IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SARASOPA SILIATO
of Asaga Savaii, Unemployed
Plaintiff

AND:

THE BOARD OF TRUSTEES OF THE METHODIST CHURCH
a Charitable Trust having its registered office at Matafele, Apia
First Defendant

AND:

THE ATTORNEY GENERAL
sued on behalf of the Department of Education
Second Defendant

AND:

junior tanielu muavao
First Third Party

AND:

TAAMILO TOLEAFOA
of Fasitoo-Uta and Mulifanua, Bus Driver
Second Third Party

AND:

TNN TOLEAFOA COMPANY LIMITED
Third Third Party

Counsel: Mr A. Roma for the Plaintiff
Ms R. Drake for the First Defendant First Third Party
Ms M.H. Betham for the Second Defendant
Mr M. Leung Wai for the Second Third Party
Mr R.T. Faaiuaso for the Third Third Party

Date of hearing: 23 July 2002
Date of Decision: 24 July 2002

RULING OF JUSTICE P.W. COOPER ON APPLICATION
TO JOIN ADDITIONAL PARTIES

The second defendant the Attorney General seeks to join additional parties to the proceedings as follows:-

Junior Tanielu Muavao
Taamilo Toleafoa
TNN Toleafoa Co. Limited

The application is for joinder of these parties as defendants or as third parties.  The second defendant’s submission is that the appropriate course is for them to be joined as defendants rather than third parties.

The proposed additional parties are all represented at the hearing of this application.

They all consent to being joined as additional parties but Junior Muavao and TNN Toleafoa Co. Ltd. consent to being joined as defendants, not as third parties.

Taamilo Toleafoa consents to being joined as either a defendant or a third party.

The plaintiff strongly opposes the parties being joined as defendants and seeks they be joined as third parties only.

His position is that he has chosen to sue the first and second defendants specifically does not want the burden of proving of claim against other defendants, particularly in circumstances where he has no knowledge of the allegations made by the first and second defendants against them.  He submits that it is unnecessary for the determination of the issues alleged between the plaintiffs and the defendants that the other parties be joined as additional defendants.

I have considered the provisions of rules 32, 34 and 43 of the Supreme Court Civil Procedure Rules 1980 and the submissions of counsel.  I agree with all counsel that it is appropriate that the proposed additional parties be added to the proceeding.  However I accept the submission of counsel for the plaintiff that they should be added as third parties not as defendants at this stage.

Briefly my reasons are:-

1.	The plaintiff is strongly opposed to the parties being added as defendants.  Although this is one factor only to be taken into account, it is an important factor.

2.	While the plaintiff may be in a position to adduce proof of allegations against Junior Muavao, he should not be compelled to go to the expense of proceeding against him as a defendant when if successful the prospects of recovering any judgment from him are likely to be academic, and the plaintiff has other options because of the principles of vicarious liability.

3.	As far as Taamilo Toleafoa and TNN Toleafoa Co. Ltd. are concerned, I agree with Mr Roma’s submission that the plaintiff is not in a position to prove his case against him.  He should not be called upon to prove a case against defendants he did not wish to sue based on evidence of defendants already in the litigation, I refer to (Paccar Inc.v Four Ways Trucking Inc. [1995] NZLR 492).

So my ruling is that the additional parties be joined as third parties not as defendants at this stage.

JUSTICE COOPER