IN THE SUPREME COURT OF SAMOA
Tupito & Anor v Attorney General [2019] WSSC 7 (12 April 2019)

Case name: 	Tupito & Anor v Attorney General	
		
Citation: 	[2019] WSSC 7	
		
Decision date: 	12 April 2019	
		
Parties: 	SILAFAGA TUPITO & FATUMANAVAUPOLU ATIINAE (Plaintiffs) v ATTORNEY GENERAL (Defendant)	
		
Hearing date(s): 	18 March 2019	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata K. Tuatagaloa	
		
On appeal from:		
		
Order:		
		
Representation: 	M. Lui for the Plaintiffs
D.J. Fong for the Defendant	
		
Catchwords: 	Limitation period   	
		
Words and phrases:	“protection of persons acting in execution of statutory or other public duty” – “application to file proceedings out of time” 	
		
Legislation cited:	Limitation Act 1975, ss. 21(1); 21(1)(a); 21(1)(b); 21(2); 21(2A); 
Ombudsman Act 2013, ss. 31 & 32.	
		
Cases cited:	Auckland Harbour Board v Kaihe [1962] NZLR 68;
BNZ v Savril Contractors Ltd [2005] 2NZLR 475 (CA);
Caldow v Wall & Anor [1964] NZLR 65;
Milford Builders Ltd v Western Samoa Shipping Corporation [1980-1993] WSLR 235;
Sititi v Samoa Life Assurance [2016] WSCA12;
Strickland Brothers v AG [2014] WSSC 15
Tett v Attorney General [1957] NZLR 1063;
Webster v Lampard (1993) 177 CLR 598.	
		
Summary of decision:		

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

SILAFAGA TUPITO & FATUMANAVAUPOLU ATIINAE

Plaintiffs

AND:

ATTORNEY GENERAL

Defendant

Counsels:	M. Lui for Plaintiffs
		D.J. Fong for Defendant

Hearing:	18 March 2019
Decision: 	12 April 2019

(RESERVED) JUDGMENT OF TUATAGALOA J
The parties:
1. 	The First Plaintiff is a forty six year old female of Tiavi, married to the Second Plaintiff. The First Plaintiff is said to be a planter or farmer by trade.
2. 	The Defendant is the Attorney General sued for and on behalf of the Ministry of Police which is continued under section 3 of the Police Service Act 2009.
The background:
3. 	On 2nd September 2015 police executed a search warrant of the Plaintiffs property at Tiavi and uncovered narcotic plants and ammunitions. The Second Plaintiff and his brother were then arrested by the Police.
4. 	A second search was carried out on 11th September 2015 by Police on the Plaintiffs property. No narcotics or illegal firearms were found and during this time it was only the First Plaintiff and her children at home.
Chronology of events:
5. 	The following provides the chronology of what took place after the 11th September 2015:
•	28th September 2015: First Plaintiff lodged a complaint with the Office of the Ombudsman.
•	13th October 2015: Ombudsman informed Police of complaint.
•	February 2017: Ombudsman finalized its report
•	May 2017: First Plaintiff instructed Counsel; Ombudsman report released.
•	14th June 2017: Notice under section 21 of Limitation Act 1975. 
The proceedings:
6. 	The Plaintiffs filed an application pursuant to section 21(2) of the Limitation Act 1975 for leave to file proceedings against the Defendant on behalf of the Ministry of Police out of time. 
7. 	Notice was never filed as required by section 21(1). The Plaintiffs application is pursuant to section 21(2) that despite any action being out of time pursuant to section 21(1) the Court can grant leave to still bring an action before the expiration of 6 years, whether or not there has been any notice given under subsection (1).  In granting leave the Court must have consideration of whether the failure to give notice or delay: 
•	Was occasioned by mistake; or
•	Was occasioned by any other reasonable cause; or
•	Is occasioned by any material prejudice to the defendant in his defence; and
•	Is it just for the Court to grant leave? 
8. 	The Plaintiffs claim is premised on the conduct of the police in executing the search on 11 September 2015 unnecessarily being armed with guns when they knew very well having for a period of time kept a close watch (surveillance) that there was no need to be armed as it was only the First Plaintiff and her young children at home. 
9. 	The Defendant opposed the application stating that:
•	The Notice is defective as it does not comply with the requirement of section 21;
•	There is undue and unreasonable delay in bringing these proceedings;
•	The Defendant is prejudiced by the delay; and
•	It is not just to grant leave in the circumstances.
Statutory provision:
10. 	Section 21 of the Limitation Act 1975 provides: (relevant subsections)
21. Protection of persons acting in execution of statutory or other public duty – (1) No action is to be brought against any person (including 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 1 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 is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased:
PROVIDED ALSO THAT the notice required by paragraph (a) may be given and an action may thereafter be brought, while the act, neglect, or default continues:
PRIDED 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……………..
(2) Despite subsection (1), 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 just to impose where it considers that the failure to give 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 is to be given to the Attorney General, and may be so given by leaving it at the Attorney General’s office……………………………
(4) ……………………….
(5) ………………………………
(6) ………………………………………
Exercise of the Court’s discretion to grant leave to file out of time
11. 	The correct approach to an application under section 21(2) is that the applicant must first establish to the satisfaction of the Court that non-compliance in this case with section 21 was occasioned by mistake or other reasonable cause or that the defendant was not materially prejudiced in his defence by the non-compliance. The Court then considers whether it is just to grant leave. North J stated in Tett v Attorney General:
“An overriding requirement is that the Court is required to exercise a discretion and should not grant leave unless it thinks it is ‘just’ to do so. It does not necessarily follow that an order will be made granting leave once the applicant has established one or other of the conditions to the exercise of the discretion.”
12. 	Section 21(2) gives the Court discretion. The discretion of course is a judicial discretion, “which should be exercised on proper principles and not capriciously”.
13. 	Mr. Fong for the defendant submitted that the Plaintiffs must first satisfy all three requirements under section 21(2): that is the failure to give notice was (i) occasioned by mistake; or (ii) by any other reasonable cause or (iii) the defendant was not materially prejudiced before the Court can exercise its discretion to grant leave. I do not agree with Mr. Fong. The relevant part of section 21(2) says as follows:
“…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 notice or the delay in bringing the action, as the case may, 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.” (my emphasis)
14. 	The requirement is disjunctive by the use of the word “or” which means that the intended plaintiff does not have to prove all the requirements but that one will suffice if the Court finds that the delay was occasioned by either one of the three requirements. The overriding requirement is that the Court is required to exercise discretion and grant leave only when it thinks it is “just” to do so. 
15. 	The onus is on the intended plaintiffs or applicants to satisfy the three requirements and rests throughout on the applicants. 
Mistake or other reasonable cause
16. 	Ms. Lui for the Plaintiffs submitted that the mistake of fact was due to a misunderstanding as the First Plaintiff thought that the Ombudsman was Government when she lodged her complaint and in doing so automatically assumed that the Ministry of Police would know about her complaint.
17. 	The affidavit evidence by the Police is that the Police received a letter from the Ombudsman of the complaint by the First Plaintiff. A full investigation was then carried out by the Professional Standards Unit within the Ministry of Police regarding the issues raised in the complaint by the First Plaintiff with the Ombudsman. The investigation took into account reports prepared by police officers who took part in the search and submitted a report dated 5 February 2016. The affidavit evidence of two police officers who attended the search said they were only made aware of an intended or potential claim against the Ministry of Police early 2018.   
18. 	Ms. Lui says that although the notice may be delayed, the Police nevertheless had constructive notice of the Applicants claim when the Ombudsman by letter conveyed to the Police the complaint by the Applicants.  
19. 	It cannot be confirmed that Police had been notified or put on notice of an intended claim by the First Plaintiff by the Ombudsman letter dated 13th October 2015. That letter was a complaint to the Ombudsman which is quite separate from a claim or civil suit filed in Court. I can only make inferences from the affidavit evidence (including that of the Applicant) that the complaint was about police procedure and conduct regarding the search. One of the Ombudsman mandate is to address or investigate any administrative decision or function or power that affects a person or persons and make recommendations to the authority of addressing those issues. In any way, ‘notice’ under section 21(1)(a) is actual notice and not constructive notice giving reasonable information of the circumstances giving rise to the proposed action, the name and address of the prospective plaintiff etc. 
20. 	From the affidavit evidence available to the Court I think there was no mistake of fact by the Plaintiffs for failure to file within a year. The First Plaintiff made a conscious decision to lodge a complaint with the Ombudsman instead of seeking legal advice or instructing legal counsel of their rights regarding the law especially when the First Plaintiff felt so strongly against the police carrying out the search on their property on 11 September 2015. 
21. 	The Plaintiffs cause of action accrued on 11th September 2015, the date of the search. Prior to lodging complaint with the Ombudsman it is evident that the First Plaintiff was aware of the potential action or of her allegations voicing her complaint of alleged wrongdoing by the Police on their conduct when they carried out the search of her property in the Samoa Observer newspaper. Yet instead of seeking legal advice the Plaintiffs lodged a complaint with the Ombudsman. The First Plaintiff says in her affidavit that the reason for the delay was because she was waiting on the report from the Ombudsman based on investigations carried out due to her complaint. 
22. 	Ms Lui submitted that the Plaintiffs particularly the First Plaintiff who initiated the present proceedings and who lodged a complaint with the Ombudsman is a layperson and does not know about the law that there is a limitation period in regards to any claims against the Government. Ms Lui referred to Strickland Brothers v AGwhere counsel for the plaintiff told the Court that the reason why there was no notice given was a mistake on his part as he was not aware of the requirements of section 21 and His Honour the Chief Justice said:
“This is not uncommon. I am confident that many lawyers, apart from the lawyers in the Office of the Attorney General, are not aware of the requirements of section 21.”
23. 	The word ‘mistake’ was considered by Woodhouse J in Caldow v Wall & Anor in relation to section 4(7) of the Limitation Act 1950 (NZ) which is similar to section 6(7) of our Limitation Act said:
“Mistake” as a concept does not carry any precise definition. Its operation is extended or restricted by its context”
…and at page 68:
“…In this regard, moreover, I think the mistake must not only appear to be reasonably based, but in itself provide a reasonable explanation for what followed. Mistake in this sense cannot be equated with forgetfulness or ignorance. It must necessarily involve an erroneous conclusion following advertence to the subject matter; but if such a mistake appears to have some reasonable foundation, and also provides what it is desired to excuse……. As I have already mentioned, there is always the additional safeguard provided by the discretion to refuse the application if it has not been shown that it would be just to permit the application to proceed”.
24. 	It is my view that what His Honour the Chief Justice said in Strickland Brothers v AG is obiter and not binding as precedent. The maxim ignorance of the law is no excuse is precedent. Ignorance does not justify a late notice nor does a mistake at law. 
25. 	I agree with Mr. Fong for the Respondent that it is not a valid excuse or mistake that the Applicants were waiting on the findings and report of the Ombudsman when such report cannot be questioned in Court. The naivety of the Applicants in matters of law and especially so that they are laypersons is no excuse. Furthermore, the Plaintiffs have always been aware of the circumstances that gave rise to their proposed claim and were free to commence proceedings (after having given notice) at any time between September 2015 and September 2016. by first giving notice  
26. 	I do not accept the reasons advanced by Counsel for the Applicants of a mistake of fact or of law by the Applicants.
 Any other reasonable cause
27. 	Ms. Lui for the Applicants submissions on mistakes of facts or mistake of law or any other reasonable cause seems to be intertwined. The reasonable cause of delay put forward by the submissions of Ms Lui is the naivety of the Applicants regarding the law. I think that I have already addressed this issue in the paragraphs above and for the reasons already stated the Court is of the view that there is no other reasonable cause for the failure to file notice under section 21(1)(a).
Prejudice to Ministry of Police
28. 	Ms. Lui for the Applicants submitted that the failure to give notice within the year does not cause any material prejudice to the Police. The police officers who attended the search that have resigned, been terminated or serving in peace keeping missions are not dead and can be summoned to give evidence.
29. 	Mr. Fong for the Respondent submits that the delay of 1 year and 9 months itself is prejudicial to the Police and that the police officers’ recollection of the search will be’ dimmed’ and they will not be able to remember much in detail about the search. It has always been a common practice for police police officers to carry on them notebooks whereby they record or make notes of their investigations or (in this case) the search carried out. In any event, the affidavit of Inspector Leiataua Samuelu who carried out the review or investigation on matters or issues of the complaint by the First Applicant referred by the Ombudsman said that he reviewed the reports filed by the officers who attended the search. Corporal Aasa Afoa in his affidavit said that he filed a report which copy may be with the Professional Standards Unit (PSU). The PSU received the letter from Ombudsman on 13th October 2015, a month after the search and they then carried out the investigation. The reasonable inference is that the officers who attended the search are in a position to refresh their memories by reference to their reports made of the search.  
30. 	However, it is my view that there is the ‘risk’ of the evidence by the officers who attended the search and have resigned or been terminated for reasons that may have to do with their resignations and terminations. The summoning of officers who are serving overseas at the expense to the Ministry of Police to give evidence is also an issue. There is also the risk that some of these officers who attended to the search did not record what happened in their notebooks or make any statements. Only two police officers who attended the search made affidavits. Although the intended defendant is entitled not to file any answering affidavits in relation to any prejudice suffered or will suffer and it will not be assumed against the defendant that no prejudice exists the issues raised are in my view prejudicial or will be prejudicial to the Police.
Overriding consideration: Is it just to grant leave? 
31. 	Ms. Lui for the intended plaintiffs impressed that it is in the interest of justice for the Court to grant leave to allow the intended plaintiffs to file claim against the intended defendant (Police) out of time but still within 6 year limitation period under section 21(2). Ms. Lui claims a serious abuse of process and abuse of fundamental rights. Therefore, it is just for the Court to grant leave to file proceedings as it is a matter of public interest for it questions the systems and process by the Police in dealing with the public and their rights. 
32. 	Mr. Fong for the intended defendant submits that it is not just for the Court to grant leave for the following reasons:
(a) 	If the intended plaintiffs fail to prove that there was mistake or reasonable cause for the delay in bringing their action and the Police is materially prejudiced by such delay;
(b) 	The circumstances alleged by the intended plaintiffs as in the affidavit of Silafaga Tupito do not amount to a reasonable excuse for the delay or that it did not prevent them from bringing their proposed action earlier.
33. 	Inspector Leiataua Samuelu of Police PSU deposes in his affidavit that he investigated the issues raised by the Ombudsman with them regarding the complaint by the intended plaintiffs and found that there was no unnecessary force used by the Police, no discharging or use of firearms, the search was lawful as it was conducted pursuant to a search warrant and that the intended first plaintiff was informed of the purpose of the raid or search.
34. 	For the reasons already discussed under each requirement, it is my view that in the circumstances of this case it is not ‘just’ for the Court pursuant to section 21(2) to excuse the failure or delay by the intended plaintiffs of filing notice required under section 21(1). 
35. 	Before I conclude, Mr. Fong did not really address the issue of section 21 as a defence for the Police (intended defendant) but he had alluded to it and I cannot ignore it.
Is section 21 of Limitation Act available as a defence?
36. 	In order for section 21 to be available as a defence the following must happen:
(i) 	The defendant would have to show that the act complained of was an 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;” and
(ii) 	The intended plaintiffs did not (a) file notice under section 21(1)(a) on or after 11 September 2015 (date of accrual of cause of action) and (b) file or commenced proceedings within a year from 11 September 2015 to 12 September 2016. 
37. 	The police officers in the present case carried out a raid or search of the intended plaintiffs’ property pursuant to a search warrant issued under the Narcotics Act 1967 and Arms Ordinance 1960. The act of which the Plaintiffs complain of is the actions or conduct of the Police when they carried out a raid of their property on 11th September 2015.
38. 	In my view the police officers’ actions or act falls within the words of section 21 that the raid by the police was “done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority…”
39. 	It is not in dispute that no notice was given by the intended plaintiffs as soon as practicable after the accrual of its cause of action as required under section 21(1)(a). It is also not in dispute that no action or proceedings were commenced before the expiry of one year from the date of accrual of cause of action pursuant to section 21(1)(b).
40. 	It is crucial that the requirement of s.21(1) is adhered to especially where such complaints are against the execution of duties or functions of Government bodies in this case the police officers. The intention of section 21 is for the protection of persons acting in execution of a statutory authority or other public duty from stale claims that may otherwise put them in a disadvantaged position thus the reason why notice should be given as soon as practicable after accrual of cause of action and the claim to be filed within the year. 
41. 	The intended plaintiffs should have against Police filed notice under section 21(1)(a) on or after 11 September 2015 and filed or commenced proceedings within a year from 11 September 2015 to 12 September 2016 but they did not. 
42. 	Section 21 succeeds as a defence.  It is my view that the discretion to grant leave under section 21(2) cannot be invoked if section 21 succeeds as a defence. 
Conclusion:
43. 	Having carefully considered the facts in the present case I have come to the conclusion that I should refuse to exercise my discretion in favour of the intended plaintiffs upon the following grounds:
(a) 	The intended first plaintiff was well aware of the circumstances of her allegations since 11 September 2015. She had made her allegations or complaint public with the Samoa Observer and that she made a conscious decision to lodge complaint with the Ombudsman instead of seeking legal advice or to bring proceedings against the Defendant; 
(b) 	That the delay of 1 year and 9 months is inexcusable that it would not be just to expose the Police to the risks of a trial 3 or 4 years after the accrual of cause of action. The delay would have such an effect on the availability of evidence that would (in my view) jeopardize a fair trial. 
(c) 	That section 21 is available to the Police as a defence. If I am wrong that despite the availability of section 21 as a defence, the overriding consideration still applies of whether in the circumstances it is just to grant leave to a plaintiff to bring his or her action notwithstanding non-compliance with requirements of section 21(1). Then I have already canvassed the reasons why the discretion to grant extension or leave to file out of time under section 21(2) is not ‘just’ to be granted.
44. 	The prosecution has raised in their submissions that the Plaintiffs (intended) have commenced proceedings by the filing of a statement of claim on 25th April 2018 without notice under section 21(1)(a) and before the current application is being dealt with. This statement of claim cannot be maintained or sustained by virtue of section 21(2A).
45. 	Before signing off I would like to recommend that the necessary authority perhaps consider doing away with the notice requirement under section 21(1) as time limitation to bringing any action or proceedings are already provided for in other provisions of the Limitation Act. 
46. 	 The recommended abolishment of notice period under section 21(1) be considered in light of such requirement being abolished in New Zealand and in most Australian states.  One of the reasons given for the abolishment of such requirement is that it is seen as ‘unwary trap’.  This is particularly true for persons who are not legally represented, or who consult a lawyer too late; but lawyers often miss the requirement too. 
JUSTICE TUATAGALOA