IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 8/94

IN THE MATTER of the Constitution

AND

IN THE MATTER of the Judicature ordinance 1961 and the Judicature Amendment Act 1992

BETWEEN

SAVEA SANO MALIFA
of Afega, Publisher
Appellant

AND

LEAFA VITALE
of Malie Minister of State
Respondent

Coram: The Rt Hon. Sir Maurice Casey, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Puni

Hearing: 15 August 1995
Counsel: T. Malifa for Appellant
L.S. Kamu for Respondent

Judgment: 18 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

The appellant has been granted leave in the Supreme Court to appeal against the judgment of Lussick J. given on 27 June 1994 dismissing the appellant's motion to have a defamation action brought against him struck out for want of prosecution.

The respondent was at all material times a Member of Parliament and the appellant the proprietor of a newspaper, the Samoa Observer. It is alleged that certain publications of the Samoa Observer on 4 April 1990 and 7 April 1991 were defamatory of the respondent.

The respondent's action against the appellant was commenced on 8 July 1991. The appellant filed his statement of defence on 12 August 1991, but sought by letter the respondent's indulgence of an extension of time until 11 September 1991 to make any necessary alterations after consulting senior counsel in New Zealand. No amended statement of defence was filed. Accordingly, the plaintiff's solicitor sent a facsimile letter on 22 October 1991 to the appellant's solicitor expressing disappointment that his numerous telephone calls over the previous three and a half weeks had not been answered or returned and enquiring whether the senior counsel being consulted would be appearing for the appellant and, if not, "We will try to fix a hearing date now".

There can be, and is, no criticism of the respondent for delay to this point. Nothing was heard from the appellant's counsel in answer to the respondent's attempt to arrange a fixture for the case to be heard. The appellant eventually on 5 February 1993 took the step of serving an order for discovery on the respondent.

There followed other interlocutory steps by both parties leading up to the respondent giving notice dated 7 December 1993 for the appellant to produce certain documents for inspection. On 23 December 1993 the respondent forwarded a Request for Setting Down to the appellant. As it was not returned for filing in court the respondent's counsel wrote to the Registrar of the Court on 25 January 1994 and again on 9 February 1994 requesting a fixture as the appellant had still not returned the Request for Setting Down. On 11 March 1994 the Court gave notice to the parties of a fixture for the hearing of the action on 25 August 1994. However, four days before that fixture was made, the appellant filed his Motion for the action to be struck out upon the grounds,

"(1) same was not pursued and carried out within a reasonable time;

(2) Plaintiff had sat on his claim without reasonable justification causing undue delay in the hearing of the suit;

(3) claim to be (dismissed) for want of prosecution;"

Mr Malifa for the appellant relies on the delay on the part of the respondent from the time of his facsimile letter to the appellant on 22 October 1991 to the appellant's order for Discovery dated 5 February 1993. He says that this delay of one year and three and a half months was unreasonable and if the action is not struck out the appellant will be denied his fundamental rights under Art. 9(1) of the Constitution to a "fair hearing within a reasonable time".

The relevant part of Article 9(1) is as follows:

9. Right to a fair trial - (1) In determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.

Mr Malifa referred to decisions on this and corresponding provisions in the New Zealand Bill of Rights Act 1990 and the Canadian Charter dealing with the meaning of undue or unreasonable delay. In particular Mr Malifa cited a recent case before the Court of Appeal in New Zealand Martin v. The District Court at Tauranga and the Attorney-General (C.A. 3/95; 12 April 1995). The Court of five judges were unanimous in holding that a criminal prosecution should be stayed, applying s.25(b) of the New Zealand Bill of Rights Act 1990 and holding that the appellant had been denied his right to be tried without undue delay. On the facts of that particular case, there had been a delay of 17 months until trial after the appellant was arrested and charged and 15 months after he was committed for trial following the taking of depositions. That length of delay is not to be taken as a yardstick for what is an unreasonable delay, indeed, Cooke P. in his judgment at p.13 said, "I would not at the present stage under the Bill of Rights regard delays of the order exemplified in the present case as necessarily beyond the pale. It is the contribution from the prosecutor that tips the balance in this case".

"The question is, at what point does the delay become unreasonable?" (Sopinka J. in R. v. Smith (1989) 52 C.C.C. (3d) 97 at p.105). The answer is to be found in a consideration of the facts in each case. Turning again to the facts of this appeal, Lussick J. referred to there having been "some unexplained delay" between the dates relied on by Mr Malifa, but considered it to be "not of such an inordinate length of time as to cause injustice to the defendant". Mr Malifa placed some weight on the delay being "unexplained" but he was not acting for the appellant at the time and some of the delay should be placed at the door of the appellant for failing to respond to the respondent's attempt in October 1991 to arrange a fixture.

If the appellant had felt prejudiced by the lack of progress during 1992 one wonders why he did not then move to have the action struck out or seek to set it down himself. Instead he chose to seek discovery of documents indicating a willingness to proceed with the litigation. The following two excerpts from the judgment of Hardie Boys J. in Martin (supra) at p.5 are pertinent.

"I see no reason to vindicate the right of one who allows the process to run its course without objection or complaint and then asserts the right only at its culmination."

"Nonetheless I do not think that a person should be entitled to plead undue delay unless he or she has taken such earlier opportunity as there may have been to protest at the delay up to that point."

It is particularly noted that in the appellant's affidavit in support of the Motion to strike out the action, he does not claim to be prejudiced by the delay. Furthermore, in this Court although Mr Malifa submitted that the appellant had suffered some prejudice in having a serious defamation claim hanging over his head, he did not advance any facts to support an argument that the delay would result in the appellant not having a fair trial.

In Rule 478 of the High Court Rules in New Zealand there is provision for the Court to make "Such order as may be just" on an application for a proceeding or part thereof to be dismissed for want of prosecution. There is no similar rule in The Supreme Court (Civil Procedure Rules) 1980 of Western Samoa but Rule 206 of those Rules provides,

"206. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Judicature ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice."

Lussick J. considered the interests of justice holding that the delay was not such as to cause injustice to the appellant. As McCarthy P. said in the Court of Appeal in Fitzgerald and Another v. Beattie [1976] 1 N.Z.L.R. 265 at p.268,

Our rule requires us to pursue the interests of justice and so in the end the overriding consideration is always whether justice can be done despite the delay.

We do not regard the delay in 1992 as inordinate and, though unexplained, it was contributed to by the appellant by not responding to the respondent's facsimile letter. From early 1993 the case progressed and with pressure from the respondent a fixture was made for the hearing. Lussick J. summed up the situation as follows,

"It seems unreasonable and contradictory that, with all the requirements of discovery having been completed, and with the plaintiff anxious to obtain a hearing date, the defendant would at that stage file the present motion to strike out the plaintiff's statement of claim for 'causing undue delay in the hearing of the suit'.

Furthermore, the grounds of this motion do not fall within the principles upon which the Court would consider exercising its discretion to strike out.

The motion is entirely without merit and must fail."

Returning to Mr Malifa's principal submission, the alleged breach of Art. 9(1) of the Constitution, this Court last year dealt with a similar point in respect of Art. 6(3) in Attorney-General v. Semi Tupai Ueti (C.A. 24/93; 5 May 1994). In that case the question was whether the respondent had been allowed to consult a legal practitioner of his choice "without delay". This Court stressed the importance of the protection afforded by the Constitution to an arrested person and said a judge should not have a discretion "to whittle away the constitutional protection". But "without delay" in Art. 6(3) and "within a reasonable time" in Art. 9(1) in their application to a particular case must turn on what is "delay" and what is "a reasonable time" which are questions of fact depending on all the circumstances (R. v. Etheridge (1992) 9 C.R.N.Z. 268). Mr Malifa said the Constitutional argument which he has strongly presented in this Court was raised in the Court below. Mr Kamu does not recall it and being taken by surprise in this Court was not in a position to respond to it.

We do not have the benefit of either full argument or the opinion of the Supreme Court on this point so express no final view but in deference to Mr Malifa's submissions, in determining what is "reasonable" in a civil case, we do not think all the considerations relevant to criminal trials, such as detention in custody pending trial and with their threat of penal sanctions, automatically apply. In civil litigation the parties themselves largely control the progress of their case to a hearing, whereas for an accused the progress of his trial is essentially under the control of the state. Civil courts have developed the inherent power to control delay or obstruction and to prevent abuse of process and this long settled practice must be responsibly applied as the means of upholding the fundamental constitutional right to a hearing within a reasonable time and providing an effective remedy on default. This approach is consistent with Art. 4(2) of the Constitution which provides:

Remedies for enforcement of rights

4.
………….

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.

Lussick J. passed judgment on the facts of the case which as we have said must be the determining factor. We take a similar view of the facts and are satisfied that the appellant will not be denied his fundamental right under Art. 9(1) of a fair trial within a reasonable time.

The appeal is accordingly dismissed with costs of $400 to the respondent together with reasonable disbursements, to be fixed by the Registrar.

Solicitors:
Libra Law & Consultancy, Apia, for Appellant
Kamu & Peteru, Apia, for Respondent