IN THE SUPREME COURT OF SAMOA
Afoa v Parker [2015] WSSC 163

Case name: 	Afoa v Parker	
		
Citation: 	[2015] WSSC 163	
		
Decision date: 	09 September 2015	
		
Parties: 	Seti Afoa, of Saleufi, Director (Judgment Creditor)
David Joseph Parker, of Vaitoloa, Mechanic (Judgment Debtor)	
		
Hearing date(s): 	-	
		
File number(s): 	CP 14/14	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	Certain things are clear: firstly there can be no reconsideration of a decision entered into with the consent of counsel. Even were I to entertain a rehearing, that would not alter the fact that the Second Defendant was at all material times acting as an employee of the First Defendant.  As a matter of law he is therefore not personally liable for acts committed in the course of his employment.  That part of the application is refused.
Secondly it is not necessary counsel be heard on the issue of costs.  That part of the application is also refused.
Thirdly a Judgment Summons application cannot be adjourned sine die: see rule 14(3) of the Judgment Summons Rules 1965. The application to adjourn the Judgment Summons is accordingly refused.  
The Judgment Summons is to be returned to the District Court for mention next week on 15 September 2015.  The Judgment Creditor has sought costs on this application.  Costs of $750 awarded to the Judgment Creditor.	
		
Representation: 	K Drake for Judgment Creditor
T K Enari for Judgment Debtor	
		
Catchwords: 	Sine-die – judgment summons- judgment creditor – reasonable.	
		
Words and phrases:		
		
Legislation cited:	Judgment Summons Rules 1965	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP: 14/14

BETWEEN:
		
SETI AFOA, of Saleufi, Director
Judgment Creditor

AND:

	DAVID JOSEPH PARKER, of Vaitoloa, Mechanic.
Judgment Debtor

Counsel:	K Drake for Judgment Creditor
T K Enari for Judgment Debtor

Decision:	09 September 2015

RULING OF NELSON J
Background
1.	By Statement of Claim dated 11 February 2014, plaintiff David Joseph Parker brought proceedings against Motor 1 (Samoa) Limited (First Defendant) and Seti Afoa, General Manager (Second Defendant) for unpaid services rendered to the first defendant.  As the second defendant was at all material times employed by the first defendant, he filed a Motion to Strike Out the claim against him on the basis of no cause of action in law.  The Motion came before me for hearing on 17 July 2014.  
2.	In the course of the hearing, plaintiffs counsel conceded there was no cause of action as against the Second Defendant who clearly should not have been sued in his personal capacity in the first place.  Accordingly the action as against the Second Defendant was strike out by consent and Second Defendants counsel was ordered to submit a Memorandum as to costs.  The action against the First Defendant was adjourned to 04 August 2014 for formal proof.  On 04 August 2014 CJ Sapolu took the proceedings off the list presumably because no affidavit for formal proof was filed.  I am given to understand the reason for this is the First Defendant has been or is being wound up.  
3.	Counsel for the Second Defendant filed her application for costs and “reasonable costs” of $3,521 plus VAGST was approved by me on 30 July 2014.  It was not necessary to consult plaintiffs counsel as an award of costs lies at the sole discretion of the court. Only $3,521 of the costs sought of $5,601.65 were certified as “reasonable”.
4.	Subsequently Second Defendants counsel filed a Judgment Summons application to recover the unpaid costs. The plaintiff/Judgment Debtor has now filed an application to adjourn the Judgment Summons “sine die” to enable the Judgment Debtor to apply for a re-hearing of my decision striking out the claim against the Second Defendant and awarding costs. 
5.	Certain things are clear: firstly there can be no reconsideration of a decision entered into with the consent of counsel. Even were I to entertain a rehearing, that would not alter the fact that the Second Defendant was at all material times acting as an employee of the First Defendant.  As a matter of law he is therefore not personally liable for acts committed in the course of his employment.  That part of the application is refused.
6.	Secondly it is not necessary counsel be heard on the issue of costs.  That part of the application is also refused.
7.	Thirdly a Judgment Summons application cannot be adjourned sine die: see rule 14(3) of the Judgment Summons Rules 1965. The application to adjourn the Judgment Summons is accordingly refused.  
8.	The Judgment Summons is to be returned to the District Court for mention next week on 15 September 2015.  The Judgment Creditor has sought costs on this application.  Costs of $750 awarded to the Judgment Creditor.

JUSTICE NELSON