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Su v Abraham [2007] WSSC 35 (10 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEAULA LOPA SU
of Alamagoto
Plaintiff

AND:

ANN-MARIE ABRAHAM
of Wellington, New Zealand.
Defendant

Counsels: RS Toailoa for plaintiff
K Drake for defendant

Hearing: 10 April 2007
Ruling: 10 April 2007

RULING ON SERVICE

The Facts:

The plaintiff by Statement of Claim dated 1st February 2007 seeks various orders and relief as against the defendant who is a resident of Wellington in New Zealand. By application dated 12th February 2007, the plaintiff applies pursuant to rule 23 of the Supreme Court Civil Procedure Rules 1980 ("the Rules") for an order dispensing with personal service on the defendant and directing service be effected on Messrs Drake and Co. a firm of local solicitors who it is alleged are the solicitors for the defendant. The defendants New Zealand address is not known to the plaintiff hence he argues service can be ordered to be effected on the defendants Samoa solicitors. Service was attempted on Drake & Co. but that lawfirm refused to accept service on the defendants behalf and advised plaintiffs counsel they had no authority from the defendant to accept service of these proceedings. No supporting affidavit was filed with the plaintiffs application but plaintiffs counsel filed a memorandum dated 12th February 2007 setting out the factual basis of the application.

By memorandum dated 16th March 2007, Drake & Co. have responded to the application confirming that while they are undertaking work in Samoa for the defendant, they have no instructions to accept service of any proceedings. They so advised plaintiffs counsel and suggested he follow the normal procedure and seek the courts leave to serve a party resident out of jurisdiction. Their memorandum also indicates they have since sought and received instructions from their client and that these proceedings can be served on the defendants New Zealand solicitors who have been authorized to accept service. Relevant contact details for the New Zealand solicitors have been provided in the memorandum.

The relevant law:

The general rule is personal service is required whether the civil proceedings are commenced by way of action under Part IV of the Rules or by way of motion under Part XVIII. For the former, the Summons and annexed Statement of Claim must be served "on the defendant in person" – rule 19; for the latter type of proceeding, notice of the Motion and supporting affidavit must be given "to such persons as the court may consider entitled thereto", which would normally be the parties to the proceeding – rule 190 (1), see also rule 196 (2) which provides that any request for the assistance of the court by way of extra-ordinary remedy "shall be upon notice." Hybrid actions, which are being brought with increasing frequency are also sanctioned by rule 196(3) which provides that "any party to an action commenced in the ordinary way may in addition to any other relief" seek a writ of mandamus or injunction, and such claim may be made "at any time after the commencement of the action." The plaintiffs claim appears to be such a hybrid type of proceeding because although commenced by way of action, it also seeks injunctive relief.

The Rules go on to provide for service on particular entities (corporation – rule 20; a firm – rule 21; an agent – rule 22) and in rule 23 make provision for dispensing with personal service in certain cases. Rule 23 insofar as it is relevant provides:

"(1) If it appears to the Court that reasonable efforts have been made to effect service of the summons, and either that the summons has come to the knowledge of the defendant or that prompt personal service thereof cannot be effected, the Court may order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as the Court thinks fit to impose."

Discussion:

There do not appear to be any decisions of this court as to the meaning and interpretation of rule 23 arguably because its meaning is quite clear and apparent. It requires to be firstly shown that reasonable efforts have been made to effect service of the relevant documents upon the defendant as a pre-requisite for the operation of the provision. What of course amounts to "reasonable efforts ....to effect service" is a question of fact to be determined according to the circumstances of each case. An example of a successful application for dispensing with service is Diners Club (NZ) Ltd v Henry (1992) 5 PRNZ 376, a case decided under the equivalent New Zealand High Court Rules provision, the relevant parts of which are almost identical in wording to our rule 23(1). An example of an unsuccessful application for dispensed service under a similar provision of our Election Petition Rules 1964 is Asiata Vaai v Tavui Lene et al [1996] WSSC 23.

It is unnecessary to embark on any detailed analysis of either of these cases. What requires consideration is whether in the circumstances before me it can be said that reasonable efforts have been made by the plaintiff to effect service on the defendant so that rule 23(1) is operable. In my view there clearly have not been any reasonable efforts made by the plaintiff to serve the defendant; in fact there have been no efforts at all by the plaintiff to serve the defendant. The plaintiff cannot overcome the first hurdle of rule 23(1) and the other parts of rule 23(1) accordingly do not come into play. The plaintiffs application must fail.

The plaintiff did not rely on rule 22 (service on an agent or on an in-country attorney) in his argument probably because that rule requires that the "attorney or agent (be) authorized to defend actions on (the defendants) behalf." As was stated by Ongley, J. in Paul Hastings Real Estate Ltd v Atkinson-Jones (1986) (unreported, Wellington High Court – 21/04/86) at page 3 of his judgment on the equivalent New Zealand provision which authorises personal service on an in-country "attorney or agent authorized to transact (a clients) affairs generally and to defend proceedings":

"it must be shown that the person said to be designated as agent or attorney is not only authorized to transact affairs generally but is specifically authorized to defend proceedings - general powers to transact affairs on behalf of another may be so framed as to include the power to defend proceedings but in order to decide whether in a particular case they should be so construed it would be necessary to have evidence of the precise terms in which the powers are given or an unequivocal statement by the principal that the attorney or agent had been granted the power to defend proceedings. The evidence in this case does not go that far. There is no evidence as to the contents of any document by which the authority may have been granted and the statements of the parties said to have been made do not establish that any authority which was given to the two solicitors by the defendants to transact their affairs included the authority to defend proceedings brought against them."

Clearly a specific authorization from the client to his solicitor to defend the particular proceedings is required. In this case no evidence of such a specific authority exists.

For these reasons, the plaintiffs application is dismissed. No costs were sought. None are ordered.

NELSON J.