: [79]
  13. Of particular significance for present purposes was their Honours’ expression of:[81]
  14. Given the appointment of the Second Defendant as the President of the new LTC, the Plaintiff elected not to pursue his application for an interim declaration that he remain in office.
  15. That, however, left for the Court of Appeal the issue of payment of the Plaintiff’s salaries and allowances. That issue had not been explicitly addressed by the Chief Justice possibly because the Attorney General had submitted before him that the Prime Minister was not responsible for payments of salary (i.e. the wrong defendant). Their Honours were not persuaded by that submission and considered it appropriate to allow the appeal albeit only to the extent of granting, in the first instance, an interim declaration that the Plaintiff should be paid a lump sum representing his judicial salary and allowances for nine months, with a reservation of leave to apply for additional payments should the substantive litigation not be resolved within three months. As a precondition of payment, the Plaintiff was required to undertake to the Supreme Court to abide by any order that the Court may think fit as to repayment following determination of the substantive proceedings.[82]
  16. In their final comments, the Court of Appeal described the "present imbroglio” as being “a result of ill-drafted constitutional and legislative provisions" which had brought about a situation in which two different people have arguable claims to be the President of the new LTC and the potential for “a messy situation” should the Plaintiff be held to be able to exercise the rights apparently conferred on him under the April 2022 judgment.[83] Their Honours also expressed concern that "the incoherence of the relevant provisions of the CAA and the LTA 2020 may dictate an incoherent outcome", for instance, a conclusion that the Plaintiff can continue to work on the transitional basis along the lines of the April 2022 decision which would likely “be awkward to implement on a long-term basis".[84]
  17. For those reasons, and notwithstanding that the legal issues involved principles of high importance (including judicial independence and tenure), their Honours opined that the complexities of the situation and unsatisfactory nature of some of the possible outcomes meant that “a practical negotiated solution [would be] likely to produce the best ultimate result”.[85] The existence of this judgment is testament to the fact that the parties have not as yet been able to achieve such a solution.

Since the appeal

  1. In respect of the lump sum ordered by the Court of Appeal of nine months’ worth of entitlements, the Plaintiff says he has received a total of $70,000. He claims that was less than his ‘usual’ entitlements.
  2. On 31 January 2024, the Plaintiff filed a further Notice of Motion in the Court of Appeal seeking additional payments from 19 July 2023. By memorandum dated 15 March 2024, the Attorney General did not oppose the application. She also noted that as the Plaintiff may be entitled to further payments going forward and as there had been ongoing delays in having the substantive action heard and determined, including the Chief Justice necessarily recusing himself from hearing the matter, an urgent hearing was sought before an “alternative judge”.
  3. On 4 April 2024, the parties consented to a Court Order that the Plaintiff be paid his salary and allowances for the period from 19 July 2023 to 4 April 2024. However, he has not received any further payments nor an explanation for the delay. Before me, Mr Ainu’u explained that he had followed this issue up with the Attorney General’s office. The Attorney General explained that she had followed it up with the Ministry of Finance but that, to date, no explanation had been forthcoming.
  4. During the trial, Mr Ainu’u stated, on instructions, and without objection from the Attorney General, that the Plaintiff’s lack of income has caused him significant financial harm. He has defaulted on obligations to his bank in respect of certain borrowings and, as a result, has incurred higher penalty interest rates. Consequently, his bank has prevented him from accessing his account until the interest is paid.

Pleaded positions

  1. The Plaintiff’s claims evolved during the proceeding. Putting aside the claims he withdrew during the trial, by his Fifth Amended Statement of Claim,[86] the Plaintiff seeks:
  2. Beyond a recitation of the uncontroversial background detailed above, the Plaintiff’s pleaded contentions and the Attorney General’s defence to them[87] may be summarised, relevantly, as follows.
  3. Firstly, the Plaintiff pleaded that ss 67(6) of the LTA 2020 did not empower the Prime Minister to remove him as President of the LTC because:[88]
  4. On the basis of his posited interpretation of ss 67(6), the Plaintiff then contended that the Prime Minister’s decision:[89]
  5. The Attorney General denied those allegations and noted parts of the Plaintiff’s claim contained legal submissions which would be addressed at trial. She added that the Prime Minister's correspondence with the Plaintiff was to inform him that his position was revoked by ss 67(6) and that, subsequent to this Court’s April 2022 decision, it was necessary for a new President to be appointed pursuant to Article 104D to enable the LTC to exercise jurisdiction under the LTA 2020 including in respect of any cases filed prior to the commencement of that Act. The Attorney General also pleaded that the removal requirements under Article 104D only apply to a President who was appointed under the Constitution; not the Plaintiff, who was appointed under the LTA 1981.
  6. Secondly, the Plaintiff pleaded that his unlawful removal has caused him financial loss, for which the Government is liable, totalling $3,460,338.65, calculated as follows:[90]
  7. Apart from admitting the Plaintiff’s age, and the amounts of what were his annual salary and telephone allowance, the Attorney General pleaded that she had no knowledge of the balance of the Plaintiff’s financial claims and otherwise denied them.

Issues for determination

  1. From the pleadings, the parties agreed a list of issues. At the suggestion of the Court, Counsel also agreed to add another issue concerning the constitutionality of ss 67(6). For reasons which will become apparent, I have reworded and reordered the issues slightly, as follows:

Preliminary observations

  1. Before proceeding to consider the issues for determination, it is necessary to address a number of preliminary issues, including by reference to some of the authorities cited by Counsel in their written and oral submissions.

Judicial review

  1. The Plaintiff seeks judicial review of the Prime Minister’s alleged decision to remove home from office.
  2. As noted by the Court of Appeal in Teo v Attorney-General,[91] Samoa, ‘does not have a judicial review statute. The prerogative writs still remain. There may also be rights under the Constitution. The Plaintiff’s residual claims for declaratory relief fall within the ambit of the writ of certiorari. Like all actions by prerogative writ, relief is discretionary.
  3. The Plaintiff has also called in aid the Declaratory Judgments Act 1988, s 11 of which provides:
  4. The modern grounds for judicial review have been aggregated to include illegality, procedural fairness (or procedural unfairness), and irrationality (or unreasonableness).[92] The Plaintiff’s claim is rooted in the first.
  5. As will be seen below, at times during submissions, Counsel for the Plaintiff drifted into ancillary complaints about the manner in which (as distinct from the purported legal basis on which) the Plaintiff was removed from office. Those complaints took on the appearance of allegations of breaches of natural justice and procedural unfairness, and even perhaps, bad faith. They were not pleaded. Mr Ainu'u did not seek leave to amend, nor did he press them as any additional or alternative bases for relief. I have therefore not considered them as such. However, I have taken into consideration the facts pointed to by Mr Ainu'u to the extent they are relevant to the pleaded causes of action.
  6. The evidence in this case did not present any significant factual disputes for resolution. As recently observed by Justice Asher in Fesili v Attorney General,[93] that was appropriate for proceedings taken under the Declaratory Judgments Act. The focus of the Act is on the interpretation, construction and validity of statutes or things done under statutes.
  7. That is not to say, however, that the evidence was necessarily complete. In a number of respects, what was adduced tended to raise more questions than it answered. Nevertheless, the parties proceeded with the hearing on the basis of the evidence before the Court. In that regard, Mr Ainu'u was cognizant of the Plaintiff’s onus of proof. In the absence of any explanation from the Attorney General, I have approached the absence of evidence from either the First Defendant or on behalf of the Third Defendant as a considered position. Mr Ainu'u submitted that, as a result, adverse inferences should be drawn. I deal with that matter where it arises below.

Prime Minister’s ‘decision’

  1. The Plaintiff challenges what he regards as being the Prime Minister’s decision to remove him from office on the basis of ss 67(6) of the LTA 2020.
  2. Judicial review may lie in respect of decisions made by persons or public authorities in the exercise of statutory, prerogative or other power that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, and that decision must affect the private rights of some person or deprive another of some benefit which he had been allowed to enjoy, and expected to enjoy in the future or which he has a legitimate expectation of acquiring or enjoying.[94]
  3. However, by definition, a decision, in the administrative law sense, will usually involve a choice between competing claims, rights, actions or interests, by a statutorily empowered decision-maker pursuant to specified legislative requirements, rules or other established criteria. It often also involves an exercise of discretion.
  4. The Prime Minister’s correspondence with the Plaintiff on 20 and 28 October 2022 involved none of that. The Prime Minister did not make a decision to remove the Plaintiff from office. By the passing of the CAA and LTA 2020, Parliament, consisting of the Head of State and the Legislative Assembly,[95] made a decision to restructure and establish a new LTC under the Constitution, as a result of which, the Plaintiff’s appointment as President of what became the old LTC was purportedly revoked. The Prime Minister, like the Minister before her, merely communicated to the Plaintiff the meaning and effect of ss 67(6), in accordance with advice from the Attorney General at the time.
  5. However, the Prime Minister, as the head of Cabinet and the Executive, did make a decision when she directed the Plaintiff to vacate his office by 1 November 2022. There was no evidence before the Court, that prior to doing so, the Prime Minister took into consideration this Court’s April 2022 decision. The effect of the Prime Minister’s direction was to dictate the duration of, and bring to an end, the Plaintiff’s transitional tenure. She did so at a time when, on the available evidence, the Plaintiff had or most likely had pending appeal cases before him. The question then becomes whether the Prime Minister’s decision was in breach of the April 2022 decision and thereby interfered with the Plaintiff’s rights, if any, conferred by that judgment or the Constitution, and whether it offended the principles of judicial independence.
  6. It is also implicit from the Prime Minister’s communications with the Plaintiff, and I am prepared to infer, that a number of other decisions were necessarily made, namely:
  7. Given, as noted above, that those matters do not form the basis for the relief sought, they must be regarded as contextual only. They are also subsumed by the overarching and far more fundamental question raised in this proceeding, namely, whether the Plaintiff’s removal by operation of ss 67(6) was Constitutionally valid.

Judicial independence

  1. As mentioned at the outset of these reasons for judgment, and as observed and discussed by this Court in its April 2022 decision and by the Court of Appeal in its July 2023 decision, at the heart of this case lies the doctrine of the separation of powers, principles of judicial independence and whether the Plaintiff’s removal from office has offended those principles. A corollary to that is the question of where those principles sit or should sit within the Samoan legal framework, including Constitutional rights, and what, if any, relief may be available in circumstances where those rights have been infringed.
  2. There is no issue in this case about the legality of the Government’s restructuring of the LTC. The real issue is what is to happen to judges of a Court affected by legislative restructuring. Here, Part 5A of the LTA 2020 eventually and satisfactorily answered that in respect of all the other Judges of the old LTC who were transitioned across to the new court. The Plaintiff was not.
  3. The real issue therefore narrows to whether the remaining revocation of the Plaintiff’s appointment as President and removal from office, without cause, due process, offer of a position on the new LTC or compensation, was in accordance with relevant legislative provisions, any Constitutional protections or rights and/or principles of judicial independence.
  4. As also mentioned at the outset, and as far as Counsel’s submissions and my research would indicate, these questions have not yet been the subject of any published curial decision in Samoa.
  5. For that reason, I commence this section by respectfully adopting the principles of judicial independence outlined by their Honours in their April 2022 decision.[96] Those that are germane to the present case may be conveniently summarised as follows:
  6. By way of further background, rationale and understanding as to the application of those principles, and consideration of a number of the key authorities upon which Counsel relied, the following may be added.
  7. The origins of the doctrine of separation of powers within the Westminster system of government may be traced back to 1610 with the decision of Chief Justice Coke in the Case of Proclamations.[105] That was followed, in 1616, by the Case of Commendams. In 1660, King Charles II issued the Declaration of Breda by which the English Parliament resolved that “government ought to be by King, Lords and Commons”, the essence of a constitutional monarchy. Judicial tenure was mentioned in Parliamentary petitions as early as 1641.[106] The Declaration of Rights of 1688 was enacted the following year by the English Parliament in the Bill of Rights (Eng). Perceived failures of the judicial system and the ‘tyrannical’ control over it contributed to the English Civil War and, following it, the imposition by the victorious Parliament of the Act of Settlement 1701 (Imp) upon the Crown. The operation of that Act was simple but extremely effective. It gave Judges tenure during good behaviour and security of remuneration, effectively removing them from royal and executive influence.[107] This ensured that judges could only be dismissed by a successful address as to the misconduct of a judge to both Houses of Parliament. In the United Kingdom, the Act of Settlement is the cornerstone of judicial independence and is reinforced by convention that restricts Parliament’s power of address.[108]
  8. In Samoa v Attorney General, the separation of powers was described as:[109]
  9. Ever since the Act of Settlement, the experience in England and in those countries which have chosen to adopt a like judicial system has been that a tenured, rather than elected judiciary, is conducive to judicial independence. In turn, that assurance of independence has been regarded as essential to public confidence that legal controversies, civil or criminal, great or small will be resolved according to law and without fear, favour, affection or ill-will be that related to a party or otherwise. In this sense, no judge in those countries is responsible to an electorate for continuance in office.[110]
  10. For instance, in Australia, at the Federal level, tenure is until 70 years of age.[111] Judicial accountability is solely via a procedure for removal from office by the Governor-General in Council but only “on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”.[112] That mechanism is a direct legacy of the security of judicial tenure for which the Act of Settlement provided. That form of security of tenure has been entrenched by provision in both the Constitution and statute.[113] The learned authors of “Judicial independence from the Executive” have opined that, as a result:[114]
  11. It will be noted that the grounds and procedure for removal in s 72 of the Australian Constitution bear a striking similarity to the provisions of former Article 68 and current Articles 67(6) and 104D(3) of the Samoan Constitution.
  12. By contrast, the appointment, tenure and remuneration of Australian state and territory judges are usually governed by legislation and convention and are therefore subject to change by ordinary Act of Parliament.[115] With one exception. The provisions of the New South Wales Constitution concerning the removal (directly or through the abolition of a judicial office), suspension and retirement of judges were entrenched by a constitutional amendment in 1995.[116] Accordingly, in New South Wales, a judge may only be removed ‘by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity’, mirroring the protection afforded to federal judges in s 72(ii) of the Commonwealth Constitution. The retirement age of judges in New South Wales is set by legislation and judges are entitled to re-appointment in cases of court re-organisation or the abolition of a judicial office.[117] Those provisions may only be altered by referendum.[118]
  13. In Papua New Guinea, judicial tenure is measured by a term of years, fixed at the time of appointment, with reappointment possible up to 70 years of age (subject to a limited discretion to extend an appointment to 75 years of age).[119] Papua New Guinea’s Constitution also provides for removal of the senior judiciary from office on the ground of misbehaviour or incapacity, although by a different mechanism.[120]
  14. As the then Chief Justice of the High Court of Australia, Sir Gerard Brennan, said:[121]
  15. Another former Chief Justice of the High Court of Australia, Sir Anthony Mason, put it this way:
“Judicial independence is a privilege of, and a protection for, the people. It is a fundamental element in our democracy, all the more so now that the citizen’s rights against the state are of greater value than his or her rights against another citizen.”[122]
  1. In “Judicial independence from the Executive”, the learned authors note:[123]
  2. In 1978, the New Zealand Royal Commission on the Courts reported:[126]

[emphasis added]

  1. The Minimum Standards of Judicial Independence, adopted by the International Bar Association in October 1982, include:
  2. To like effect is clause 2.39 of the Universal Declaration of the Independence of Justice, which was unanimously adopted at the first plenary session of the first World Conference on the Independence of the Judiciary in Montréal on 10 June 1983.
  3. The Constitution of Samoa has been described as inspired by the principles embodied in the United Nations Universal Declaration of Human Rights (“UDHR”).[127] Although not legally binding, the contents of the UDHR have been elaborated on and incorporated into subsequent international treaties, regional human rights instruments, and national constitutions and legal codes. It enshrines, in particular, the principles of equality before the law, the presumption of innocence and the right to a fair trial by a competent, independent and impartial tribunal established by law. Since its inception, a number of universal instruments have been promulgated to elaborate and provide guidance on the content of the rights expressed in the UDHR and the attainment of them. They include the adoption by the United Nations, in 1985, of the Basic Principles on the Independence of the Judiciary.[128]
  4. The preamble to the Basic Principles explains that they were formulated to assist Member States in their task of securing and promoting the independence of the judiciary and should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. Relevantly, the Basic Principles provide:
...
  1. In 1995, the 6th Conference of Chief Justices of Asia and the Pacific was held in Beijing, in conjunction with the 14th LAWASIA Conference. The most important event of the Conference was the adoption of a Statement of Principles of the Independence of the Judiciary. The lineage of the Beijing Statement can be traced through a number of different international instruments incorporated in the recitations to the Statement, including the Charter of the United Nations, the Universal Declaration of Human Rights, and the Basic Principles on the Independence of the Judiciary. The Chief Justices and other judges in Asia and the Pacific concluded that the Principles represents the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the Judiciary. Relevantly, Article 29 of the Beijing Statement of Principles provides:
  2. Among the 20 initial signatories to the Statement of Principles was the late former Chief Justice Sapolu of Samoa. The Statement was revised into its current form in 1997 at the 7th Conference held in Manila. It has now been adopted by 32 countries from the Asia Pacific region, said to represent approximately two thirds of the world’s population.[129] In 2007, then Chief Justice of Queensland, the Honourable Paul de Jersey AC wrote:[130]
  3. Between 2000 and 2002, the Bangalore Principles of Judicial Conduct were drafted by an informal group of Chief Justices and superior court Judges (the Judicial Integrity Group). They were endorsed by the United Nations Human Rights Commission in 2003 and published with a commentary in 2007. The preamble to the Bangalore Principles declares their intention to establish standards for ethical conduct of judges and are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. The principles are stated as six "values". The first reiterates that judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial.[131]
  4. Samoa has been a member of the Commonwealth of Nations since 1970. As such, it shares certain values with other Commonwealth nations. In Republic v Lambourne,[132] Chief Justice Hastings provided the following historical account of the development of, and adherence to, those values.
  5. In 1991, the Harare Commonwealth Declaration was adopted by the Commonwealth Heads of Government. It affirms that the rule of law and the independence of the judiciary are among the “fundamental political values” of the Commonwealth.[133] It also recognises the rule of law as part of the “shared inheritance” of the Commonwealth that constitutes its “special strength.”[134] The Harare Commonwealth Declaration led to the development of the Latimer House Guidelines in 1998 and then to the Commonwealth Latimer House Principles on the Accountability of and the Relationship between the Three Branches of Government, to which the Guidelines are annexed.[135] The Commonwealth Latimer House Principles were adopted by consensus by the Commonwealth Heads of Government in 2003[136] and were incorporated into the Charter of the Commonwealth which was adopted by the Commonwealth Heads of Government in December 2012 and signed by Queen Elizabeth II in March 2013. The Charter states the rule of law to be one of the core principles of the Commonwealth. It commits each member state to “an independent, impartial, honest and competent judiciary.”[137]
  6. The Latimer House Principles:
  7. They include, relevantly:
  8. And, to secure those aims:
  9. In 2012, the United Nations General Assembly resolved to adopt the Harare Declaration at the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels. The Declaration states in part:
  10. In 2019, the United Nations Special Rapporteur on the Independence of Judges and Lawyers emphasised, inter alia:[139]
  11. In Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, Gleeson CJ of the Australian High Court observed that here is no single ideal model of judicial independence, personal or institutional.[140] Minimum standards of judicial independence are not developed in a vacuum. They take account of considerations of history and of the exigencies of government. Judicial independence and impartiality are secured by a combination of institutional arrangements and safeguards.[141]
  12. In Samoa, the independence of the judiciary has been recognised, if not enshrined, in the Constitution since its inception in 1960. Among the fundamental rights in Part II, resides Article 9, which provides, relevantly, that in the determination of legal rights and obligations, every person is entitled to a fair hearing by an independent and impartial tribunal established under the law.
  13. Observance of the principals of judicial independence has been achieved, in part, by entrenching provisions for security of tenure and financial security in the Constitution. Until the legislative reforms the subject of this proceeding, Article 68 of the Constitution, entitled “Tenure of office”, provided that a Judge of the Supreme Court shall hold office until the Judge reaches the age of 68 years (subject to possible extension),[142] and shall not be removed from office, except by a two-thirds majority vote of Parliament on the grounds of stated misbehaviour or infirmity of body or mind. Although under the now repealed LTA 1981, the statutory retirement age for Samoan Judges was 65, ss 26D(2) incorporated by reference the same Constitutional protections on removal of the President as provided for Supreme Court Judges. The new Articles 67(6) and 104D(3) of the Constitution maintain those protectional limits[143] on removal in respect of the Chief Justice and the President of the LTC respectively. As noted above, some of the recent drafting arrangements to those and related provisions has left the position in respect of removal of Judges of the Supreme Court unclear.
  14. There has not been a restructuring of a Court in Samoa in the nature of the 2020 reforms to the LTC, or at all. Nor does there appear to have ever been (as far as Counsels’ submissions indicated) any previous instance of a serving Judge being (successfully) removed from office.
  15. The reorganisation of the court system, including the abolition of existing courts, is undoubtedly a legitimate exercise of legislative power. If, however, a government initiates such measures not for the genuine purpose of improving the machinery of justice, but for the purpose of disposing of judges whose decisions have proved inconvenient to it, or who are otherwise out of favour with it, there is a serious threat to judicial independence.[144]
  16. In Claydon v the Attorney General, ibid, the New Zealand Court of Appeal considered the question of judicial independence in the context of the abolition of the Employment Tribunal and its replacement with the Employment Relations Authority, effected by the Employment Relations Act 2000 (ERA). The appellants were members of the Employment Tribunal who had been appointed for a fixed term under the Employment Contracts Act 1991. Although they were entitled to apply, they were not appointed to the Employment Relations Authority when the Tribunal was abolished. They therefore sought compensation for the unexpired portion of their fixed term contracts. The appellants argued that they were entitled to the benefits of their judicial offices for the remainder of the fixed terms because these were “existing rights” under s17(1)(b) of the Interpretation Act 1999 which had not been abrogated by the ERA. It was argued that this interpretation was reinforced by the principle of judicial independence.
  17. The Court of Appeal rejected the appellants’ claim and upheld the decision of the High Court. The Court of Appeal held that it was clear under the ERA that office holders’ rights ceased to exist when the Tribunal was abolished. Gault P and Blanchard J held that the principle of judicial independence could not assist the appellants’ argument because the statute was so clear. Keith J observed that the principle of judicial independence could not assist the appellants in any event because its purpose was to protect the rights of parties seeking justice in the Courts. It was also observed that the principle of judicial independence did not apply to a quasi-judicial tribunal in the same way as it applied to a court (McGrath J), nor did it operate to vest rights in any particular judicial officer (Glazebrook J). As noted in this Court’s April 2022 decision, Glazebrook J described judicial tenure as providing “corresponding rights not to be removed from office without good cause and a right either to be offered a similar or better position if there is restructuring or a right to continue to receive the benefits of office if there is no such offer (and some would suggest even if a similar or better position is declined).” McGrath J observed that the principle of judicial independence “calls for restraint from the legislative and executive branches of government in actions they undertake affecting the judiciary”.[145] His Honour also noted Canadian authority which suggested that protections of judicial independence should be institutionalised through appropriate legal mechanisms.[146]
  18. In Australia, where a government has sought to reduce a serving judge’s tenure by removing him or her from office, the courts have shown a greater willingness to constrain the exercise of governmental powers. However, this has been coupled with a reticence to second-guess the legitimacy of executive decisions in this area.[147]
  19. In Macrae v A-G for New South Wales,[148] the Court of Petty Sessions was abolished, and thereby the positions of a hundred Stipendiary Magistrates, to make way for the introduction of Local Courts. In the course of the re-organisation, the New South Wales Attorney-General decided not to re-appoint five magistrates to judicial positions in the new Local Courts. The failure to re-appoint the magistrates was based on private allegations of unfitness in letters from the Chairman of the Bench of Stipendiary Magistrates to the Attorney-General. The magistrates were never confronted with the allegations or presented with an opportunity to defend their positions. The deposed magistrates challenged the decision that had effectively resulted in their removal from office. Kirby P, Mahoney and Priestly JJA of the New South Wales Court of Appeal upheld the magistrates’ challenge, finding that they had been denied procedural fairness and were entitled to a fresh decision. Special leave to appeal to the High Court was refused and the magistrates were invited to apply for the positions in competition with other applicants. The Court of Appeal thus confirmed that a court may exercise judicial review over an executive decision to abolish a court and selectively reappoint its judicial officers.
  20. In particular, Kirby P (as his Honour then was) described the approach generally taken by the legislature in Australia, and in England and elsewhere, as when a court is abolished and its functions transferred to a new court, judicial independence and tenure are preserved by appointing the judicial officers exercising the jurisdiction of the abolished court to the new court or by retaining their office in some way.[149]
  21. One of the magistrates who was a party to the challenge in Macrae was Quin. He claimed that his application for re-appointment should be considered separately and on its own merits and not in competition with applications from other applicants. That argument was accepted by Kirby P and Hope JA in the Court of Appeal.[150] The Attorney General appealed that decision to the High Court.
  22. In Attorney-General (NSW) v Quin,[151] no issue arose as to the validity of the statutory reforms underpinning the proceedings. As Brennan J observed:
  23. The only issue was the manner in which the Attorney General was required to consider Quin’s application for re-appointment to the new court and whether he had any legal entitlement to, and/or enforcement of, the ‘legitimate expectation’ he asserted in that regard. In answer to that primary question, Mason CJ explained:
  24. Relevantly, and to similar effect, Deane J observed:
  25. By a majority of the High Court, the appeal was allowed. Ultimately, Quin’s case failed because, as Mason CJ opined, it would have required the Court to compel the Attorney-General to depart from the method of appointing judicial officers which conformed to the relevant statutory provision, is within the discretionary power of the Executive, and is calculated to advance the administration of justice.”[152]
  26. The decision in Quin has evoked commentary and controversy. Perhaps most vocal of its critics has been Justice Kirby (who went on to serve as judge of the High Court of Australia from 1996 to 2009). In 1992, writing extra-judicially, his Honour reiterated his views in Macrae that international principles of judicial independence require that:[153]
  27. In 1994, Kirby J described the decision in Quin as:[154]
  28. The High Court’s decision in Quin demonstrates the ‘reluctance of courts to intervene in the executive authority of judicial appointment and the genuineness of the plan of court reorganisation’.[157] Since Quin, developments in constitutional law have hinted at the possibility of stronger protections for the tenure of state and territory judges. For instance, in Kable v Director of Public Prosecutions,[158] it was held that the vesting of a function in the court of a State which had the capacity to undermine public confidence in the impartiality of the courts which exercise federal jurisdiction was inconsistent with Chapter III of the Australian Constitution and therefore invalid. Shortly after that decision, in The Honourable Justice Vince Bruce v The Honourable TRH Cole, RFD and Ors,[159] Spiegelman CJ (sitting in the NSW Court of Appeal) considered that Kable placed limits on any attempt to restrict judges’ security of tenure. His Honour added: [160]
  29. It may be seen, therefore, that the principle that in cases of court restructuring, previously serving judges should be reappointed, has been long held and widely recognised.[161] Kirby J has opined that:[162]
  30. Thankfully, challenges to judicial independence in the Oceania region have been historically rare although the last few decades has seen a marked increase, most often through the abolition or restructuring of inferior courts and tribunals, with governments reappointing only some former office holders to the replacement court or tribunal, or to another court or tribunal of equal standing. When such cases do arise, they have the potential to engender (usually) well-founded anxiety at any prospect of undue pressure on, or worse, cracks in, this fundamental cornerstone to modern democratic systems of government and the ramparts separating the triunal powers within them. In addition to the cases discussed above, the following selection illustrates the significance of the issue and the responses of some governments and courts to it.
  31. In Australia, the appointment, tenure and remuneration of state or territory judges lacks explicit protection under the Commonwealth Constitution. Therefore, those facets of judicial independence are susceptible to interference by the executive or Parliament (with the exception of in New South Wales due to the entrenched protections in its Constitution). Courts have recognised the vulnerability of protections for the tenure of state and territory judges in a number of cases. For instance, in McCawley v The King,[163] Thomas McCawley’s appointment to the Supreme Court of Queensland was linked to his Presidency of the Court of Industrial Arbitration, which was for a seven-year term, despite the Queensland Constitution expressly granting life tenure. The High Court found McCawley’s appointment to be invalid.[164] That was reversed on appeal when the Privy Council affirmed that the life tenure granted by the Queensland Constitution was subject to both express and implied amendment by subsequent legislation.[165]
  32. The cases of Macrae and Quin, discussed above, also provide salient reminders of the vulnerability of judicial security of tenure when pitched against Executive policy decisions involving restructuring or recomposition of courts and tribunals.
  33. A number of examples are to be found in Victoria. In 1992, following a change of government, the Industrial Relations Commission and the Accident Compensation Tribunal were abolished and replaced. Section 175(1) of the Employee Relations Act, 1992 (Vic) provided that "on the appointed day the former Commission is abolished and the members of the former Commission go out of office". The Act did not make provision for the appointment of members of the old Commission to the new. The Deputy Presidents and other members of the old Commission were advised that they were to be regarded as having applied for appointment to the new Commission unless they indicated otherwise, notwithstanding that their applications would "not be treated more favourably than those of other applicants". It would appear that the letter to the former officeholders was drafted with the majority opinion of the High Court in Quin in mind. Of the fifteen members of the old Commission, five declined to apply for a position in the new Commission. They were offered a non-negotiable ex gratia termination package as determined by the State Department of Industry and Employment. The remaining members (including two Deputy Presidents and eight Commissioners) sought appointment to the new body. The two Deputy Presidents were successful but only two of the eight Commissioners succeeded. The unsuccessful Commissioners were offered ex gratia termination packages.
  34. The case of the Accident Compensation Tribunal and the treatment of its former members has been described by Kirby J as the ‘most serious of departures from the convention’.[166] By the Accident Compensation Act 1985, the Tribunal members enjoyed the rank, status and precedence of a judge of the County Court of Victoria. They performed judicial duties. They were each to hold office as a judge of the Tribunal during good behaviour until the age of 70. They could be removed from office only by the Governor of Victoria on an address of both Houses of Parliament. In 1992, the Accident Compensation (WorkCover) Act 1992 (Vic) abolished the Tribunal. It made no provision for the continued existence of the office of the judges or for their tenure. As a result, all the judges who were not reappointed to some equivalent office in the County Court or the State Administrative Appeals Tribunal were effectively removed from office, without proof of misbehaviour, or by the exercise of the procedure promised to them by Parliament and accepted by them on their appointment. The move was met with unprecedented protests from judges throughout Australia, the International Commission of Jurists, the Centre for the Independence of Judges and Lawyers (in Geneva), the Law Council of Australia, Law Societies and Bar Associations throughout the nation, and others, all to no avail. Of the nine who were not appointed elsewhere, each was provided with monetary compensation. That compensation fell far short of the promise of office to the age of 70, pension or other rights nor could it provide redress for their dispossession of office, and loss of status, reputation, etc. Proceedings were commenced in the Supreme Court of Victoria.[167] It would appear from the lack of any reported decision that those proceedings were resolved.
  35. Similar experiences have occurred in South Australia[168] and Western Australia.[169]
  36. In D'Imecourt v Manatawai,[170] the then Chief Justice of the Republic of Vanuatu was served with two notices, signed by the Minister of Foreign Affairs and Immigration, declaring the Chief Justice an undesirable immigrant. The then President of Vanuatu issued a constitutional instrument purportedly terminating the Chief Justice’s appointment. The Chief Justice brought proceedings to quash those decisions on a number of bases including lack of jurisdiction, denial of natural justice, that his termination was ultra vires the Constitution, failure to give reasons, unfair hearing and bias. In granting the relief sought, Tompkins J observed, relevantly:
  37. In the 2003 Canadian decision of Alberta v Ell and Others (A-G of Canada and Others intervening),[171] the respondents were justices of the peace. In 1988, the Justice of the Peace Act was amended to improve the qualifications and independence of provincial justices of the peace and required all such justices who exercised judicial functions to meet qualifications decided upon by an independent judicial council. The respondents did not meet the qualifications and were removed from office but offered administrative positions as non-presiding justices of the peace. They applied for a declaration that the provision which removed them from office, inter alia, contravened their security of tenure and independence required by s 11(d) of the Canadian Charter of Rights and Freedoms 1982 (“Charter”). The chambers judge granted the application and declared the provision to be of no force and effect as it applied to the respondents. The Court of Appeal upheld the finding of the chambers judge. The province appealed to the Supreme Court.
  38. The Supreme Court held that although it has been historically confined to the superior courts, the principle of judicial independence had evolved to apply to all courts. The principle of independence clearly extended to protect the judicial office held by non-sitting justices of the peace. However, security of tenure could not be viewed as an absolute as that would make necessary reforms almost impossible. If a removal from office was necessary in the promotion of the public interests served by judicial independence, then it could not be considered arbitrary, and would not undermine the perception of independence in the mind of a reasonable and informed person. The reforms introduced by the amending Acts reflected a good faith and considered decision of the legislature that was intended to promote those interests. It was uncontested that the provisions were enacted to serve the public good. Various commissions had indicated a pressing need to improve the independence and competence of justices of the peace and the amendments reflected the recommendations of those reports. Thus, the Court held that the impugned legislation did not undermine the perception of independence in the mind of a reasonable and informed person, who would perceive the amendments to strengthen, rather than diminish, the independence and qualifications of Alberta's justices of the peace. Accordingly, the amendments were respectful of the principle of judicial independence, s 11(d) of the Charter was not engaged and the appeal was allowed.
  39. In 2011, the Supreme Court of Papua New Guinea gave judgment in Re Reference to Constitution section 19(1) by East Sepik Provincial Executive.[172] Between November 2011 and May 2012, Injia CJ was twice purportedly suspended from office and twice arrested. Justice Kirriwom was also arrested, again without any substance in the charge. Action was purportedly taken pursuant to the Judicial Conduct Act. It was not until 2021, in the immediate aftermath of the death in 2021 of Sir Michael Somare, that the Hon Belden Namah made a full and public apology for his behaviour in that period of tension and in relation to Sir Michael Somare, Sir Salamo Injia and the judiciary generally. The Hon Peter O’Neill also tendered a public apology for his part in the political impasse which occurred as a sequel to the Supreme Court’s decision. In 2013, the PNG Parliament repealed the Judicial Conduct Act.
  40. A recent constitutional stand-off in Kiribati provides a vivid and cautionary tale of the turmoil that can eventuate, not to mention international concerns, when the separation of powers becomes blurred and judicial independence is challenged. In February 2020, Judge Lambourne left Kiribati to attend a conference in Australia. However, he became stranded due to the COVID-19 pandemic. A dispute arose as to the terms of his judicial appointment and tenure under the Constitution or whether he was only appointed for a fixed three-year term. The Kiribati government attempted to prevent Judge Lambourne from resuming his position in Tarawa by stopping payment of his wages, refusing to issue an ongoing work permit and by not allowing him to board several repatriation flights. On 11 November 2021, then Chief Justice Hastings overturned the government's actions, declaring them unconstitutional. Before reaching that conclusion, his Honour observed:[173]
  41. Following that decision, both Judge Lambourne and Chief Justice Hastings were suspended over allegations of misconduct. In August 2022, the Court of Appeal upheld the Chief Justice’s ruling and overturned a subsequent attempt by the government to deport Judge Lambourne.[177] In September 2022, the government suspended all judges of the Court of Appeal. A ‘special tribunal’ was established by the government to deal with the misconduct allegations. In April 2024, Parliament voted to accept the recommendation of that tribunal to remove Judge Lambourne from office.
  42. Most recently, in Sharma v The President of the Republic of Fiji,[178] the Applicant was the Solicitor General of Fiji, appointed pursuant to s 116 of the Constitution. He represented the Superintendent of Elections (“SOE”) and the Attorney General on an application before the Court of Disputed Returns by an elected member of Parliament. The Court found against the SOE. The SOE then filed complaints against Sharma in relation to his conduct of the case. The Judicial Services Commission then asked the President to suspend Sharma pending ‘referral to and appointment of [a] Tribunal’ pursuant to ss 112(4) of the Constitution. Sharma was then suspended without pay. He sought reinstatement of his salary but was refused. Seven weeks passed without any further communication. He then received 31 questions and a direction to reply to them and the SOE’s complaint within two days. He sought more time, which was also refused. The Judicial Services Commission advised the President that a tribunal was not warranted and that he should proceed with determining the complaints in accordance with ss 116(9) of the Constitution. The advice also contained a draft letter of termination of Sharma’s position. Termination followed and Sharma sought judicial review of the decisions which culminated in him being removed from office. A new Solicitor General was appointed whilst Sharma went on to secure employment teaching at a university.
  43. Under Chapter 5 of the Fijian Constitution, entitled ‘Independent Judicial and Legal Institution’, the grounds and procedure for removal of the Solicitor General are essentially the same as for a judicial officer, that is, on the grounds of misbehaviour or inability to perform. The statutory retirement age is 70. The Applicant was 22 years younger.
  44. Justice Amaratunga found that Sharma’s suspension without salary and removal from office were “contrary to law and null and void”, and that if he was wrong about that, Sharma had clearly been denied a reasonable opportunity to be heard. In arriving at that conclusion, his Honour observed, relevantly: [179]
  45. I now turn to consider the issues for determination having regard to the parties’ competing submissions. As noted above, there are no factual conflicts to be resolved. The issues therefore are largely questions of law.

Issue 1: Are the Plaintiff’s claims precluded by res judicata?

  1. In its July 2023 decision, the Court of Appeal raised the potential issue of res judicata and whether the Plaintiff’s principal claim in this proceeding may be precluded or barred by virtue of this Court’s April 2022 decision. However, neither res judicata nor issue estoppel were pleaded by or on behalf of any of the Defendants either before the Court of Appeal’s decision, or since.
  2. However, Counsel for the Plaintiff did not take issue with that and the question was addressed in written submissions and proceeded to full argument at trial. In fact, in his first supplementary affidavit,[180] the Plaintiff pre-emptively deposed (or submitted) that the issues in the present case were not determined in the April 2022 decision because, in summary:[181]

Plaintiff’s submissions

  1. Before me, Mr Ainu’u (further) submitted that res judicata does not apply to the Plaintiff’s claims in this proceeding for the following reasons, in summary:
  2. Alternatively, Mr Ainu’u submitted that even if the principles of res judicata or issue estoppel apply, then pursuant to the recent Court of Appeal decision in The Speaker of the Legislative Assembly v Malielegaoi,[185] the Plaintiff ought be entitled to “reopen” the April 2022 decision so far as it concerned “issues of jurisdiction under the LTA 2020 which, inter alia, includes the question of whether it yields the result of summarily removing [the Plaintiff] as the President of the LTC”.
  3. By way of further alternative, Mr Ainu’u submitted, having regard to the Court of Appeal’s remarks at paragraph 61 of its July 2023 decision (referred to above and recited for convenience in the footnote below),[186] that the natural conclusion of the April 2022 decision is that the Plaintiff “is [or was at the date of his removal] the President of the Land and Titles Court, albeit in a limited capacity”, in which case, “the Constitutional and Statutory mechanism - either under the Pre or Post LTA 2020 regime - ought to have been engaged to remove him as President (which was not done)”. If the Plaintiff remained as a “'transitional' President”, then how was he to be removed? The repeal of the LTA 1981 repealed its provisions on removal of the President. As the April 2022 decision meant that the Plaintiff’s authority was limited and did not extend to petitions filed under the LTA 2020, the question arises as to whether or not the removal provisions in that Act applied.
  4. Mr Ainu’u went on to submit that it was right of their Honours in the April 2022 decision to refer the matter to Parliament to amend the legislation “to carve out a transitional road map that may include the creation of a recruitment and selection procedure to allow interested applicants (including the Plaintiff) to reapply for their posts under the new regime. And if they are not successful, then have a legislative formula to settle the issue of their salaries, allowances and benefits”. However, despite the opportunity to do so via the December 2022 amendments to the LTA 2020, Parliament made no such changes. By then, the Plaintiff had been removed from office while all the other judges of the old LTC were permitted to retain their corresponding position in the new LTC. It appears, he submitted, that it was only the Plaintiff that “required replacing”.

Defendants’ submissions

  1. The Attorney General submitted that the primary issue raised by the Plaintiff for determination in this proceeding in relation to his appointment as President is subject to the principle of res judicata. In doing so, she adopted some of the arguments posited by the Court of Appeal in the July 2023 decision,[187] namely:
  2. The Attorney General identified the well-established principles of res judicata by reference to the decision in McCarthy v Samoa National Provident Fund.[188] There, the Court cited Craig v Stringer,[189] where the New Zealand Court of Appeal observed:
  3. The Attorney General also identified that in proceeding MISC 41/22, she, on behalf of the Government, opposed the Plaintiff’s application, on bases that included that his tenure as President was revoked upon the commencement of the LTA 2020 pursuant to ss 67(6); that continuation of the Plaintiff’s tenure as President under the LTA 1981 had not been preserved by any transitional or savings provisions; and the Plaintiff had not been appointed as President in accordance with Article 104D of the Constitution. The Plaintiff’s Motion was filed on 14 December 2021, on a pickwick basis, but was not heard until 14 March 2022. Therefore, the Plaintiff had ample time and opportunity to prepare for a full hearing. Substantive written and oral arguments were presented on the issue of the Plaintiff’s appointment before the three-member Bench, who “examined, deliberated and determined substantively the issue of the President’s appointment pursuant to Article 104D of the Constitution”.
  4. Accordingly, by application of the principles in McCarthy and Craig, the Attorney General submitted that:

Consideration

  1. In Reed v Matailiga,[190] then Chief Justice Sapolu provided a comprehensive survey, at that time, of the common law principles of res judicata, action estoppel and issue estoppel.[191] His Honour noted the underlying policy considerations for the principles as being the public interest in an end to or finality in litigation and that a party should not be vexed or harassed twice by the same matter.[192] His Honour identified the requirements for issue estoppel as that:
  2. As noted in the submissions above, those principles have been applied in a number of cases since.[193]
  3. For the reasons which follow, I do not consider that the Plaintiff’s principal claim in this proceeding is precluded or barred on the basis of res judicata or issue estoppel.
  4. Firstly, the questions in each proceeding are materially different:
  5. Secondly, in light of that finding, it is, strictly speaking, unnecessary to determine whether the April 2022 decision was final. If it were, I am of the view that the only finality that could be ascribed to the Court’s decision was in respect of its interpretation of s 67 and its declaration that the Executive was required to resume provision of support services to the Plaintiff and Judges of the LTC for the purposes of the transitional provisions of the LTA 2020. Neither of those decisions involved final determinations of the issues now advanced by the Plaintiff, in particular, the validity of ss 67(6) as a lawful basis for his removal from office.
  6. Further, it is patent from the terms of the April 2022 decision, that it was, as the Court of Appeal described it, a “here and now” solution. The concluding referral back to Parliament to “consider how to take these matters forward” indicates, in my view, that that Court had in mind that the situation as it then stood, based on a literal interpretation and application of ss 67(6) alone, in which the LTC would have been left inoperative with no judges, might well change if and when Parliament addressed it by amending legislation to fill the lacuna in respect of the appointment, etc, of judges to the new Court.
  7. I also note that in his Honour’s October 2022 decision, the Chief Justice considered the interpretation of s 67, and whether the Plaintiff had been summarily dismissed, to be a serious question to be tried. That would hardly have been the case had that issue been determined, in April 2022, for all time and for all purposes.
  8. Thirdly, and in any event, the parties to the respective proceedings are different. In proceeding MISC 41/22, the Respondent was effectively the Minister of Justice and Courts Administration. In the instant proceeding, the Defendants are the Prime Minister, the Hon Justice Vaai and the Government. Even if the Minister, Prime Minister and the Government may be viewed as different emanations or representatives of the same Constitutional organ, there is, in my view, clearly no privity of ‘blood, title or interest’ between them across the various proceedings and the issues in those proceedings.[194] The causes of actions, parts played, relief sought, and interests of each, are distinct and different.
  9. However, if I am wrong about that, then I consider there to be merit in Mr Ainu'u’s first alternative or fall-back submission.
  10. In The Speaker of the Legislative Assembly v Malielegaoi,[195] two Members of Parliament were suspended by the Speaker for 'contempt' of Parliament. The first suspension was overturned by the Supreme Court. The Members were then suspended a second time by the Assembly on the same complaint. A challenge in this Court to the first suspension concerned the legality of the process by which the Assembly dealt with the matter. However, the Court did not determine that issue but resolved the case on the basis of a breach of natural justice.[196] That decision was not appealed. During the subsequent proceeding in respect of their second suspension, the two Members sought again to challenge the legality of the process applied by the Assembly for both the first and second suspensions. The Speaker raised a defence of res judicata. He contended that:
  11. The Court of Appeal determined the substantive issues by finding that Parliament did not have authority to deal with 'contempt'. On the issue of res judicata, their Honours held that even if the issue were properly to have been treated as having actually been adjudicated on between the parties in the first suspension judgment, that would not necessarily have precluded its reopening between the parties in the circumstances. They explained that ‘res judicata plays a restricted role in administrative law, since it must yield to two fundamental principles of public law, namely that jurisdiction of a public body cannot be exceeded, and that statutory duties and powers cannot be fettered.’ As the first of those principles was ‘in play’ in the case, especially when the jurisdiction (that of the Assembly) is conferred by, and is subject to, Samoa's Constitution, the Court exercised its discretion to permit the Members to reopen the question.[197]
  12. In my view, that discretion should be exercised in the present case in favour of the ‘citizen’, namely, the Plaintiff. The central issue in the case concerns the jurisdiction of Parliament insofar as it calls into question the legality and Constitutionality of ss 67(6) and its effect on the Plaintiff and his rights. Although a little over two years has elapsed since the April 2022 decision, and the Second Defendant has since been appointed, the withdrawal by the Plaintiff of his challenge to that appointment, denudes that factor of any weight it might otherwise have had. There is a significant public interest in having any matter concerning judicial independence correctly determined. The Attorney General did not submit that the remaining Defendants would be prejudiced if the legality question is reopened.

Issue 2: Did ss 67(6) remove the Plaintiff from office?

Plaintiff’s submissions

  1. Mr Ainu’u submitted that the relevant “legislative scheme” and “legislative history” supports the Plaintiff’s contention that ss 67(6) of the LTA 2020 did not have the effect of removing him as President of the LTC.
  2. As to the legislative scheme, Mr Ainu’u submitted, in summary:
  3. Mr Ainu’u then submitted that the Acts Interpretation Act 2015[198] allows the Court to also consider the legislative history of ss 67(6), which points, he said, to the “glaring conclusion that ss 67(6) was intended for assessors”. He referred to the July 2023 decision in which the Court of Appeal traced the legislative history of the LTC and opined (as detailed in the Background section above) that it was “possible to construe” s 67 so that the Plaintiff became President of the new LTC. It will be recalled that their Honours also then outlined arguments for and against that proposition.[199]

Defendants’ submissions

  1. The Attorney General submitted, in summary:
“[18] The Court is duty bound to give effect to the intention of Parliament, not to second guess it. The intention of Parliament is to be derived from the words of the Act having regard to ‘the plain meaning of ordinary words’ – s.7(3)(a) AIA 2015. It would be a breach of the doctrine of separation of powers for us to impute into legislation words or a limitation that Parliament has deliberately omitted. If the omission is accidental only Parliament can correct this, not the Court because that would mean the Court would be making law which is not its function.”

Consideration

  1. This issue calls for the interpretation of ss 67(6) in the context of, and for the purposes of, the claims in this proceeding. The proper construction is to be found in the meaning of the statutory language, read in its statutory context and in light of its statutory purpose.[202] It is appropriate, therefore, that I commence by having regard to the same interpretative principles and statutory directives applied by the Court in its April 2022 decision.
  2. Section 7 of the Acts Interpretation Act 2015 provides, relevantly:
  3. Section 25 provides, relevantly:
  4. In relation to the interpretation of savings and transitional provisions, this Court endorsed, as being applicable in Samoa, the following summary from Hilder v Port Otago Ltd:[203]
  5. Further, in construing statutes, Courts must give effect to the principle of legality and should therefore be slow to impute to Parliament an intention to override established rights and principles where that is not clearly spelt out.[204]
  6. In my opinion, it may be observed at the outset that ss 67(6) was a blunt instrument. Contrary to its positioning within s 67, and prior to the insertion of Part 5A, it neither saved nor transitioned anyone or anything - it eliminated.
  7. The approach taken by the Court in its April 2022 decision was clearly predicated, initially at least, on a literal interpretation, that is, a consideration of the plain meaning of words, of ss 67(6) in the context of the LTA 2020 as it then was. It is common ground that the Act did not contain any provisions for appointments of Assessors in the new Court. It did not refer to them at all. As a consequence, the appointments of all Assessors under the LTA 1981 were revoked.
  8. At that time, the same approach would have yielded the same result in respect of the Plaintiff and all the other Judges of the LTC. Contrary to the Plaintiff’s pleaded position, there was no ambiguity in the language of the provision. As there were then no provisions for the appointment of a President or Judges of the new Court, the appointments of the existing judicial officers under the LTA 1981 would have been revoked. That was the very eventuality the Court eschewed as not reasonably to be supposed as corresponding with the intention of Parliament. Their Honour’s purposive and broader resort to the other (genuine) savings and transition provisions of ss (2) and (4) produced a result that enabled the LTC and its Judges to continue to operate, albeit with limited jurisdiction. It is also apparent that, at that time, their Honours did not know and could not have known for how long that transitional jurisdiction might operate or how long it might take for Parliament to address the matter.
  9. As noted, the Court’s interpretation, insofar as it constituted an indispensable element in its decision, was not appealed by either party in that proceeding. No basis has been advanced in this proceeding for departing from the decision in the circumstances as then obtained.
  10. But those circumstances have since changed. In light of the retrospective operation of the amendments to the LTA 2020, it is now necessary to revisit or update the interpretation of ss 67(7) to answer the present issue.
  11. The position in respect of Assessors has remained the same. However, Part 5A provided for the appointments of all other judicial positions, save for the President. Therefore, ss 67(6) no longer had the effect of revoking the appointments of those other judges of the old LTC, despite the repeal of the LTA 1981, and they have since, almost seamlessly it would seem, been transitioned across to the new Court. As the provision for appointment of the President of the new LTC now resides solely in Part IX of the Constitution, unsurprisingly perhaps, there is no provision for that appointment in the LTA 2020. The references to the President and his or her role within various provisions of the LTA 2020 cannot, in my view, be interpreted as appointments under that Act. Section 67(6) does not speak of ‘roles’ being provided for; it speaks only of ‘appointments’. Part 5A, Division 2 of the Act is entitled “Appointment of Judges for the Land and Titles Court”. The term does not appear anywhere else within the Act in relation to the President.
  12. Therefore, at that level of analysis, the Plaintiff’s appointment under the LTA 1981 was revoked by ss 67(6).
  13. Neither the ‘legislative scheme’ nor the ‘legislative history’, as contended for by Mr Ainu'u, alter that conclusion. Both Counsel informed me that there are no extrinsic materials, such as the second reading speech, explanatory memoranda, or the like, which shed light on this issue. The arguments postulated by the Court of Appeal,[205] and referred to by Mr Ainu'u, have been or will be addressed in the further issues below, or were answered by their Honours’ own “countervailing arguments”. Where any of those competing arguments were finely balanced, Mr Ainu'u did not seek to advance or persuade me in respect of those in favour of his client’s interpretation that ss 67(6) was only intended to abolish Assessors.
  14. The next inquiry then is whether that result, namely, that the only judicial officer of the old LTC not to retain their appointment or be transitioned across to the new LTC was the Plaintiff, can be reasonably supposed to correspond with the intention of Parliament. In my view, it was. The omission of the provisions for appointment of President from the new Act, and the insertion of them in the Constitution, makes pellucid Parliament’s intention that the President of the old LTC was not going to automatically be (or “taken to be”) the President of the new. Moreover, the revocation of the Plaintiff’s appointment by virtue of ss 67(6), without any statutory provision for reallocation, and no offer by the Prime Minister, or the Komisi for that matter, of some other position on the new Court, meant that he lost his position as a judicial officer entirely.
  15. It was at this point that Mr Ainu'u sought to further the Plaintiff’s case by submitting, effectively, that the Prime Minister and the Government had inappropriately used the legislative reforms to “single out” the Plaintiff and to “get rid of him”. In other words, that the legislative power had been exercised in bad faith. Accusations of bad faith (or even possibly malfeasance in public office) are very serious. Like allegations of fraud, they must not be advanced without a proper basis, and they must be specifically pleaded, particularised and proven by admissible evidence or by inferences reasonably drawn from facts established by the evidence. As noted above, none of the various iterations of the Plaintiff’s Statements of Claim included allegations of bad faith or similar.
  16. But even if it had been pleaded, the only factual basis for the submission advanced by Mr Ainu'u was the Prime Minister’s correspondence and the consequence described above whereby the only judicial officer of the old LTC ultimately to have his appointment revoked was the Plaintiff. He added that the failure by the relevant Defendants to adduce any evidence to explain that process and outcome warranted the Court drawing an adverse inference.
  17. A party’s unexplained failure to call relevant evidence may facilitate adverse findings being made against them.[206] A witness’ evidence is not “unexplained” unless the opposing party has adduced evidence requiring contradiction.[207] Nor can any adverse inference arise where the absent witness was equally available to both parties.[208] No adverse inference can arise from a mere absence of evidence. The absence of contradictory evidence cannot remedy a deficiency in the case of the party that bears the ultimate onus of proof.[209] Where the requisite circumstances are present, the limited inference is merely permissible, and not mandatory.[210] Two consequences can flow. The first is that the trier of fact may infer that the evidence of the absent witness would not have assisted the case of that party. The second is that the trier of fact may more confidently draw an inference unfavourable to that party.[211] Importantly, however, the rule does not enable a trier of fact to infer that the evidence of the absent witness would have been positively averse to that party.[212] Further, no inference is open (at least in the absence of proper notice and reasoned analysis) that a party deliberately (and thus dishonestly) refrained from adducing the evidence because they apprehended it was unfavourable to their case.[213] The proper ultimate finding must, in every case, depend on the actual evidence that has been adduced. If that evidence provides (or fails to provide) a sufficient basis for a particular finding, the force of an inference that other unadducted evidence “would not have assisted” adds little to the proper evidentiary assessment. Consequently, this aspect of the Jones v Dunkel reasoning operates to influence an impressionistic assessment about the actual sufficiency of the evidence that has been adduced on the particular matter, or as to whether any relevant inference should fairly be drawn.[214]
  18. Special considerations may apply in judicial review proceedings. It has been said that “proceedings for judicial review should not be conducted in the same manner as hard-fought litigation”.[215] The duty requires a respondent public authority to cooperate and make candid disclosure of the relevant facts and, so far as it is not apparent from the disclosed documents, the reasoning behind the decision challenged.[216] While the Courts recognise that they “should not trespass into the legitimate policy sphere of Ministers” in judicial review proceedings, the “constitutional corollary should be Ministerial candour with the Courts about their policy”.[217] Where the Crown does adduce evidence by the persons involved, it is desirable for the evidence to be full and candid. If it is not, it invites an adverse inference, and can promote an application for cross-examination.[218]
  19. Any understandable sympathy for the Plaintiff’s plight is nonetheless founded, to a significant extent, on suspicion and speculation as to the respective Governments’ motives in the restructuring of the LTC. That suspicion may also be fuelled by the Plaintiff’s unfortunate criminal conviction, unsuccessful attempted removal, and the extension, via s 61I of the LTA 2020 of the grounds for removal of the President to include behaviour which brings, or is likely to bring, the office of the President or the Court into disrepute; or behaviour which may affect the confidence of the public in the LTC. However, suspicion alone cannot discharge the Plaintiff’s evidentiary burden.
  20. While the circumstances of this case and the manner in which it has been conducted for and on behalf of the Government, meet some, but not all, of the above criteria for the drawing of an adverse inference, the inference contended for by Mr Ainu'u in his oral submissions, namely and in terms, that the restructuring of the LTC and resulting revocation of the Plaintiff’s judicial appointment as President, and exclusion from the new Court, was an improper exercise of legislative power, runs headlong into the explanation proffered by the Attorney General.
  21. She noted, in relation to issue 5 below, and correctly, that until Mr Ainu'u’s submissions, there had ‘never been any suggestion’ in the case (which I interpret to mean as pleaded or within the Plaintiff’s affidavit material) that the legislative reforms were designed other than for the genuine re-organisation of the LTC to better serve the administration of justice, or that they were designed for the purpose of removing the Plaintiff or interfering with judicial independence. Mr Ainu'u did not seek to refute that.
  22. The Attorney General further explained, by objective reference to relevant legislative provisions, that the new LTC, with its enhanced and self-contained jurisdiction, is designed to be more legalistic and therefore requires judges with appropriate legal qualifications and experience. She went as far as suggesting that given the fundamental importance of lands and titles in Samoa, and the fact that decisions on such matters can affect generations, the LTC could arguably be regarded as the most important Court in the land. That characterisation echoes the tenor of Article 104(2) of the Constitution.
  23. As will be discussed further in issue 4 below, the Attorney General also contended that the Plaintiff could not have been considered for appointment as the new President because he did not possess the legal practice qualifications required under the new Constitutional provisions. That explanation, however, did not extend to any reason for the Plaintiff not being offered a different judicial position within the new LTC in line with the widely recognised principles of judicial independence discussed above. To that enquiry from the Bench, the Attorney General said that the Government required a determination on whether the Plaintiff’s removal was unlawful before consideration could be given to any alternative solutions such as an offer of reallocation within the new Court.
  24. For those reasons, I am not prepared to draw an adverse inference as contended for by the Plaintiff.
  25. But that is not the end of the matter.
  26. The final question on this topic is when did any revocation of the Plaintiff’s appointment occur? Notwithstanding the relevant provisions of the LTA 2020, once corrected and amended, stipulating that the Act still retroactively commenced on 15 March 2021, and ss 67(6) specifying revocation as at the date of the Act’s commencement, regard must be had to the effect of this Court’s April 2022 decision. As discussed above, the effect of that judgment was to extend the authority and jurisdiction of the Plaintiff and the other judges of the LTC to hearing and determining all pending cases commenced by petition prior to the LTA 2020. The Attorney General accepted that the completion of those cases naturally extended to and included any appeals which might have been generated from the first instance decisions on those positions.
  27. The evidence before the Court is insufficient to enable any accurate assessment (or even an educated estimate) as to when the Plaintiff’s transitional tenure might naturally have expired in accordance with the terms of the April 2022 decision. The affidavit evidence of Leugamata Lofipo was that between May and October 2022, the Plaintiff heard 71 cases including 30 applications for leave to appeal. It is reasonable to assume, and neither Counsel contended otherwise, that at least some of those applications would have been granted, so that as at October 2022, when the Prime Minister directed him to vacate his office, the Plaintiff would still have had some appeals pending before him. There was no evidence before the Court as to the timeframes or outcomes of those cases, after the Plaintiff vacated his office.
  28. A related issue arises from the use in ss 67(6) of the word “revoked”. In a legal context, the word is defined as denoting that a thing has been cancelled totally that leaves nothing to be valid; or to annul an act by calling or taking it back.[219] A literal application of the term here would mean that the Plaintiff’s appointment was ‘cancelled’ from when it was made. A slightly less absurd result would be that his appointment was recalled on 15 March 2021. Either interpretation, if accepted, would result in doubt being cast over the lawfulness of the Plaintiff’s (or his part in) numerous LTC decisions. That could hardly have been the intention of Parliament.[220] The April 2022 decision clearly contemplated and provided for the Plaintiff’s lawful authority as President (along with the other judges) of the LTC to continue until Parliament remedied the mischief in the LTA as it then stood.
  29. Accordingly, the answer to this issue is ‘yes’, but subject to the operation of the April 2022 decision.

Issue 3: Did Article ss 67(3) and/or 111(6) save the Plaintiff from removal?

Plaintiff’s submissions

  1. Mr Ainu’u submitted that even if the Court were to interpret ss 67(6) in the manner contended for by the Attorney General, ss 67(3) of the LTA 2020 and Article 111(6) of the Constitution when read together, have the effect of “saving the Plaintiff’s position as President of the LTC”, because:

Defendants’ submissions

  1. In relation to ss 67(3), the Attorney General submitted:
  2. In relation to Article 111(6), the Attorney General submitted:

Consideration

  1. The Attorney General’s primary argument in relation to ss 67(3) must be accepted. The Plaintiff was appointed President pursuant to the provisions of the LTA 1981. There are no corresponding provisions in the LTA 2020 for the appointment of President.
  2. Further, ss 67(3) is intended to save, relevantly, appointments originating under the repealed Act which were “subsisting at the commencement of” the LTA 2020. But for the transitional effect of the April 2022 decision, ss 67(6) revoked the Plaintiff’s appointment as at the commencement of the new Act, that is, his appointment was no longer subsisting.
  3. Accordingly, ss 67(3) did not save the Plaintiff from removal. The April 2022 decision only deferred it.
  4. Article 111(6) raises different considerations. It will be recalled that in its April 2022 decision, the Court did not consider it necessary to have regard to this provision. The Article resides in Part XI of the Constitution, entitled “General and Miscellaneous”, and forms part of the interpretation provisions. Its work is facilitative; it does not confer any substantive rights. In that regard, I agree with the Attorney General that the Article did not have the effect of transitioning the Plaintiff to being the new President of the LTC, nor is it a ‘catch all savings’ provision. True it is also that the Plaintiff was not a President appointed pursuant to Part IX of the Constitution. But that, with respect, is not to the point.
  5. The “logical conclusion” contended for by Mr Ainu'u is, in my view, inescapable. Again, by virtue of the April 2022 decision, at the commencement of the Constitutional Part IX amendments on 15 March 2021, the only person “for the time being lawfully performing the functions of” President of the LTC was the Plaintiff. And he was still the only person lawfully performing those functions in October 2022, when the Prime Minister directed him to vacate his office. It was not until November 2022 that the Second Defendant was appointed. Prior to that, there could only be one President and that was the Plaintiff.
  6. But what then does that interpretation mean for this issue? It does not follow that because the Plaintiff was the lawful President of the LTC, albeit with limited jurisdiction, at the time of his removal, that he was or ought to have been ‘saved’ from removal for all time. Such a proposition would fail to appreciate the limits of the April 2022 decision, even though at the time, they were not capable of precise temporal definition. Rather, it is implicit in the Court’s reasons that the transitional tenure would continue until either the pending cases had been completed or Parliament remedied the lacuna in the Act. That remedy, at least for the other judges of the LTC, was not achieved until December 2022.
  7. Therefore, while Article 111(6) read together with the April 2022 decision, has the effect of treating the Plaintiff as the President of the LTC as that office is referred to in the Constitution, at the time of the commencement of Article 104D and when the Plaintiff was removed, the question is not whether Article 111(6) saved the Plaintiff from removal but rather what implications, if any, does Article 111(6) have on the lawfulness of the Plaintiff’s removal. It was here that Mr Ainu'u sought to inject a next proposition into the debate: that the Plaintiff could only be removed pursuant to Article 104D(3). That question bleeds into issue 5 and I will deal with it there.

Issue 4: Did the Plaintiff fulfil the requirements of Article 104D and is that relevant?

Plaintiff’s submissions

  1. In his submissions, Mr Ainu’u did not engage with whether the Plaintiff possessed the new qualifications for appointment as President such as a minimum of 10 years practice as a lawyer in Samoa. Instead, he described the issue as “important to the Prime Minister” but that it was “hard to understand why” because:

Defendants’ submissions

  1. The Attorney General submitted:

Consideration

  1. The relevance of this issue remains elusive.
  2. Mr Ainu'u’s approach was to use it as a purported vehicle to raise unpleaded complaints of breaches of natural justice and, it would seem, some form of bias complaint against the Prime Minister. I have already determined that it would be unfair to the Defendants for me to countenance those claims now. They did not form part of the case the Defendants were required to meet. The content of Mr Ainu'u’s submissions do not sway me from that view. Again, he did not apply for leave to amend. Nor am I persuaded that the interests of justice require an indulgence in favour of the Plaintiff to the likely detriment of the Defendants.
  3. Further, and in any event, these purported complaints go more to why the Second Defendant was favoured over the Plaintiff for appointment as the new President. With the Plaintiff’s abandonment of his originally pleaded challenge to the appointment of the Second Defendant and an order that he, the Plaintiff, be reinstated as President, those complaints must fall away.
  4. They are also legally and, in part, factually misconceived. For instance, there is no evidence that the Plaintiff was ‘precluded from applying’ for the new president position or the Prime Minister was required to undertake any form of ‘recruitment’ process. True it is that the Plaintiff was not informed that he could apply but, as the Attorney General submitted, he did not ask to apply either. I do not suggest for a moment that was a satisfactory response to the situation being conveyed by the Prime Minister in her correspondence to the Plaintiff. However, the fact remains that the Plaintiff could have applied for the position or some other within the new LTC. The preferable approach, in my view, given the circumstances, would have been for the Prime Minister to make that clear to the Plaintiff. However, it is clear that by the time of her letters to the Plaintiff, the decision to appoint the Second Defendant had already been made.
  5. A further example of the misconception is that Article 104D(1) has never been pleaded as the basis for the Plaintiff’s removal from office. Only ss 67(6) has. Article 104D(1) only arose in the context of the Plaintiff’s complaints that upon his position as President of the LTC being revoked, he was not appointed and apparently not considered for appointment as the new President. None of that advances the case one way or the other on the question of the lawfulness of the Plaintiff’s removal from judicial office. It is no longer a case about whether he should have been appointed the new President.
  6. Which brings us back to the principal enquiry on this issue. Despite his repeated submissions that the Plaintiff possessed the qualifications for appointment under Article 104D, Mr Ainu'u never engaged with the first of those, namely, no less than 10 years’ experience as a practising lawyer in Samoa. Having considered the Plaintiff’s work history as chronicled in the statement of agreed facts, and his affidavit evidence, I accept the Attorney General’s submission that the Plaintiff did not possess that legal qualification. While it may seem curious, Article 104D(1) makes no reference to taking into account any judicial experience of a person such as the Plaintiff. Despite the unhappy drafting of Article 104D(1) (referred to above), it is sufficiently clear that the subparagraphs therein are intended to prescribe prerequisites or criteria for eligibility. The Plaintiff did not possess the first.
  7. Accordingly, the answer to the primary element of this issue is “no”: the Plaintiff was not eligible for consideration for appointment as President of the new LTC.

Issue 5: Was the Plaintiff’s removal pursuant to ss 67(6) inconsistent with the Constitution?

  1. This issue asks whether ss 67(6) is inconsistent with the Constitutional security of tenure protections (both before and after the CAA and LTA 2020), and if so, whether pursuant to Article 2(2), ss 67(6) is void to the extent of any such inconsistency?

Plaintiff’s submissions

  1. Mr Ainu’u submitted that if, on its proper interpretation, ss 67(6) is found to operate, as a matter of law, to remove the Plaintiff from judicial office, without cause, then it should be declared void to the extent of its inconsistency with the principles of judicial independence, particularly security of tenure. He based that submission on the following:

Defendants’ submissions

  1. The Attorney General submitted:
  2. During oral submissions, the Attorney General added that with the repeal of the LTA 1981, the Plaintiff’s tenure was no longer protected by the Constitution. Therefore, (as I apprehended the argument) there could be no inconsistency between ss 67(6) and provisions of the Constitution which protected judicial tenure.

Consideration

  1. There is no issue that the Executive may introduce reforms for the genuine reorganisation of the country’s courts system that are calculated to better serve the administration of justice or that it was lawful for the Government to restructure the LTC. I have already declined to draw any inference that the legislative reforms were designed for the purpose of removing the Plaintiff, although they had that consequence. As I have alluded to above, those considerations are no longer to the point. The focal point of this case is now what is to be done with judges from the court to be restructured.
  2. In oral submissions, Mr Ainu'u characterised his client’s case as one of breach of his Constitutional right not to be removed from judicial office other than by reason of retirement (which is not removal) or upon a two thirds majority vote of Parliament on the grounds of stated misconduct or incapacity (which has not occurred).
  3. That asserted right had its roots in ss 26D(2) of the LTA 1981, under which the Plaintiff was appointed, and which incorporated by reference (then) Article 68 of the Constitution. As such, on any question of removal, the Plaintiff was to be treated the same as a Judge of the Supreme Court under that Article. Therefore, from the date of his appointment in 2016 to the date of commencement of the subject legislative reforms, the Plaintiff’s judicial tenure was protected by the Constitutional guarantee in Article 68.
  4. Pausing at that point, although Parliament, itself a creature of the Constitution, has full legislative powers, they are, pursuant to Article 43, always subject to the provisions of the Constitution.[227] Article 2 of the Constitution provides:
  5. When then might a law be inconsistent with the Constitution? Appellate decisions in Samoa appear to have approached the question on the basis of the plain meaning of the word ‘inconsistent’. In a legal context, ‘inconsistent’ means mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.[228] In the absence of submissions on the point, I have been guided by Australian High Court authority on the principle by reference to which inconsistency within the meaning of s 109 of the Australian Constitution (which is in analogous terms to Article 2) is determined, namely, that when a State law, if valid, would “alter, impair or detract from” the operation of a law of the Commonwealth Parliament, then to that extent, it is invalid.[229] The 'alter, impair or detract from' test may be applied so as to produce inconsistency in two ways: from rights and obligations created by the Commonwealth law; or from the object or purpose sought to be achieved by the Commonwealth law.[230] A State law can also impair or detract from a Commonwealth law by directly or indirectly precluding, overriding or rendering ineffective that law.[231]
  6. There can be no doubt, in my view, that ss 67(6), insofar as it operated (and was deployed) to revoke the Plaintiff’s appointment as President and remove him from office, altered, impaired or detracted from the removal protection rights of former Article 68, and/or the object or purpose sought to be achieved by it. It also purportedly precluded, overrode and/or rendered that protection ineffective. To the extent of that inconsistency, ss 67(6) was void.
  7. I am cognisant of the obiter remark of the Court of Appeal that “legislation that, on its true interpretation, removed the [Plaintiff] from office, would not be unconstitutional”.[232] However, from a reading of the whole July 2023 appeal decision, I respectfully consider that their Honours had in mind there provisions such as former Article 68 and current 104D(3), as well as the provisions of the old and new LTA for the removal of judges of the LTC.[233] The grounds prescribed by those provisions fall within the widely accepted principles of judicial independence. Further, the judgment does not indicate that any issue of possible inconsistency, pursuant to Article 2(2), between ss 67(6) and the Constitutional removal provisions, was raised before or considered by their Honours.
  8. Moving forward in time, however, the Attorney General submitted that the repeal of the LTA 1981 meant that the Plaintiff no longer had the benefit of that Constitutional protection. The same might be said of the Constitutional amendments to Article 68 itself. Although from what the Attorney General explained, there appears to be some doubt about the current state of its successor, Article 67, which is intended to now provide for the tenure, suspension and removal of Judges of the Supreme Court, but in fact only provides the procedure and grounds for removal of the Chief Justice, while the cross reference to s 79 for removal of Judges presently appears incomplete and/or uncertain.
  9. Section 25(1) of the Acts Interpretation Act provides, relevantly, that the repeal or expiry of an Act does not affect a right already acquired, accrued, or established. The question therefore arises whether, despite the repeal of the LTA 1981, the Plaintiff had an accrued right not to be removed from office other than in accordance with Article 68.
  10. It is convenient at this point, and on that question, to refer to two of the cases relied on by the Attorney General in respect of issue 6 (for the proposition that once a judicial office no longer exists, there is no right to receive remuneration as a holder of that office). The other two – Claydon and Quin – have already been considered above.
  11. In R v Reilly,[234] the appellant (or ‘suppliant’) was appointed a member of the Federal Appeal Board which had been established by an Act to Amend the Pensions Act, 1923 (Can.), c. 62. He was appointed for a term of three years. His term was extended on several occasions. However, in 1930, the Canadian Legislature passed amending legislation by which the Federal Appeal Board was replaced by a Pensions Tribunal. Reilly's office was thus abolished. Neither he nor any of the Board members were appointed to the new Tribunal, nor was any compensation paid to them. Reilly was subsequently requested to vacate the premises he had occupied in pursuance of his office. He brought a case upon his dismissal for breach of contract and claimed damages. Two intermediate Courts decided, but apparently on different grounds, that by reason of the statutory abolition of his office, Reilly was not entitled to any remedy. On the final appeal, the Privy Council agreed, but on the principal basis that if further performance of a contract becomes impossible by legislation having that effect, the contract is discharged. As Reilly’s office was abolished by statute (“The jurisdiction of the Federal Appeal Board was gone”), it was illegal for the Executive to continue him in that office or pay him any salary, and impossible for him to exercise his office. In response to Reilly’s reliance on a provision of the Canadian Interpretation Act (in similar terms to s 25 of the corresponding Samoan Act), the Committee held that there was no right acquired under the appointment to the office except a right which from the inception was subject to be determined by the office being abolished by statute. Further, either the amending Act did not interfere with any civil right, or, if it did, its interference was necessarily incident to the undoubted power of the Dominion to abolish the old and create the new office.
  12. Reilly is readily distinguishable from the instant case. Reilly’s office was not within a Court of record, his tenure was never the subject of any Constitutional protection, his claim was brought in contract, and the decision pre-dates the emergence and development of the international principles of judicial independence, including security of tenure, discussed above.
  13. Similarly, the cases of Claydon and Quin may be distinguished from the present. They too involved inferior courts, tribunals or boards, without any form of Constitutional protection or limits on removal from judicial office. Further, the complainants in those cases were either offered, or were able to apply for, positions on the restructured court or tribunal.
  14. More recently, in Australand Corporation (Qld) Pty Ltd v Johnson,[235] the Queensland Court of Appeal dismissed an appeal against declaratory orders that the purported avoidance by the appellants of contracts with the respondent pursuant to ss 1073(2) of the Corporations Law was of no effect because the section was repealed by the Managed Investments Act. The issues at trial, and on appeal, were whether the appellants had, in terms of s 8 of the Acts Interpretation Act (also in substantially similar terms to s 25 of the Samoan act as excerpted above[236]), an acquired or accrued right under s 1073, which survived the repeal of that section.
  15. The appellants equated the "right acquired [or] accrued under an Act" with a "right conferred by an Act", or "a right arising from an Act" and the "liability incurred under an Act" with a "susceptibility to the creation of a liability". The appellants' submission had the effect of preserving the right conferred by, or arising from, the Act after its repeal.
  16. The respondent argued that, as Keith J said in Claydon v Attorney-General: "A right simply cannot continue to arise under a provision which is no longer in force." That is, the right conferred on each appellant by s 1073 was a right to choose to terminate the contract; but the contract could not be terminated until the choice was exercised, and the repeal of s 1073 removed the appellants' right to choose to terminate the contract before it was exercised by any of them.
  17. After surveying high English and Australian authorities,[237] their Honours (in separate judgments) observed, inter alia, that s 8(c) of the Acts Interpretation Act operated to preserve an accrued right even if it be inchoate, conditional or contingent. Therefore, when a statute is repealed, it is as to new matters as though it had never existed, yet as to transactions already completed under it, it still has full effect.[238] That does not leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them after they are repealed. The power to take advantage of an enactment may be termed a ‘right’, but the question is whether it is a ‘right accrued’. A distinction was drawn between a mere power to take advantage of an enactment and when facts or events had occurred in respect of the enactment which conferred a substantive right, in existence at the time of the repeal of the enactment. Keane JA explained it this way:
  18. Here, the Plaintiff’s right not to be removed from office other than in accordance with the limits imposed by former Article 68 was one which accrued and subsisted from the date of his appointment in 2016. It carried with it a correlative liability or obligation on the part of the Executive not to remove or seek to remove him other than in accordance with those Constitutional proscriptions. It is incumbent on this Court to ensure that those substantive rights did not cease to be enforceable as an unintended consequence of the repeal of the LTA 1981.
  19. For those reasons, I am of the view, pursuant to s 25 of the Acts Interpretation Act, that the Plaintiff’s accrued or acquired right of tenure as described was not affected by the repeal of the LTA 1981.
  20. But if I am wrong about that, then Article 111(6) resurfaces for consideration.
  21. As discussed in issue 3, the combined effect of that provision and the April 2022 decision was that as at both the formal commencement of the legislative amendments under consideration (15 March 2021), and when the Plaintiff was removed by the Prime Minister’s directive (end of October 2022), he was the only person, for the time being, lawfully performing the functions of President of the LTC. That analysis is supported by the Court of Appeal’s comment, in the context of the res judicata considerations, that the Plaintiff may well have rights under the April 2022 decision that may have been breached. On that basis, their Honours were left with the view that the validity of the Plaintiff’s removal from the transitional role recognised in the April 2022 decision “may be questionable”.[239]
  22. As the Court of Appeal also observed, the CCA 2020 and LTA 2020 recognise continuities between the old LTC and two of the three component courts of the new LTC.[240] Section 25 of the old LTA commenced with the words “There shall continue to be a Court of record called the Land and Titles Court, which is the same Court as that existing under the same name prior to the commencement of this Act”. Article 104A commences with the words “There shall continue to be a Land and Titles First Court which shall be a Court of record”. The title of the Court remains the same. Its core jurisdiction – all matters pertaining to land and titles – remains the same. The position of President of the LTC has not been abolished; it has continued from the old Court to the new. While the procedure and qualifications for appointment now differ, their Honours also noted that the role of President of the old LTC corresponds broadly to that of President of the new LTC.[241]
  23. Against that, the Court of Appeal also noted that:[242]
  24. Be that as it may, I consider that by operation of the April 2022 decision, at the time of his removal, the Plaintiff was the only person who could lawfully be regarded as the President of the LTC as that office appears in Part IX of the Constitution.
  25. The Attorney General’s submission that the introduction of Part 5A into the LTA 2020 “cured any possibility of ss 67(6) offending the Constitution” cannot be accepted. As has been noted, Part 5A only provided a transitioning pathway for the other Judges of the LTC, not the Plaintiff. It will also be observed that the other Judges did not, and do not, enjoy any form of Constitutional protection in terms of security of tenure (even, as the Court of Appeal remarked, one that “borrowed” from the Constitution[243]). As such, Part 5A could have, but in fact did nothing to “cure” or prevent ss 67(6) from offending the Plaintiff’s constitutional right.
  26. The security of tenure protections for the President of the LTC now reside directly in Article 104D(3). They should be interpreted therefore as applying to the Plaintiff at the relevant time during his transitional tenure. As such, he could only be removed by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the grounds of stated misbehaviour or of infirmity of body or mind, or as prescribed by an Act. His removal by purported operation of ss 67(6) was inconsistent with Article 104D(3). Therefore, even after the repeal of the LTA 1981, and to the extent that it purported to remove the Plaintiff from office, ss 67(6) was void.
  27. That analysis is supported by the following interpretative principles:
  28. I am also fortified in the above assessment by the Court of Appeal’s comment: [250]
  29. Here, I do not consider it reasonable to impute to Parliament an intention to confer on the Plaintiff, when he was appointed President, a right of tenure as provided by then Article 68, as an essential feature of judicial independence and homage to the separation of powers, but then extinguish it as an incident merely of the restructuring of the LTC. I consider that, in the absence of express and clear language to the contrary, Parliament may reasonably be presumed to have intended, both before and after the LTC reforms, that the President of the LTC (as is the case with the Chief Justice) may only be removed from office by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the grounds of stated misbehaviour or of infirmity of body or mind, or (since the reforms) as prescribed by an Act. That conclusion is consistent with a fair, large and liberal construction of the relevant provisions.
  30. Accordingly, I find that the Plaintiff’s removal from office was in breach of the Constitution and therefore unlawful.
  31. However, again, if I am wrong about that, and the Plaintiff’s removal is elsewhere held to have been lawful, then I am even more firmly of the view that the Plaintiff’s removal was contrary to the internationally recognised and accepted principles of judicial independence discussed above. Even if it be accepted that the revocation of his appointment as President of the old LTC was a necessary consequence of Parliament’s power to establish the new LTC, those principles clearly conferred on the Plaintiff a right either to be offered an appropriate position on the new Court or compensation. He was offered neither.

Issue 6: Damages/compensation?

  1. The Court of Appeal’s expressed “discomfort at the notion that a senior judge can be removed from office in the way contended for, both generally, and particularly without compensation”,[251] is a fitting introduction to the final chapter of these reasons for judgment.
  2. Counsel confirmed the somewhat surprising fact that, at present, apart from annual salaries (which are determined by Cabinet on advice from the Remuneration Tribunal), there were (and are) no written terms of service or conditions of appointment for Judges nor any written policy or procedure within either the Ministries of Justice and Court Administration or of Finance pertaining to judicial allowances or other benefits (save for the Judicial Retirement Fund which is provided for by the National Provident Fund Act 1972).
  3. However, for the purposes of this proceeding, the parties agreed that, during his tenure as President of the LTC, the Plaintiff was entitled to:

Plaintiff’s submissions

  1. In his written submissions, Mr Ainu’u argued that, in the event the Plaintiff’s removal from office is found to be unlawful, then:
  2. During oral submissions, Mr Ainu'u maintained that the Plaintiff should be compensated for what should have been the balance of his career to age 68, not 65 as provided for under the LTA 1981, because by reason of the April 2022 decision and Article 111(6) (as submitted above), the Plaintiff was still President at the time of the amendments to the Constitution which raised the retirement age to 68.
  3. As to the basis for, and approach to be taken to, damages for breach of the Constitution, Mr Ainu'u relied on the decision on Punitia and others v Faumuina Tutuila[254] (discussed further below).
  4. When asked about the approach to the assessment of damages taken in the Fijian decision in Sharma, ibid (discussed further below), Mr Ainu'u conceded that the Plaintiff’s claim here for 14 years should be discounted for the usual contingencies and vicissitudes. However, unlike in Sharma, the Plaintiff, he said, has been a “career public servant”, who is evidently not in the Government’s favour, and whose “employability” or prospects of being able to earn an income in the future are uncertain. For those reasons, Mr Ainu'u nominated a reduced period (or ‘multiplier’) of 10 years.
  5. After lengthy exchanges about some of the components of the Plaintiff’s claim, Mr Ainu'u conceded or abandoned the claims for ‘untaken; sick leave, as well as the claims for future sick and annual leave. He continued to press the claims for phone allowance but acknowledged that there was “some difficulty” with them. However, he maintained and elaborated on the claim for the value of ‘untaken’ annual leave on the basis that the Plaintiff’s abrupt removal from office at the end of October 2022 meant that he did not have the opportunity to take that leave over time and in advance of any known future end date such as the case with retirement.
  6. In relation to the claim for exemplary damages, Mr Ainu'u also relied on the decision in Punitia. He submitted that the Court here should first assess special damages then determine whether any exemplary damages should be awarded. He further submitted that exemplary damages are required here because special damages alone “do not reflect the weight and seriousness” of what has occurred, namely, a breach of the principles of judicial independence, whereby the Plaintiff was summarily removed from office without cause. He said that required the Court to “send a message to Parliament” to ensure that a similar removal does not occur again in the future.
  7. Mr Ainu'u did not point to any authority which supported the quantum of the claim for exemplary damages of $500,000. He noted that in Punitia, the Court of Appeal reduced an award of $150,000 to $50,000 because special damages in that case had “exacted a heavy toll” on that defendant. Otherwise, he did not rely on any statements of principle in that decision but referred, for that purpose, to the primary decision appealed from of Tutuila v Punitia.[255]
  8. On this topic, Mr Ainu'u referred again to the decision in Sharma where exemplary damages of $150,000 were awarded in circumstances where that plaintiff (former Solicitor General) was removed from office after the Fijian government had "strung him along for a long time" with threats of allegations, commissions of enquiry and then ultimately terminated his appointment without any inquiry. By comparison, Mr Ainu'u submitted that exemplary damages of the amount claimed are warranted here because:

Defendants’ submissions

  1. In her written submissions, which were premised on a finding that the Plaintiff’s removal from office was lawful, the Attorney General rejected the Plaintiff’s claim for damages for the following reasons:
  2. In relation to exemplary damages, the Attorney General submitted that the Plaintiff had not particularised his claim, either as to basis or amount. Therefore, she said, in accordance with the decision of Nelson J in Enosa v Samoa Observer Company Ltd,[257] that claim must be rejected.
  3. During oral submissions, the Attorney General expressed sympathy for the Plaintiff’s “unfortunate position” and repeated that even if his removal from office is found to have been lawful, as the Defendants contended, he should still be entitled to compensation because of the effect of ss 67(6). She conceded that a redundancy approach such as found in employment law cases would not be sufficient in this case. She then submitted that a reasonable approach would be to allow one to two years’ worth of salary (only) to enable the Plaintiff to "transition out". When asked if there was any rationale for that approach, the Attorney General responded that it was not based on any authority but that it “just sounds reasonable”.
  4. In relation to the Plaintiff’s claim for exemplary damages, the Attorney General also referred to the Court of Appeal’s decision in Punitia, to emphasise that exemplary damages should only be considered where there has been "extremely bad conduct”. Here, she said, there had been no demonstrated malice and the restructuring of the LTC was genuine. She added that if the purpose of any exemplary damages was to send a message to Parliament not to repeat what occurred in this case, then, having regard to the economic effects on Samoa, and the fact (anecdotally) that the majority of the population earns less than $50,000 a year (with which Mr Ainu'u appeared to agree), any primary award of between 1 to 10 years’ worth of salary would be sufficient for that purpose.

Consideration

  1. In Punitia v Tutuila, ibid, the appellants were leaders of the village of Tanugamanono. In the Supreme Court, they were ordered to pay damages for unlawfully banishing the respondent and her family from the village, and thereby breaching their rights pursuant to Article 13(1)(d) and (4) of the Constitution and being party to subsequent damage to their property. They were all ordered to pay damages totalling $963,710 (which included exemplary damages of $150,000).
  2. On the assessment of damages, the Court of Appeal confirmed that in Samoa, as in equivalent overseas jurisdictions, breach of the fundamental rights and freedoms conferred by the Constitution can itself give rise to liability for damages in appropriate circumstances.[258] In Samoa, the power to impose damages flows from Article 4 which provides:
  3. Article 4 refers to “this Part” meaning Part II “Fundamental Rights”. The Plaintiff’s claim here does not directly engage Part II rights, although it may be said that any action which undermines the independence of the judiciary indirectly offends Article 9. Article 70 confers on the Supreme Court all the jurisdiction, power, and authority necessary to administer the laws of Samoa. Those laws include the Constitution itself and the Declaratory Judgments Act. No challenge was raised by the Defendants in this proceeding to the Court’s power to grant declaratory relief as to the Plaintiff’s entitlement to damages or compensation for breach of the Constitution, if so found.
  4. In Punitia, their Honours went on to provide guidance in relation to constitutional remedies, which may be summarised as follows:[259]
  5. Punitia was followed in Woodroffe v Fisher,[264] a case concerning judicial immunity.
  6. Counsel did not refer to any authorities on the appropriate approach to the assessment of compensation for breach of the principles of judicial independence concerning security of tenure. That is not to say that such relief springs from a separate or discrete legal cause of action. As noted in the discussion above, the extent to which those principles give rise to rights and therefore relief when those rights are offended, depends on the extent to which they have been enshrined in domestic Constitutions and other legislation. It may also depend on the extent to which, by convention or otherwise, those principles have been observed by the Executive in particular jurisdictions and given curial effect by the Courts in those jurisdictions. I have found that the principles of judicial independence are sufficiently rooted and reflected in the Constitutional provisions which have been considered, for a breach of them to sound in damages.
  7. During argument, the Attorney General suggested, without authority, that an assessment of damages for breach of constitutional rights might be expected to be greater than an assessment of compensation for a breach of judicial independence. Any basis for that distinction, if it exists, was unclear. It will be recalled that in Claydon, Glazebrook J referred to a judicial officer in the Plaintiff’s position having “a right to continue to receive the benefits of office”. Article 29 of the Beijing Statement of Principles refers to “full compensation”.
  8. I confess to some disquiet at the notion that a Judge in the Plaintiff’s position should be compensated on the basis of his full base judicial salary and any other financial entitlements being paid to him for what would have been the expected balance of his judicial career to statutory retirement. Sure enough, support for that proposition may be found in the fact that his tenure would likely not have been cut short but for the Government’s breach of his rights and that such an award might be regarded simply as the cost of the wrong. However, insofar as compensatory damages are designed to financially restore the Plaintiff to the position that he would have occupied but for the breach, his judicial salary and other entitlements were only payable to him for services rendered to the community during the period of his tenure as a judicial officer in the management, hearing and determination of disputes before the LTC. As matters presently stand, since the end of October 2022, the Plaintiff has not rendered, and will not be rendering, those services. Therefore, any award based on what his full judicial remuneration for the balance of his judicial career, for no service, presents a certain asymmetry which, in my opinion, is inconsistent with a principled approach to the assessment of compensatory damages.
  9. For those reasons, and for those which follow, I am on the view that in this case, there ought be no significant difference in the approach to any assessment of damages compared to compensation.
  10. I also approach the task on the basis that the Court “should assess compensation in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party whose actions have made an accurate determination so problematical”.[265] I have also considered a number of wrongful dismissal cases.[266] However, I have found them to be a very limited assistance for the simple reason that they are all essentially based on contractual principles and considerations as modified by relevant employment legislation. As such, they bear little resemblance to the Plaintiff’s claims in constitutional law.
  11. I turn now to the components of the Plaintiff’s claims in the order they were pleaded.
  12. The lion’s share of the pleaded claim totalling over $3.4 million was for $1,892,624.58 being 14 years of salary. That was attenuated by Mr Ainu'u during submissions to 10 years. The Attorney General suggested one to two years. For the reasons which follow, I consider the appropriate discounting factor or ‘multiplier’ should be an award for five years from the date of the Plaintiff’s removal in October 2022:
  13. I do not accept Mr Ainu'u’s submission that the Plaintiff is entitled to receive his salary, etc, by virtue of Article 104G of the Constitution. That provision does not confer any individual right on the Plaintiff. It is an appropriation provision to enable the salaries, allowances or any other benefits of all judicial members of the LTC to be paid as expenditures by law out of moneys appropriated by the Legislative Assembly. Section 61J of the LTA 2020 provides that pursuant to Article 104G, the President is entitled to be paid such salaries, allowances and other benefits as are fixed by the Head of State, acting on the advice of Cabinet, after consulting the Remuneration Tribunal.
  14. By the same token, I accept the Attorney General’s submission that once a judicial office no longer exists, there is no right for the officer to receive remuneration as a holder of that office. The decisions relied upon for that proposition have been considered and, where required, been distinguished from the present.[273]
  15. However, neither submission is to the point. Upon the above findings as to liability, the task of the Court now is to determine what damages or compensation the Plaintiff should be awarded. That does not involve any order or declaration that he continue to receive his judicial salary or other benefits as if he continued to be President of the LTC. That is no longer legally or factually possible. It is an exercise in determining the level of loss and damage he has suffered as a result of the breaches found. That enquiry necessarily includes consideration of the salary, etc. he was earning, as a comparator for his claim for future pecuniary loss. As demonstrated above, while the Plaintiff’s previous judicial salary is a relevant consideration, and an important one, it alone is not determinative of the ultimate calculation of any award.
  16. For the five years allowed, the Plaintiff should be entitled, in my view, to an amount equivalent to his after-tax annual salary over that period. His last pay slip indicated a tax rate of approximately 23%. That calculates to $104,094 per annum[274] or $520,470 for the period.
  17. Consistent with the Court of Appeal’s interim order as to any repayment,[275] it is convenient at this point to allow a credit for the $70,000 which the Plaintiff has received since his removal. That reduces the above figure to $450,470.
  18. In order to place the Plaintiff, as far as money can, in the same position he would have been in but for the breaches which resulted in his removal, I consider it appropriate to also allow for that same period, an amount equivalent to what would have been his Judicial Retirement Fund contributions of 20% of his gross salary.[276] Those contributions together with his after-tax salary represent what were his principal financial benefits whilst in office. The contributions amount to $27,037 per annum or $135,187 (one year’s salary) over the five-year period.
  19. The pleaded claims for future sick and annual leave were abandoned during the trial. Similarly, the pleaded claim for untaken sick leave was not pressed.
  20. However, Mr Ainu'u maintained the claim for untaken annual leave. It is common ground that the Plaintiff, like all judges, was entitled to take 25 days per year as annual leave. By contrast, there was no evidence available, by way of legislative instrument, terms of appointment or Cabinet or Ministerial policy, as to whether any portion of those days not taken in a given year may be rolled over or accrued in subsequent years. Similarly, there was no evidence as to whether untaken annual leave may be converted to cash upon a Judge’s departure from the Court. I consider it appropriate to give the benefit of that doubtful situation, which lies at the feet of Government, to the Plaintiff.
  21. Annual leave does not represent an additional financial entitlement to salary. It forms part of salary in the sense that a judge may be absent from court, on leave, but still receive his or her usual salary for the year notwithstanding his or her absence during that leave period. It would follow, in the ordinary course, and in the absence of any other special arrangement or agreement, that once a judge has exhausted his or her 25 days of annual leave, any further leave taken of that kind would be unpaid. Were that the complete analysis, I would have rejected this part of the Plaintiff’s claim.
  22. However, Mr Ainu'u advanced this claim on the basis that the Plaintiff’s abrupt removal from office did not enable him sufficient time to use his accrued leave in advance of his departure from the Court. I consider there to be force in that submission. If it be accepted that an annual leave entitlement amounts to an acceptance by an employer (here, the Government) that the employee may be absent from work for up to 25 days per year, and still be paid for those days, it must follow, in my view, that if the employee does not take that leave but works for the entire year, for the same salary, the employer will be receiving a greater benefit than that contracted for. The corollary is that the employee will have provided a greater benefit by working without taking leave. Here, the Plaintiff was never challenged on his evidence as to why he did not take all his annual leave over the period it accrued. It appears from his evidence in the first proceeding that the workload in the LTC was such that he elected to forego his leave in favour of continuing to serve the Court and the parties before it by working on those cases.
  23. Following the April 2022 decision, the Plaintiff continued to work and hear many cases. He would not then have known when his transitional tenure would come to an end. Further, at that time, he appeared to be under the impression, that the Court’s message to Parliament to remedy the obvious lacuna in the LTA 2020 would result in his tenure, like the other judges, continuing on to the new Court. In circumstances where that has resulted, effectively, in the Government receiving greater service from the Plaintiff, and the Plaintiff suffering a greater detriment, than would otherwise have been the case had he taken all his annual leave each year or had an opportunity to take the accrued balance in advance of his departure date, I consider it reasonable to allow this part of his claim. The number of days (158) and value ascribed to them ($82,147), as pleaded, was not challenged.
  24. The claim for phone allowance must be rejected. Ultimately, Mr Ainu'u was only able to apply a ‘soft-pedal’ to this claim. Again, without the benefit of any clear terms or policy, one can only assume that the phone allowance was intended to be a reimbursement or contribution towards the costs of the Plaintiff’s use of his private phone for work related matters. His last pay slip shows he was paid that allowance up to the date of his departure. When his work on the Court ended, so too did any entitlement to that allowance.
  25. The total of compensatory damages is therefore $667,804. In the interests of moderation and given the necessary degree of arbitrariness involved, I round that figure down to $650,000.
  26. Having assessed compensatory damages, I must now consider whether that sum affords the Plaintiff adequate redress or whether an additional award should be made to vindicate his Constitutional rights.
  27. Before doing so, however, I must deal first with the Attorney General’s procedural defence to this claim, namely, that as the Plaintiff failed to particularise the claim, it must be rejected.
  28. There is no doubt that the Plaintiff here failed to properly particularise his claim for exemplary damages, either as to basis or amount. It was a bald claim for “$500,000 for exemplary damages”.[277] During oral submissions, Mr Ainu'u sought to resist the attack by pointing to the Plaintiff’s affidavit evidence as providing proxy particulars and by which, he said, the Defendants knew the case they had to meet. While it may be accepted that, on a generous reading, the Plaintiff’s evidence provided some basis for a claim of exemplary damages (essentially, how he was treated by the Prime Minister and the Government throughout this unfortunate matter), there was no attempt, either in evidence or in submissions, to substantiate the quantum claimed.
  29. The Attorney General relied on the defamation case of Enosa v Samoa Observer Company Ltd.[278] In rejecting the plaintiff’s claim there for exemplary damages, Nelson J explained:
  30. A moment’s reflection on the above passage reveals that his Honour’s primary reason for rejecting the claim for exemplary damages was the lack of any evidence of exceptional circumstances warranting punishment or justifying such an award. He then added that the plaintiff’s claim was not assisted by the failure to properly plead the basis for the claim for exemplary damages. However, in my view, and with respect, neither his Honour’s reasoning in that case, or the authorities to which he referred, support the proposition, as contended for by the Attorney General, that a defectively pleaded claim for exemplary damages ought automatically result in the Court’s rejection of that claim. In that regard, I note that while Enoser has been referred to in a number of decisions since, it has not been relied on or applied for that proposition.[279] Relevantly, as far as my research has been able to indicate, Enoser and Meredith v Drake have been referred to on many occasions but only in the context of strike out applications.
  31. If a claim has been inadequately particularised such that a defendant genuinely does not know the case it has to meet, it is open to that defendant to serve a request on the plaintiff for particulars. If that does not produce a satisfactory response, then the defendant may apply, pursuant to Rules 15 and 16 of the Supreme Court (Civil Procedure) Rules 1980, for an order requiring the plaintiff, at or before the trial of the action, to file a fuller and more explicit statement of his claim, failing which, the Court may order that the action be stayed until that has been done. Yet another avenue is to file a motion to strike out that part of the Statement of Claim as failing to disclose a cause of action or that it is frivolous, vexatious or an abuse of process.[280]
  32. Here the Defendants did not seek particulars, nor did they avail themselves of any relief under the Rules. Their Defence simply denied that part of the claim without averment as to any lack of particulars or indication that, in that state, the claim ought to be struck out. As far as I could tell, the first time any formal indication of their position was communicated to Mr Ainu'u was in the Attorney General’s written submissions filed shortly before the commencement of the trial.
  33. It is now well accepted that modern litigation processes require all parties to work together to identify the real issues in any dispute and to seek to either resolve them or identify fair and efficient methods for having them heard and determined by the Court. For the most part, in the lead up to trial, Counsel for both sides demonstrated a high degree of co-operation and professionalism which reflected those expectations. However, on this particular issue, the approach taken by the Defendants was not consistent with those ideals, even moreso when the principal Defendant, the Government, is expected to conduct its part in any proceeding as a model litigant.[281]
  34. For those reasons, I decline to dismiss the Plaintiff’s claim for exemplary damages solely for want of particulars.
  35. In Vermeulen v Attorney-General,[282] the plaintiff sought relief arising from his dismissal and failure to be appointed Director-General of Health, which he claimed was the product of malfeasance in public office by high-ranking Government officials and the Public Service Commission, and breaches of the Constitution. Among other things, he sought general (including exemplary) damages of 200,000 tala. Mahon J considered that the plaintiff’s claim was “the strongest possible case for such an award”. In following the guidelines set by the New Zealand Court of Appeal in Taylor v Beare[283] and Donselaar v Donselaar,[284] his Honour had no doubt there were grounds for applying the principle of aggravated compensatory damages in view of the protracted distress and injury to feelings sustained by the plaintiff. However, he “submerged” that factor within the concept of exemplary damages as reflecting the condemnation of the Court at the “arbitrary and flagrant disregard of the Plaintiff's rights” by the first, third and fourth defendants, who acted as public officers, in wilful and knowing contravention of the plaintiff's rights under the Constitution, with the additional element, of exercising malice against him. On that basis, his Honour assessed exemplary damages in the sum of 75,000 tala.
  36. In Maimoaga v Vaai,[285] the Plaintiff was found to have been the object of hostility on the part of the then Prime Minister, the Minister of Health, and others, who, in different ways, made her job difficult and put together a plan to have her dismissed from her position as Superintendent, Division of Nursing. Relevantly, Ryan J awarded her 100,000 tala for general and exemplary damages, which his Honour hoped would provide some solace for the Plaintiff and sheet home to the liable Defendants that “nobody is above the law”.
  37. In Tutuila v Punitia,[286] Justice Slicer set out the principles of aggravated and exemplary damages, with emphasis on the trespass element of the banishment claim before him.[287] His Honour noted that English Courts had confined the remedy of exemplary damages to three categories namely: oppressive or unconstitutional conduct by government; where the defendant’s conduct was designed or calculated to make a profit; where it is expressly authorized by statute.[288] That confinement has not been followed by Australian and New Zealand appellate Courts.[289] His Honour found that the plaintiff and her family had been treated with contempt. They were not afforded the opportunity to be heard on the banishment issue, were given but short and unreasonable time to vacate the premises, refused permission to return to at least check their assets, provided with no opportunity to remove their livestock and had their plantation destroyed long after the event. No other compromise was ever offered by the Defendants and the affidavit of one of them was self-serving, equivocal and disingenuous. On that basis, his Honour assessed punitive damages at $100,000 and exemplary damages in the amount of $50,000.
  38. The Court of Appeal considered that by reason of the very high special damages, coupled with the general tendency to moderation in constitutional damages, the award of $150,000 should be reduced to $50,000.[290] Even though their Honours regarded that sum as “modest”, they opined that it would “serve as symbolic recognition of the suffering of the family and the outrageous conduct of the appellants over and above the already heavy special damages”.
  39. In Sharma, ibid, the Court ordered “aggravated vindicatory damages of $150,000”, although the reasons for decision do not appear to explain the basis for (although that might be self-evident given the conduct involved) or quantum of that award.
  40. In my view, the instant case warrants an award of exemplary or vindicatory damages. The undermining of judicial independence in the manner effected by the Government sets this case apart from other examples of unconstitutional conduct. Whereas those cases tend to involve the rights of individuals or families, the conduct here has affected not just the Plaintiff but the broader Samoan community and every citizen’s entitlement to expect that the Executive will observe and maintain the Constitutional separation of powers, including by ensuring and protecting the independence of the judiciary.
  41. The treatment of the Plaintiff has been extremely poor. Notwithstanding the belated but salutary treatment of the other judges of the old LTC, the use by Parliament of a purported savings and transitional provision within amending legislation to revoke the Plaintiff’s appointment, as the most senior judicial officer in that Court, demonstrated a flagrant disregard for the principles of judicial independence. It must be assumed that the Government had or had access to legal advice on those principles. That disregard was exacerbated by the Government’s failure to offer the Plaintiff an appropriate position on the new LTC or compensation. That overall conduct, if not adequately redressed, will be left to stand as a silent threat to the tenure of all other judges who might also be ‘left out’ as a result of any future reforms or court restructuring. Appropriate orders must include a component for deterrence against any possible future recurrence.
  42. For those reasons, I consider that the sum awarded by way of compensation is inadequate to mark the Court’s disapproval of the impugned conduct. Having regard to the comparative decisions above, and comparatively unique and serious nature of the conduct in this case, I assess exemplary damages at $100,000.

Conclusion

  1. The Plaintiff’s claim against the First Defendant is dismissed.
  2. The Plaintiff’s claims against the Second Defendant were withdrawn during the trial.
  3. There will be judgment against the Third Defendant in the form of the following declarations:
  4. In the ordinary course, costs ought follow the event. However, during oral submissions, both Counsel indicated that there have been without prejudice offers of compromise which may have a bearing on the final result in respect of costs. I am also reminded of the very broad discretion conferred on the Court by s 14 of the Declaratory Judgments Act. There is also a potential question as to the Second Defendant’s costs, if any.
  5. Accordingly, I direct that:
  6. Finally, I direct that the documents on the court file marked Annexure E to the Plaintiff’s affidavit in proceeding MISC 381/21, sworn 14 December 2021, namely, letter dated 13 December 2021 from the Attorney General to the Head of State attaching a letter dated 13 December 2021 from the Attorney General to the Minister of MJCA in relation to appointment under Article 104E of the Constitution of the Deputy President and Judges of the Land and Titles Court, and a letter from the Samoan Law Reform Commission to the Attorney General in relation to Tulafono Taufaaofi o le Komisi o le Faamasinoga o Fanua ma Suafa 2021, be kept and marked confidential, in a sealed envelope on the Court file, and are not to be opened without a Court Order.

HONOURABLE JUSTICE WHITTEN KC
17 June 2024

[1] Constitutional Amendment Act 2020, Land and Titles Act 2020 and the Judicature Act 2020 (which did not concern the LTC).

[2] Section 66.

[3] Long title.

[4] The President of the Land and Titles Court v Attorney General [2022] WSSC 8.

[5] Ropati v Attorney General [2022] WSSC 76.

[6] Ropati v Attorney General [2023] WSCA 2.

[7] [66]

[8] [53] to [59]

[9] [52], [61] to [64].

[10] Most of the objections concerned statements by the Plaintiff that were said to constitute opinions or argument on the legal issues for determination. They were treated as submissions. The Attorney General also objected to the Plaintiff’s exhibiting certain letters of advice from her office to the Head of State and the Minister in December 2021 and a letter from the Samoan Law Reform Commission to the Attorney General. That objection was resolved on the basis that I had regard to the contents of the letters but that they would otherwise be treated as confidential and sealed on the court file. The final objection, to paragraph 19 of the Plaintiff’s principal affidavit, in relation to his claims for untaken sick and annual leave, on the ground of hearsay, was upheld with leave granted to the Plaintiff to adduce further evidence, if so advised. He did not do so.

[11] Sworn 14 December 2021 in proceeding MISC 381/21; 2 March 2022 in proceeding MISC 41/22; and in this proceeding 27 October 2022 and 8 May 2024.

[12] Dated 24 May 2024.

[13] Native Land and Titles Protection Ordinance 1934, ss 36 and 37.

[14] Samoan Land and Titles Protection Amendment Act 1966, s 2.

[15] s 95

[16] s 25

[17] s 35

[18] Part 9 with ss 77(3) providing that so far as practicable, the President was to be the Chief Justice or other Judge of the Supreme Court who had not been a member of the Court at the hearing of the petition on appeal.

[19] Police v Ropati [2018] WSSC 131

[20] Attorney General v Ropati [2019] WSCA 2

[21] No. 22

[22] No. 24

[23] Article 104C

[24] Articles 104E(1), (4) and (5)

[25] Section 61B

[26] Article 104C(8)

[27] Article 104D(1)(c)

[28] Article 104E(4), as double entrenched by s 61A of the LTA 2020.

[29] No. 24 of 2020 (but noted elsewhere in the Act as 2022).

[30] Sections 26 to 32.

[31] Salaries and allowances for all judicial officers of the new LTC are provided for by Article 104G of the CAA.

[32] Counsel agreed that “ensure” was intended to read “inure”.

[33] The President now being provided for by Article 104D of the amended Constitution.

[34] Paragraphs 3 to 15 of his first affidavit.

[35] [16] to [20] of the Plaintiff’s first affidavit.

[36] Or urgent interim basis; a procedure usually provided to prevent imminent mischief and irremediable harm: Pickwick International Inc. Ltd v Multiple Sounds Distributors Ltd [1972] 3 All ER 384 as discussed in FAST Party v Attorney General [2021] WSSC 25 at [11].

[37] The application for a mandatory order against the Minister was withdrawn during the hearing as it was expressly precluded by ss 12(1)(a) of the Government Proceedings Act 1974.

[38] [1]

[39] While the title to the decision in The President of the Land and Titles Court v Attorney General [2022] WSSC 8 (14 April 2022) names the proceeding as MISC 381/21, it is evident from the content of the decision that it pertained to MISC 41/22. On 14 May 2024, the Registrar of the Court confirmed the typographical error.

[40] [43]

[41] [55]

[42] [50]

[43] [2004] NZAR (CA) 16, at 45 [108].

[44] Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed) Thomson Reuters, Wellington, 2021 at 21.3.5.

[45] [63]

[46] [22]

[47] [69] to [70]

[48] [71] to [80]

[49] [77] to [80]

[50] Exhibit E to the Plaintiff’s third affidavit.

[51] Ropati v Attorney General [2023] WSCA 2 at [22].

[52] Affidavit of Leugamata Faletolu Lofipo, Deputy Registrar of the LTC, sworn 28 May 2024, at [4] and [5].

[53] This translation was provided by the Plaintiff’s counsel. During submissions, the Attorney General contended that the Samoan phrase used meant “revoked by law”. Both Counsel accepted that the Prime Minister intended to convey, relevantly, that the Plaintiff’s tenure had come to an end.

[54] Cleary intended to be ss 67(6).

[55] Pursuant to the Declaratory Judgments Act 1988.

[56] Ropati v Attorney General [2022] WSSC 76 at [4].

[57] [8]

[58] [9]

[59] [11] to [16]

[60] Division 2

[61] ss 61C(a)

[62] ss 61D(3)

[63] ss 61D(1) and (2)

[64] ss 61E(e)

[65] ss 61E(2)

[66] s 61H

[67] Harrison, Asher and Young JJA.

[68] [1]

[69] [3]

[70] [4]

[71] [36], [37]

[72] [40] to [48]

[73] [49] to [52]

[74] [55]

[75] [56]

[76] It would appear the reference in the judgment to “66(3)” was a typographical error.

[77] [57] to [59]

[78] [61]

[79] [60]

[80] [61]

[81] [62]

[82] [64]

[83] [65]

[84] [66]

[85] [67]

[86] 19 April 2024

[87] First and Third Respondents’ Amended Statement of Defence, dated 26 April 2024.

[88] [14]

[89] [15]

[90] [17]

[91] [2001] WSCA 7

[92] For example, see Amoa v Land and Titles Court [2011] WSSC 89 at [37].

[93] [2024] WSSC 22 at [32].

[94] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408–409[1983] UKHL 6; , [1984] 3 All ER 935 at 949, HL, per Lord Diplock.

[95] Article 42 of the Constitution.

[96] [44] to [57]

[97] Halsbury’s Laws of England/Constitutional and Administrative Law (Volyume 20 (2014)/3. The Judiciary/2 The Independence of the Judiciary/130. The principle of judicial independence.

[98] [2009] WSSC 23, para 98.

[99] [2015] WSSC 62

[100] [1975] QB 118, 132 per Lord Denning

[101] [2011] NZSC 110, para 97 per McGrath and William Young JJ

[102] [2004] NZAR (CA) 16, per Glazebrook J, at 45 [108]

[103] [1985] 2 SCR 673, a decision of the Canadian Supreme Court concerning a dispute about whether a Provincial Court (Criminal Division) in Ontario is an independent tribunal within the meaning of s.11(d) of the Canadian Charter of Rights and Freedoms.

[104] Claydon, ibid, at [109].

[105] Chief Justice Coke, Case of Proclamations (1611) 12 Co. Rep 74; 77 ER 1352; [1610] EWHC KB J22.

[106] Joseph Smith, ‘An Independent Judiciary: The Colonial Background’ (1976) 124 University of Pennsylvania Law Review 1104, from 2009 ‘The Independence and Impartiality of State Courts Following Kable v DPP (NSW)’ UNSW Law Journal Volume 32(1) 75.

[107] Article III, clause 7.

[108] Attorney-General v Mr Justice Edwards [1891] 9 NZLR 321 at 375 (CA) per Williams J. Although the Act was partially in force in New Zealand from 1840 (Imperial Laws Application Act 1988, s 3 and First Schedule), the provisions guaranteeing judicial tenure were subsequently incorporated into domestic law initially by the Judicature Act 1908 (repealed), and subsequently the Constitution Act 1986, ss 23 and 24.

[109] [2009] WSSC 23 at [96].

[110] “Judicial accountability – new developments and threats”, paper delivered at the Commonwealth Lawyers’ Conference, Goa, India, by Justice Logan, a Judge of the Federal Court of Australia and of the Supreme and National Courts of Papua New Guinea; President, Australian Defence Force Discipline Appeal Tribunal, 8 March 2023.

[111] Australian Constitution, s 72(2).

[112] Australian Constitution, s 72(ii).

[113] Federal Court of Australia Act 1976, s 6.

[114] Rebecca Ananian-Welsh and George Williams, Judicial Conference of Australia 2014, p 16 - https://www.ajoa.asn.au/wp-content/uploads/2014/07/P62_02_09-Judicial-Independence-from-the-Executive-June-2014.pdf

[115] Kirby, ‘Judicial Independence in Australia Reaches a Moment of Truth’, above n 68, 189-190. For discussion of the convention that ‘a member of the judiciary should not be compulsorily removed from office during the term of his or her appointment otherwise than on the ground of proved misbehavior or incapacity’ see: Quin (1990) 93 ALR 1, 30 (Deane J).

[116] Constitution Act 1902 (NSW) s 7B(1) introduced by the Constitution (Entrenchment) Amendment Act 1992 (1995 No 2) (NSW). This section provides that any Bill that ‘expressly or impliedly repeals or amends’ those provisions ‘shall not be presented to the Governor for Her Majesty’s assent until the Bill has been approved by the electors in accordance with this section’. Crucially, s 7B(1) also provides that s 7B can only be amended by referendum, thus meeting the requirements of double entrenchment laid down in Attorney-General (NSW) v Trethowan (1931) 44 CLR 394.

[117] s 55-56

[118] s 7B(1)

[119] PNG Organic Law on the Terms and Conditions of Employment of Judges, s 2. The maximum appointment term for a judge who is a PNG citizen is 10 years with that for a non-citizen being 3 years.

[120] The value judgment as to whether there are “good grounds for removing” the judge concerned is consigned to a tribunal consisting of three presently serving or former judges of the Supreme Court or the National Court or of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea, or of a court to which an appeal from such a court lies: PNG Constitution, ss 179, 180 and 181.

[121] G Brennan ‘Judicial Independence’ Speech, Australian Judicial Conference, Canberra, 2 November 1996; available at http:www.law.monash.edu.au/JCA/brennan.html.

[122] A Mason ‘The Independence of the Bench, the Independence of the Bar and the Bar’s role in the Judicial System’ (1993) 10 Australian Bar Review 1, at 3.

[123] Rebecca Ananian-Welsh and George Williams, Judicial Conference of Australia 2014, p 4 - https://www.ajoa.asn.au/wp-content/uploads/2014/07/P62_02_09-Judicial-Independence-from-the-Executive-June-2014.pdf

[124] Australian Bar Association, ‘The Independence of the Judiciary’ [1991] (Winter) Victorian Bar News 17, 18 [2.2].

[125] Former Australian High Court Chief Justice Sir Gerard Brennan, ‘Judicial Independence’ (Speech delivered at Annual Symposium of the Australian Judicial Conference, Canberra, 2 November 1996) 2. This speech was quoted in the Bangalore Principles.

[126] [1978] VII AJHR H2 at [248].

[127] Samoa Statement by Mrs. Palanitina Toelupe, Assistant Secretary, Ministry of Women Affairs, New York, 9 June 2000, 23rd Special Session of the United Nations General Assembly Women 2000: Gender Equality, Development and Peace for the 21" Century.

[128] Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

[129] Senior Judge J Clifford Wallace, United States Court of Appeals for the Ninth Circuit “An Essay on Independence of the Judiciary: Independence From What and Why” 58 NYU Annual Survey of American Law (2001) 241, 249.

[130] Beijing Statement of Principles of the Independence of the Judiciary, 17th Pacific Judicial Conference, Tonga, 7-9 November 2007.

[131] Warren v Queen [2014] PNSC 1 at [249].

[132] [2021] KIHC 8 at [49] to [52].

[133] Harare Commonwealth Declaration [1991] para 9, http://thecommonwealth.org/history-of-the-commonwealth/harare-commonwealth-declaration.

[134] Ibid, para 3.

[135] The Principles were established by the Commonwealth Parliamentary Association, the Commonwealth Secretariat, the Commonwealth Magistrates and Judges Association , the Commonwealth Lawyers Association and the Commonwealth Legal Education Association: Commonwealth Parliamentary Association | www.cpahq.org

[136] And further updated with an action plan in 2008/2009.

[137] Charter of the Commonwealth, Principle VII, http://thecommonwealth.org/our-charter.

[138] The resolution was adopted by the General Assembly at its 3rd plenary meeting, 24 September 2012: https://www.un.org/ruleoflaw/files/A-RES-67-1.pdf.

[139] Presentation of the Report of the Special Rapporteur of the United Nations on the Independence of Magistrates and Lawyers, Diego García-Sayán, before the General Assembly of the United Nations, at the seventy-fourth session, on October 16, 2019.

[140] [36], referred to in Warren v Queen, ibid.

[141] [42], [43]

[142] ss (1)

[143] Subject to other grounds “as prescribed by an Act”.

[144] “Removal of Judges” by the Honourable L J King AC QC, 2003 Flinders Journal of Law Reform, p 180; Mason, ‘The Appointment and Removal of Judges’ in Helen Cunningham (ed), Fragile Bastion (1997, Judicial Commission of New South Wales) 11, 26.

[145] [91]

[146] [92] citing R v Mackin [2002] SCC 13 at para [40].

[147] “Judicial independence from the Executive”, ibid, p 19.

[148] (1987) 9 NSWLR 268.

[149] At 278-281.

[150] Quin v Attorney-General for and in the State of New South Wales (1988) 16 ALD 550 (Mahoney JA dissenting).

[151] (1990) 170 CLR 1

[152] Mason CJ, at p 20, [39].

[153] “Abolition of Courts and Non-reappointment of Judicial Officers” (1995) 12 Aust Bar Rev 181, 205. Referred to by McGrath J in Claydon, ibid, at [90].

[154] Ronald Wilson Lecture 1994, “The Abolition of Courts and non-reappointment of Judicial Officers in Australia”, Francis Burt Law Education Centre.

[155] Deane J, 45; Toohey J, 68.

[156] In re M [1993] UKHL 5; [1994] 1 AC 377; [1993] 3 WLR 433 (HL); Regina v Secretary of State for the Home Department; Ex parte Bentley [1994] 2 WLR 101 (QBD); Regina v Parliamentary Commission for Administration; Ex parte Dyer [1994]1 WLR 621 (QBD).

[157] Kathy Mack and Sharon Roach Anleu, ‘The Security of Tenure of Australian Magistrates’ [2006] MelbULawRw 13; (2006) 30 Melbourne University Law Review 370, 392-394.

[158] [1996] HCA 24; (1996) 189 CLR 51.

[159] Matter No CA 40337/98 NSWSC 260 (12 June 1998).

[160] [4]

[161] For example, First World Conference on the Independence of Justice, Universal Declaration on the Independence of Justice (10 June 1983) (‘Montreal Declaration’), cl 2.06(g); Kirby, ‘Independence of the Judiciary: Basic Principles, New Challenges’ 10-11, referring to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.1. See, also: ibid 26-35; Michael Kirby, ‘Abolition of Courts and Non-Reappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181; S Zeitz, ‘Security of Tenure and Judicial Independence’ (1998) 7 Journal of Judicial Administration 159; Commonwealth, Tenure of Appointees to Commonwealth Tribunals, Parl Paper No 289 (1989) [5.26]–[5.28]; Attorney-General (NSW) v Quin (1990) 170 CLR 1.

[162] “Abolition of Courts and Non-reappointment of Judicial Officers”, ibid, p 37.

[163] [1920] AC 691. For discussion see, Nicholas Aroney, ‘Politics, Law and the Constitution in McCawley’s Case’ [2006] MelbULawRw 21; (2006) 30 Melbourne University Law Review 605.

[164] McCawley v The King [1918] ArgusLawRp 83; (1918) 26 CLR 9.

[165] McCawley v The King [1920] AC 691.

[166] “Abolition of Courts and Non-reappointment of Judicial Officers”, ibid, p 27.

[167] Bingman v Attorney-General for the State of Victoria (No 4493/93).

[168] 1994 Bill to abolish the Industrial Court and the Industrial Commission of South Australia was abandoned following protests from the Judges of the Supreme Court and the Law Society. The government then sought to alter the composition of the court by offering attractive retirement packages.

[169] 1991 abolition of the Workers' Compensation Board.

[170] [1998] VUSC 59.

[171] [2003] 5 LRC 256.

[172] [2011] PGSC 41.

[173] Republic v Lambourne [2021] KIHC 8.

[174] [31]

[175] See also Richardson, "Defining judicial independence: A judicial and administrative tribunal member perspective", (2006) 15 Journal of Judicial Administration 206 at 206–207.

[176] B McLachlin, “Judicial Independence: A Functional Perspective” in Tom Bingham and the Transformation of the Law (Oxford, Oxford University Press, 2009), 269 at 281-282.

[177] Attorney-General v Lambourne [2022] KICA 9

[178] [2024] FJHC 49

[179] At [235], citing Chief Justice of Trinidad and Tobago v Law Association of Trinidad and Tobago [2018] UKPC 23 at [18].

[180] Sworn 8 May 2024.

[181] [3] to [15]

[182] The Court records in fact show that the 14 December 2021 motion was filed in proceeding MISC 381/21 whereas the 2 March 2022 motion was filed in proceeding MISC 41/22.

[183] [2017] WSSC 323, citing Reed v Mataeliga [2005] WSSC 1; Carl Zeiss Stifteing v Raynor & Keeler Ltd (No 2) [1967] 1 AC 853, 935.

[184] Erroneously referred to in both side’s submissions as MISC 381/21.

[185] [2024] WSCA 1, citing Re Wakim [1999] HCA 27, 198 CLR 511 at [80] per Gaudron J.

[186] "... Although it may turn out that res judicata principles preclude a claim by the appellant to be President of the new Land and Titles Court, they will presumably be held to run both ways. So, if the res judicata argument prevails against his claim to be President of the new Land and Titles Court, he may well be held to have rights under the April 2022 judgment that are also protected by res judicata and may have been breached. On this basis, we [are] left with the view that the validity of the appellant's ‘removal’ in October last year from the transitional role recognised in the April 2022 judgment may be questionable.”

[187] [49]

[188] [2020] WSSC 41 at [73].

[189] [2020] NZCA 260

[190] [2005] WSSC 1

[191] Pages 3 to 6.

[192] Citing Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 per Lord Reid at 909, per Lord Guest at 933, per Lord Upjohn at 946; Johnson v Gore Wood & Co [2001] 1 A11 ER 481 per Lord Bingham of Cornhill at 498 – 499; The Doctrine of Res Judicata (1996) 3rd edition by Spencer Bower, Turner and Handley at 10.

[193] For example, Ainuu v Land and Titles Court [2011] WSSC 36; Silipa v President of Land and Titles Court [2017] WSSC 32; McCarthy v Samoa National Provident Fund [2020] WSSC 41; Malielegaoi and anor v Speaker of the Legislative Assembly [2023] WSSC 37.

[194] Reed v Matailiga, ibid, citing Carl Zeiss Stiftung v Rayner & Keeler Ltd, ibid, per Lord Reid at 910; Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 per Barwick CJ at 279; Halsbury’s Laws of England 4th ed, para 1543, p 1641; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd [1993] FCA 342; (1993) 43 FCR 510, 521, 539; cited with approval in The Doctrine of Res Judicata (1996) 3rd edition by Spencer Bower, Turner and Handley at 199.

[195] [2024] WSCA 1.

[196] Malielegaoi v Speaker of the Legislative Assembly [2022] WSSC 35.

[197] [83] to [86], citing Wade & Forsyth's Administrative Law, 12th edition, p. 286; Re Wakim (1999) 198 CLR 511, per Gaudron J at [80].

[198] ss 7(4) and (5).

[199] [57]

[200] [2020] WSSC 88

[201] [79b]

[202] Burrows and Carter “Statute Law in New Zealand”, 6th ed, 2021, Chapter 11.

[203] [1995] NZCA 222; [1996] 1 NZLR 289, at 294-295.

[204] E.g. Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774 (SCNZ) at [26]; Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27; [2016] 1 NZLR 1 (SCNZ).

[205] Ropati v Attorney General [2023] WSCA 2 at [57], [58].

[206] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308; R v H (2001) 20 FRNZ 473, 474.

[207] Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 141–3.

[208] Payne v Parker [1976] 1 NSWLR 191 at 197 per Hutley JA and at 202 per Glass JA.

[209] Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371.

[210] Newell: Muriniti v De Costi [2018] NSWCA 49; (2018) 97 NSWLR 398.

[211] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361.

[212] Brandi v Mingot (1976) 12 ALR 551 at 559–60; 51; Manly Council v Byrne [2004] NSWCA 123 at [51].

[213] Kuhl v Zurich Financial Services Australia Ltd, supra, at [63]–[77].

[214] State Bank of NSW v Brown [2001] NSWCA 223; (2001) 38 ACSR 715 at [17]–[18]; Payne v Parker [1976] 1 NSWLR 191 at 200, 201.

[215] The Privy Council’s advice to Her Majesty in Belize Alliance of Conservation Non-Governmental Organs v Department of the Environment [2004] UKPC 6, per Lord Walker.

[216] R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 at 945G. See also Banks v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 1031; Glaxo New Zealand Ltd v Attorney-General [1990] NZHC 155; [1991] 3 NZLR 129.

[217] New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA), per Cooke P at 554.

[218] Inder v Commissioner of Crown Lands, HC Christchurch CIV-2009-409-1219, 28 May 2010, Fogarty J. See also Henderson v The Privacy Commissioner HC Wellington CIV-2009-485-1037, 29 April 2010, per Miller J; Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997.

[219] Black’s Law Dictionary, 2nd Ed.

[220] Contract Pacific Ltd v Commissioner of Inland Revenue [2010] NZSC 136; [2011] 1 NZLR 302 (SCNZ) at [39], where Blanchard J said perverse results “can never have been within the legislative purpose”.

[221] [2017] NZCA 332; [2017] 3 NZLR 486 at [102].

[222] Prior to the passage of the three Acts, the qualifications for a Supreme Court judge included being a lawyer who had practiced as a barrister or judge in Samoa or in an approved country for a period of not less than eight years.

[223] Section 26A(2) required at least five years relevant work experience in a senior position in the administration of justice and such qualifications as may be determined by the Judicial Service Commission by Notice. Section 28 required that person be a matai; be considered by the Judicial Service Commission to be qualified for appointment by reason of character, ability, standing and reputation; and have not attained the age of 65 years.

[224] Per the agreed statement of facts.

[225] [91]

[226] Ibid, at [26].

[227] Pita v Attorney General [2007] WSSC 99, citing Sua Rimoni Ah Chong v Legislative Assembly of Samoa [1996] WSCA 2.

[228] Blacks Law Dictionary, 2nd edition.

[229] Dixon J in Victoria v The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 at 630; Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330 at 337; Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [59]; APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at [205]

[230] New South Wales v The Commonwealth and Carlton (1983) 151 CLR 302 at 330.

[231] Burns v Corbett & ors [2018] HCA 15 at [85].

[232] [55]

[233] ss 29(4) of the LTA 1981; ss 61H(1) of the LTA 2020.

[234] UK JPC [1934] 1 DLR 434.

[235] [2007] QCA 302.

[236] Although the Commonwealth Act contains the proviso “unless the contrary intention appears” which the Samoan Act does not.

[237] Including, inter alia, Butcher v Henderson (1868) LR 3 QB 335; Abbott v Minister for Lands [1895] UKLawRpAC 18; [1895] AC 425 at 431; Hamilton Gell v White [1922] 2 KB 422; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537; Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430.

[238] ‘Nova constitutio futuris formam imponere debet, non praeteritis’.

[239] [61]

[240] [57(f)]

[241] [57(a)]

[242] [58]

[243] [54]

[244] Claydon, ibid, at [111].

[245] Minister of Home Affairs v. Fisher [1979] UKPC 21; [1980] AC 319 at 328-329; D. Feldman, “Statutory interpretation and constitutional legislation” (2014) 130 L.Q.R. 473.

[246] Edwards v Attorney-General for Canada, [1929] UKPC 86; [1930] AC 124 at 137 per Viscount Sankey L.C.

[247] Republic of Nauru v Lambourne, ibid, [58].

[248] In re the Constitution, Attorney-General v Olomalu [1982] WSCA 1, citing Home Affairs v Fisher [1979] UKPC 21; 1980 AC 319.

[249] Edwards v Attorney-General for Canada [1929] 3 WWR 479 at 489 (PC); Attorney General of Samoa v Saipa'ia Olomalu and others (1983) WSLR p 41; Sia v Peteru [1998] WSSC 37 citing Minister for Home Affairs v Fisher, ibid; Malifa v Sapolu [1999] WSSC 47.

[250] [57(h)]

[251] [62]

[252] 104G. Salaries and benefits - The salaries, allowances or any other benefits for the President or Deputy President of the Land and Titles High Court, Vice President or a Judge of the Land and Titles First Court, are expenditures by law and shall be paid out of moneys appropriated by the Legislative Assembly, and as provided in the Act.

[253] Paragraph 17 and 8th paragraph of the prayer for relief in his Fifth Amended Statement of Claim; paragraph 34 of his First Supplementary Affidavit.

[254] [2014] WSCA 1

[255] [2012] WSSC 107

[256] R v Reilly UK JPC [1934] 1 DLR 434; Claydon v Attorney General [2004] NZAR 16; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [26]; Australand Corporation (Qld) Pty Ltd v Johnson [2007] QCA 302, citing Claydon with approval.

[257] [2009] WSSC 95

[258] [45], citing Piteamoa Mauga & Ors v Fuga Leituala WSCA 4 March 2005; Italia Taamale v Attorney-General (18 August 1995, C.A 2/95B).

[259] [45], [51], [67] to [85].

[260] Citing Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA); Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385; [1978] 2 All ER 670 (PC).

[261] Referring to Mauga at p12.

[262] Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 (SC) at 480, 514 and 532.

[263] Subiah v The Attorney General of Trinidad and Tobago [2008] UKPC 47 at [11].

[264] [2017] WSCA 9

[265] Fiso v Reid [2000] WSSC 51, citing LIP Investments Pty Ltd v Howard Chia Investments Pty Ltd. (1990) 24 NSWLR 499 at 508.

[266] For example, Liki v Samoa Breweries Ltd [2005] WSSC 3; Faamau v Samoa Breweries Ltd [2009] WSSC 85; Toremana v Samoa Water Authority [2019] WSSC 16.

[267] Lolagi v Asco Motors Ltd [2008] WSSC 30; Eletise v Lutuiloa [2018] WSSC 52 referring to British Westinghouse Electric & Mfg Co Ltd v Underground Electric Rail Co of London Ltd [1912] UKLawRpAC 43; [1912] AC 673 at 689 (HL). Cf Pialba Commercial Gardens v Braxco Pty Ltd [2011] QCA 148, Wilson JA.

[268] Cf New Zealand Bill of Rights cases, e.g Binstead v Northern Region Domestic Violence Approval Panel [2002] NZFLR 832; [2002] NZAR 865 (HC) at [38(g)]; Brown v Attorney-General [2003] 3 NZLR 335. See also Jorsingh v Attorney-General [1997] 3 LRC 333, where the plaintiff successfully sued the state for loss of income caused by an industrial court’s delay in delivering judgment in his favour, Sharma JA in the Trinidadian Court of Appeal would have reduced the sum recoverable to reflect the plaintiff’s failure to mitigate his losses by seeking new employment.

[269] [60]

[270] Exhibit I to his First Supplementary affidavit.

[271] Section 92 of the LTA 1981 prohibited solicitors from appearing before the Court.

[272] Section 64.

[273] R v Reilly; Claydon v Attorney General; Attorney-General (NSW) v Quin; Australand Corporation (Qld) Pty Ltd v Johnson.

[274] Annual salary of $135,187 minus 23% tax ($31,093) = $104,094 p/a.

[275] [68(b)]

[276] As indicated by his last payslip.

[277] Fifth Amended Statement of Claim, paragraph 17(i)(vi)(F) and prayer for relief, paragraph 8(a)(x).

[278] [2009] WSSC 95.

[279] E.g. see Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136; Apia Broadcasting Ltd v Ponifasio [2012] WSCA 5; Stowers v Stowers [2020] WSSC 93; Oeti v Samoa Observer Company Ltd [2021] WSSC 8.

[280] Peter Meredith & Company Ltd v Drake Solicitors Nominee Company Ltd [2001] WSSC 32.

[281] Kun v Secretary for Justice and Border Control [2015] NRSC 18; Barrick (Niugini) Ltd v Nekitel [2020] PGSC 135; Hausia v Fatongiatau [2002] TOCA 11; Republic of Vanuatu v FR8 Logistics Ltd [2020] VUCA 15.

[282] [1985] WSLawRp 1; [1980-1993] WSLR 105.

[283] [1982] 1 NZLR 82.

[284] [l982] 1 NZLR 97.

[285] [1988] WSSC 1

[286] [2012] WSSC 107.

[287] From OF Nelson v Sia’aga & Others [2010] WSSC 43 at 46 to 51.

[288] Citing Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027.

[289] Uren v John Fairfax & Sons Pty [1966] HCA 40; [1966] 40 ALJR 124, Australian Consolidated Press v Uren [1966] 1AC 590, Truth (NZ) Ltd v Bowles [1966] NZLR 303, Corbett v Social Security Commissioner [1962] NZLR 878, Taylor v Beere, ibid.

[290] Ibid, at [95].

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