SUPREME COURT OF SAMOA
Sititi v Samoa Land Assurance Corporation [2016] WSSC 14

Case name: 	Sititi v Samoa Land Assurance Corporation	
		
Citation: 	[2016] WSSC 14	
		
Decision date: 	29 February 2016	
		
Parties: 	IASONI SITITI of Vaiusu-uta, Married Man v SAMOA LIFE ASSURANCE CORPORATION a body corporate established pursuant to the Life Assurance Corporation Act 1976, section 3.

Hearing date(s): 	27 January 2016, 26 February 2016	
		
File number(s): 	CP125/15

Jurisdiction: 	CIVIL 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	The fresh action refiled by the plaintiff is struck out.
-	Counsel to file memorandum as to costs in 10 days. 

Representation: 	R Drake for plaintiff
S Ainuu for defendant

Catchwords: 	‘trap for the unwary’	
		
Words and phrases:	wrongful termination – non-compliance with the notice requirements of s.21(1) (a)	
		
Legislation cited:	Limitation Act 1975	
		
Cases cited:

Texts Books	Gay v Bruns [2003] NZAR 547
Khan v Golechha International Ltd [1980] 1 WLR 1482; [1980] 2 A11 ER 259, 
SCF Finance Co Ltd v Masri (No.3) [1987] 1QB 1028, 1047; [1987] 1 A11 ER 194, 208
Kirkpatrick v McIntosh and the Province of New Brunswick (1989) 103 N.B.R. (2d) 248 (Q.B.)
Liability of the Crown (2000) 3rd ed. by PW Hogg and PJ Monahan	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP125/15

BETWEEN

IASONI SITITI of Vaiusu-uta, Married Man.
Plaintiff

A N D

SAMOA LIFE ASSURANCE CORPORATION a body corporate established pursuant to the Life Assurance Corporation Act 1976, section 3.
Defendant

Counsel:	
R Drake for plaintiff
S Ainuu for defendant

Hearing:	27 January 2016, 26 February 2016

Judgment:	29 February 2016

JUDGMENT OF SAPOLU CJ
1. 	The Court is concerned here with a motion by the defendant, Samoa Life Assurance Corporation, to strike out a fresh action brought by the plaintiff, Iasoni Sititi, after its original action for wrongful termination of his contract of employment had been struck out for non-compliance with the notice requirements of s.21 of the Limitation Act 1975.  For the purposes of Samoan Law, the issue that has arisen here is novel.  
Background 
2. 	The essential facts of this matter may be briefly stated.  At the material time, the plaintiff was employed by the defendant as its assistant manager sales and marketing for a term of three years starting from 4 July 2014 and ending on 4 July 2017 pursuant to a written contract of employment.  The plaintiff’s employment was terminated effective from 28 January 2015 for reasons which are not clear at this stage.  Following his termination, the plaintiff filed an action for wrongful termination of his employment on 27 February 2015.  The defendant then filed a statement of defence on 10 April 2015 relying on s.21 of the Limitation Act 1975 as a defence.  Subsequently, leave was granted to the defendant to file a motion to strike out the plaintiff’s action for non-compliance with the notice requirements of s.21.  Such motion was filed on 4 May 2015 and the opportunity was given to the plaintiff to file a response.  On 30 June 2015, the Court heard and granted the defendant’s strike out motion and the plaintiff’s action was struck out for non-compliance with the notice requirements of s.21.
3. 	On 1 September 2015, the plaintiff served the required notice and refiled his action.  On 9 November 2015, the defendant filed a motion to strike out the plaintiff’s fresh action and on 19 November 2015 the plaintiff filed a response opposing the strike out motion.  The matter was then set down for hearing on 27 January 2015.  At the hearing, counsel for the plaintiff was required to provide further authorities, including seeking the opinion of overseas counsel if necessary, in support of her opposition to the defendant’s strike out motion.  This is because it was the plaintiff’s fresh action that has given rise to the present issue and counsel for the plaintiff is expected to provide the necessary authorities to show that the fresh action by the plaintiff is maintainable in law.  Overseas authorities and the legal opinion of a New Zealand barrister were provided on Friday 26 February.
Section 21 of the Limitation Act 1975
4. 	Protection of persons acting in execution of statutory or other public duty: - (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 will 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:
	PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purposes of this section, until the ct, neglect, or default has ceased:
	PROVIDED ALSO THAT the notice required by paragraph (a) of this subsection may be given, and an action may thereafter be brought, while the act, neglect, or default continues:
	PROVIDED FURTHER THAT any such person may consent to the bringing of such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the prospective defendant as aforesaid. 
	(2)	Notwithstanding the foregoing provisions of this section, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the intended defendant under subsection (1); and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any)as it thinks it is just to impose where it considers that the failure to give the notice or the delay in bringing the action, as the case may be, was occasioned by mistake or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the failure or delay.
	(2A)	No leave may be granted by a Court where an action has been commenced and no notice of the action was served under subsection (1)(a) before the commencement of the action.
	(3)	Where notice has to be given to the Government under this section it shall be given to the Attorney-General, and may be so given by leaving it at the Attorney General’s office in Apia or by sending it by post in a registered letter addressed to the Attorney General at the said office.
5. 	There was no dispute that s.21 (1) (a) applies to the defendant in this case.  
The issues
6. 	Counsel for the defendant relies on two legal grounds in support of his strike out motion.  The first ground is res judicata as put forward in the strike out motion.  The second ground is abuse of process raised in his submissions.  These are two separate grounds although they may overlap.  I will therefore deal with each of them separately.
(a)	Res judicata
7. 	It was submitted by counsel for the defendant that because the Court had struck out the plaintiff’s previous action on 30 June 2015 for non-compliance with the service requirements of s.21 (1) (a) of the Limitation Act 1975, the plaintiff is now estopped from serving the required notice and refiling his action on 1 September 2015.
8. 	The defendant’s first strike out motion was filed on 10 April 2015.  It was directed at the plaintiff’s failure to file a notice in writing as required by s.21 (1) (a) giving reasonable information of the circumstances upon which his proposed action will be based and the name and address of the prospective plaintiff and of his solicitor or agent (if any).  This strike out motion was dealt with in a preliminary hearing.  What was in issue was the plaintiff’s non-compliance with the notice requirements of s.21 (1) (a).  The Court did not go into the merits of the plaintiff’s action.  But one of the requirements of the principle or doctrine of res judicata is that the decision already made must have been final and on the merits.  The decision by the Court on 30 June 2015  was not a decision  on the merits of the plaintiff’s action but a decision to strike out the plaintiff’s action for non-compliance with the notice requirements of s.21(1) (a).  Res judicata therefore does not apply.
9. 	Res judicata would, however, apply where a party has consented to the dismissal of his proceedings and the Court has not had the opportunity to make a decision on the merits of those proceedings.  But this does not apply to these proceedings.
10. 	In Gay v Bruns [2003] NZAR 547, the New Zealand Court of Appeal, in a judgment delivered by Doogue J, said at p.551, para [20]:
	“We think it is clear that in the circumstances such as the present, estoppel by res judicata can only arise where the party who is said to be estopped has consented to the dismissal of that party’s proceedings or it has been dismissed by an adjudication upon the merits;  Khan v Golechha International Ltd [1980] 1 WLR 1482; [1980] 2 A11 ER 259, affirmed in SCF Finance Co Ltd v Masri (No.3) [1987] 1QB 1028, 1047; [1987] 1 A11 ER 194, 208”
(b)	Abuse of process
11. 	Counsel for the defendant also submitted that because the Court has already struck out the previous action by the plaintiff for non-compliance with the notice requirements of s.21 (1) (a), the subsequent service of the required notice and the refiling of the same action by the plaintiff amount to an abuse of process. No case law that is directly on point was cited in support of this submission. In fact the English and New Zealand cases cited by both counsel were concerned with statutory provisions of a different kind from s.21 of our Limitation Act 1975. 
12. 	In the Canadian case of Kirkpatrick v McIntosh and the Province of New Brunswick (1989) 103 N.B.R. (2d) 248 (Q.B.) cited by counsel for the plaintiff, the Court was concerned with a motion by the defendant to bar the plaintiff’s action for failure to comply with the notice requirements of the Proceedings Against the Crown Act RSNB 1973.  Section 15 of that Act provides:
	“No action shall be brought against the Crown unless two months previous notice in writing thereof has been served on the Attorney General, or on the Corporation in the case of an action to be brought against a Crown Corporation, in which notice the name and residence of the proposed plaintiff, cause of action, and the Court in which it is to be brought shall be explicitly stated”.
13. 	As a result of the plaintiff’s failure to comply with the notice requirements of s.15, her action against the Province of New Brunswick was barred and struck out.  It is to be noted that s.15 is in similar terms to s.21 (1) (a) of our Act.  
14. 	In the Canadian  text of Liability of the Crown (2000) 3rd ed. by PW Hogg and PJ Monahan, the learned authors state in 4.6 (a), pp 77-78:
	“Notice requirements are provisions in some Crown proceedings statutes (or other legislation) that require a person wishing to sue the Crown to give notice of the claim to the Crown before commencing legal proceedings.  One type of provision requires a potential plaintiff to give notice of a claim within a short period (seven days, for example) of the accident or other event giving rise to the cause of action.  This type of notice requirement is often also imposed on claims against municipal authorities for failure to repair or maintain roads and sidewalks.  The purpose of the requirement is to give the potential defendant the opportunity to investigate the claim while the circumstances are still fresh.  The Canadian federal jurisdiction, Manitoba and Western Australia each protects the Crown with a notice requirement of this type.
	“A second type of notice provision requires a potential plaintiff to give notice of a claim within a stipulated period before initiating legal proceedings (for example, 60 days) before commencement of the action.  The purpose of this pre-claim notice is obscure, but it is probably to encourage the settlement of claims before the expense of litigation has been incurred and to provide the government with earlier information about potential financial liabilities.  Ontario, New Brunswick, Nova Scotia and Prince Edward Island each protects the Crown with a notice provision of this type. 
	...
	“Since a notice requirement is a form of privative clause, barring entry to the Courts, one would expect the Courts to have been ingenious in trying to avoid the requirements.  That has not been the trend of the cases at all.  What the Courts have said is that tort actions against the Crown are creatures of statute, and conditions such as notice requirements imposed on the bringing of such actions must be strictly complied with, otherwise the Crown is entitled to its common law immunity.  When timely notice has not been given, the plaintiff’s action is barred”.
15. 	Even though the last paragraph cited above makes reference to tort actions, it also applies to actions in contract unless the notice requirement is restricted to tort actions against the Crown. The notice requirement under s.21 (1) (a) is not restricted to actions in tort.
16. 	In view of the Canadian authorities I have cited, I have come to the conclusion that non-compliance by the plaintiff in this case with the notice requirements of s.21 (1) (a) of our Limitation Act 1975 barred his first action which  was struck out.  It follows that the refiling by the plaintiff of the same action which has been struck out in the form of a fresh action is an abuse of process and should also be struck out.
17. 	Before leaving this judgment, I want to mention that in Liability of the Crown (supra) at 4.6 (a), p. 78, the learned authors do point out that that there are no longer any notice requirements in five of the ten Canadian provinces, in five of the six Australian states, or in the United Kingdom or in New Zealand. This explains why both counsel were unable to find any English or New Zealand cases directly on the point that is in issue in these proceedings.  Furthermore, the learned authors of Liability of the Crown (supra) at 4.6 (b) at p.80 state:
	“The Ontario Law Reform Commission has aptly described Crown notice requirements as a ‘trap for the unwary’.  This is particularly true for persons who are not legally represented, or who consult a lawyer too late; but lawyers often miss the requirements too.  At the very least, there should be a discretion in the Courts to relieve from the requirements when they produce injustice.  This is what the Commission recommended for Ontario (without effect), and what several jurisdictions permit.  The best solution, however, is to repeal the requirements.  They do not exist in most jurisdictions in any case.  The justification for the requirements are weak, since limitation periods are the normal vehicles for protection against stale claims, and they are applicable to claims against the Crown.   
Conclusion 
18. 	The fresh action refiled by the plaintiff is struck out.
19. 	Counsel to file memorandum as to costs in 10 days. 
CHIEF JUSTICE