IN THE SUPREME COURT OF SAMOA
AT APIA

BETWEEN

LUPE MATASILA TAULAGA Businessman, Vaitele,
SUFALI TAULAGA and OKETI TAULAGA
formerly of Fugalei but residing in Sydney, Australia.
Plaintiffs

AND

S.V. MACKENZIE & COMPANY LIMITED
a duly registered company carrying on business as wholesalers and retailers
Defendant

Counsel: S Leung Wai for plaintiff
TRS To’ailoa for defendant

Hearing: 17 February 2006
Judgment: April 2006

DECISION OF JUSTICE VAAI

Background

The plaintiffs were the owners and proprietors of a hotel business which adjoined the defendant’s wholesale business at Fugalei. Both the plaintiffs hotel and the defendant’s wholesale businesses were completely burnt to the ground by fire which the plaintiff alleges commenced at the defendant’s premises and spread into the plaintiff’s hotel through the fault and negligence of the defendant and its servants. As a result of the fire the plaintiffs claim from the defendants damages for:

Replacement cost of buildings			-	$2,700,000.00
Replacement cost of contents & fittings		-	$ 500,000.00
Loss of income ($520,000 p.a x 5 years)		-	$2,600,000.00
Inconvenience. Distress and anxiety			-	$ 250,000.00
					------------------
TOTAL				$6,050,000.00
					===========

They also seek $250.000.00 as aggravated damages.

The present interlocutory proceedings are concerned with the motion by the defendant for orders:

(i)	directing the plaintiffs to give further and better affidavit stating what documents are or have been in their possession or power relating to the matters in question in this action be made, filed and served

(ii)	directing the plaintiff to produce certain documents specified in the plaintiff’s list of discovered documents for inspection by the defendant

(iii)	costs be reserved.

Further and Better Affidavit of Documents

The plaintiff objected to the defendants requests for further and better particulars to the plaintiff’s loss of income of $2,600,000 on the basis that the particulars sought are matters of evidence and not the subject of pleadings. However during the course of hearing the motion, counsel for the plaintiff undertook to provide to the defendant copies of all relevant documents as they come available since the relevant documents were destroyed in the fire. Pursuant to this undertaking there will be an order directing the plaintiff to provide further particulars of its loss of income. Since the plaintiff’s claim is listed for hearing on the 14th November 2005 the plaintiff is ordered to provide full particulars by the 15th May 2005. It is noted that counsel for the plaintiff undertook to provide particulars as they become available, but the pleadings concerned are for special damages which must have had some foundation, documentary or otherwise, when the statement of claim was finalised and filed. Furthermore, as counsel for the defendant in my view correctly argued, the very substantial amounts claimed as special damages suggest that a firm of accountant was retained to file annual tax returns so that the particulars sought could be provided from the copies of the plaintiff’s accounts kept by its accountant or from the copies file with the Ministry of Revenue and from copies of bank statements.

Production documents for inspection 

The plaintiff objects to produce certain documents for inspection by the defendant on the grounds that they are privileged and therefore cannot be disclosed. The three documents are:

(a)	a report by the Samoa Fire Service

(b)	the plaintiff’s list of contents destroyed by fire

(c)	valuation report of the plaintiff’s hotel.

Essentially the issue for determination is whether those documents in the possession of the plaintiff are privileged from inspection by the defendant. If the documents were prepared predominantly for the purpose of litigation then the documents are privileged from inspection by the opposite party: See Waugh v British Railways Board (19079) 2 All ER 1169; Guardian Royal Exchange Assurance of NZ Ltd v Stuart (1985) 1 NZLR 596; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1991 201 CLR 49. This category of legal professional privileged known as litigation privilege applies to documents prepared for a number of purposes one of which is submission to legal advisers to enable them to conduct litigation for the client.

For the public interest in the disclosure of relevant documents to be overridden by a claim of litigation privilege the purpose of the submission to the party’s legal advisers in anticipation of litigation must be at least the dominant purpose for which it has been prepared. The same approach was adopted by Sapolu CJ in Enosa v Samoa Observer Co. Ltd. [2005] WSSC 36 unreported Supreme Court of Samoa (7/12/05).

No affidavit was filed by the plaintiff to show the basis for its claim for privilege. It is for the party refusing disclosure to establish his right to refuse: See Waugh v British Railways Board (supra) at page 1181. Common sense would dictate that the last two documents namely the list of contents and fittings destroyed in the fire and the valuation report of the hotel were enlisted before the fire which completely engulfed the hotel and contents. The valuation report could not have been commissioned after the fire as there was nothing left after the fire to value and similarly the list of contents and fittings destroyed by the fire could only have been compiled from a list which existed before the fire. Undoubtedly the list of contents and fittings and the valuation report which were done before the fire was compiled and prepared for some other purposes like taxation, insurance proposals or loan applications without the slightest inclination to the conduct of any contemplated or reasonably apprehended litigation. On that view the two documents are not privileged and should be produced for inspection.

In so far as the report by the Samoa Fire Service is concerned I am at a loss to understand as to why the defendant itself did not request a copy of the report from the Fire Service. As a statutory body re-established under the Fire Service Act 1994 the report prepared after attending to each fire are made available not only to the insurance companies but also to the victims of the fire. The Fire Service as such could not and were not specifically commissioned by the plaintiff to prepare and compile a report for the plaintiff in contemplation of litigation. As the victim of the fire the plaintiff is entitled to a copy and it received a copy which was requested. If the defendant as the victim of the same fire requires a copy it should request one and not rely on the plaintiff to furnish a copy; so that although I hold the report to fail the test of a privileged document I will in the circumstances refuse inspection of the copy held by the plaintiff.

Costs are reserved.

JUSTICE VA’AI

Solicitors
Leung Wai Law Firm for Plaintiffs
Toa Law for Defendant