IN THE SUPREME COURT OF SAMOA
Fuimaono v Public Trustee [2015] WSSC 164

Case name: 	Fuimaono v Public Trustee	
		
Citation: 	[2015] WSSC 164	
		
Decision date: 	09 September 2015	
		
Parties: 	VAVAE FUIMAONO widow and ELISAPETA FUIMAONO caregiver both of New South Wales, Australia and lately of Ululoloa, Executrices and Trustees of the estate of GAFATASI MIKA FUIMAONO, deceased (Plaintiffs) AND 
THE PUBLIC TRUSTEE, a corporation sole established pursuant to the Public Trust Office Act 1975, as Administrator of the Estate of TEARIKI also known as TEALIKI APAI, deceased (First Defendant) AND THE PUBLIC TRUSTEE, a statutory body established pursuant to the Public Trust Office Act 1975, as the Administrator of the Estate of PATU AFAESE HUNTER (Second Defendant) AND THE HEIRS OF LILI AND TIRESA, being the sisters of Teariki (Third Defendant)	
		
Hearing date(s): 	28 August 2015	
		
File number(s): 	CP 172/09	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	1.	Subject to Mr Patu receiving a formal subpoena for trial, he is accordingly disqualified from further appearing as co-counsel for the third party.
2.	Applying the jurisdiction with circumspection as I am bound to do, the application to disqualify Mrs Betham from acting as counsel is refused.
3.	Costs on the application reserved to be dealt with as costs in the cause. 	
		
Representation: 	Mrs R Drake for plaintiffs
Mrs Hunter-Betham and Mr G Patu for third defendant	
		
Catchwords: 	Prima facie – misnomer - recuse	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Brezeal v Lam [2008] WSSC 31
Intracor Commodity Exports Limited v Schwartz Constructions Limited and others [2014] WSSC 51
Black v Taylor [1993] 3 NZLR 403
AQM v Westfield Holdings Limited [2006] WSSC 65

Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP 172/09

BETWEEN:
		
VAVAE FUIMAONO widow and ELISAPETA FUIMAONO, caregiver both of New South Wales, Australia and lately of Ululoloa, Executrices and Trustees of the estate of GAFATASI MIKA FUIMAONO, deceased.
Plaintiffs

AND:

	THE PUBLIC TRUSTEE, a corporation sole established pursuant to the Public Trust Office Act 1975, as Administrator of the Estate of TEARIKI (also known as TEALIKI) APAI, deceased.
First Defendant

AND:

	THE PUBLIC TRUSTEE, a statutory body established pursuant to the Public Trust Office Act 1975, as the Administrator of the Estate of  PATU AFAESE HUNTER.
Second Defendant

AND:

	THE HEIRS OF LILI AND TIRESA, being the sisters of Teariki.
Third Defendant

Counsel:	Mrs R Drake for plaintiffs
Mrs Hunter-Betham and Mr G Patu for third defendant

Hearing:	28 August 2015

Decision:	09 September 2015

RULING OF NELSON J
(Application to disqualify counsel)
1.	By Statement of Claim dated 25 September 2009, Gafatasi Mika Fuimaono of Sydney, Australia retired, sought from the Samoa Supreme Court inter alia a declaration that he is a descendant and therefore a beneficiary of the Estate of one Teariki (also known as ‘Tealiki’) Apai of Rarotonga, Cook Islands and Apia, Samoa.  Teariki died intestate in Rarotonga in or about 29 August 1942.  On 08 September 1958 the first defendant was appointed administrator of his estate.  The Estate comprised various pieces of land including land subsequently conveyed by the first defendant to Patu Afaese Hunter of Apia.  The second defendant is the administrator of the Patu Afaese Hunter Estate.  The plaintiff also sought a declaration of beneficial entitlement to a share in that estate.  
2.	After a number of callings, the proceedings were adjourned sine die.  They were only revived in 2013 and on 10 June 2013 the third party was joined by consent.  The third party maintains they are the sisters and therefore the only legitimate heirs of Teariki.  Some of the Teariki Estate lands were conveyed by the first defendant to the third party on that basis.  The proceedings essentially seek to invalidate or at least call into question and account those transfers and dispositions.
3.	Gafatasi Mika Fuimaono passed away after proceedings were commenced.  Accordingly the present plaintiffs were on 08 July 2013 substituted as plaintiffs.  I am advised from the Bar they are residents of this jurisdiction notwithstanding the entitulement that they are residents of New South Wales, Australia.  
4.	Statements of Defence have been filed and on 09 April 2015 the matter was set down for hearing before Aitken, J in the week commencing 02 November 2015.  The plaintiffs have now moved to disqualify counsels acting for the third party on the grounds that:
(i)	counsels are the children of the late Patu Afaese Hunter whose Estate is a party to the proceedings;
(ii)	counsels are representing their family in the proceedings;
(iii)	this creates a perceived if not an actual conflict of interest;
(iv)	the fair and efficient administration of justice requires that parties have impartial and independent representation;
(v)	counsel Gafatasi Patu is a potential witness in the proceedings.
5.	Counsel for the third party opposes the application arguing there is no conflict or appearance of conflict.  And it is in the interests of justice they be allowed to continue to act. They have been representing the third party since joinder without objection and they accuse the plaintiff of underhand tactics in bringing an 11th hour application of this nature on the eve of the trial.  
6.	As indicated to counsel at the hearing of this application, such a serious allegation should not be made lightly or without clear substantiating proof.  It is in fact not a last minute application as the trial is still some two months away.  If the application were granted there is ample time to brief replacement counsel.  
7.	The parties must also not lose sight of the fact that the substantive claim is founded on genealogy.  The first hurdle the plaintiffs must overcome is proof to the required standard that Gafatasi Mika Fuimaono is a great grandson of Teariki and therefore entitled to a beneficial share in his Estate.  The complex issues of law as to succession, devolvement, limitation of action, determination of beneficiaries and their priorities to take, etc. only arise once that pivotal issue is determined.  Prima facie there is nothing unduly complicated in preparing for that exercise.
8.	It is a misnomer to term this an 11th hour application.  In fact plaintiffs counsel wrote to Mr Patu on 03 June 2015 voicing the plaintiffs objection to both counsels continuing to act for the third party.  First paragraph of that letter reads: 
“We advise that our client objects to you and your sister continuing to represent your family in the within proceedings on the basis that you have a conflict of interest.”
Second paragraph reads: 
“We initially assumed that for financial reasons you were attending to the mentions but that your family will have independent Counsel when it comes to the hearing.  Since the Mediation was unsuccessful and we are now heading to a hearing we write to request that you should now withdraw as legal advisors and Counsel for the Third Party and for your family to engage independent counsel.”
9.	That is not an unreasonable assumption on the part of the plaintiffs.  And explains in part why plaintiffs counsel did not take voice their objection earlier.
Before I turn to the merits of the application, I touch briefly on the applicable law. 
Applicable law
10.	It is not disputed the court has an inherent jurisdiction to control proceedings before it or that it can disqualify counsel from representing a party: Brezeal v Lam [2008] WSSC 31; Intracor Commodity Exports Limited v Schwartz Constructions Limited and others [2014] WSSC 51. The authorities show the grounds of disqualification are commonly three-fold: because of a conflict of interest, for the purpose of protecting confidential solicitor-client information or for misconduct.  There may well be other instances where the interests of justice or the need to protect the integrity of the judicial process necessitates disqualification.
11.	But the jurisdiction is to be exercised sparingly: Brezeal v Lam [2008] WSSC 31; Black v Taylor [1993] 3 NZLR 403; AQM v Westfield Holdings Limited [2006] WSSC 65.
Merits
12.	The application insofar as it concerns Mr Patu can be easily disposed of.  The letter of 03 June 2015 from plaintiffs counsel indicates there is a further ground of objection in regards to Mr Patus continued involvement as counsel.  Fourth paragraph of the letter reads: 
“A further ground of our clients objection is the fact that you were personally involved in the alteration by the Registrar of Births, Deaths and Marriages of official records pertaining to our clients predecessors which is touched upon in the pleadings.”
In the 5th paragraph, counsel is given notice that he will be required to testify as a witness at trial.  Considering that the core nature of the inquiry involves the veracity and reliability of documentary evidence such as birth certificates, marriage and baptismal certificates and the like, his being required to testify as to his involvement in the alleged alteration of an official document would appear to be a matter most pertinent to the enquiry.  
13.	It is no answer to say that there are other witnesses available that can testify to the issue.  The court is not required at this interlocutory stage to embark on an inquiry as to which witnesses evidence is to be preferred or to be considered more relevant than others.  It is enough that counsel has been notified he is required as a witness.  There being no suggestion the requirement for his evidence is tactical and completely baseless because he was for example absent from Samoa at the relevant time.  
14.	It has been the practice in this jurisdiction following New Zealand that where counsel is required as a witness he/she is debarred from further appearing.  The reasons for such a rule need no elaboration.  Protection of the independence and impartiality of witnesses and witness evidence and the judicial process.
15.	Where such an occurrence only becomes apparent after counsel has commenced representation it has been the practice that counsel immediately withdraws from acting.  And thenceforth assumes the role of witness.  Good grounds of course must exist to justify the withdrawal.  It appears from the information available that such grounds do exist making it imperative for Mr Patu to recuse himself.
16.	To safeguard against any potential for impropriety, such withdrawal will be made conditional on the plaintiffs formally subpoenaing Mr Patu as a witness for the trial.
17.	I do not agree with counsels argument that the dispensation from the Samoa Law Society overrides these matters. There is nothing in the Law Society correspondence to indicate this was a ground upon which approval was sought and their decision seems premised on other grounds.  I tend to agree with Mrs Drake that the letter was in response to counsels request for dispensation because counsel are employed as full-time Legal Managers for quasi-government statutory corporations.  Even if it were not, it is the court that controls its processes and the court that determines whether in particular circumstances counsel should be permitted to continue with representation.  As observed by Vaai, J in Intracor Commodity Exports Limited v Schwarz Construction Limited:
“It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise.  This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached.”
18.	Subject to Mr Patu receiving a formal subpoena for trial, he is accordingly disqualified from further appearing as co-counsel for the third party.
The broader question
19.	I have given due consideration to the arguments advanced by both the plaintiffs and the third party.  The Constitution Article 9(1) guarantees to every person “in the determination of his civil rights and obligations………….a fair and public hearing.” This encapsulates a citizens right to be represented by counsel of his choice.  In modern parlance, his right of access to justice.  
20.	So intrinsic is this right that the courts have  time and again stated:
“The jurisdiction to disqualify a barrister or solicitor from acting or continuing to act for a litigant is to be exercised with circumspection” (Black v Taylor [1993] 3 NZLR 403, 406 per Cooke P adopted by Sapolu, CJ in Brezeal v Lam [2008] WSSC 31).
21.	And in AQM v Westfield Holding Limited [2006] WSSC65:
“Removal of a lawyer from continuing to act as a solicitor to a party in proceedings is an extraordinary and drastic remedy which should be contemplated in only the most extraordinary of circumstances to protect the future integrity of the proceedings.” (emphasis mine).
22.	It is true Mrs Betham is representing her family in proceedings involving a claim on family lands.  And that she will have to examine at trial deponent aunties, uncles and other relatives.  Such a course may be ill-advised and not necessarily in the best interests of her family or counsel herself.  However in a small jurisdiction like ours the cost of legal representation always factors into the choice of advocate.  For Lawyers charges in this country can be as horrendous as anywhere else.  
23.	Given what is at stake is a potential loss of substantial portions of family lands one would have thought independent non-family representation would be the wiser option.  But that is not the course the third party family have chosen.  Obviously in an effort to minimize costs.  Which is understandable and fine but counsel should mark my words: in my experience it is always all fine - until you lose.  
24.	Be that as it may, in this case I am not persuaded there exist grounds upon which the court can invalidate the third partys choice.  This is not a case where “the most extraordinary of circumstances exists” such as would justify the extreme step of disqualifying counsel from acting for her family.  Applying the jurisdiction with circumspection as I am bound to do, the application to disqualify Mrs Betham from acting as counsel is refused.
25.	Costs on the application reserved to be dealt with as costs in the cause. 

JUSTICE NELSON