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Retzlaff v Kamu [1994] WSCA 6; CP 237 1992 (22 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

CP 237/92

MISA FONI RETZLAFF
of Puipaa, Barrister and Solicitor
Appellant

LEVAULA SAMELU KAMU
of Apia, Solicitor
Respondent

AND

TITO SIMOO TE'O
of Vaie'e Safata, unemployed
Plaintiff

Coram: The Rt. Hon. Sir Robin Cooke, President
The Rt Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 22 March 1994

Counsel: T. Malifa for Appellant
Katalaina M. Sapolu for Respondent
P.A. Fepulea'i for Plaintiff

Judgment: 22 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

This appeal is from a judgment of the Chief Justice, dated 26 July 1993, granting leave to the defendant to issue and serve a third party notice against the appellant.

The proceeding came about in this way. The plaintiff was injured in a motor accident on 27 January 1986. He was hospitalised for nearly a whole year and is now crippled and confined to a wheelchair.

Approaches were made on his behalf, particularly by his sister and mother, to the law practice of the appellant who employed the defendant and his wife, Ms Peteru, as staff solicitors.

On 22 April 1987 a deposit of $125 was paid into the Trust Account of the appellant on behalf of the plaintiff, the receipt stating that the payment was for a civil claim. In July 1987 both the defendant and his wife left the employ of the third party and entered into practice on their own account. The third party then wrote to them a letter, being a letter dated 21 July 1987:

Dear Leva & Kota

OFFICE FILES

As you were employees of this Office, all Office files remain my property.

If you intend to continue practice in Apia, any clients who wish to remove their files will require a letter to me according to procedures laid down in our ethics.

If you have removed any files I shall require their return immediately.

I look forward to your cooperation in this matter.

Yours faithfully,

(Sgd) H.T. Retzlaff

Neither the defendant nor the third party commenced proceedings on behalf of the plaintiff before his claim for damages for personal injuries became statute-barred. That was in January 1988.

The plaintiff's claim for damages for personal injuries having become statute-barred, he commenced an action in September 1992 against the defendant. In his statement of claim he alleges a breach of contract in that the defendant failed to promptly file proceedings within time to recover damages and was negligent in that respect. The defendant on 1 October 1992 moved to have the appellant joined as a third party, claiming that he was entitled to contribution from or indemnity by the appellant.

The appellant on 26 November 1992 moved to have the third party application struck out on the grounds that the defendant's motion disclosed no cause of action and was speculative, frivolous and vexatious. These motions were argued before the Chief Justice on 14 December 1992 who gave an interim judgment. In this judgment the Chief Justice pointed to the defendant's failure to comply with Rule 43 of the Supreme Court (Civil Procedure Rules) 1980. In this case there was a failure by the defendant, in moving the Court on notice for leave to issue a third party notice, to attach a copy of a proposed third party notice to the motion as required in that Rule.

The Chief Justice also referred to Rule 202 which provides that where there is non-compliance with any of the rules, the proceedings are not rendered void and the Judge may deal with them in a variety of ways including in such manner or on such terms as the Court may deem just.

In his interim judgment, the Chief Justice provided:

I realise that the defendant's non-compliance with the Rules in this case is non-compliance as to form. I also realise that the third party has not suffered any undue prejudice which could not be cured by costs as a result of the defendant's non-compliance with the Rules.

The defendant thereupon filed on 28 June 1993 a new motion for leave to issue a third party notice against the appellant with supporting affidavit and, this time, attaching a third party notice in the form which is provided in the Schedule to the Rules. This third party notice made a number of allegations against the third party in support of the claim for contribution or indemnity.

After a hearing on 20 July 1993, the Chief Justice gave judgment on 26 July 1993 granting leave to the defendant to issue and serve the third party notice on the appellant.

It is from that judgment that the appellant has appealed.

The first approach of the appellant is that the course adopted by the Chief Justice in his interim judgment gave no opportunity to the intended third party to challenge and/or oppose the same.

A number of options were open to the Chief Justice. He could have simply dismissed the motion of the defendant, but he took what we consider a more practical approach to a procedural problem. We agree that the proposed third party had not suffered any undue prejudice which could not be cured by costs, and he had a further hearing when all matters arising under the motion and the third party notice could be fully argued before the Judge. We see no merit in this first ground of appeal.

As to the appeal against the final judgment, we agree with the Chief Justice in the reasons he gave for granting leave. As to the third party's involvement, it has already been mentioned that he wrote to the defendant and his wife retaining the plaintiff's file, not specifically but with other files as his property. He also retained in his trust account the sum of $125 which had been paid as a deposit which was required before the claim was processed. We of course express no opinion on the merits or otherwise of the defendant's claim against the third party for indemnity or contribution. That is not in issue at this stage. The Court has a discretion for granting leave. We see no occasion to take a different view from that of the Chief Justice for the reasons which he covered at some length. Accordingly the appeal is dismissed.

Costs will be reserved.

Solicitors:
First Pacific Consultancy & Law, Apia, for Appellant
K.M. Sapolu, Apia, for Respondent