IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 19/09

BETWEEN:

RASELA MOLI FILIA, PISAINA FILIA, POVITA HICKS, TUIVALE HICKS and SILIA HICKS
Appellants

AND:

DORA LETELE of Auckland, New Zealand, Widow, MARIA SHECK of Aai o Fiti, Widow, THERESA LEAU of Togafuafua, Widow, JOSEPHINE HUNT of Vaitoloa, Widow, MARY HICKS of Aleisa, Spinster and EMELIA COLLINS of Auckland, New Zealand, Married Woman
First Respondents

AND:

THE PUBLIC TRUSTEE, a statutory body established by the Public Trust Office Act 1975 having his Office at Savalalo
Second Respondent

Coram: Honourable Justice Baragwanath 
Honourable Justice Slicer
Honourable Justice Fisher 

Hearing: 21 September 2010

Counsel: O Woodroffe for appellants
 S Rimoni for first respondents
 H Hoglund for second respondent

Judgment: 24 September 2010

JUDGMENT OF THE COURT

Introduction

[1]	The appellants appeal against a decision of the Chief Justice of 28 August 2009 ordering them to pay costs of $13,570.00 to the second respondent ("the Public Trustee").

Background

[2]	The costs order arose in the context of proceedings which were initially confined to the appellants and the first respondents. 

[3]	When William Hicks Snr died on 29 August 1999 the Public Trustee became the administrator of his estate. Hick Snr left various parcels of land including the one in dispute at Faimonolima. The Public Trust transferred the land to William Hicks Jnr, believing him to be the relevant beneficiary. Hicks Jnr gifted the land to his wife and children by deed of 8 December 1967. The first respondents are descendants of Hick Jnr. They rely upon succession from him for their current title to the land. 

[4]	The appellants are another branch of the same extended family. They have occupied the land for many years. They considered that their branch of the family was entitled to an equal share in the land through their grandmother, Sulita Hicks. In the alternative they relied upon their adverse possession of the land beyond the limitation period. To protect their interest they lodged a caveat against the title to the land. 

[5]	The first respondents did not accept the appellants' claim. They applied to remove the appellants' caveat. The appellants responded that they had equal rights to the land and in any event could rely upon their adverse possession. 

[6]	The first respondents also felt that if they were not on the title it must be the Public Trustee's fault. On 1 November 2004 they applied to join the Public Trustee as a third party to the proceedings for removal of the caveat. The Chief Justice declined the application, pointing out that it was inappropriate to have the Public Trustee as a third party on an application to remove a caveat. However the Chief Justice also directed that the first respondents and the appellants file pleadings to determine their substantive rights. 

[7]	The substantive action between the appellants and first respondents then continued with conventional pleadings from both of those parties. In addition, the appellants filed a statement of claim against third party of 7 July 2005 claiming damages and other remedies against the Public Trustee. The third party statement of claim alleged that in transferring the land to William Hicks Jnr, the Public Trustee had been guilty of fraud, negligence, acting in an unconscionable manner and acting in breach of trust. 

[8]	The Public Trustee initially took no steps to defend himself, perhaps mistakenly thinking that the earlier refusal to join him as a third party for caveat purposes extended to the substantive proceedings. 

[9]	The appellants' statement of claim against the Public Trustee remained alive on the file for substantive purposes. Shortly before the trial the Chief Justice saw that the Public Trustee had taken no steps to defend the claims against him in the third party statement of claim. The Chief Justice asked to see counsel for all three parties in chambers. Counsel for the appellants did not suggest that her clients were discontinuing against the Public Trustee. In their pleading her clients were accusing the Public Trustee of fraud. For obvious reasons the Chief Justice pointed out that the Public Trustee would need to be represented by counsel at the forthcoming hearing. Otherwise these very serious allegations against a public figure would go undefended. 

[10]	As a result the Public Trustee belatedly filed a statement of defence. His counsel then appeared at the substantive trial where he took an active role in resisting the allegations against the Public Trustee. 

[11]	Far from discontinuing against the Public Trustee, at the trial counsel for the appellants pursued the allegations against the Public Trustee to the full in both evidence and argument. She placed particular reliance upon two matters. One was the production of a document said to be a letter from the Public Trustee to Sulita Hicks noting that she had received a half share in the disputed land. The other was that the Public Trust office had lost the file relating to the administration of the estate of Hicks Snr. 

[12]	In his judgment the Chief Justice rejected the appellants' claim to a half share in the land but upheld their defence based on adverse possession. Judgment was therefore entered for the appellants against the first respondents.

[13]	The Chief Justice noted that the proceedings that should have been straightforward had been complicated by the appellants' decision to join the Public Trustee. He pointed out the seriousness of the allegations and the need for caution before upholding them. As to the basis for the allegations, he rejected the authenticity of the document said to be a letter from the Public Trustee recording that Sulita Hicks had inherited a half share. The document had many suspicious features and could not be relied upon. As for the loss of the Public Trustee's file, this made it more difficult for the Public Trustee to defend the allegations but of course in itself the absence of the file did not amount to evidence of anything. There was no evidence to support the allegations against the Public Trustee. Judgment was entered for the Public Trustee against the appellants. 

[14]	In a subsequent ruling as to costs the Chief Justice pointed out the sequence of events concerning the joinder of the Public Trustee, the seriousness of the allegations made by the appellants, and the reason he had required that the Public Trustee be represented at the trial. He directed the appellants to pay the Public Trustee costs of $13,570. 

The appeal

[15]	In this court the substance of Ms Woodroffe's first submission was that the responsibility for the Public Trustee's representation at the trial was that of the Chief Justice and that the appellants should not have to pay for something for which the Chief Justice alone was responsible. 

[16]	An examination of the procedural sequence shows that it was the appellants (or more accurately their counsel) who joined the Public Trustee as third party. The allegations against the Public Trustee were set out in the appellants' statement of claim against third party. At no stage before or during the trial did the appellants modify those allegations or discontinue the claim against the Public Trustee. So long as the pleading remained alive the Public Trustee had no choice but to be represented at trial. To attempt to lay the responsibility for that state of affairs at the door of the Chief Justice was preposterous. No responsible counsel could have advanced that submission.

[17]	Ms Woodroffe's second submission was that the costs of the Public Trustee should have been borne by the first respondents. We can see no justification for this. The first respondents were not responsible for the presence of the Public Trustee at the trial. On the contrary, the first respondents had had to endure a trial unnecessarily lengthened by the appellants' decision to join the Public Trustee and to persist in misconceived allegations against him. 

[18]	Ms Woodroffe's third submission was that in his ruling on costs the Chief Justice should have taken into account the difficulties produced by the fact that the Public Trust Office file had gone missing. She appeared to regard that as a reason for reducing or avoiding costs against her clients. What the Chief Justice pointed out was that "this has severely handicapped the third party in its evidence." We doubt whether the administrator of a deceased's estate can be expected to retain all relevant records nearly 40 years after the events to which they relate. In any event at most the lack of earlier documents resulted in an absence of evidence. Under no circumstances could it have amounted to positive evidence in support of the appellants' allegations against the Public Trustee.

[19]	Throughout her submissions Ms Woodroffe revealed a disturbing lack of understanding of the responsibilities of counsel, as well as parties, when alleging fraud. The basis for this allegation was never articulated in either the Supreme Court or this one. There were no particulars and no real evidence in support. Even if the purported letter from the Public Trustee had been genuine (and the Chief Justice declined to accept it as such) it would not have justified an allegation of fraud. The allegation should never have been made. 

[20]	No basis has been advanced for interfering with the costs awarded against the appellants by the Chief Justice. 

Result

[21]	The appeal is dismissed. 

[22]	The appellants must pay the respondents' costs in this Court. We were advised from the bar that the actual appeal costs incurred by the first respondents will be $7000 and by the Public Trustee $5000. This appeal should not have been brought. The appellants must pay the first respondents $5,500 and the Public Trustee $4,000. 

Honourable Justice Baragwanath

Honourable Justice Slicer

Honourable Justice Fisher