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Fagasua v Tauati Enterprises Ltd [1999] WSSC 36 (17 August 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

MUAO FAGASUA
of Fasitoouta, Teacher
Plaintiff

AND

TAUATI ENTERPRISES LTD
a duly incorporated company having its head office at Vaipoto
First Defendant

AND

FA AIONO
of Fasitoouta, Driver
Second Defendant

Counsel: T K Enari for plaintiff
S Leung Wai for first defendant

Hearing: 10 August 1999
Judgment: 17 August 1999

JUDGMENT OF SAPOLU, CJ

These proceedings are concerned with a motion by the plaintiff for reinstatement of his claim which had been struck out.

The history of this case shows that on 1 May 1997 counsel for the plaintiff filed a claim against the then first defendant, Seuseu Tauati, and the second defendant. The basis of the claim against the second defendant was negligence. It was alleged- that the second defendant drove a bus in a negligent manner on 14 February 1997 at the Apia Fish Market thus causing damage to the plaintiffs vehicle which was stationary at the time. The basis of the claim against the then first defendant was vicarious liability as the owner of the bus that was driven by the second defendant. The total amount of the claim for costs of repairs and consequential loss of use of the plaintiff's vehicle was $4,252.

After some interlocutory proceedings, the then first defendant filed a statement of defence dated 5 September 1997. The first part of the statement of defence is a general denial of the allegations in the plaintiffs claim and the second part alleges contributory negligence against the plaintiff. The second defendant on the other hand had already filed a statement dated 7 July 1997. In essence, the second defendant says in that statement that the reason for his denial of the claim was not because the plaintiff's vehicle had been damaged but because the bill of costs for repairs to the plaintiff's vehicle which the plaintiff had asked him to pay was excessive. However, counsel for the new first defendant told the Court that the new first defendant's defence of contributory negligence is based on an interview counsel had with the second defendant.

This case was then first set down for hearing on 6 February 1998. However, on that day counsel for the plaintiff applied to the Court that the plaintiffs claim be non-suited as the then first defendant was the wrong person to sue. Whether or not that was the correct course to take is now immaterial. But the application was granted. Subsequently the plaintiff filed a new statement of claim and Tauati Enterprises Ltd was substituted for Seuseu Tauati as the first defendant. The total amount of the new claim is $6,673 for special and general damages. The basis of the claim against the second defendant is still negligence while the basis of the claim against the new first defendant is vicarious liability as employer of the second defendant and owner of the bus which was driven by the second defendant.

On 5 October 1998 the new claim was called for mention and was adjourned to 19 October 1998 for counsel for the new first defendant to obtain instructions from his client. On 19 October 1998 this case was set down for hearing during the week commencing 7 December 1998 in accordance with the new case management system that has been adopted by the Court. During the call over on 26 November 1998 of the cases listed for hearing during the week commencing 7 December 1998, both counsel for the plaintiff and the new first defendant were present and this case was set down for hearing on 9 December 1998. On that day, counsel for the new first defendant appeared but neither the plaintiff nor his counsel appeared and the claim was struck out.

Then on 26 March 1999 counsel for the plaintiff filed a motion for reinstatement of the plaintiffs claim and that motion was first called for mention on 12 April 1999 and was re-mentioned on 3 May for counsel for the first defendant to file an affidavit in opposition to the motion. That motion for reinstatement of the plaintiffs claim was heard on 19 May and was dismissed as it again wrongly cited the original first defendant for which the plaintiff had elected to be non-suited en 6 February 1998. Costs of $200 were awarded to the original first defendant.

On 7 June 1999 counsel for the plaintiff filed a second motion for reinstatement of the plaintiffs claim. This second motion again cites the new first defendant and was mentioned on 5 July and re-mentioned on 19 July when it was adjourned to 3 August for counsel for the new first defendant to the file an affidavit in opposition. The matter was finally heard on 10 August.

It should be mentioned here that it appears from the pleadings and the submissions of counsel that there is a connection between the original first defendant Seuseu Tauati and the new first defendant Tauati Enterprises Ltd. The exact nature of that connection is not entirely clear. Be that as it may, the original first defendant and the new first defendant are different persons. Perhaps it should also be mentioned that the same counsel has been acting throughout for the original first defendant and the new first defendant. I should also mention that the second defendant has not been represented by counsel and apparently he has not appeared when the two motions for reinstatement of the plaintiff's claim were heard.

In his affidavit filed in support of his motion for reinstatement counsel for the plaintiff says that he was a meeting in Auckland, New Zealand, on 7 December 1998 and he arrived back in Samoa early on 9 December 1998. His diary shows that this matter was to be called at the call over on 10 December but he does not recall whether it was called or not. He then received a letter dated 4 March J 999 from counsel for the new first defendant saying that the plaintiffs claim had been struck out. He further says that negotiations for a settlement were still continuing between himself and counsel for the new first defendant up to 14 December 1998 without his knowing that the claim had been struck out on 9 December.

Now rule 139 of the Supreme Court Civil Procedure Rules 1980 provides:

"139. Reinstatement - (1) When any proceedings have been struck out under the provisions of Rule 117 hereof any application for reinstatement shall be made by way of motion ex pal1e and. if the proceedings are reinstated, notice of reinstatement in the form 28 shall be served on the defendant personally at least seven clear days before the hearing.

(2) Any order for reinstatement made pursuant to this rule shall be subject to such order for costs as the Court thinks fit".

Rule 117 provides:

"117. Where plaintiff does not appear - If on the trial of any action the plaintiff does not appear, the Court may either adjourn the trial or strike out the proceedings".

Counsel for the new first defendant correctly pointed out that the way in which counsel for the plaintiff has proceeded with his motion does not comply with the provisions of rule 139 in that the motion should have been ex parte whereas the present motion has been on notice. The question of non-compliance with the rules is dealt with in rule 202 which provides:

"202. Non-compliance with rules - Non-compliance with any of these rules shall not 'render the proceedings void, but the proceedings may be set aside, either wholly or in 'part, as irregular, or amended, or otherwise dealt with in such manner and on such 'terms as the Court may deem just".

As the new first defendant has not been prejudiced by the fact that the motion has been on notice to it, I decided to continue with hearing the motion in the presence of both counsel for the plaintiff and the new first defendant and heard both their submissions. I would say nothing in relation to the second defendant who has not been involved in these proceedings.

In his motion and supporting affidavit counsel for the plaintiff admits that he, rather than the plaintiff, had been in error in the way this matter has been conducted. However, he submits that the plaintiff deserves to have his claim dealt with by the Court. He also says that the parties had been in serious negotiation for a settlement of this matter up to 14 December 1998 after the claim was struck out on 9 December 1998.

Counsel for the new first defendant strongly opposed reinstatement of the plaintiffs claim. He put forward three main submissions. Firstly, he submitted that this is the fourth time this matter has been called before the Court and it is a waste of the Court's time and resources. The first time was when counsel for the plaintiff elected to non-suit the plaintiff for suing the wrong first defendant. The second time was when the correct first defendant was sued but counsel for the plaintiff failed to appear at the hearing and the claim was struck out.

The third time was the plaintiff's first motion for reinstatement which was dismissed as the wrong first defendant was cited. And the fourth time is the present second motion for reinstatement of the plaintiffs claim. Counsel argued that there should be some formality to this matter.

The second submission by counsel for the new first defendant is that the new first defendant has been prejudiced in its defence of contributory negligence because since this incident in 1997 from which the plaintiffs claim arises, the second defendant has left the employment of the new first defendant and it no longer has access to him. The third submission is that if the plaintiffs claim is reinstated then substantial costs should be ordered as the first defendant has been seriously inconvenienced.

Dealing now with the submissions for the new first defendant, it appears that it first became involved in these proceedings when the plaintiff filed his new claim that was called for mention on 5 October 1998 and then adjourned to 19 October for counsel for the new first defendant to obtain instructions from his client. That was the claim which was set for hearing during the week commencing 7 December and was struck out when neither the plaintiff nor his counsel appeared at the hearing on 9 December. The second time the new first defendant became involved in this matter was when the present motion for reinstatement was filed on 7 June 1999. This is the motion that was heard on 10 August. The original defendant is of course a different person from the new first defendant and in these proceedings we are concerned with the new first defendant. Any inconvenience to the new first defendant as a registered company would have to be considered on its own individual basis.

In respect of the second submission by counsel for the new first defendant that his client has been prejudiced in its defence of contributory negligence because the second defendant since 1997 has left the employment of the new first defendant and that the new first defendant no longer has access to him, it must be pointed cut that in the second defendant's statement of 7 July 1997 which was filed in reply to the plaintiff's claim, the second defendant says that the reason for his denial of the claim was not because the plaintiff's vehicle had been damaged but because the bill of costs for repairs to the plaintiff's vehicle which the plaintiff had asked him to pay was excessive. But in this connection it must also be pointed out that counsel for the new first defendant told the Court that the defence of contributor'} negligence is based on an interview counsel had with the second defendant. I am not satisfied on the material placed before the Court by both counsel for the plaintiff and the new first defendant that the second defendant could not be located within the country and brought to Court to testify if the new first defendant requires his evidence to support its defence of contributory negligence. Perhaps counsel for the plaintiff should have anticipated the submission based on prejudice to the new first defendant and should have taken steps to find out whether the second defendant is still in the country and can be brought before the Court to testify. If the second defendant has left the country or cannot be found then that will give more strength to the submission for the new first defendant that its defence of contributory negligence has been seriously prejudiced. But as I have said, I am not satisfied on the material before the Court that the second defendant cannot be located within the country and made to appear and testify in this matter.

In respect of the plaintiff's position, it appears from the pleadings that he has a cause of action against the new first defendant. The total amount of his claim for special and general damages is $6,673. No doubt the plaintiffs desire to retain the new first defendant in these proceedings is because the new first defendant is in a stronger financial position to meet the plaintiffs claim if it succeeds.

Counsel for the plaintiff has also consented to pay costs to the new first defendant if his motion for reinstatement is granted. However, I must point out that reinstatement of a claim that has been struck out is not automatic. Costs may not, in some circumstances, be an adequate remedy to compensate a defendant for the prejudice he has suffered because of the conduct, including delay, on the part of a plaintiff whose claim has been struck out. If an award of costs would be inadequate to remedy a prejudice that has occurred to a defendant then the claim should continue to remain struck out.

I have considered the inconvenience to the new first defendant separately from any inconvenience to the original first defendant as they are different persons. I have also considered the serious prejudice to the new first defendant's defence of contributory negligence if the second defendant could not now be found. On the other hand I have also considered that the plaintiff's pleadings disclose a cause of action against the new first defendant and the total amount of the claim. I have also considered the possibility that the second defendant may still be found within the jurisdiction and brought to testify so that any prejudice to the new first defendant's defence of contributory negligence would be removed in spite of any delay on the part of counsel for the plaintiff. I have also considered the question of costs whether it would be an adequate remedy in the circumstances of this case.

After weighing all those matters I have decided:

(a) counsel for the plaintiff to take every step to find out whether the second defendant is still in the jurisdiction and to advise the Court on 30 August 1999;

(b) counsel for the new first defendant to submit on 30 August 1999 a memorandum of reasonable costs incurred by the new first defendant;

When the Court has been advised of these matters, I will then deliver my final decision on the plaintiff's motion for reinstatement.

This matter is adjourned to 30 August for re-mention.

CHIEF JUSTICE

Solicitors:
Kruse, Enari & Barlow of Apia, for plaintiff
Drake & Co. of Apia, for first defendant