IN THE COURT OF APPEAL OF SAMOA
Sapolu v Saaga [2018] WSCA 9

Case name: 	Sapolu v Saaga	
		
Citation: 	[2018] WSCA 9	
		
Decision date: 	25 October 2018	
		
Parties: 	IUNI SAPOLU (Appellant) and DISTRICT COURT JUDGE TALASA LUMEPA SA’AGA (Respondent)	
		
Hearing date(s): 	17 October 2018	
		
File number(s): 	06/18	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is dismissed. 
The appellant is ordered to pay the respondent $16,500 by way of costs in this court. Supreme Court costs are a matter for that court to determine.	
		
Representation: 	Josephine Fuimaono Sapolu for Appellant
Sefo Ainu’u for Respondent	
		
Catchwords: 	Judicial immunity – indemnity costs 	
		
Words and phrases:	Statutory jurisdiction and immunities of District Court Judges in Samoa	
		
Legislation cited:	District Courts Act 2016 ss.30; 64;
NZ High Court Rules r 14.6(4);
Police Offence Ordinance 1961 s.4(g).
Supreme Court (Civil Procedure) Rules 1980 r. 70.	
		
Cases cited:	CED Distributors (1988) Ltd v Computer Logic Ltd (in receivership) (1991) 4 PRNZ 35, 41 (CA);
Electricity Corporation Limited v Geotherm Energy Ltd [1922] 2 NZLR 641, 645 (CA);
Gartside v Sheffield Young & Ellis [1983] NZLR 37 (CA);
Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668.
Harvey v Derrick [1995] 1 NZLR 314 (CA).
Land and Titles Court v Kalevini [2017] WSCA 8
Letele v Filia [2011] WSCA 2;
OF Nelson Properties v Sia’Aga [2010] WSSC 54;
Re McC (A Minor) [1985] AC 528;
Sirros v Moore [1975] QB 118; 
Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 62 (CA);
Tafililupetiamalie v Attorney General [2015] WSSC 62;
Woodroffe v Fisher [2017] WSCA 9;	
		
Summary of decision:		

CA 06/18

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

IUNI SAPOLU
Appellant

AND:

DISTRICT COURT JUDGE TALASA LUMEPA SA’AGA
Respondent

Coram:	Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Clarke

Hearing: 	17 October 2018

Counsel:	Josephine Fuimaono Sapolu for Appellant
		Sefo Ainu’u for Respondent

Judgment: 	25 October 2018

JUDGMENT OF THE COURT
Introduction
1.	The appellant appeals from a Supreme Court judgment striking out her civil proceedings against the respondent, a District Court Judge. In the Supreme Court Justice Tuatagaloa found that judicial immunity applied because the respondent was acting within her jurisdiction at the time of the acts complained of.  She also found that none of the four causes of action was tenable in law. We agree for the reasons that follow.
Factual Background
2.	The appellant was charged with uttering an insulting word, “bitch”, contrary to s 4(g) of the Police Offence Ordinance 1961.
3.	A defended hearing followed before the respondent in the District Court. The respondent found the appellant guilty but discharged her without conviction.
4.	The appellant issued civil proceedings claiming damages from the respondent. In her statement of claim she alleged:
(i)	Defended hearing and its determination was not done within a reasonable time;
(ii)	The Defendant did not act impartially and independently as follows:
a)	The Defendant deliberately delayed her decision several times in favour of the prosecution to file submissions to support her already preconceived decision of the case.
b)	The Defendant did not fairly consider the evidence called by the defence.
c)	The Defendant expressed a preference for the prosecution’s case and evidence. She believed the prosecution’s evidence over the Plaintiff’s evidence in defence.
(iii)	The defendant applied the wrong test to the evidence by failing to say what standard of proof was applied and which party has the onus of proof in her decision. 
(iv)	The Defendant did not pronounce her judgment and sentence in public. She cleared the court room of the public before she pronounced her decision.
(v)	The Defendant by saying after the prosecution’s evidence to counsels and the accused (Plaintiff) that the “defence has no case” basically infers that the Defendant believed the evidence of the prosecution before hearing the defence evidence. 
(vi)	The Defendant’s expressed preference for the prosecution gives a clear impression that she has deemed the plaintiff guilty and shifted the burden of proof to the accused (Plaintiff).
(vii)	The Defendant failed to give reasons for her decision convicting the Plaintiff and how she treated the evidence given by the defence witnesses. She continued to believe the evidence of the prosecution witnesses. 
(viii)	The Defendant failed to decide the case on the merits and the evidence she heard in Court. She considered matters other than the evidence heard in Court by saying to the accused (Plaintiff) on 5th May 2017 “You are well known for what you said on line”. 
(ix)	The Defendant predetermined the case based on family connection with one of the prosecutors. 
(x)	Despite the defence having filed their submissions and none from the prosecutions the Defendant still ruled in favour of the prosecutions.
5.	The plaintiff pleaded four causes of action:
(i)	Breach of arts 9(1) and (3) of the Constitution;
(ii)	Breach of arts 14(1) and 3(c) of the International Covenant on Civil and Political Rights (ICCPR);
(iii)	Breach of s 13 of the District Courts Act 2016 (Oath);
(iv)	Apparent Bias.
6.	The respondent applied to have the proceedings struck out on the basis that no tenable cause of action was disclosed. 
Supreme Court Judgment
7.	In a thorough judgment, Justice Tuatagaloa first pointed out that as a matter of record a number of the appellant’s factual allegations were unsustainable. She then reviewed the statutory jurisdiction and immunities of District Court Judges in Samoa. She noted a divergent approach to the scope of immunity in New Zealand but concluded that on either approach the immunity defence was unanswerable in the present case. 
8.	Although that would have provided sufficient ground for striking out the proceedings, the Judge went on to consider the legal basis for the four causes of action pleaded.  She concluded that none could have succeeded in any event.
Appeal to this Court
9.	In this Court the appellant advanced essentially four grounds for the appeal:
(a) 	This was still a developing area of the law.
(b) 	Judicial independence has been compromised by having the Attorney General represent the respondent.
(c) 	The New Zealand decision of Harvey v Derrick was incorrectly applied.
(d) 	Lack of impartiality due to the Supreme Court Judge’s wish for a law change.
10.	Before returning to those specific grounds, we outline the legal background.
Strikeout Principles
11.	There was no dispute as to the principles on which a Court should decide an application to strike out a statement of claim. They can be summarised as follows:
(a) 	The Court derives its jurisdiction to strike out all or part of a statement of claim or counterclaim from either r 70 of the Supreme Court (Civil Procedure) Rules 1980, or its inherent jurisdiction, or both.  In either case a ground for striking out is that the pleading discloses no arguable cause of action.
(b) 	The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
(c) 	For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied upon is incontrovertible.  The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
(d) 	The same applies to any other incontrovertible source of fact such as an independently recorded transcript of court proceedings. 
(e) 	The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion.  A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
(f) 	It follows that the jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.
(g) 	However, where the claim depends on a question of law capable of decision on the material before it, the Court should not shrink from determining the question even if extensive argument may be required.
12.	We now apply those principles to the present case.
Judicial Immunity in the District Court
13.	Judicial immunity is a well-established principle throughout the common law world. The principle applies equally in Samoa. It is not confined to the Supreme Court or Court of Appeal.
14.	Notwithstanding those well-established principles, the appellant argues that the general immunity does not extend to District Court judges. She relies on s 64 of the District Courts Act 2016.  It materially provides:
64. No action lies unless act is in excess of or without jurisdiction.
(1) No party or person is entitled to take action against any Judge...in relation to any judicial act, unless the Judge...has exceeded his or her jurisdiction or has acted without jurisdiction.
(2) If a conviction, judgment or order is entered or made by a Judge...and a warrant of any kind is granted in relation to the conviction, judgment or order by another Judge...no action lies against the Judge... who granted the warrant by reason of any defect in the conviction, judgment or order, or of any want of jurisdiction in the Judge...who entered or made it. 
3) A person claiming to have been injured by an act done by a Judge...in excess of jurisdiction or without jurisdiction, is not entitled to take action in that regard in the District Court.
(4) In any action brought against a Judge by a person claiming to have been injured by an act done in excess of jurisdiction or without jurisdiction, the onus of proving the excess or want of jurisdiction lies upon the person alleging it.
15.	The key to this provision is that judicial immunity applies “unless the Judge … has exceeded his or her jurisdiction, or has acted without jurisdiction”. 
16.	As to the scope of the respondent’s jurisdiction, s 30 of the same Act relevantly provides:
30. Criminal jurisdiction of Judges and Fa’amasino Fesoasoani - (1) A Judge has jurisdiction to hear, determine or pronounce sentence in respect of any information relating to any offence of the following natures:
(a) an offence of any nature which is punishable only by a fine or forfeiture of an amount permitted under this Act; and
(b) an offence of any nature which is punishable by a term of imprisonment which does not exceed 7 years, whether or not it is also punishable by a fine, penalty or forfeiture: 
PROVIDED THAT in any proceedings in the Youth Court for any offence within the jurisdiction of that Court, the Judge may impose a sentence in excess of the limit under paragraph (b) if the maximum penalty prescribed for that offence exceeds 7 years except for a charge of murder.
17.	The charge faced by the appellant was laid under s 4(g) of the Police Offences Ordinance 1961. It attracts a penalty of not more than three months imprisonment or a fine not exceeding two penalty units ($200). The guilty finding and discharge without conviction undoubtedly lay within the Judge’s jurisdiction in the normal sense of that word.
Could the immunity be lost through bad faith or gross negligence?
18.	We are unable to accept the submission that District Court judges lose their immunity if, while otherwise acting within their jurisdiction, they have acted in bad faith or with gross negligence. There are several reasons for rejecting such a gloss on s 64:
(a) 	There is nothing in s 64 to that effect. 
(b) 	A gloss of that kind would be inconsistent with s 65 of the same Act. Section 65 does require the Court to embark on questions concerning the conduct of the judge for the purpose of deciding whether the judge ought to be indemnified against liability to pay damages or costs.  This would be redundant if good faith and negligence had already been traversed in the process of deciding whether the judge was liable in the first place. 
(c) 	The scope of a court’s jurisdiction must be an objective question. There cannot be one jurisdiction if the judge has one frame of mind and a different jurisdiction if the judge has another. If a judge has acted outside his or her jurisdiction, then no amount of good faith or care could confer immunity on the judge. But equally, if the judge had acted within his or her jurisdiction, there is nothing in s 64 which could take the immunity away again on the grounds of bad faith or gross negligence. 
(d) 	It is difficult to think of any policy objective which could have led Parliament to want to distinguish between Supreme Court and District Court judges in this respect. It has repeatedly been said that for immunity purposes old distinctions between superior and inferior courts can no longer be justified. Whether a judge is sitting in the Supreme Court or the District Court he (or she) “should not have to turn the pages of his books with trembling fingers, asking himself ‘if I do this, shall I be liable in damages’?” 
(e) 	Another implied legislative objective is to bring finality to litigation. Finality in litigation is lost if an aggrieved litigant can start another round of proceedings against the judge as a sequel to conventional proceedings. If unqualified immunity applies, finality can usually be achieved quickly through the strike-out process. A gloss which introduces bad faith or gross negligence is an invitation to aggrieved litigants to make allegations of that nature. The fact that the allegations might ultimately be dismissed after a time-consuming trial would be little consolation to those involved if the proceedings could not be struck out on the pleadings. 
19.	We disagree with the contrary view of the majority in the New Zealand Court of Appeal case Harvey v Derrick. We note also that the New Zealand Parliament disagreed with the majority view. This was initially achieved through amendments to the District Courts Act 1947 followed by s 23 of the current District Courts Act 2016 (NZ). These reforms expressly equated the immunity of District Court Judges with that of High Court Judges. They echo overseas trends in the common law. 
20.	We conclude that if a District Court judge acts within his or her subject matter jurisdiction the immunity applies. Allegations of bad faith or gross negligence are irrelevant. 
21.	With that background we turn to the individual grounds of appeal. 
Ground of appeal (1): this was and is still a developing area of the law
22.	We do not regard this as a developing area of the law. It has already been determined by authoritative decisions both overseas and in the Supreme Court and Court of Appeal of Samoa. 
23.	In any event as we noted earlier, where a strikeout application turns on a question of law capable of decision on the material before the Court, the Court should not shrink from determining it. That is so even if extensive argument may be required. 
24.	We have a clear view of the law in this case. It can be determined on the pleadings. There is no justification for deferring a result until after trial. 
Ground of appeal (2): judicial independence was compromised by having the Attorney General represent the Respondent.
25.	The Attorney General was not involved in the events which form the basis for the claim against the respondent. The Attorney came into the picture only when the appellant elected to bring the current proceedings based on those prior events. The Attorney has acted for the respondent in the subsequent Supreme Court and Court of Appeal hearings. 
26.	It follows that the only judicial independence that could have been compromised by the involvement of the Attorney General was the independence of Tuatagaloa J in the Supreme Court and the independence of the judges of this Court. We pointed this out to counsel for the appellant. After taking instructions from her client, she confirmed that she was instructed to continue with this submission. 
27.	We make no criticism of Ms Josephine Sapolu, who handled the matter in a competent and professional manner under difficult circumstances. However the submission should never have been advanced. As the many authorities show, there is a long-standing convention that where a judge is named as a party to litigation the Government’s senior law officer, or his or her delegate, will represent the judge concerned. 
28.	No conflict of interest could arise because the relationship between a party and his or her counsel has no bearing on the independence of the court that hears the litigation. Nor could it be suggested that there is any sinister relationship between the Attorney General and the judiciary in general. The two represent independent arms of government. Had there been grounds for concern in that regard, no judge could properly hear a prosecution in this country. Virtually all prosecutions are brought or supervised by the Attorney. 
29.	However we have a deeper concern about this submission. As we said, it was pursued on the instructions of the appellant. The current litigation is essentially the appellant’s challenge to the impartiality and independence of a District Court Judge. We will have something to say about that later in this judgment. But this ground of appeal is simply a further example of the alacrity with which the appellant is ready to impugn the independence of judicial officers, in this case judges of the Supreme Court and Court of Appeal, on specious grounds. 
Ground of appeal (3): the New Zealand decision of Harvey v Derrick had been incorrectly applied.
30.	For reasons already outlined, we prefer the minority reasoning in Harvey v Derrick. We have rejected the majority’s gloss on immunity which would introduce concepts of bad faith and gross negligence. 
31.	However it is significant that even if one had adopted the majority view in Harvey v Derrick, Tuatagaloa J found that the statement of claim, coupled with incontrovertible evidence from the Court file, would have produced the same result. She would have struck out the proceedings on either approach.   
Ground of appeal (4): lack of impartiality due to Supreme Court Judge’s wish for a law change.
32.	After Tuatagaloa J had arrived at her conclusion in the case before her, she went on to add a paragraph about a possible law change. She pointed out that in New Zealand any doubt was removed by a change in the legislation. She recommended a similar change in Samoa. It is not uncommon for judges to make law reform recommendations. 
33.	This ground of appeal is yet another challenge to a judge’s impartiality. Instead of focusing on the substance of the case, the appellant has attacked the judicial integrity of the judge who decided it. The ground should never have been advanced.  
Liability for indemnity costs
34.	The appellant should not have brought these proceedings. The respondent was clearly acting within her jurisdiction when she found that the appellant was guilty. She treated the appellant with maximum leniency by discharging her without conviction.  
35.	Given the outcome, it is far from obvious why the appellant would think it necessary to launch a fresh round of proceedings. But if proceedings had been justified at all, they ought to have taken the form of a civil action for judicial review. One has to question the motives of the appellant in bringing the Judge into it at a personal level. The Supreme Court has jurisdiction to judicially review a District Court decision in cases where there is no right of appeal. The broad grounds for such a review are that in the District Court there had been an error of law, a denial of procedural fairness, or unreasonableness in an administrative law sense.  There is no reason for thinking that such proceedings could have succeeded.   We are satisfied that they would have failed.  But at least there would have been jurisdiction to entertain them. 
36.	Instead the appellant chose to issue proceedings against the Judge personally. She sought to have the Judge pay compensatory damages, exemplary damages, and costs totalling $10,000. There was never the slightest prospect that such a claim could succeed. Judicial immunity was always going to be an obstacle. This was pointed out to the appellant in a letter from the Attorney General’s office of 23 November 2017. The letter drew the appellant's attention to two recent authorities in Samoa to that effect.  
37.	The appellant persisted. In her conduct of these proceedings she managed to add four more judges to the list of those who offended her. The Supreme Court Judge was said to lack impartiality for recommending law reform. The independence of that Judge, and the Judges in this Court, was challenged on the specious ground that in these courts the District Court Judge was represented by the Attorney General. 
38.	The appellant is an officer of the Court. She is better qualified than most to understand the law and to exercise careful judgment. In other jurisdictions practitioners have faced Law Society disciplinary proceedings for unjustified claims against judges. In the context of these proceedings the appellant’s conduct impacts on costs. 
39.	Whether to award of costs is always discretionary but a losing party normally has to pay a successful party. In this case the respondent is the successful party. She is undoubtedly entitled to costs. 
40.	Quantum is also discretionary. Each case is to be considered individually but indemnity costs are normally awarded only where there is some special feature. Qualifying special features can include:
a)	That a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim or defence;
b)	That a case has been commenced or pursued for an ulterior motive; 
c)	That a party has shown a wilful disregard of the known facts or clearly established law; or
d)	Irresponsible conduct of the proceedings in a way which needlessly prolongs the proceedings or needlessly increases their cost.
41.	We have concluded that at least the first of these considerations applies in the present case. The appellant has acted unreasonably in pursuing a wholly unmeritorious and hopeless claim. Indemnity costs are justified. 
Quantum of indemnity costs
42.	Since the hearing of this appeal we have had the benefit of submissions from both parties on the costs incurred by the Attorney General in representing the respondent. We have carefully considered these submissions but do not find it necessary to traverse them in detail. 
43.	The respondent has claimed $27,000 plus another $1,500 in responding to the appellant’s submissions on costs, a total of $28,500. In all the circumstances we consider the costs to be reasonable on a solicitor-client basis subject to one major qualification.
44.	In his memorandum the Attorney has included costs incurred in the Supreme Court. In the last paragraph of her reasons for decision (para 72) Tuatagaloa J gave the direction “Counsel for the Defendant to file memorandum as to costs within 21 days”. As the Supreme Court has already embarked on an inquiry into costs it will be for that court to determine how costs in that court should be dealt with. 
45.	The respondent’s costs in this court amount to $16,500. That sum is justified on an indemnity basis. 
Result
46.	 The appeal is dismissed. 
47.	The appellant is ordered to pay the respondent $16,500 by way of costs in this court. Supreme Court costs are a matter for that court to determine. 
.
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE