IN THE SUPREME COURT OF SAMOA
CCK Trading Ltd v Salu [2018] WSSC 96

Case name: 	CCK Trading Ltd v Salu 	
		
Citation: 	[2018] WSSC 96	
		
Decision date: 	14 September 2018	
		
Parties: 	CCK TRADING LTD (Plaintiff/ Judgment Creditor) v TALIILAGI SALU, farmer of Falelatai (First Defendant) & PENI SALU, farmer of Falelatai (Second Defendant/Judgment Debtor).	
		
Hearing date(s): 	23 August 2018 	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	The application for rehearing is denied.	
		
Representation: 	I. Sapolu for the Judgment Debtor 
K. Kruse for Judgment Creditor	
		
Catchwords: 	Application for rehearing – insurance claim – vehicle accident – claim for damages – delay in filing application – doctrine of subrogation – multiple Court proceedings already taken place – res judicata	
		
Words and phrases:		
		
Legislation cited:	Supreme Court (Civil) Procedure Rules 1980 r. 1; 141; 141(1). 	
		
Cases cited:	National Pacific Insurance Ltd v Taofinuu [1994] WSSC 13 (5 September 1994);
Russell v Cox [1983] NZLR 654 at 659 referred to in Lauano v Samoa National Provident Fund (2009) WSCA 3 (1 May 2009);
Sandall v Cardna (unreported) 18 May 1987 referred to in Lauano v Samoa National Provident Fund (2009) WSCA 3 (1 May 2009);
Hoystead v Commisioner of Taxation [1926] AC at 165 referred to in Goodall v Vui [2013] WSSC 136 (20 Dec 2013).	
		
Summary of decision:		

C.P. 39/16
THE SUPREME COURT OF Samoa

HELD AT MULINUU

BETWEEN:

CCK TRADING LIMITED, a duly incorporated company, having its registered office situated at Matafele
Plaintiff/ Judgment Creditor

AND:

TALIILAGI SALU, farmer of Falelatai
First Defendant

AND:

PENI SALU, farmer of Falelatai
Second Defendant/Judgment Debtor

Counsels:	I. Sapolu for the Judgment Debtor 
K. Kruse for Judgment Creditor
Hearing:	23 August 2018
Decision: 	14 September 2018

JUDGMENT OF justice tuatagaloa
(aPPLICATION FOR REHEARING)
The Claim
1.	The action by the Plaintiff brought under the principle of subrogation is founded on negligence claiming damages against the Second Defendant/Judgment Debtor. 
2.	The hearing was purely on quantum.
The Proceedings
3.	By Notice of Motion dated 13th October 2018 the Second Defendant/Judgment Debtor filed an application for rehearing pursuant to Rule 141 of the Supreme Court (Civil) Procedure Rules 1980 upon the following grounds (as I summarized it):
(i)	The Second Defendant’s primary language is Samoan and the proceedings and documentation was in English;
(ii)	The Second Defendant could not afford legal representation during the proceedings and was unable to fully comprehend the magnitude of the issues and their legal implications;
(iii)	The Second Defendant was only able to retain legal representation when he attended a free legal advice clinic hosted by Counsel for the Second Defendant but it was after the 14-day period had lapsed under Rule 141(1);
(iv)	Not all damages as a result of an accident are recoverable.
4.	The Second Defendant/Judgment Debtor sought orders:
(i)	For rehearing; and
(ii)	To stay proceedings. 
5.	The Plaintiff/Judgment Creditor opposes the application upon the following grounds:
(i)	The application was made more than fourteen days from the date of the judgment and more than 14 days from the date of the Judgment Summons;
(ii)	The Second Defendant/Judgment Debtor has no defence and/or any substantial ground of defence to the claim;
(iii)	The Second Defendant appeared and represented himself throughout the course of the proceedings which included two mediations, a Judicial Settlement Conference and then a fully defended hearing. These proceedings took place over a course of more than 12 months;
(iv)	The Second Defendant has no reasonable explanation for any delay in bringing his application;
(v)	The Plaintiff will suffer harm and prejudice if the judgment is either set aside or there is a rehearing of the proceedings; that it is not just in all the circumstances to grant the Second Defendant’s application; and
(vi)	The Second Defendant’s application is disingenuous, frivolous and vexatious.
Background
6.	The First Defendant is the owner of the vehicle that was driven by the Second Defendant and has since returned to Australia.
7.	On 30th September 2015, due to his negligent driving the Second Defendant collided into a vehicle owned by CCK Trading Ltd and insured by Progressive Insurance Co Ltd.  The Second Defendant was charged with negligent driving and pleaded guilty to the charge in the District Court therefore admitting liability.
8.	The CCK vehicle was ‘written off’ as a result of the accident. 
9.	To recover the cost of the vehicle written off against the First and Second Defendants, Progressive Insurance as insurer issued the usual recovery letters against the Defendants. The wife of the First Defendant attended to Progressive Insurance when she received the letter and discussed the matter with a Mr. Liki Crichton but was never to be seen or heard from again. 
10.	The Second Defendant also went to Progressive Insurance and spoke with 
Mr. Crichton who explained the letter to him (Second Defendant) yet he was also never heard from again.
11.	The Plaintiff under the principle of subrogation stepped filed proceedings in February 2016 when it became evident that no payment was forthcoming from either of the Defendants, specifically the Second Defendant.
12.	The matter went through two (2) mediations and a Judicial Settlement Conference (JSC) prior to the matter being set for hearing.
13.	On 5th July 2017 the matter went through a hearing and judgment was delivered on 3rd August 2017 in favour of the Plaintiff/Judgment Creditor.
14.	On 13th October 2017 the Second Defendant/Judgment Debtor engaged Counsel and filed the application for rehearing.
Relevant Law
15.	Rule 141 of the Supreme Court (Civil) Procedure Rules 1980 says:
“141. Rehearing – (1) The Court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable.”
Provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the Court is satisfied that the application could not reasonably be made sooner.
16.	The application for rehearing is made well outside the fourteen days as in Rule 141 of the Supreme Court (Civil) Procedure Rules 1980, however, it is settled law that the discretion to grant a rehearing though unfettered the applicant must establish:  
(i)	A substantial ground of defence;
(ii)	The delay is reasonably explained; and
(iii)	The Plaintiff will not suffer irreparable injury if the judgment is set aside.
17.	Both Counsels filed submissions addressing the three limbs (above) and I shall address each of the limbs.
Substantial ground of defence
18.	As noted in Lauano :
“The onus of establishing a substantial ground of defence is on the defendant. And the ground of defence must be substantial, not trivial or shallow. The defendant must show a defence of sufficient substance to justify delaying the plaintiff obtaining the fruits of the judgment.  Hardie Boys J in Sandall v Cardna put the question this way: “Does the defendant have a defence which ought to be heard?” Not every defence would satisfy such a test and each case must be assessed on its merits.”
19.	The defence advanced by Counsel for the Second Defendant is the lack of legal representation for the Second Defendant saying, the Second Defendant did not fully comprehend the issues involved or the proceedings as his primary language is Samoan. That, the Second Defendant struggled to understand the documents in English. 
20.	Prior to hearing the evidence, the Second Defendant was asked whether he understands the English language to which he responded ‘no’.  It was also explained to the Second Defendant that the issue before the Court is the quantum. The proceeding was then conducted in Samoan and where the English language was used it was translated by the Court Registrar in Samoan. The emotional strategy and ignorance of the Second Defendant was noted and not appreciated by the Court.  It seemed to the Court that the Second Defendant was using his ignorance of the law and his lack of understanding of the English language as an excuse to protract proceedings thus depriving the Plaintiff/Judgment Creditor from enjoying the fruits of the judgment. 
21.	Since the accident on or around 30 September 2015 up to the hearing of this matter on 5th July 2017 the Second Defendant made no attempt to seek legal advice or obtain legal representation but instead has put the plaintiff through the process of two (2) mediations, a JSC and a hearing.  Counsel for the Plaintiff in her submissions said the Second Defendant attended and fully participated in the discussions of the two mediations and the JSC. Counsel for the plaintiff submitted that at no time during the mediations and JSC did the Second Defendant indicate that he did not understand or that he wanted legal representation.  Likewise, in the hearing the, Second Defendant did not ask or seek for further adjournment in order for him to engage Counsel. 
22.	Prior to the proceedings being filed the Second Defendant attended to Progressive Insurance where Mr Liki Crichton explained the letter received by the Second Defendant from Progressive Insurance.  Mr Liki Crichton who gave evidence said that was the last he saw or heard from the Second Defendant.
23.	Counsel for the Second Defendant relied on National Pacific Insurance Ltd v Taofinuu submitting that not all damages which are a direct result of an accident are recoverable and as such the Second Defendant should have been given an opportunity to have legal representation to either confirm or dispute each cost claimed against him which amount could be reduced against the Second Defendant . 
24.	The costs referred to by the Chief Justice in the case of National Pacific Insurance Ltd v Taofinuu are costs that are remote to the accident as in the insurance premium and the registration fee for the new vehicle the Second Plaintiff in that case claimed.  The insurance was paid to the Second Plaintiff for his vehicle which was written off. The Second Plaintiff went and bought a new van and claimed the difference in the price of the new van and the insurance payout received by the Second Plaintiff.  The Court allowed the claim for the difference in the payout and the cost of the new van as well as other costs that were consequential damages arising from the loss of use of the Second Plaintiff’s van as a result of the accident but ruled against the insurance premium and registration fee for the new vehicle. 
25.	In the present matter, the Plaintiff/Judgment Creditor is not claiming any of the costs referred to in the Taofinuu case, the amount claimed (apart from special damages) and awarded by the Court was the replacement value of the written off vehicle and the towing costs. The replacement value (insurance payout) and towing costs were damages or costs that are a direct result of the Second Defendant’s negligence. 
26.	The Second Defendant has had ample opportunity to seek and obtain legal representation since the accident in September 2015 and throughout when the proceedings were filed to when it was heard but he did not make an effort to. 
27.	Furthermore, the defence advanced by Counsel of not having afforded Counsel and/or having legal representation is not a defence to the claim by the Plaintiff, that is, of damages as a result of the Second Defendant’s negligence. 
Delay
28.	The application for rehearing was filed a little over two (2) months since the written decision was made available on 08th August 2017. The application was filed outside the fourteen days as in Rule 141 of the Supreme Court (Civil) Procedure Rules 1980. Again, Counsel is advancing the justification for the delay is because the Second Defendant was not in a position to have obtained legal advice anytime sooner until they (Second Defendant and his wife) attended a free legal advice clinic conducted by Counsel.  
29.	With all due respect to Counsel for the Second Defendant, the Second Defendant said he could not afford legal representation, so how can he (Second Defendant) be given the opportunity to obtain legal representation if he could not afford one? Legal aid assistance is not available to civil claims which if it was the Court would have entertained that option as it usually does to serious offending where a defendant is unrepresented and the Court feels that legal representation should be appointed through legal aid.
30.	Since the accident in September 2015, the Second Defendant did not bother to seek legal advice or obtain legal representation throughout.  When the written decision was made available the Second Defendant did not do anything nor seek legal advice on the possibility of an appeal. A Judgment Summon was served upon the Second Defendant on 25th August 2017 and again the Second Defendant did not make any attempt to seek legal advice or obtain legal representation.    
31.	I cannot accept the justification by Second Defendant for the delay in filing its application within the fourteen-day period under Rule 141.
Plaintiff/Judgment Creditor will not suffer irreparable harm
32.	It is submitted for the Second Defendant that there will be no injustice to the Plaintiff by delaying these proceedings to have the matter reheard. The Plaintiff has been paid out by the insurance company. That justice requires that the proceedings be reheard so they can be determined appropriately.
33.	The CCK (assured) vehicle is insured with Progressive Insurance (insurer) which forms the contract of insurance between Progressive and the Plaintiff.  It is a contract of indemnity to which the doctrine of subrogation applies. The CCK under the principle of subrogation filed a claim against the Second Defendant on behalf of Progressive Insurance. 
“Under the doctrine of subrogation, once the insurer has admitted its liability under the insurance policy and has paid the amount of the loss payable under the insurance policy to the assured, the insurer is placed in the position of the assured against third parties (Second Defendant) in respect of the subject matter of the insurance policy. In other words, the insurer is subrogated to the rights and remedies of the assured in respect of the subject matter of the insurance policy.”
34.	The loss is not with the Plaintiff; the loss is with the Progressive Insurance. In this case, Progressive Insurance has paid the amount of the loss (written off vehicle) to the Plaintiff which amount needs to be recovered from the third party who is the Second Defendant as a result of his negligence. 
35.	Progressive Insurance paid out the insurance to the Plaintiff a month after the accident (October 2015) and to date has not recovered this loss from the Second Defendant (third party) even after judgment. The insurer will no doubt continue to suffer if there is any further delay after having gone through the mediations, JSC and a hearing. There is also the issue of extra costs incurred by the Plaintiff (not to mention the Second Defendant) if the proceedings are to continue on to a rehearing.  The harm may not be irreparable in the sense that it is money which can be paid. The real question is, is the Second Defendant in a position to pay? It will be prejudicial to the insurer and irreparable if after having dragging the proceedings and to a rehearing and the Second Defendant cannot repay any amount awarded by the Court, discount or otherwise. If the Second Defendant could not afford legal representation or obtain legal advice throughout then how can he pay for any amount to be awarded?
Conclusion
36.	The overriding test in applications of this nature is whether notwithstanding the above three limbs it is still just in the circumstances to set aside the judgment of the Court and grant a rehearing.  
37.	There is a need for finality in the proceedings subject to the judgment being appealed. The Second Defendant did not appeal the decision which should now be considered final. The doctrine of res judicata also comes to mind because the application for rehearing (in effect) seeks to relitigate the same issues already dealt with. 
“The object of the rule of res judicata is always put upon two grounds. The first one is public policy that it is in the interest of the state that there should be an end to litigation. And the other is the hardship on the individual that he should be vexed twice for the same cause”.
38.	The circumstances of this matter and the process it went through with the Second Defendant not having sought legal advice or obtained legal representation throughout yet he is now claiming lack of understanding shows no good faith on his part to take responsibility for his negligence.  
39.	The application for rehearing is denied.
JUSTICE TUATAGALOA