IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 91/08

BETWEEN:

TALAI ALOI, of Moataa, driver.
Plaintiff

AND:

JOHN WENDT, of Vailoa, contractor.
Defendant

Counsels: Mr V. Kruse on behalf of Mr Enari for the plaintiff
 Mr T. Malifa for the defendant

Judgment: 3 November 2010

JUDGMENT OF NELSON J.

The proceedings:

[1] By statement of claim dated 15 April 2008 the plaintiff issued proceedings against the defendant claiming damages for breach of a hire contract to cart sand for a project in Aleipata belonging to one Uiva Te'o. The contract was performed over the 27 June 2006 to 31 August 2006 period using the plaintiffs truck. The defendant had hired the plaintiffs truck on previous occasions. The plaintiff says the agreed upon charge was $60 per load and he delivered 312 loads in accordance with the contract. He claims the sum of $18720 for these loads plus $5,000 in damages for breach of contract. He accepts in his affidavit of formal proof he was paid $400 by the defendant and $1,740 by Te'o and therefore is pursuing only the balance being the sum of $16580. 

[2] By statement of defence dated 12 December 2008 the defendant denies any contractual relationship with the plaintiff and says the hire contract was between the plaintiff and Te'o and/or Te'os company Uiva Transport Limited. His counsel has also indicated he disputes making partial payment to the plaintiff. By way of counterclaim he seeks $1,550 for mechanical and engineering repairs carried out to the plaintiffs truck and $2,500 fuel and diesel costs when the truck was filled at his depot during the plaintiffs contract with Te'o. Particulars of both amounts are to be detailed at the trial of this matter.

[3] In reply the plaintiff denies mechanical work was performed on his truck or that he owes any money for same. He accepts he is liable for the fuel costs but says he has not been given particulars concerning same. 

File history:

[4] After the interlocutory matters were attended to including the refusal of a third party motion by the defendant to make Te'o and his company a party to the proceedings, the matter was set down for hearing the week commencing 17 July 2009. At the call-over of cases on 25 June 2009 the proceedings were by consent of counsels adjourned to seek a new trial date. The reason for this is not recorded on the court file. But at a subsequent mention it was set down for hearing the week commencing 21 December 2009. This seemed to be unsatisfactory to counsels and at the mentions of 14 September 2009 they were ordered to liaise with the registrar as to an earlier hearing date. At the call-overs on 5 November 2009, a 12 November 2009 for hearing date was allocated. 

[5] The matter first came before me on that date and while the plaintiff appeared and was ready to proceed the defendant failed to appear and his counsel was unable to explain why. He did however indicate he had seen his client the previous week in preparation for trial. The matter was stood down while efforts were made to locate his client and on being recalled at 10.35am the defendant had still entered no appearance. Defence counsels application to adjourn was denied and the case was adjourned to 16 November 2009 for formal proof. 

[6] On 16 November 2009 defence counsel appeared and advised the court the defendant thought trial day was 13 November 2009 and not 12 November 2009. Why the defendant would believe that is not clear but counsel indicated possibly his office had given the defendant the wrong date. I gave the defendant the benefit of the doubt and despite plaintiffs objection I adjourned it to 25 November 2009 for hearing. At the call-over of 19 November 2009 the week before the scheduled hearing date the matter was noted as "ready to proceed". On that day the court file also indicates the plaintiff filed an affidavit originally intended for formal proof purposes but which he now sought to introduce as representing his evidence in this matter. 

[7] On 25 November 2009 the defendant appeared ready to proceed but this time the plaintiff was not. Plaintiffs counsel indicated this was because at the 19 November 2009 call-over the Chief Justice had moved the case back one day to 26 November 2009. The problem with this date was that defence counsel who did not seem to be aware of the re-scheduling to 26 November was not available and neither was the court for reasons I cannot recall and not recorded on the file. Accordingly I adjourned the matter and returned it to the mention list to set a new date of hearing. At the next mention list the proceedings were adjourned to the week commencing 31 May 2010 for hearing. 

[8] As counsels are well aware cases set down for hearing are called over in the weeks preceding trial in order to ascertain whether they are ready to proceed or not. If they are the fixture remains, if they are not the court addresses the reasons why and decides on the most appropriate action. Counsels are required to attend the call-over of each of their cases and they fail to do so or instruct other counsel to appear on their behalf at their peril. This too can have disastrous consequences for their cases. 

[9] The original court call-over list leading up to 31 May 2010 shows the following: the matter was not listed on the call-over list of 13 May but was handwritten in blue pen onto that list by the Deputy Registrar. Indicative of the fact that one or both counsels were present and had pointed out to the court the case was missing from the list. Defence counsel said he was present that day but the matter was not called. Plaintiffs counsel has amended his clients affidavit dated 13 September 2010 paragraphs 6 and 8 to show that the proceeding was not on the original call-over list of 13 May 2010. 

[10] The case was however on the call-over list of 20 May 2010 wherein it was set down for hearing before the Chief Justice on 3 June 2010. There is no indication on the court file whether counsels appeared but both counsels had other cases on that call-over list. Defence counsel says he thinks he appeared as it is entered in his diary but he is not sure. 

[11] Likewise the case was on the call-over list for the following week 27 May 2010. It was duly marked "ready to proceed". Defence counsel however says he was out of the country on that day. Plaintiffs counsel seems to have appeared at both these call-overs hence it being set down for hearing and being marked "ready to proceed" on the call-over list of 20 and 27 May 2010. 

[12] It is not clear whether on the 31 May 2010 the proceeding was called. It should not have been as the assigned hearing date had been changed at call-overs to 3 June 2010 but plaintiffs counsel says it was called and neither the defendant nor defence counsel appeared. Whatever the case, it was certainly called before the Honourable Chief Justice on 3 June 2010 and the plaintiff and his witness were in attendance. The defendant says he did not attend as he was not notified of the 3 June 2010 hearing date. And as there was no appearance by the defendant or defence counsel the Chief Justice proceeded to enter judgment based on the formal proof affidavit previously filed. It is this judgment that the defendant now seeks to set aside.

Applicable law: 
[13] The rules for setting aside judgments were recently addressed by the Court of Appeal in Lauano v Samoa National Provident Fund Board [2009] WSCA 3. That lays down that to succeed an applicant must establish:

1.	a substantial ground of defence;

2.	a reasonable justification for the delay; and

3.	that the plaintiff will not suffer irreparable harm if the judgment is set aside.

Discussion:
[14] As to the first ground the defendants defence is privity of contract. He says the facts will establish that the hire contract to cart the sand was between the plaintiff and Te'o or Te'os company and had nothing to do with him. Furthermore he denies through his counsel receiving part-payment of any contract monies. He has also counterclaimed as against the plaintiff for repair and fuel costs in respect of the plaintiffs truck. The plaintiff denies the former but admits liability for the latter. 

[15] All these factors suggest that there is some sort of contractual nexis between the plaintiff, defendant and/or Te'o but obviously the exact nature of their relationship cannot be determined without an examination of all the facts of the matter. This can only occur at a full hearing based on the testimony of all the relevant witnesses and any pertinent documentation. I accept that prima facie there seems to be a defence available to the defendant and that the first ground therefore falls in his favour.

[16] As for the second ground the defendant says he was advised of the 31 May 2010 hearing date: see paragraph 2 of his affidavit dated 30 August 2010. This in fact was erroneous advice because the proceeding was not adjourned to 31 May 2010 for hearing, it was adjourned to the week commencing 31 May 2010 for hearing. All Supreme Court fixtures are as per normal practice adjourned to a particular week for hearing unless set down by a specific direction of the court as a special fixture to be tried on a particular date. Thus for example on the 13 May 2010 call-over sheet the two fixtures at the bottom of the first page for 26 and 27 May were set as special fixtures before particular justices of the court. This practice is well known to counsels. This proceeding was not set down by the court as a special fixture.

[17] It is also the practice of the Court to have call-overs in the weeks preceding a case in order to assign firstly a hearing date and secondly a trial judge to the cases set down for hearing in the coming weeks. This obviously was not done for this case in the 13 May 2010 call-over list but when pointed out to the court by counsel it was added to the list by the Deputy Registrar. The expectation being that it would therefore appear on the next call-over list so that a trial date and a trial judge could be identified. This is the normal procedure that is followed with Supreme Court fixtures.

[18] The defendant deposes in paragraph 4 of his 30 August 2010 affidavit however that he was advised that the failure to list the case meant it "must have been taken off the list of cases then scheduled to be heard". Such advice was also erroneous and is contrary to the practice of the court. Cases are not taken off the list of cases scheduled for hearing without proper cause and the failure to list it on a particular call-over list does not mean it is therefore removed from the court list of trials scheduled for hearing.

[19] The defendants non-appearance on the allotted hearing date is in these circumstances understandable given what he was told but unfortunately not excusable. If counsel attended the next call-over on 20 May 2010 he would have been aware the matter was allotted a 3 June 2010 hearing date. Likewise he would have known of the 3 June 2010 hearing date if he attended the 27 May 2010 call-over or if counsel was unavailable then by instructing other counsel to appear. Again this is part of normal practice and procedure. I note that counsel had other cases on both the 20 and 27 May call-over lists.

[20] The material before the court provides in my assessment no reasonable or any justification for the non appearance by the defendant and his counsel on the scheduled hearing date. There was ample reason for the court to take the action it did and proceed with entry of judgment by way of formal proof given the absence of appearance by either the defendant or his counsel.

[21] As to the third ground there is obvious prejudice to the plaintiff if the judgment were to be set aside. Assuming the debt was validly contracted, he has been without his money for a number of years although there is no apparent reason for his delay in initially bringing these proceedings to court two years after the event. I accept his business if his affidavit is to be relied on will feel the effects of delay more so than others and that the amount at issue is a significant sum. This limb tends to favour the plaintiff.

Decision:
[22] As plaintiffs counsel has correctly pointed out, the court must be bound in its decision by the justice of the case. The Rules confer a wide and unfettered discretion in the judge hearing such an application. The delay or more correctly the inactivity here has been on the part of the defendant but it is clear that was a result of the advices he received or failed to receive from his counsel. It was not dilatoriness or misbehavior on his part that led to his non appearance on either the first or second occasion. 

[23] It is also further clear he seems to have a defence available to him against the plaintiffs claim. A defence that should be tested. To bind him to the formal proof judgment for such a large amount would in effect punish him for the actions of others. That in my view would not be just. 

[24] Accordingly the orders will be as follows: the judgment of 3 June 2010 is set aside and a re-hearing is granted on the following conditions: 

1.	these proceedings are to be returned to the mention list to be mentioned on the 15 November to set a date for hearing; 

2.	given the numerous delays that have occurred in these proceedings that adjournment and hearing date is to be a final adjournment so that the matter must proceed on the allotted trial date;

3.	the defendant is to pay the plaintiffs costs on this application of $750 by the next mention date.

JUSTICE NELSON