IN THE COURT OF APPEAL OF SAMOA
Tupito & Anor v Attorney General [2019] WSCA 5

Case name: 	Tupito & Anor v Attorney General 	
		
Citation: 	[2019] WSCA 5	
		
Decision date: 	19 September 2019	
		
Parties: 	SILAFAGA TUPITO & FATUMANAVAUPOLU ATIINAE (Appellants) and ATTORNEY GENERAL (Respondent)	
		
Hearing date(s): 	9 September 2019	
		
File number(s): 	CA18/19	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	Pursuant to s 21(2) of the Limitation Act 1975 the appellants are granted leave to bring an action in accordance with the statement of claim already filed by the appellants in the Supreme Court under file number MISC 129/17. 
The respondent must pay the appellants jointly a total of $5,000 towards their costs in this Court. 
The appellants are also entitled to their costs in the Supreme Court. In the absence of agreement on the quantum of those costs they are to be fixed by the Judge in that Court.	
		
Representation: 	Ms. Lui for the Appellants 
Mr. Fong for the Respondent	
		
Catchwords: 	time limitation 	
		
Words and phrases:	filed outside limitation period	
		
Legislation cited:	Limitation Act 1975 s. 21; 21(1); 21(2)
Ombudsman Act 2013 ss. 5; 6
Supreme Court Civil Rules 1980	
		
Cases cited:	Gifford v Nominal Defendant [1972] NZLR 431;
Gresson P in Harbour Board v Kaihe [1962] NZLR 68 (CA);
Harbour Board v Kaihe [1962] NZLR 68 (CA)’
Perry J in Gifford v Nominal Defendant [1972] NZLR 431; 
Tett v Attorney General [1957] NZLR 1063;
Young v Attorney General [1998] WSSC 3;
STL Linehaul Ltd v AB Equipment Ltd [2007] NZHC 1814;
Caldow v Wall & Anor [1964] NZLR 65;
Strickland Brothers v Attorney General [2014] WSSC 15.	
		
Summary of decision:		

CA 18/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

SILAFAGA TUPITO & FATUMANAVAUPOLU ATIINAE
Appellants

AND:

ATTORNEY GENERAL
Respondent

Court:		Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Clarke

Hearing: 	9 September 2019

Counsel:	Ms. Lui for appellants 
		Mr. Fong for respondent

Judgment: 	19 September 2019

JUDGMENT OF THE COURT
Introduction
1. 	The appellants began proceedings outside the time limits imposed by s 21 of the Limitation Act 1975.  They were also late in serving the notice required by that section. The Supreme Court refused leave to bring the proceedings out of time. From that refusal the appellants have appealed to this Court.
Brief Facts
2. 	On 11 September 2015 the Police carried out a search of the appellants’ property.  The Police were armed. A total of ten Police officers attended. Only the first appellant and her children were at home.  No narcotics or illegal firearms were found.
3. 	The appellants considered the search to be an abuse of process. They alleged that the firearms were unnecessary.  On 28 September 2015 they lodged a complaint with the Office of the Ombudsman.  On 13 October 2015 the Ombudsman informed the Police of the complaint.  The Police carried out their own internal inquiry and reported back to the Ombudsman. The Ombudsman issued his report in February 2017.  
4. 	Three months later the appellants instructed counsel to take legal action.  They served the s 21 notice on 14 June 2017 and commenced these proceedings on 16 June 2017.  
5. 	As the limitation period had expired on 11 September 2016, the appellants’ proceedings were nine months beyond the statutory time limit of 12 months. Nor could it be said that the s 21 notice had been given as soon as practicable. The appellants applied for leave to file proceedings. They relied on the judicial discretion in s 21(2) of the Limitation Act 1975.
Supreme Court Proceedings 
6. 	In the Supreme Court the appellants argued that they were labouring under a mistake of fact, namely that the Ombudsman represented the Government for limitation purposes.  They pointed out that the Police had received early notice via the Ombudsman. That had caused the Police to carry out their own investigation at that time.  
7. 	The Judge considered that there was no mistake of fact.  She felt that the first appellant had made a conscious decision to lodge a complaint with the Ombudsman instead of seeking legal advice.  She said that ignorance of the law was no excuse.  It was not a valid excuse or mistake that the appellants were waiting on the report of the Ombudsman given that such a report could not be questioned in Court.  
8. 	The Judge further considered that there was prejudice to the Police in that most of the officers who had attended this search had resigned, been terminated or were on overseas missions.  
9. 	She considered that in the circumstances it would not be just for the Court to excuse the failure or delay by granting leave to proceed.
The Appeal
10. 	Section 21 of the Limitation Act 1975 provides:
	21. Protection of persons acting in execution of statutory or other public duty – (1) No action is to be brought against any person (including Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless:   (a) notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and of his or her solicitor or agent (if any) in the matter is given by the prospective plaintiff to the prospective defendant as soon as practicable after the accrual of the cause of action; and (b) the action is commenced before the expiration of 1 year from the date on which the cause of action accrued: 
	PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased: PROVIDED ALSO THAT the notice required by paragraph (a) may be given and an action may thereafter be brought, while the act, neglect, or default continues: PROVIDED FURTHER THAT any such person may consent to the bringing of such an action at any time before the expiration of 6 years from the date on which the cause of action accrued…………….. 
	(2) Despite subsection (1), application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the intended defendant under subsection (1); and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks just to impose where it considers that the failure to give notice or the delay in bringing the action, as the case may be, was occasioned by mistake or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the failure or delay. 
	(2A) No leave may be granted by a Court where an action has been commenced and no notice of the action was served under subsection (1)(a) before the commencement of the action. 
	(3) Where notice has to be given to the Government under this section, it is to be given to the Attorney General, and may be so given by leaving it at the Attorney General’s office… 
11. 	We agree with the sequence in which the Judge addressed the application under Section 21(2).  The first question is whether there was non-compliance with the requirements of s 21(1). A notice had to be served “as soon as practicable”. That was not done in this case. In addition, proceedings had to be filed within 12 months. That was not done either. The appellants were nine months late in filing their proceedings. 
12. 	Given the non-compliance with s 21(1) the appellants had to establish that (i) the non-compliance had been occasioned by mistake or other reasonable cause, or (ii) the Defendant was not materially prejudiced in his defence by the non-compliance. If the appellants surmounted that hurdle they then had to persuade the Court that it would be just to grant leave. We deal with these elements in turn.
Mistake
13. 	Before turning to the authorities it is important to classify the mistakes made by the appellants. The mistakes appear to have been the appellants’ assumptions (i) that the Ombudsman could be equated with the Government for the purpose of giving notice that a claim was being made and (ii) that lodging a complaint with the Ombudsman could be equated with the commencement of proceedings against the Government. The distinction between the Ombudsman and the Government is to be found in ss 5 and 6 of the Ombudsman Act 2013. The initiation of proceedings by filing and serving appropriate documents in court is prescribed in the Supreme Court Civil Rules 1980. The mistakes are more readily regarded as mistakes of law than of fact. 
14. 	Counsel differed over the scope of the word “mistake” in s 21(2). Ms Lui contended that it included mistakes of law. Mr Fong contended that only mistakes of fact could qualify. On this issue we were particularly assisted by the extensive authorities provided by Mr Fong.
15. 	There is no binding authority on the point. In Auckland Harbour Board v Kaihe Gresson P said that “ignorance [of a right to claim damages] does not justify a late notice nor does a mistake of law”  but his was a minority judgment not shared by the other two members of the Court. Mistakes of both fact and law were recognised in Gifford v Nominal Defendant  but there the legislation expressly included mistakes of law. It has sometimes been said that ignorance of law cannot be equated with a mistake of law but the distinction seems specious. In Young v Attorney-General the Chief Justice remarked that “mistake in this context does not include a mistake as to the legal position for ignorance of law is no defence” but the decision does not include any exploration of the issue and is readily explainable on other grounds.  Linehaul Ltd v AB Equipment is distinguishable because the legislation in that case expressly excluded mistakes over the limitation requirement. The Court in Caldow v Wall did not say that a mistake of law could not qualify for present purposes. 
16. 	In our view “mistake” does include a mistake of law for the purpose of s 21 of the Limitation Act in this country. There are two reasons for that view.
17. 	First, the statute itself uses the word “mistake” without qualification. In its ordinary usage “mistake” embraces all kinds of mistake, whether of law or of fact. To exclude mistakes of law would be to add an important qualification to the plain words of Parliament. The courts are not at liberty to re-write legislation in the way that they think the legislation might have been written, but in fact was not. 
18. 	Secondly there are no obvious policy reasons for excluding mistakes of law. Overseas Courts have gone to extraordinary lengths to bypass limitation requirements in this context. For example in Auckland Harbour Board v Kaihe the majority resorted to the sophistry of classifying the obligation to give prior notice as “directory” rather than “mandatory”. Mr Fong was concerned that recognising mistakes of law would open the floodgates to applicants seeking to bypass s 21. However, it must be remembered that the equivalent of s 21 has been abolished altogether in New Zealand and Australia. In this case Justice Tuatagaloa understandably recommended that Samoa follow suit. She described s 21 as “an unwary trap.” The Chief Justice said something similar in Strickland v Attorney-General when he said of counsel’s mistake over s 21 requirements “This is not uncommon. I am confident that many lawyers, apart from the lawyers in the Office of the Attorney General, are not aware of the requirements of section 21.” We would simply add that if it represents a trap for lawyers there is little hope for the community at large. It is the lay client who must make the decision to instruct a lawyer in the first place. Pending abolition of s 21 altogether, interpreting “mistake” in its full and ordinary sense so as to include mistakes of law would be entirely consistent with the requirements of justice. 
19. 	In the present case it is common ground that the appellants filed a complaint with the Ombudsman 17 days after the incident. The first appellant deposes that she was not aware of the requirements of s 21 but in any event thought that the Ombudsman’s Office was part of the Government. These are entirely understandable errors for a non-lawyer. In our view they qualify as “mistakes” sufficient to satisfy the relevant limb of s 21(2). 
(ii) Defendant not materially prejudiced in his defence
20. 	Given our conclusion that there was a mistake that qualified for the purpose of s 21(2) it is not strictly necessary to go on the consider the alternative of lack of material prejudice to the defendant. However, we address that question as well because it will be relevant when we come to the exercise of the discretion. 
21. 	Superintendent Lorraine Lees deposed that of the ten officers who had attended the search, only two were still Police officers and present in Samoa. The rest had resigned, been dismissed, were on study leave or were on United Nations missions overseas. Mr Fong submitted that the defence would be prejudiced by the unavailability of witnesses and the dimming of memories. 
22. 	It is important to note that a consequence of the appellants’ complaint to the Ombudsman was that he called for a response from the Police. That caused the Professional Standards Unit to investigate. A further consequence was the preparation of reports from officers who had attended the search in question. Two officers filed affidavits in the current proceedings describing the events on the day. One attached a report he had prepared on 3 February 2016. The Police carried out their own investigation a few months after the event in question. So to at least some degree, the Ombudsman’s notice to the Police served a purpose similar to the notice required under s 21. 
23. 	It is undeniable that there will be a dimming of memories, and scattering of witnesses, since the incident in question. However, in every case those developments are unavoidable to a greater or lesser degree. In this case the appellants could have quite legitimately served a notice as soon as practicable, commenced proceedings within 12 months, spent another year proceeding through interlocutory stages and then a third year waiting for a fixture. Even if there had been full compliance with s 21, three years could easily have elapsed between the original incident and the trial. The increase from three years (if complying with the limitation period) to five years (in the present case) is clearly undesirable but it scarcely moves the case into a different class of delay altogether. Witnesses are constantly called upon to give evidence after a substantial lapse of time. 
24. 	The Police have had the benefit of being alerted to the complaint at an early point. There are procedures for dealing with witnesses who have left the Police or gone overseas. It is far from clear that the Police would need to call all the officers who had been present on the day. We do not think that the prejudice qualifies as “material” for present purposes. 
Is it just to grant leave?
25. 	Having established one or more of the grounds for extending time, an applicant must go on to show that it would be “just” to grant leave. 
26. 	The Judge summarised the various arguments for and against the justice of granting leave. She included in the discussion the following:
	Inspector Leiataua Samuelu of Police PSU deposes in his affidavit that he investigated the issues raised by the Ombudsman with them regarding the complaint by the intended plaintiffs and found that there was no unnecessary force used by the Police, no discharging or use of firearms, the search was lawful as it was conducted pursuant to a search warrant and that the intended first plaintiff was informed of the purpose of the raid or search
27. 	The Judge went on to reiterate that the primary factual grounds for granting an extension had not been made out. She concluded that it would not be just to grant the extension. 
28. 	The passage quoted in [26] went to the merits of the appellants’ substantive claim. We do not think it appropriate to attempt to traverse such matters on an application of this kind. For understandable reasons the appellants had not provided any evidence in support of their substantive claim. No conclusion as the me rits of the claim could be attempted until full evidence had been given at trial. 
29. 	We have concluded that it would be just to grant the extension of time sought by the appellants. The appellants’ mistake over the need to serve a notice as soon as practicable and commence proceedings within 12 months could easily have been made by many lawyers. The Police had the benefit of early notice from the Ombudsman and the carrying out of an internal investigation. While this could not be equated with the receipt of a formal notice under s 21 it certainly went a considerable distance towards it. 
30. 	In our view it would be just to grant the appellants the extension they require. 
Result
31. 	Pursuant to s 21(2) of the Limitation Act 1975 the appellants are granted leave to bring an action in accordance with the statement of claim already filed by the appellants in the Supreme Court under file number MISC 129/17. 
32. 	The respondent must pay the appellants jointly a total of $5,000 towards their costs in this Court. 
33. 	The appellants are also entitled to their costs in the Supreme Court. In the absence of agreement on the quantum of those costs they are to be fixed by the Judge in that Court. 

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE