IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

PAPALII PANOA TAVITA MOALA
of Ululoloa, Businessman
Plaintiff

AND:

ATTORNEY GENERAL
sued for and on behalf of the Cabinet of Ministers of the Independent State of Samoa
First Defendant

AND:

SAMOA NATIONAL PROVIDENT FUND
a statutory body established pursuant to the National Provident Fund Act 1972.
Second Defendant

Counsel: T R S Toailoa for plaintiff
P Bednall and M T Lui for first defendant
S Leung Wai for second defendant

Hearing: 27 November 2009
Judgment: 15 January 2010

JUDGMENT OF SAPOLU CJ

Proceedings

1. These proceedings are concerned with a motion by the plaintiff for leave to amend his statement of claim. The motion is strongly opposed by the first and second defendant. 

2. The proceedings raise, inter alia, some novel procedural issues, as far as Samoan law is concerned, which require time for research and careful consideration. 

The Parties

3. The second defendant is the Samoan National Provident Fund (hereinafter referred to as "the NPF") which is a statutory body established under s.6 of the National Provident Fund Act 1972. The first defendant is the Attorney General sued on behalf of Cabinet as provided under Article 32 of the Constitution. The plaintiff is the former chief executive officer of the NPF.

The statement of claim

4. As it appears from the statement of claim which was filed by the plaintiff on 30 June 2008, the plaintiff was first appointed in 1997 as general manager of the NPF for a term of two years. The designation of the plaintiffs position was changed from general manager to chief executive officer by virtue of the National Provident Fund Amendment Act 1998 which also provides for the appointment of the chief executive officer by the Head of State on the advice of Cabinet. 

5. In 1999, the plaintiff was re-appointed as chief executive officer of the NPF for a further term of two years. In 2001, he was re-appointed as chief executive officer of the NPF for a further term of three years. He was again re-appointed in 2004 to the same position for a further term of three years. In 2007, he was again re-appointed to the same position for a term of one year which expired on 17 January 2008. It is against that last re-appointment that the plaintiff has brought these proceedings against the Attorney General and the NPF.

6. As it further appears from the statement of claim, the position of chief executive officer of the NPF was re-advertised in 2006 because the plaintiffs term of appointment for three years which was made in 2004 was coming to an end at the beginning of 2007. The position as re-advertised was for a term of three years and the plaintiff accordingly applied for a further term of three years. An interview was then conducted of the applicants for the position. 

7. It appears that the interview was conducted by the board of directors of the NPF or a panel chaired by the chairperson of the board of directors of the NPF. This is because it is alleged by the plaintiff in his statement of claim that after the interviewing process, he was assured by the chairperson of the board of directors of the NPF that he would be recommended to Cabinet for re-appointment for a further term of three years.

8. It is further alleged in the statement of claim that contrary to the assurance given by the chairperson of the board of directors, Cabinet for no apparent reason re-appointed the plaintiff for a term of one year which expired on 17 January 2008.

9. It is then alleged in the statement of claim that given the aforesaid assurance by the chairperson of the board of directors of the NPF, the fact that the plaintiff has been re-appointed for four consecutive terms, and that the advertisement of the position of chief executive officer of the NPF in 2006 was for a term of three years, the plaintiff had a reasonable expectation that he would be re-appointed for another term of three years. The plaintiff then claims that this constituted an implied term of his contract of service. The allegation here is not entirely factually correct because prior to 2007, the plaintiff had only been re-appointed three times and not four times.

10. It is then further claimed by the plaintiff that the decision by Cabinet not to re-appoint him in 2007 for the full three years but for only one year resulted in the breach of the aforesaid implied term of his contract. As a consequence, he has suffered damages.

11. Thus, the first cause of action pleaded by the plaintiff in his statement of claim is for breach of his contract of employment.

12. It is then alleged in the statement of claim that the terms and conditions applicable to the position of chief executive officer of the NPF are determined by the Cabinet. It is further alleged that pursuant to Cabinet policy the end of term benefits that were paid in the cases of the former Clerk of the Legislative Assembly and of the secretary to the previous Head of State were determined on the basis of their total service with government regardless of which organ of State these officers were employed in. It is then alleged that that was not done with the plaintiffs end of term benefits. As a result, the plaintiff was paid much less compared to the aforesaid officers in terms of end of term benefits. It is then claimed that Cabinet has thereby discriminated against the plaintiff in violation of Article 15 (1) of the Constitution which provides that "all persons are equal before the law and are entitled to equal protection under the law".

13. The second cause of action pleaded in the statement of claim is therefore violation of Article 15 (1) of the Constitution.

The motions by the first and second defendants to strike out the statement of claim

14. Following the filing of the statement of claim on 30 June 2008, the NPF as second defendant filed a motion on 17 July 2008 to strike out the statement of claim on the grounds that the statement of claim discloses no reasonable cause of action against the NPF and it is also frivolous, vexatious and an abuse of process.

15. In an affidavit sworn on 12 March 2009 by the then legal manager of the NPF in support of the NPFs motion to strike out the statement of claim, the deponent says that in terms of s.5 (1)(a) of the National Provident Fund Act 1972 as amended by s.3 of the Nation Provident Fund Amendment Act 1998, the chief executive officer is appointed by the Head of State on the advice of Cabinet. He further says that he has conducted a thorough search of all the records in the possession of the NPF and can not find any written contract of employment between the plaintiff and the NPF.

16. In a letter dated 25 February 2008 from the current chief executive officer of the NPF to the plaintiff which is annexed to the aforesaid affidavit, it is there pointed out that the decision on the end of term benefits to be paid to the plaintiff was made by Cabinet on information provided and confirmed by a Cabinet appointed sub-committee comprising of the Attorney General and the chief executive officers of the Ministry of Finance and the Public Service Commission.

17. On 13 August 2008, the Attorney General who is being sued on behalf of Cabinet as second defendant also filed a motion to strike out the statement of claim on the grounds that it discloses no reasonable cause of action against Cabinet for alleged breach of an implied term and that the cause of action against Cabinet for alleged breach of an implied term is also time barred by reason of s.21(1) of the Limitation Act 1975.

18. Three affidavits, all sworn on 20 march 2009, were filed the same day in support of the strike out motion by the Attorney General. The first affidavit is by the assistant secretary to Cabinet and it annexes two decisions by Cabinet. The first of these decisions, which relates to the re-appointment of the plaintiff in January 2007 as the NPFs chief executive officer, is dated 10 January 2007 and the plaintiff is shown as one of the persons to whom that decision was copied. In its decision, Cabinet notes that the recommendation by the board of directors of the NPF to Cabinet is inconsistent with the scores by the applicants who were interviewed for the position of chief executive officer of the NPF. Cabinet also notes its displeasure with the plaintiff publishing his re-appointment in a local newspaper before Cabinet had made a decision on it. Cabinet then approved the re-appointment of the plaintiff for a term of one year. 

19. The second decision by Cabinet annexed to the affidavit of the assistant secretary to Cabinet is dated 16 January 2008. The plaintiff is also shown to be one of the persons to whom that decision was copied. This decision by Cabinet relates to a request by the plaintiff to extend his appointment from 17 January to 31 January 2008. As the decision shows, Cabinet discussed the request by the plaintiff and decided to decline it.

20. The other two affidavits filed in support of the strike out motion by the Attorney General show that the plaintiff had been employed in the Development Bank of Samoa from 1974 to 1983 and was then employed for twelve years in the Agriculture Store Corporation until 1997 when he was appointed as general manager of the NPF. However, the affidavit filed by the plaintiff in support of his motion for leave to file an amended statement of claim shows that from 1983 to 1984 the plaintiff was employed in the Department of Agriculture.

21. The affidavit filed by the manager of administration for the Development Bank of Samoa in support of the strike out motion by the Attorney General shows that under the Bank’s staff instructions which were in force at the time the plaintiff was in the employment of the Bank, a staff member was entitled to long service leave on completion of ten years continuous service. As the plaintiff did not have ten years continuous service with the Bank at the time he left, he was not entitled to long service leave. The supporting affidavit by the chief executive officer of the Agriculture Store Corporation shows that when the plaintiff left that Corporation to take up his appointment as general manager of the NPF, he was paid quite a substantial amount as final pay.

The plaintiffs motion for leave to file a first amended statement of claim

22. On 24 March 2009, the plaintiff filed a motion for leave to file a first amended statement of claim. Accompanying the motion was a supporting affidavit by the plaintiff and a first amended statement of claim.

23. In the supporting affidavit by the plaintiff which was sworn on 24 March 2009, he deposes that the delay in filing his motion for leave to file his first and second causes of action outside of the limitation period stipulated by s.21(1) of the Limitation Act 1975 was because he was at that time employed as the chief executive officer of the NPF and he was worried that any action on his part to file legal proceedings against Cabinet may jeopardise his position. However, as soon as his appointment expired on 17 January 2008, he took steps to initiate his claim which was filed in June 2008.

The plaintiffs first amended statement of claim

24. The plaintiff in his first amended statement of claim (hereinafter for convenience referred to as the "amended statement of claim") pleads three causes of action. The first cause of action is legitimate expectation, the second cause of action is in the tort of misfeasance in public office, and the third cause of action is abuse of public office and violation of Article 15(1) of the Constitution.

25. The first and second causes of action in the proposed amended statement of claim are clearly new causes of action which do not appear in the statement of claim. The third cause of action in the amended statement of claim is a combination of the new and the old. The part of the third cause of action that is new relates to abuse of public office, the part that is old relates to the alleged violation of Article 15(1) of the Constitution.

Notices of opposition by the first defendant to the plaintiffs motion for leave to amend the statement of claim

26. On 17 April 2009, counsel for the Attorney General as first defendant filed a notice of opposition to the plaintiffs motion to file an amended statement of claim. Then on 13 October 2009, counsel for the Attorney General filed a first amended notice of opposition which in substance repeats that grounds in the notice of opposition filed on 17 April 2009. 

27. The grounds of opposition as set out in the Attorney General’s first amended notice of opposition filed on 13 October 2009 may be stated as follows:

a) There has been unreasonable delay by the plaintiff in seeking leave to amend his statement of claim especially when the plaintiff through his counsel had indicated to the Court during callovers that they were ready to proceed with the hearing of the motion to strike out the original statement of claim right up until two days before the hearing of that motion. Such unreasonable delay has prejudiced the first defendant in its defence and has contributed to additional costs which have been incurred as a result of preparing for the strike out application.

b) The proposed amended statement of claim is liable to be struck out and no leave to amend should be given because:

(i) the plaintiff has introduced new grounds or causes of action in the proposed amended statement of claim with no prior notice to the first defendant in accordance with s.21 of the Limitation Act 1975;

(ii) the proposed amended statement of claim:

(a) discloses no reasonable cause of action against the first defendant;

(b) has no prospect of success;

(c) fails to plead the material facts necessary to establish the alleged causes of action;

(d) is frivolous, vexatious or an abuse of process; and

(e) pleads new causes of action that are time barred by reason of s.21 of the Limitation Act 1975.

Notice of opposition by the second defendant to the plaintiffs motion for leave to amend the statement of claim

28. Counsel for the NPF, the second defendant, filed a notice of opposition to the plaintiffs motion for leave to file an amended statement of claim. The grounds of the NPFs notice of opposition may be set out as follows:

(a) The jurisdiction under r.17 of the Supreme Court (Civil Procedure Rules) 1980 relates only to the amending of a statement of claim and not to the introduction of new or fresh causes of action.

(b) The plaintiff did not give notice in writing under s.21(1) of the Limitation Act 1975 to the Attorney General before commencing with his new causes of action in his proposed amended statement of claim for legitimate expectation, misfeasance in public office, and abuse of process and alleged violation of Article 15(1) of the Constitution and in terms of s.21(2A) of the Act no leave may be granted after an action has been commenced and no notice of the action was served under s.21(1).

(c) The proposed amended statement of claim does not disclose a reasonable cause of action against the second defendant.

(d) The remedies sought by the plaintiff are directed at the first defendant and not the second defendant.

(e) The second defendant is not liable or obligated to pay any damages if damages are awarded against the first defendant.

(f) The second defendant has incurred substantial costs preparing for the hearing of its motion to strike out the plaintiffs statement of claim on 26 March 2009.

(g) The plaintiff through his counsel had always represented at the callovers they were ready to proceed with the hearing set for 26 March 2009 but failed to give timely notice they were not going to proceed with that hearing.

The essential grounds of the notices of opposition by the first and second defendants 

29. There are essentially three grounds in support of the notices of opposition by the first and second defendants. These may be stated as follows:

(a) the proposed amended statement of claim discloses no reasonable cause of action against either of the defendants,

(b) the motion for leave to file an amended statement of claim is frivolous, vexatious, or an abuse of process, 

(c) the limitation issue

General principles applicable to a motion for leave to amend a statement of claim

30. Rule 17 of the Supreme Court (Civil Procedure Rules) 1980, which is so often relied upon when leave is sought to amend a statement of claim, provides:

"A plaintiff may at any time before or after the trial amend his statement of claim with the leave of the Court".

31. The general principles, based on two English cases to be referred to shortly, which this Court has applied to a motion or application for leave to amend a statement of claim under r.17 is set out in Siliato v Board of Trustees of the Methodist Church of Samoa [2004] WSSC 2 where it is stated:

"It will be unwise to attempt to provide a list of all the factors that a Court ought to take into consideration in determining whether to grant leave to amend a pleading in a statement of claim or defence. The guiding principle has been to grant leave to amend pleadings if the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties, unless that will result in an injustice to the other party which cannot be justly compensated by an award of costs. If any injustice which will flow from the amendment can be justly compensated by an award of costs, then the amendment will be allowed with costs awarded to the other party. If the injustice cannot be cured by costs, then leave to amend will be refused: see, for example, Sundar v Prasad [1998] FJCA 19; GH Baker Ltd v Medway & Supplies Ltd [1958] 3 A11 ER 540 per Jenkins LJ". 

32. The general principles to be applied to the determination of an application for leave to amend pleadings were set out in Cropper v Smith (1884)26 Ch D 700 where Bowen LJ said at pp710-711:

"It is a well established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases, by deciding otherwise than in accordance with their rights….I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace".

33. To the same effect was Tildesley v Harper (1878) 10 Ch D 393, where Bramwell LJ said at pp396-397:

"I have had much to do in chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that by his blunder, he had done some injury to his opponent which could not be compensated for costs or otherwise".

34. Apart from the general principles set out in Cropper v Smith (1884)26 Ch D 700 per Bowen LJ at pp 710-711 and cases like Tildesley v Harper (1878)10 Ch D 393 per Bramwell LJ at pp396-397, a rule of practice grew up in England which disallowed any amendment to a statement of claim if it would deprive the defendant of a defence under the Statute of Limitations. As correctly submitted by counsel for the Attorney General as first defendant, this English rule of practice was derived from Weldon v Neal [1887] 19 QBD 394 where Lord Esher MR said at p.395:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, in proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment but certainly as a general rule it will not do so".

35. The question of limitation and the principle in Weldon v Neal [1887] 19 QBD 394 have arisen in these proceedings because it is claimed on behalf of the first and second defendants that the proposed amended statement of claim pleads new causes of action which are already time barred. I will return to this issue when I come to deal with the limitation ground of the defendants notices of opposition.

Use of affidavits in a motion for leave to amend a statement of claim

36. This Court has already permitted the use of affidavits by a defendant in support of a motion to strike out a statement of claim and by the plaintiff in opposing such a motion: Peter Meredith & Co Ltd v Drake Solicitors Nominee Co [2001] WSSC 32; Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1.

37. In principle, the use of affidavits should also be permitted in a motion by a plaintiff for leave to amend a statement of claim and by the defendant in opposing such a motion: for example, Whakatane District Council v Bay of Plenty Council [2008] NZHC 340. In fact that is what has happened in these proceedings.

38. I will proceed now to deal with the plaintiffs motion for leave to amend his claim. For clarity and ease of understanding, I will do this by dealing in turn with each of the essential grounds of the defendants notices of opposition.

The proposed amended statement of claim discloses no reasonable cause of action against either of the defendants

(a) Legitimate expectation

39. The plaintiffs first cause of action in his proposed amended statement of claim is in legitimate expectation. This is a new cause of action which was not pleaded in the original statement of claim.

40. As pleaded in the proposed amended statement of claim, the plaintiff was first appointed as the general manager of the NPF in 1997 for a term of two years. In 1999, he was re-appointed as chief executive officer of the NPF for another term of two years, the designation of his position being changed by s.3 of the National Provident Fund Amendment Act 1998. The plaintiff was re-appointed in 2001 for another term of three years and then in 2004 for another term of three years. In 2007, he was again re-appointed for a term of one year which expired on 17 January 2008. All these appointments of the plaintiff were made by the Head of State on the advice of Cabinet pursuant to the provisions of the National Providence Fund Act 1972 as amended in 1998.

41. It is then alleged that whilst the plaintiffs appointment and terms and conditions of employment were set by Cabinet, the NPF was responsible for the payment of all the plaintiffs salaries and benefits including provision of a vehicle for his personal use.

42. It is further alleged that when the position of chief executive officer of the NPF was re-advertised in 2006, it was for a term of three years and the plaintiff accordingly applied for re-appointment for a further term of three years. At the conclusion of the interviewing process by the board of directors of the NPF, the plaintiff was assured by the chairperson of the board that he would be recommended to Cabinet for re-appointment for a further term of three years.

43. It is then alleged that Cabinet for no apparent reason recommended to the Head of State the re-appointment of the plaintiff for a term of only one year.

44. The plaintiff then claims that given the aforesaid assurance by the chairperson of the board of directors of the NPF, the fact that his term in office had been renewed for four consecutive terms, and the fact that the term that was advertised was for three years, the plaintiff had a legitimate expectation that he would be appointed for another term of three years. It should be pointed out again that prior to the plaintiffs re-appointment in 2007, he had only been re-appointed three times and not four times.

45. The plaintiff further claims that Cabinet has established the procedure where it is the board of directors of the NPF that advertises the position of the chief executive officer, conduct the interviewing of all applicants and make a recommendation to Cabinet for appointment. In most cases, Cabinet would accept the recommendation from the NPF.

46. It is then claimed that Cabinet, by not accepting the full recommendation of the NPF for the plaintiff to be re-appointed for a further term of three years, failed to act fairly resulting in loss and damage to the plaintiff.

47. I have to say that there are basic flaws in the plaintiffs cause of action founded on legitimate expectation. Legitimate expectation is a public law concept which first appeared in English law in the judgment of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149. As a public law concept, legitimate expectation can be used as a ground in support of a motion for judicial review of a decision made in the area of public law. But it does not form a cause of action in a civil claim for damages in private law. This should be sufficient to refuse leave to file the proposed amended statement of claim to the extent that it pleads a cause of action in legitimate expectation.

48. I have researched extensively for any authority which holds that legitimate expectation can be used as a cause of action in a civil claim for damages in private law and have not been able to find any. Counsel for the plaintiff also did not cite any such authority. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at 8-44, p. 420:

"[The] existence of a legitimate expectation may, even in the absence of a right in private law, justify in public law an entitlement of procedural protection".

In Garrett v Attorney General [1997] 2 NZLR 332, Blanchard J in delivering the judgment of the New Zealand Court of Appeal said at p351:

"The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance in public office that something more, it seems to us, must be related to the individual who is bringing the action". (emphasis mine)

49. The other basic flaw in the plaintiffs cause of action in legitimate expectation is the allegation that the assurance given by the chairperson of the board of directors of the NPF to the plaintiff at the conclusion of the interviewing process that he would be recommended to Cabinet for re-appointment for a further term of three years, created a legitimate expectation on the part of the plaintiff that he will be re-appointed for such term. For a representation to create a legitimate expectation, it must be induced by the conduct of the decision maker: see Lokeni Lepa v Public Service Commission [2006] WSSC 14.

50. The chairperson of the board of directors of the NPF was not the decision maker. The representation she is alleged to have made to the plaintiff that he would be recommended to Cabinet for re-appointment for a further term of three years was not a representation made by Cabinet as the decision maker. Cabinet should not be held responsible for a representation it did not make or for an expectation it did not create.

51. Counsel for the plaintiff, however, submitted that when the chairperson of the NPFs board of directors gave the assurance to the plaintiff that he would be recommended to Cabinet for re-appointment for another three year term, the chairperson was an agent of Cabinet. I do not accept this submission. Not only is there nothing in the pleadings which shows that the chairperson was an agent of Cabinet but there is also nothing in the National Providence Fund Act 1972 to show that the board of directors of the NPF or its chairperson is an agent of Cabinet. The clear tendency in the authorities is against a finding that a public corporation or its board of directors is an agent of the Crown: Fox v Government of New Foundland [1898] AC 667; Metropolitan Industry Board v Sheedy [1927] AC 899; Townsville Hospitals Board v City of Townsville (1982) 149 CLR 282. See also Tamlin v Hannaford [1950] 1 KB 18 and BBC v Johns (Inspector of Taxes) [1964] 1 All E R 923. 

52. In any event, the assurance alleged to have been given by the chairperson to the plaintiff was an assurance that he would be recommended to Cabinet for re-appointment for another three year term. Such a recommendation is only a recommendation and would not be binding on Cabinet. I am confident that the plaintiff being a very experienced and intelligent man is also aware of that.

53. In fact in the proposed amended statement of claim, it is alleged that "In most cases, Cabinet would accept the recommendation of the second defendant…" This implies that Cabinet is not bound to accept a recommendation from the NPFs board of directors otherwise if a recommendation by the board of directors is binding on Cabinet then Cabinet should have accepted all the recommendations of the board of directors, not just most of those recommendations. 

54. In relation to the NPF as second defendant, there is no pleading that any expectation that the plaintiff might have had was defeated or frustrated by the NPF. The full thrust of the plaintiffs cause of action in legitimate expectation is directed at Cabinet, not the NPF.

55. The other ground in support of the plaintiffs cause of action in legitimate expectation is that because the plaintiff had been re-appointed three times in 1999 for two years, in 2001 for three years, and in 2004 for another three years, the plaintiff had a legitimate expectation that he would be re-appointed for another term of three years. This ground overlaps with the next ground, namely, that when the position of the NPFs chief executive officer was re-advertised in 2006, it was for a term of three years and the plaintiff accordingly applied for re-appointment for a further term of three years. It is then alleged that Cabinet, for no apparent reason, recommended to the Head of State the re-appointment of the plaintiff for a term of only one year. 

56. If this was a motion for judicial review in public law, the question should have been whether the plaintiff had a legitimate expectation that he would be re-appointed for a further term of three years given the recommendation by the board of directors of the NPF, the fact that he had previously been re-appointed three times as the NPFs chief executive officer, and the fact that the position he had applied for was advertised for a term of three years.

57. As it will be recalled, in the decision by Cabinet dated 10 January 2007, which is annexed to the affidavit of the assistant secretary to Cabinet, two concerns are noted by Cabinet. The first is that the recommendation by the board of directors of the NPF is inconsistent with the scores by the applicants who were interviewed for the position of chief executive officer of the NPF as advertised. In other words, as noted in the Cabinet’s decision, the recommendation by the board of directors of the NPF to re-appoint the plaintiff for a term of three years was inconsistent with the points scored by those applicants for the position who were interviewed.

58. The second concern noted with displeasure by Cabinet in its decision is that the plaintiff had published his re-appointment in a local newspaper before Cabinet had made a decision whether to re-appoint him.

59. Cabinet then decided to approve the appointment of the plaintiff for a term of one year. As already mentioned, one of the persons to whom the decision by Cabinet was copied is the plaintiff. So it is not correct, as alleged in the proposed amended statement of claim, that Cabinet, for no apparent reason, recommended to the Head of State that the plaintiff be appointed for a term of one year. Cabinet did provide reasons by way of the concerns expressed in its decision. 

60. There is nothing in the plaintiffs pleadings or his affidavit in support of his motion for leave to file an amended statement which contradicts the affidavit by the assistant secretary to Cabinet or the annexed decision by Cabinet of 10 January 2007. The plaintiff also does not deny that he received a copy of the said decision by Cabinet.

61. In my respectful view, the question whether in the given circumstances, the plaintiff had a legitimate expectation that he would be re-appointed for a further term of three years narrows down to this. Given that the recommendation to re-appoint the plaintiff as chief executive of the NPF was inconsistent with the scores by the applicants for the position who were interviewed, could the plaintiff have had a legitimate expectation that Cabinet will act on such a recommendation. May be in such circumstances one may have a hope, but certainly not an expectation that is legitimate, that Cabinet will act in one’s favour because of the recommendation. The publication of the plaintiffs appointment in a local newspaper before Cabinet had made a decision on it also did not help matters.

62. As it appears from the proposed amended statement of claim, the plaintiff on 15 January 2007 requested Cabinet to reconsider their decision. On 17 January Cabinet upheld its decision. 

63. The plaintiff deposes in his affidavit in support of his motion that the delay in his bringing these proceedings was because he was chief executive officer of the NPF and he was worried that to do so whilst he was still in that position may have jeopardised his position. 

64. From the foregoing discussion, I am of the clear view that the proposed amended statement of claim does not disclose a reasonable cause of action in legitimate expectation against the Attorney General as first defendant. Such a cause of action has no reasonable prospects of success and is bound to fail. In the first place, the cause of action is misconceived as legitimate expectation is traditionally a ground for judicial review in public law and does not constitute a cause of action in a civil claim for damages in private law. Secondly, on the material placed before the Court, the plaintiff could not have entertained a reasonable expectation that Cabinet, for the reasons given in its decision conveyed to the plaintiff, would accept the full recommendation by the board of directors of the NPF that he be re-appointed for a further term of three years. An expectation on its own is not enough, it must also be legitimate.

65. I am also of the clear view that on the pleadings, the proposed amended statement of claim does not disclose a reasonable cause of action in legitimate expectation against the NPF as second defendant.

(b) Misfeasance in public office

66. In Chan Tung v Attorney General [2005] WSSC 24, this Court, when dealing with the tort of misfeasance in public office, said:

"In Three Rivers District Council v Bank of England (No.3) [2000] 3 All ER1, [2000] 2 WLR 1220 the House of Lords stated and explained the ingredients of the tort of misfeasance in public office. The ingredients of the tort as explained by Lord Steyn at pp 8-12; pp1230 – 1236 may be stated as follows:

(1) The defendant must be a public officer.

(2) The impugned act must have involved exercise of power by the defendant as a public officer.

(3) The state of mind of the defendant. In this connection, Lord Steyn said at p.9; p.1231:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

67. What Lord Steyn is saying here is that there are two forms of liability in the tort of misfeasance in public office. The first is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. The second is where a public officer acts knowing that he has no power to do the act complained of and the act will probably injure the plaintiff.

68. As the action in Three Rivers District Council v Bank of England (No.3) [2000] 3 All ER1; [2000] 2 WLR 1220 was concerned with the second form of the tort of misfeasance in public office, Lord Steyn directed the remainder of his judgment to that form of the tort. Essentially what Lord Steyn went on to say is that recklessness on the part of a defendant is sufficient to establish liability for misfeasance in public office.

69. The present action by the plaintiff, if it is to be maintainable, must be in the first form and not the second form of misfeasance in public office. This is because there is no pleading in the proposed amended statement of claim that Cabinet does not have the power or authority to make the decision that it made to re-appoint the plaintiff for a term of only one year, but nonetheless went ahead and made that decision knowing that it has no power to do so and that its decision will probably injure the plaintiff. My clear impression of the plaintiffs pleadings is that he is not saying that Cabinet does not have the necessary power but that Cabinet abused its power. The action by the plaintiff, if it is to be maintainable, would, therefore, have to be on the basis of the first form of misfeasance in public office which is targeted malice.

70. In separate proceedings in Three Rivers District Council v Bank of England (No.3) [2001] 2 ALL ER 513, the House of Lords emphasised that bad faith is an essential element of the tort of misfeasance in public office. This is bad faith in the sense of dishonesty. For instance, Lord Hobhouse of Woodborough said at p.569:

"The tort of misfeasance in public office is a tort which involves bad faith and in that sense dishonesty."

71. In Three Rivers District Council v Bank of England (No.3) [2000] 3 A11 ER 1; [2002] 2 WLR 1220, Lord Hutton said at pp. 41 – 42; p.1266:

"[I] consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means bad faith. In some cases the term ‘dishonesty’ is not used and the term ‘in bad faith’ or acting from ‘a corrupt motive’ or ‘an improper motive’ is used, or the term ‘in bad faith’ is used together with the term ‘dishonesty’… The judgment of Buxton LJ in Barnard v Restormel Borough Council [1998] 3 PLR 27 is a modern example of how the terms ‘dishonesty’ and ‘bad faith’ are used interchangeably. In that case where misfeasance in public office was alleged Buxton L J in delivering his judgment said at p.3: ‘We bear in mind the need to establish dishonesty’ and later at p 37 he referred to the strong emphasis placed ‘in the tort of misfeasance on the requirement of subjective bad faith.’"

72. With regard to how the tort of misfeasance in public office should be pleaded, Lord Hobhouse of Woodborough in Three Rivers District Council v Bank of England (No.3) [2001] 2 All ER 513 said at p.569:

"The law quite rightly requires that questions of dishonesty be approached more rigorously than other question of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence, which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out." (emphasis mine)

73. At p.578, Lord Millet said:

"I is well-established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence … This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so." (emphasis mine)

74. On the question of whether the tort of misfeasance in public office is actionable per se or requires the proof of damages, the House of Lords in Watkins v Home Office [2006] UKHL 17, held that the tort of misfeasance in public office is never actionable per se but requires proof of damage by the plaintiff. At para 27, Lord Bingham of Cornhill said:

"For these reasons, and those given by my noble and learned friends Lord Hope of Graighead, Lord Roger of Earlsferry and Lord Carswell, I would accordingly rule that the tort of misfeasance in public office is never actionable without proof of material damage as I have defined it."

75. Lord Hope of Graighead expressed concurrence with Lord Bingham. At para 43, Lord Rodger of Earlsferry said:

"The somewhat disjointed history of the tort which is now known as misfeasance in public office has been traced in the literature and several judgments. It would serve no useful purpose for one to add to what my noble and learned friend, Lord Bingham of Cornhill, has said about it in his speech. But his survey shows that the plaintiff has always had to prove that he suffered material damage as a result of the defendant’s misfeasance".

76. And at para. 79, Lord Carswell said:

"In actions on the case, the category into which the tort of misfeasance in public office falls, ‘damage is the gist of the action’ (Salmond & Heuston on Torts, 21 st ed, (1996) p 6) and the claimant will fail if he cannot prove it. For the reasons set out by Lord Bingham, I agree that the authorities establish that that tort is properly classed among those in which proof of material damage is required".

77. Turning now to the plaintiffs proposed amended statement of claim, the so-called particulars pleaded in support of misfeasance in public office are:

(a) Cabinet is a collection of public officers appointed pursuant to Article 32 of the Constitution and responsible for the general direction and control of the executive government of Samoa.

(b) The recommendation by Cabinet to the Head of State to have the plaintiff appointed for a term of one year (instead of three years as recommended by the board of directors of the second defendant) amounted to an abuse by Cabinet of the powers under s.5(1)(a) of the National Provident Fund Act 1972.

(c) The said decision was actuated by malice either by an attitude of ill-will or spite by Cabinet against the plaintiff or actuated by reasons not comprehended by the power of decision vested in Cabinet or that the decision was made with reckless in difference or was based on irrelevant considerations.

(d) That in the exercise of the powers of appointment, Cabinet owes the plaintiff a duty of care to ensure that the recommendation to the Head of State was done in accordance with established procedure and with all fairness.

(e) That Cabinet had breached that duty of care towards the plaintiff.

(f) That as a consequence of that breach the plaintiff had suffered loss and damage as particularised.

78. There are serious flaws in the plaintiffs pleadings in support of his cause of action against Cabinet for misfeasance in public office. An essential element of this tort is bad faith in the sense of dishonesty. No facts have been pleaded to show that when Cabinet recommended to the Head of State the re-appointment of the plaintiff as chief executive officer of the NPF, Cabinet was acting in bad faith in the sense of dishonesty. Even the terms ‘bad faith’ and ‘dishonesty’ do not appear in the pleadings. 

79. Furthermore, what appears in (b) and (c) above which allege that the recommendation by Cabinet to the Head of State amounted to an abuse of power and that Cabinet was actuated by malice against the plaintiff or by extraneous reasons or that Cabinet’s decision was made with reckless indifference or was based on irrelevant considerations, are all mere allegations which are not particularised. There are no particulars to show why it is alleged that Cabinet’s recommendation to the Head of State amounted to abuse of process; there are no particulars to show why it is alleged that Cabinet was actuated by malice or extraneous reasons against the plaintiff; there are also no particulars to show why it is alleged that Cabinet’s decision was made with reckless indifference or was based on irrelevant considerations. What we have here are bare allegations which are not particularised. 

80. But in Three Rivers District Council v Bank of England (No.3) [2001] 2 A11 ER 513, Lord Hobhouse of Woodborough said at p.569 in relation to pleading dishonesty as an element of misfeasance in public office:

"At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out"

81. At p.578, Lord Millet said that ‘dishonesty must be distinctly alleged’ and ‘must be sufficiently particularised’. ‘This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest’.

82. The plaintiffs pleadings for misfeasance in public office contain no distinct allegations of dishonesty or particulars of dishonesty. It must, therefore, follow that the cause of action for misfeasance does not have any reasonable prospect of success and is bound to fail.

83. As for the so-called particulars in (d) and (e) which refer to a duty of care alleged to have been owed by Cabinet to the plaintiff and the alleged breach of that duty by Cabinet, this is clearly an allegation of negligence. But it appears from the judgments in Three Rivers District Council v Bank of England (No.3) [2001] 2 A11 ER 513 that for the purpose of the tort of misfeasance in public office, the notion of dishonesty does not encompass negligence. For instance at p.569, Lord Hobhouse said that ‘Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence’ and at p.578 Lord Millet said ‘that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so’.

84. It should also be re-mentioned here that in the decision by Cabinet of 10 January 2007 to recommend the plaintiff for re-appointment for a term of only one year, Cabinet noted its concerns about the recommendation by the NPFs board of directors being inconsistent with the scores by the applicants who were interviewed for the position as advertised and about the publication by the plaintiff of his re-appointment in a local newspaper before Cabinet had made a decision on the matter. If these are the reasons for the decision by Cabinet to recommend the plaintiffs re-appointment for a term of only one year, then I can not see how Cabinet can be said to have acted in bad faith in the sense of dishonesty.

85. There is also no allegation of bad faith against the NPF as second defendant.

86. From the foregoing discussion, I conclude that the proposed amended statement of claim also does not disclose a reasonable cause of action in the tort of misfeasance in public office against the first and second defendants.

(c) Abuse of public office and violation of Article 15(1) of the Constitution

87. The plaintiffs third cause of action in his proposed amended statement of claim for abuse of public office and violation of Article 15(1) of the Constitution actually combines two separate causes of action. The first is abuse of public office and the second is the alleged violation of Article 15(1) of the Constitution.

88. Abuse of public office is another name by which the tort of misfeasance in public office is known. As pointed out in Mawhinney v Waitakere City Council [2006] NZHC 1036 by Fogarty J at paras. [57] – [58]:

"Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. It is very difficult to establish this tort. It is more talked about than proved".

89. Thus, the plaintiff, by pleading abuse of public office as part of its third cause of action, is in effect repeating his second cause of action for misfeasance in public office.

90. The most directly related pleading to the plaintiffs cause of action for abuse of public office is para. 21 of the proposed amended statement of claim. Paragraph 21 pleads:

"Furthermore Cabinet has failed to provide to the plaintiff any legitimate reasons for refusing to follow FK(04)43 and thereby violated its duty to act with fairness and consistency in its determination of policies applicable to heads of government and semi-government organizations and thereby committing the tort of abuse of public office".

91. There is no pleading of bad faith or dishonesty in para 21. Failure to give reasons is not acting in bad faith in the sense of dishonesty which is an essential element of the tort of misfeasance in public office also known as abuse of public office. Likewise, failure to act with fairness and consistency are not on their own enough to establish liability. Acting with dishonesty is necessary to establish liability. And dishonesty for the purpose of misfeasance in public office ‘must be distinctly alleged’ and ‘must be distinctly particularised’ otherwise the allegation of abuse of public office will be struck out. In relation to the alleged abuse of public office, there is no distinct allegation or distinct particulars of dishonesty.

92. It should also be re-mentioned here that in the affidavit of 12 March 2009 by the legal manager of the NPF, there is annexed a letter dated 25 February 2008 from NPFs current executive officer to the plaintiff. In that letter, which is already referred to in para 16 of this judgment, NPFs current chief executive officer says that the decision made by Cabinet on the plaintiffs end of term benefits was based on information provided by a Cabinet appointed sub-committee comprising of the Attorney General and the chief executive officers of the Ministry of Finance and the Public Service Commission. This could hardly suggest any bad faith or dishonesty on the part of Cabinet with regard to the decision that it made. 

93. In relation to the NPF as second defendant, it is pleaded in para. 23 of the proposed amended statement of claim as follows:  

"That although the first defendant is invested with the authority to institute the appointment of the chief executive officer of the NPF, the implementation of such appointment including the payment of all remunerations and benefits of the position rests with the second defendant. It follows therefore that any damages that the Court may order against the first defendant will be paid out from the funds of the second defendant. It is for that reason that the second defendant is brought in as a party to these proceedings". 

94. It is clear from para 23 that the reason for the plaintiff suing the NPF as second defendant is not because of any alleged bad faith or dishonesty against the NPF but because the NPF claims that if the first defendant is liable for any damages, the NPF will pay. This was strongly opposed by counsel for the NPF who submitted that the NPF is under no obligation to pay for any damages that may be awarded against the first defendant if the first defendant is liable. 

95. As neither bad faith nor dishonesty is alleged against the NPF, it means that the tort of abuse of public office does not apply to the NPF. I also accept that the NPF as an independent and separate statutory corporation from government will not be liable to pay damages if any damages are awarded against the first defendant.

96. From the foregoing discussion, I am of the clear view that the cause of action framed as abuse of public office has no prospect of succeeding against the first and the second defendants. 

97. In respect of the cause of action for violation of Article 15(1) of the Constitution, what is pleaded in the amended statement of claim is essentially the same as to what is pleaded in the original statement of claim for this cause of action.

98. Essentially what is alleged against the first defendant under this cause of action is that what was paid to the plaintiff in terms of end of term benefits was much less compared to the end of term benefits paid to the former Clerk of the Legislative Assembly and the secretary to the pervious Head of State. It is claimed that these payments were made pursuant to Cabinet policy. It is then alleged that the services with the government of the former Clerk of the Legislative Assembly and the secretary to the previous Head of State were accounted in full regardless of which organ of the State they were employed in when calculating their end of term benefits. However, it is alleged that that was not done for the plaintiffs end of term benefits. It is therefore further alleged that Cabinet has discriminated against the plaintiff in violation of Article 15(1) of the Constitution which provides that "all persons are equal before the law and are entitled to equal protection under the law". 

99. It is not clear why the end of term benefits paid to the plaintiff were less than the end of term benefits paid to the former Clerk of the Legislative Assembly and the secretary to the previous Head of State. More specifically, it is not clear how many years had the plaintiff spent in "government" service and how many years had the former Clerk and the secretary to the previous Head of State had each spent in government service. It is also not clear whether it is appropriate to make a comparison between the plaintiff as chief executive officer of a statutory corporation and the former Clerk as the head of a government department and the secretary to the previous Head of State who was not the head of a statutory corporation or a government department.

100. The well-established approach to a motion to strike out a statement of claim as disclosing no reasonable cause of action is that it must be plain and clear that the cause of action is so obviously untenable that it cannot possibly succeed. The strike out jurisdiction must also be sparingly exercised.

101. Counsel for the Attorney General as first defendant submitted that Article 15(1) does not apply to the present circumstances as it provides for freedom from discriminatory legislation. I am not convinced that the scope of Article 15(1) is to be restricted to discriminatory legislation. Article 15(1) as earlier mentioned provides that all persons are equal before the law and entitled to equal protection under the law. The term "law" is then given a broad definition under Article 111 which includes an Act of Parliament, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa. 

102. Counsel for the Attorney General also submitted that Article 15(1) does not confer on individuals the right to receive the same employment benefits as someone else. As a general proposition this may be acceptable. But I think that the complaint by the plaintiff is not restricted to the amount of the end of term benefits that were paid to him. His complaint is also directed to the basis on which his end of term benefits were calculated. He is in effect saying that the end of term benefits paid to the former Clerk of the Legislative Assembly and the secretary to the previous Head of State were assessed on the basis of their total years of service to the government regardless of which organ of State they were employed in whereas that was not done with him. 

103. The first question which remains unresolved to my mind, notwithstanding the submissions by counsel, is whether Article 15(1) applies to the basis for the differential treatment alleged by the plaintiff, that is, assuming that that was in fact the basis used for assessing the end of term benefits. The second question if Article 15(1) applies, is whether the differential treatment was justified. This may be more a question of fact than one of law.

104. From the foregoing discussion, I am not sufficiently confident to conclude that there is no reasonable cause of action against the first defendant for the alleged violation of Article 15(1).

105. I am, however, satisfied that the amended statement of claim does not disclose any reasonable cause of action for violation of Article 15(1) of the Constitution against the NPF as second defendant. This is because there is no pleading or allegation that the NPF was involved in the calculation or assessment of the plaintiffs end of term benefits.

The motion for leave to file an emended statement of claim is frivolous, vexatious or an abuse of process

106. The second essential ground of the defendants notices of opposition is that the motion for leave to file an amended statement is frivolous, vexatious or an abuse of process.

107. In Enosa v Samoa Observer Co Ltd [2005] WSSC 3, this Court said:

"In Bullen, Leake and Jacobs Pleadings and Precedents 12th ed at p. 145, it is there stated that a pleading or an action is frivolous when it is without substance, groundless, fanciful, wasting the Court’s time or not capable of reasoned argument. A pleading or an action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or oppressive". 

108. This Court then went on to say that there will be an abuse of process if the legal process ‘is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end’ Goldsmith v Sperrings Ltd [1977]2 A11 ER 566 per Lord Denning MR at p.574. I do not understand Lord Denning MR to be giving an exhaustive statement in Goldsmith v Sperrings Ltd of what constitutes abuse of process.

109. In Bradford & Bingley Building Society v Seddon [1999]1 WLR 1482, Auld LJ in a judgment with which Nourse and Ward LJJ concurred said at p.1492:

"As Kerr LJ and Sir David Cairns emphasised in Braggs v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982]2 Lloyd’s Rep. 132, 137, 138-139 respectively, the Courts should not attempt to define or categorise fully what may amount to an abuse of process; see also per Stuart-Smith LJ in Ashmore v British Coal Corporation [1992] QB 338, 352. Sir Thomas Bingham MR underlined this in Barrow v Bankside Agency Ltd [1996] 1 WLR 257 stating at page 263 B, that the doctrine should not be circumscribed by unnecessarily restrictive rules since its purpose was the prevention of abuse and it should not endanger the maintenance of genuine claims; see also per Saville LJ at page 266 D – E".

110. In Manson v Vooght and Others [1999] BPIR 376, May LJ said at p.388:

"Abuse of process is a concept which defies precise definition in the abstract. In particular cases, the Court has to decide whether there is abuse sufficiently serious to prevent the offending litigant from proceeding". 

111. Given the above explanation of the terms ‘frivolous’ and ‘vexatious’, I am of the view that the motion for leave to amend the statement of claim is frivolous and vexatious against the first defendant to the extent that the proposed causes of action for legitimate expectation, misfeasance in public office and abuse of public office against the first defendant are without substance, groundless, and cannot possibly succeed. In respect of the second defendant, I am of the view that the motion for leave to amend the statement of claim is totally frivolous and vexatious as all the proposed causes of action in the proposed amended statement of claim against the second defendant are without substance, groundless and cannot possibly succeed.

The limitation issue

112. The general principles to be applied to the amendment of pleadings as set out in Cropper v Smith [1884] 26 Ch D700, 710-711 and such cases like Tildesley v Harper [1878] 10 Ch D 393, 396-397 were qualified by a rule of practice which grew up as a result of Weldon v Neal [1887] 19 QBD 394, per Lord Esher at p.395. Under that rule of practice, any amendment to the pleadings would be disallowed if it would deprive a defendant of a defence under the Statute of Limitations. As a result, an amendment which would introduce a new cause of action that is already time-barred under the Statute of Limitations would be disallowed.

113. Before going further, I should note here that I do not accept the submission by counsel for the NPF, as second defendant, which suggests that the addition of a new cause of action to a statement of claim is not an amendment of the statement of claim. A statement of claim can be amended by the introduction of a new cause of action. But such an amendment would be disallowed under the rule of practice in Weldon v Neal [1887] 19 QBD 394 if the new cause of action is already time-barred.

114. However, counsel for the Attorney General, as first defendant, correctly pointed out in their submissions that the rule of practice in Weldon v Neal has been abrogated or modified by Rules of Court in Australia. Counsel also pointed out that the rule in Weldon v Neal has been modified in England. They referred to Goode v Martin [2002]1 A11 ER 620 where Brooke LJ, in a judgment with which Latham and Kay LJJ concurred, said at pp

"So far as the practice of the High Court was concerned, the rules governing amendments prior to the 1965 revision of the Rules of the Supreme Court were set out in the judgment of this Court in Weldon v Neal [1887] 19 QBD 394. In that case the Court held that a plaintiff would not be permitted to amend a statement of claim by setting up fresh claims in respect of causes of action which had become statute-barred since the issue of the writ.

"In 1965 Order 20 rule 5 of the Rules of the Supreme Court 1965 was introduced with the effect of changing this practice in certain ways".

115. The English Order 20 rule 5 provided:

"(1) Subject to Order 15, rule 6, 7 and 8 the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such matter (if any) as it may direct.

(2) Where such an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it things it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of the issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

116. Counsel for the Attorney General, however, submitted that the rule in Weldon v Neal (in its unmodified form) should be applied to these proceedings. That is because r.17 of our Supreme Court (Civil Procedure Rules) 1980 which provides that a plaintiff may at any time before or during the trial amend his statement of claim with leave of the Court does not specify any exception to the Limitation Act 1975.

117. With respect, I cannot accept this submission. In England, the rule in Weldon v Neal has been found to work injustice in several cases. That is why it was modified. This Court, in the exercise of its inherent jurisdiction, will not adopt a rule of practice that has been found to work injustice elsewhere and has been modified. Furthermore, the term ‘law’ as defined in Article 111 of the Constitution includes "the English common law and equity for the time being in so far as they are not excluded by any other law in Samoa". The rule in Weldon v Neal is a common law rule of practice derived from that case. But it is not part of the English common law for the time being because it has been modified by the English Order 20 rule 5. So in terms of the definition of "law" in Article 111 of the Constitution, the rule in Weldon v Neal (in its unmodified form) is not part of the law of Samoa as it is not "part of the English common law for the time being".

118. There is also r.206 of our Supreme Court (Civil Procedure Rules) 1980 which provides:

"If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice".

119. If, therefore, I were to apply to these proceedings the rule in Weldon v Neal which has been found to work injustice in several cases in England, that will be acting contrary to the clear requirements of r.206.

120. Now, Singapore has a rule of procedure, namely, Order 20 rule 5 which is in pari materia with the English Order 20 rule 5. I have found the discussion on Order 20 rule 5(5) by the Court of Appeal of Singapore in Lim Yong Swan v Lim Jee Tee and Another [1993] 1 SLR 500 to be relevant for present purposes. Yong Pung How CJ in delivering the judgment of the Court of Appeal of Singapore in that case said:

"28. A party seeking to amend under O.20 r.5(5) must therefore show:

(1) that the new cause of action arises out of the same or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action, and

(2) if the Court thinks it is just to grant leave to make the amendment." 

121. Yong Pung How CJ then continued:

"29. As to condition (1), we were in agreement with counsel for the respondents that the correct test was that set out in the case of Steamship Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd [1986] 33 BLR 77 and approved in The Casper Trader [1991] 2 Lloyd’s Rep 237: whether there is a sufficient overlap between the facts supporting the existing claim and those supporting the new claim.

30. The scope of condition (2) was rather more complicated. Clearly, the fact that the party opposing the amendment would be deprived of an accrued right of limitation would not of itself make it unjust to give leave to amend. It is one of the factors that can be taken into account. The purpose of the paras (2) to (5) was to remove that reason as an absolute bar and we have already set out the rationale behind the introduction of the paragraphs as stated in the Supreme Court Practice. Accordingly, we did not accept counsel for the appellant’s submissions that the fact that the action is time-barred meant ipso facto that any amendment would be unjust to the appellant.

31. When The Casper Trader [1991] 2 Lloyd’s Rep 237 was before the Judge in chambers, Webster J expressed the view that consideration of whether it would be just to grant leave to amend under para (5) required a balancing of the applying party’s need to amend and the prejudice to the opposing party’s interests. ‘Prejudice’ in this context, in the opinion of the learned Judge meant at p243: 

"For the purpose of answering this question I do not think it is relevant simply to consider whether the defendants will or may have difficulty in defending the claim, specifically at the trial. In my view for any relevant prejudice to be found it must constitute prejudice resulting from the amendment, either in the sense that the defendants, in reliance on the claim originally made, altered their position so as to make it more difficult to defend the new claim now made or in the sense that it will be more difficult for them to defend that claim than it would have been had the claim been brought within the period of limitation".

32. We were in agreement with the view of the learned Judge and would only add that it would also be relevant prejudice if the new cause of action would deprive the opposing party of any remedy against a third party.

33. Further, the prejudice to the opposing party may be prejudice that arose before the expiry of the limitation period, even though it only became relevant to the consideration of the matter after the period has expired: see The Casper Trader at p.248. 

34. As regards the applying party’s need to amend, this is a question of examining whether refusing leave to amend would cause injustice to the applying party. It does not, however, involve an examination of the merits of the applying party’s case. Staughton LJ in The Casper Trader [1991 2 Lloyd’s Rep 237, put the matter this way at p.248:

"For my part I do not think it right, on such an application, to make an appreciation of the plaintiffs chances of success with or without the amendment, subject to four points:

(1) If the plaintiffs existing claim is bound to fail, that may possibly be relevant to what justice requires.

(2) If it is bound to succeed, that could conceivably be relevant in deciding whether to allow a different cause of action leading to the same remedy but requiring much further investigation to be pleaded. However, it is difficult to imagine a defendant putting this forward as a reason why leave should be refused.

(3) If the new claim is bound to fail, leave should be refused on ordinary principles.

(4) If the new claim is bound to succeed, that may affect the justice of the case. It must be rare that any of these situations will arise. In other cases, provided that the new claim is fairly arguable, it does not seem to me that any investigation of the need to amend is appropriate".

35. It will therefore be material, in any evenly balanced case, whether it is for the applying party to satisfy the Court that it is just to grant leave or whether that task falls to the opposing party. We once again found assistance in the judgment of Staughton LJ in The Casper trader [1991] 2 Lloyd’s Rep 237 where he said at p.247:

"In my judgment it is not helpful to speak of the modern burden of proof, but rather of the burden of persuasion. If the Court concludes that it cannot decide whether or not it is just to allow the amendment, the party applying for leave must fail. The burden of persuasion lies on him, and if it is not discharged his application should not succeed". 

36. But the party making the application cannot be expected to adduce evidence on all points which might conceivably affect the justice of the case. He must undertake the task of establishing the factors which he relies on as relevant; his opponent in turn may say that there are other relevant factors pointing in the other direction – and those are for him to prove.

37. We stress, however, that the question of what is just will inevitably be one of impression and discretion in most cases and that the question of discharging any burden of proof or persuasion will seldom be a central consideration."

122. I have decided to cite in full the English Order 20 rule 5 because we do not have a similar rule under our Supreme Court (Civil Procedure Rules) 1980 and there is no other provision under our Rules which would apply to the situation that has arisen in these proceedings where the plaintiff is seeking leave to amend his statement of claim by introducing new causes of action which the defendants claim are time-barred under the Limitation Act 1975. I have also quoted extensively the approach set out by the Court of Appeal of Singapore in Lim Yong Swan v Lim Jee Tee and Another [1993] 1 SLR 500, because the Singapore Order 20 rule 5 is in pari materia with the English Order 20 rule 5.

123. Section 21(1) of the Limitation Act 1975, as far as relevant, provides: 

"(1) No action shall be brought against any person (including the 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 well 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 one year from the date on which the cause of action accrued".

124. As there cannot be a cause of action in legitimate expectation in a civil claim for damages in private law, s21(1) of the Limitation Act 1975 does not apply to the plaintiffs cause of action pleaded in legitimate expectation because no such cause of action is available in law. I also have doubts whether s21(1) applies to the plaintiffs cause of action for alleged violation of Article 15(1) of the Constitution. In fact I do not see anything to the contrary in the submissions by counsel for the Attorney General or counsel for the NPF. The only relevant causes of action for present purposes are for the tort of misfeasance in public office and for the tort of abuse of public office which is the same thing as the tort of misfeasance in public office.

The limitation issue and the present proceedings

125. As it appears from Lim Yong Swan v Lim Jee Tee and Another [1993] 1 SLR 500 at para 28, where there is an application for leave to make an amendment to a claim by the introduction of a new cause of action after any relevant limitation period has expired, the approach to be applied under Order 20 r.5(5) consists of two requirements. The first is to determine whether the new cause of action arises out of the same or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action. The test to be applied is whether there is a sufficient overlap between the facts supporting the existing claim and those supporting the new claim. If the applicant for leave to amend is able to persuade the Court that his application satisfies the first requirement then the second requirement is to determine whether it is just to grant leave to amend. The two requirements, though separate, are to be applied conjunctively. 

126. There was really no dispute that the plaintiffs new causes of action for misfeasance in public office and for abuse of public office are both out of time in terms of s.21(1) of the Limitation Act 1975. The issue for determination is whether the plaintiff should be granted leave to amend his statement of claim by introducing those new causes of action notwithstanding the expiry of the limitation period.

127. In respect of the first requirement, the plaintiffs new cause of action for misfeasance in public office against the Attorney General as first defendant could not have arisen out of the same facts or substantially the same facts as its first cause of action for breach of contract in its original statement of claim. For the cause of action for breach of contract in the original statement of claim to be maintainable, the plaintiff would have to show the existence of a contract of employment between himself and the first defendant and a breach of that contract by the first defendant. With the new cause of action in the tort of misfeasance in public office, the plaintiff would have to show that Cabinet is a public officer, the impugned act must have involved exercise of power by Cabinet as a public officer, and the state of mind of Cabinet. The facts that would be required to establish each of these two causes of action, one for breach of contract, the other for tort, would be quite different.

128. The facts pleaded in the original statement of claim in support of the cause of action for breach of contract against the first defendant contain no allegation or particulars of bad faith whereas the facts pleaded in the proposed amended statement of claim in support of the new cause of action for misfeasance in public office contain an allegation of malice and even an allegation of breach of a duty of care. So the facts from which the new cause of action has arisen and the facts from which the existing cause of action for breach of contract had arisen are not the same or substantially the same. For the new cause of action for misfeasance in public office, it has been necessary for the plaintiff to plead additional facts relating to malice. In other words, there is no sufficient overlap between the facts supporting the existing cause of action for breach of contract and the facts supporting the new cause of action in the tort of misfeasance in public office. The plaintiff, therefore, has not satisfied the first requirement of the approach to an application for leave to amend a statement of claim by the introduction of a new cause of action that is already time-barred.

129. In respect of the second requirement, namely, whether it is just to grant leave to amend, I have already determined that the new claim for misfeasance in public office against the first defendant discloses no reasonable cause of action. Such a claim has no prospect of success and is bound to fail. It follows that it will not be just to grant leave to amend the original statement of claim by the introduction of a new cause of action for misfeasance in public office which is bound to fail and which is already out of time in terms of s.21(1) of the Limitation Act 1975.

130. In respect of the second new cause of action for alleged abuse of public office by the first defendant, my comments in relation to the first new cause of action apply. For this second new action to be maintainable, the plaintiff needs to plead additional facts which are crucial but are not present in the original statement of claim because the facts pleaded in the original statement are insufficient to given rise to the tort of abuse of public office. So the new cause of action for abuse of public office could not have arisen from the same or substantially the same facts as pleaded in the original statement of claim. The first requirement, therefore, has not been satisfied.

131. In respect of the second requirement, I have already determined that the new claim for abuse of a public discloses no reasonable cause of action against the first defendant and is bound to fail. It follows that it will not be just to grant leave to amend the statement of claim by the introduction of the second new cause of action which is bound to fail and which is already out of time in terms of s.21(1) of the Limitation Act 1975.

132. In the case of the second defendant, none of the claims including the claims for misfeasance in public office and abuse of public office discloses a reasonable cause of action against the second defendant. Such claims have no prospects of success and are bound to fail. It will, therefore, not be just to grant leave to amend the statement of claim by the introduction of new causes of action which are already out of time against the second defendant.

Resolution of the issues

133. From what has been said, I am of the clear view that the plaintiffs motion for leave to file the proposed amended statement of claim in so far as the second defendant is concerned should be refused.

134. In respect of the first defendant, I am also of the clear view that leave must also be refused to file the proposed amended statement of claim in so far as they plead new causes of action for legitimate expectation, misfeasance in public office and abuse of public official but not for the cause of action for alleged violation of Article 15(1) of the Constitution.

135. The pleadings in the statement of claim in support of the cause of action for alleged violation of Article 15(1) are substantially the same as the pleadings in the proposed amended statement of claim in support of the same cause of action. The only real difference relates to damages. In the proposed amended statement of claim there is a reduction by $85,675.45 of the amount of special damages claimed for the alleged violation of Article 15(1). There is also a new claim for general damages in the sum of $250,000. There is then a new general claim for exemplary damages for $150,000 but it is not clear whether this claim for exemplary damages also relates to the cause of action for breach of Article 15(1).

136. The plaintiffs motion for leave to file an amended statement of claim includes an application to withdraw the original statement of claim and to substitute it with the amended statement of claim. Given the determinations I have made on the motion for leave to amend the statement of claim, it will result in confusion if I were now to refuse leave to amend but allow leave to file the proposed amended statement only to the extent that it relates to the cause of action for breach of Article 15(1). This is because the pleadings in relation to the Article 15(1) cause of action overlap to a significant extent with the pleadings in support of the claims which disclose no reasonable cause of action against both defendants, especially the first defendant. For the sake of clarity and to avoid possible confusion, it will be best that leave be refused altogether to file the proposed amended statement of claim in its present state but allow the plaintiff to file an amended statement of claim to be restricted only to its existing cause of action for violation of Article 15(1). This is assuming that the plaintiff does not intend to continue with his cause of action for alleged breach of contract by the first defendant. The amended statement of claim is to set out the new types of damages the plaintiff is claiming for this Article 15(1) cause of action.

Declaration

137. There is one final issue on which I need to comment. Counsel for the defendants submitted that the declarations sought by the plaintiff in the prayer for relief of his proposed amended statement of claim should have been sought by way of motion as required by s.4 of the Declaratory Judgments Act 1988. With respect, I do not agree. The circumstances provided under s.4 of the Act which require an application for a declaratory judgment to be made by way of motion do not apply to these proceedings.

138. Section 3 of the Act clearly contemplates that a declaration may be sought in an "action". In terms of r.13 of the Supreme Court (Civil Procedure Rules) 1980, an action shall be commenced by filing a statement of claim setting forth, inter alia, the nature of the cause of action and the relief claimed. An action is not to be commenced by filing a motion.

139. Section 5 of the Act provides: "Any declaration so made on any such motion shall have the same effect as the like declaration in a judgment in an action" (italics mine). This implies that a declaration may be made on a motion or it may be made in a judgment given in an action which requires the filing of a statement of claim. This does not affect declarations or declaratory orders which are generally sought by way of motion for judicial review.

140. A declaration, like an injunction, is a private law remedy of equitable origin. However, during the evolution of English law the declaration and the injunction came to be used as remedies in public law. That is why when a declaration is sought as a remedy in a motion for judicial review in public law, the declaration appears in the motion. But that does not mean the declaration has surrendered its original status as a private law remedy which can be sought in an action, in appropriate civil proceedings, by filing a statement of claim. So a declaration is now both a private law remedy as well as a public law remedy.

141. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at 25.3.1, p960:

"Injunctions and declarations are more flexible and adaptable remedies than the prerogative orders…Both remedies are discretionary, having their origins in the Courts of Equity. They were initially private law remedies that were transposed to the public law setting". 

142. The learned author continued at 25.3.3, p 965:

"Declaratory judgments may be granted under the Declaratory Judgments Act 1908, under the Judicature Amendment Act 1972 or at common law under the High Court’s inherent jurisdiction…In addition, the High Court enjoys a residual jurisdiction at common law to declare rights and obligations inter partes where neither states applies"

143. In Civil Remedies in New Zealand (2003) 13.1, p592, it is there stated:

"In New Zealand, a declaration may be obtained via statute (the Declaratory Judgments Act 1908), through the High Court’s inherent jurisdiction, or under the Judicature Amendment Act 1972.

"A declaration is a pronouncement by the Courts on a legal relationship or circumstance. As such, it is different from an executory judgment, which the Court can enforce.

"Declarations sought under the Declaratory Judgments Act 1908 determine questions of construction or validity of legislation or a legal instrument or agreement, whereas declarations sought at common law or under the Judicature Amendment Act 1972 will determine the rights and/or obligations of parties in relation to the exercise of a statutory power (the Judicature Amendment Act 1972) or otherwise.

"A declaration at common law may be claimed as ancillary relief to, for example, a claim for damages or specific performance" (emphasis mine)

144. It is also clear that under English law, a declaration may be available in a civil action against the Crown. In Liability of the Crown (2000) 3rd ed by Hogg and Monahan, the learned authors state at p.27:

"Historically, a declaration could be obtained against the Crown by petition of right. In every jurisdiction in Canada, Australia, New Zealand and the United Kingdom, the petition of right procedure has been abolished and replaced by the ordinary action that is permitted by the Crown proceedings statutes. This means that a declaration may now be sought in an action against the Crown" (emphasis mine)

145. It is not necessary for me to go on to the circumstances where it may be appropriate or inappropriate to seek a declaration in a civil action as that is not an issue in these proceedings.

Conclusions

(a) In so far as these proceedings relate to the second defendant, leave is refused to the plaintiff to file his proposed amended statement of claim. 

(b) In so far as these proceedings relate to the first defendant, leave is also refused to the plaintiff to file his proposed amended statement of claim, but for reasons explained in para 136 of this judgment, the plaintiff is allowed to file in 7 days an amended statement of claim which is to be restricted only to its existing cause of action for alleged violation of Article 15(1) of the Constitution. This is assuming that the plaintiff no longer intends to continue with his claim for breach of contract against the first and second defendants because that claim was not repeated in the proposed amended statement of claim. 

(c) If, however, the plaintiff intends to continue with his claim for breach of contract against the first and second defendants, then the Court and the defendants must be advised in 7 days. I will then have to deal with the motions by the defendants to strike out that claim from the original statement of claim on the ground that it discloses no reasonable cause of action.

(d) Costs reserved.

CHIEF JUSTICE

Solicitors
Toa Law for plaintiff
Attorney General’s Office for first defendant
Leung Wai Law Firm for second defemdamt