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Sagato v Land and Titles Court [2011] WSSC 79 (24 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of the Declaratory Judgments Act 1988.


IN THE MATTER:
of the Land and Titles Act 1981.


BETWEEN:


LE'OLI FAATOAFE AMIATU SAGATO
matai of Leulumoega Tuai and 24/22 Jane Street, Arana Hills, QLD 4054, Australia
Applicant


AND:


LAND AND TITLES COURT
constituted pursuant to
Article 103 of the Constitution of the Independent State of Samoa
and the LAND AND TITLES ACT 1981.
First Respondent


AND:


SAMOA PITA matai of Leulumoega.
Second Respondent


Counsel: S Ponifasio for applicant
M T Lui for first respondent
Second respondent in person but took no part in these proceedings


Hearing: 31 May 2011
Judgment: 24 June 2011 (delivered to counsel on 7 July 2011)


JUDGMENT OF SAPOLU CJ


Nature of proceedings


  1. These proceedings are concerned with a motion filed on behalf of the Land and Titles Court (LTC) as first respondent to strike out a notice of motion (motion) by the applicant Le'oli Fatoafe Amiatu Sagato (Leoli) to review the decision of the LTC in LC 10744 P1-P2 of 17 June 2005 (the 2005 decision). The applicant's motion for judicial review seeks certiorari to quash the said decision and in the alternative a declaration that the said decision is null and void.
  2. In dealing with the strike out motion, it is necessary to set out the relevant factual background which involves three sets of proceedings before the LTC in 1996, 2004, and 2005.

The 1996 proceedings


  1. The 1996 proceedings before the LTC resulted from a publication in the issue of the Savali of 12 August 1991 by the second respondent, Samoa Pita (Samoa), that he is the "Matua o le Aiga" at the village of Leulumoega and that he wants to hold saofais (matai title bestowals) in respect of six matai titles. Following that publication in the Savali, the applicant Leoli and one Suluga Tavete (Suluga) filed petitions with the LTC. The petition by the applicant Leoli is dated 25 October 1991 and the petition by Suluga is dated 7 November 1991. Both petitions sought, inter alia, to cancel and nullify the said publication by the second respondent.
  2. The petition by the applicant Leoli is set out in four paragraphs. In paragraph 3 of the said petition, the applicant sought from the LTC an order to confirm that the "Matua o le Aiga Samoa" at Leulumoega is the title Leoli. The petition by Suluga is set out in nine paragraphs. In paragraph 6, Suluga sought from the LTC an order that the title Suluga is the "Matua o le Aiga".
  3. By a petition dated 24 April 1995 which is in eight paragraphs, the second respondent Samoa sought, inter alia, an order from the LTC to confirm that the honorific salutation of the title Samoa in the village of Leulumoega is "O le Matua o le Aiga Samoa" and "Pou o le Toaiva".
  4. So there were three petitions before the LTC, in relation to the 1996 proceedings, the petition by the applicant Leoli seeking, inter alia, an order to confirm that the "Matua o le Aiga Samoa" is the title Leoli, the petition by Suluga seeking, inter alia, an order to confirm that the title Suluga is the "Matua o le Aiga", and the petition by the second respondent Samoa seeking, inter alia, an order to confirm that his honorific salutation is the "Matua o le Aiga Samoa" and "Pou o le Toaiva". In other words, the issue of who is the "Matua o le Aiga Samoa" whether it was the title Leoli, or the title Suluga or the title Samoa was placed by all three parties before the LTC to decide. In addition, is the claim by the second respondent that the honorific salutation of the title Samoa includes "Pou o le Toaiva".
  5. In 1996, the LTC heard the said petitions and delivered its decision on 9 April 1996 (the 1996 decision). In paragraph 1 of its decision, the LTC held that it was not satisfied from the evidence presented by the parties that the "Matua o le Aiga o Samoa poo Sāmoa" was the title Samoa, or the title Leoli or the title Suluga. The LTC further held in paragraph 1 that the title Samoa or Sāmoa is one of the "Pou o le Toaiva" at Leulumoega.
  6. In paragraph 2 of its decision, the LTC cancelled the publication by the second respondent in the issue of the Savali of 12 August 1991.
  7. Paragraph 3 of the decision is not relevant for present purposes.
  8. In paragraph 5, the LTC granted some parts of the petitions by the applicant Leoli and Suluga and rejected other parts. The part of the petition LC 9481 by the applicant that was rejected was paragraph 3 where the applicant sought an order to confirm that the title Leoli is the "Matua o le Aiga Samoa" at Leulumoega. Amongst the parts of the petition LC 9481 P1 by Suluga that were rejected was paragraph 6 where Suluga sought an order to confirm that the title Suluga is the "Matua o le Aiga". The whole of the petition LC 9481 P2 by the second respondent was rejected except for paragraph 3.
  9. So all three petitions claiming that the "Matua o le Aiga Samoa" or "Matua o le Aiga" was vested in the title Leoli, Suluga, or Samoa were rejected by the LTC in the 1996 decision. However, the LTC held that the title Samoa is one of the "Pou o le Toaiva" at Leulumoega and thus upheld part of the second respondent's petition. There was no appeal from that decision.

The 2004 proceedings


  1. The 2004 proceedings before the LTC was about the correct honorific salutation of the village of Leulumoega. They were not concerned with the issue of who is the "Matua o le Aiga Samoa" or whether the title Samoa or Sāmoa is one of the "Pou o le Toaiva". Those issues had already been decided by the LTC in the 1996 decision and were not raised in the petitions by the parties to the 2004 proceedings. The parties to the 2004 proceedings were also different from the parties to the 1996 proceedings even though the applicant was a party to both proceedings.
  2. However, in its decision delivered on 22 April 2004 (the 2004 decision), the LTC made passing references to its 1996 decision. Under the heading "Faatomuaga" (Introduction), the LTC says in para 5 that the 1996 decision did not confirm the "Matua o le Aiga Samoa or Sāmoa" was vested in the title Samoa, or the title Leoli, or the title Suluga. And at paragrapah 6, the LTC says that the Court in 1996 confirmed that the title Samoa or Sāmoa is one of the "Pou o le Toaiva" and the 1996 decision was not appealed. In effect, the LTC in paras 5 and 6 of its 2004 decision was simply restating what was decided in its 1996 decision and that the 1996 decision was not appealed. These statements were clearly obiter as the LTC was not concerned in the 2004 proceedings with those issues but with the issue of what is the correct honorific salutation of the village of Leulumoega.
  3. Following the 2004 decision, the applicant lodged an appeal dated 16 June 2004 against that decision. I have read through the appeal by the applicant and he does not appeal the 1996 decision or any of the issues determined in that decision. The appeal is in substance directed at the 2004 decision on the correct honorific salutation of the village of Leulumoega.

The 2005 proceedings


  1. For some reason not known to this Court, Suluga who was a party to the 1996 proceedings, filed a new petition dated 9 June 2004 again seeking, inter alia, from the LTC an order to confirm that the "Matua o le Aiga Samoa" at Leulumoega is the title Suluga and not the title Samoa or the title Leoli. This is notwithstanding that the LTC in the 1996 decision had rejected Suluga's earlier petition that the "Matua o le Aiga" is the title Suluga and not the title Samoa or the title Leoli.
  2. In response to the new petition by Suluga, the applicant Leoli filed a new petition of his own dated 8 November 2004. As this petition by the applicant is at the heart of the present strike out proceedings, I will set it out in full:

"The petition by the petitioner prays to this Honourable Court for an order to confirm as follows:


"1. To reject the petition by Suluga Tavete against Leoli Sagato and in particular where it says that the title Suluga is the "Matua o le Aiga Samoa i Leulumoega".


"2. The Court has already rejected in its decision in 1996 the petition by Samoa Pita which stated that the title Samoa held by Samoa Pita is the "Matua o le Aiga Samoa" and is a "Pou o le Toaiva" at Leulumoega.


"3. That very decision in 1996, confirms that the title Samoa or Sāmoa is one of the "Pou o le Toaiva" at Leulumoega.


"4. What the decision means is that the two matters are different, the title Samoa or Sāmoa which is one of the "Pou o le Toaiva" at Leulumoega is different from the title Samoa held by Samoa Pita".


  1. It appears from the applicant's petition that the applicant was seeking an order from the LTC to reject the petition by Suluga and to confirm his interpretation of the 1996 decision that the title Samoa or Sāmoa which the LTC had determined in the 1996 decision to be one of the "Pou o le Toaiva" was not the title Samoa held by the second respondent.
  2. I have to say in relation to the interpretation of the 1996 decision given by the applicant in his new petition, that not only is there no statement in the 1996 decision that the title Samoa or Sāmoa which was accepted as one of the "Pou o le Toaiva" at Leulumoega is different from the title Samoa held by Samoa Pita, the second respondent, but the interpretation of the 1996 decision given by the applicant is totally unconvincing. From the 1996 decision, it is clear that when the LTC held that the title Samoa or Sāmoa is one of the "Pou o le Toaiva", it was in relation to Samoa Pita, the second respondent, who was a party to the 1996 proceedings. It could not have been in relation to any title Samoa which was not represented in the 1996 proceedings. If the LTC in 1996 was of the opinion that the title Samoa held by Samoa Pita, the second respondent, was not the title Samoa to which the salutation "Pou o le Toaiva" applied, but some other title Samoa which was not represented at the Court proceedings, I would have thought that the LTC would have expressly said so. There could not have been any difficulty in the LTC saying so. However, the LTC did not say so.
  3. On 20 November 2004, the LTC registry received a fax from Suluga who resides in New Zealand to have his petition filed on 9 June 2004 withdrawn. So Suluga did not proceed with his new petition which prompted the applicant to file his new petition dated 8 November 2004.
  4. In response to the new petitions by Suluga and the applicant, the second respondent filed a new petition dated 14 March 2005 seeking from the LTC an order to confirm that the "Matua o le Aiga Samoa" at Leulumoega is the title Samoa and to reject the respective claims by the applicant and Suluga that they are the "Matua o le Aiga Samoa". It would appear that the second respondent was not aware that Suluga had already advised the LTC registry by fax on 20 November 2004 to have his petition withdrawn. It would also appear that the second respondent might have misunderstood the applicant's new petition because the applicant was not claiming that the title Leoli which he holds is the "Matua o le Aiga Samoa".
  5. It is clear from the three new petitions that the parties were in 2004 and 2005 seeking to relitigate the same issues concerning the "Matua o le Aiga Samoa" and the "Pou o le Toaiva" which the LTC had dealt with and determined in the 1996 decision which was not appealed.
  6. The new petitions were set down for hearing on 17 June 2005. According to the affidavit of 20 May 2011 filed in support of the strike out motion by the chief executive officer of the Ministry of Justice and Courts Administration who is also the registrar of the LTC, summonses were served on all the parties notifying them of the date of hearing. There is, however, dispute here whether service of the summons for the applicant was effected in a way that the applicant who resides in Australia would have received the summons or notice thereof.
  7. In the said affidavit of the registrar of the LTC, the procedure for the service of a summons on a party to LTC proceedings is set out. Essentially, a party would provide to the LTC registry a local address for service. Upon delivery of the summons to the given address, the recipient (not necessarily the party to be served) would sign the 'receipt of delivery' document to confirm that he or she has received the summons. In the event that no one at the given address is present or refuses to sign the 'receipt of delivery' document, the Court officer delivering the summons will note on the 'receipt of delivery' document 'no one present' or 'refused to sign' whichever the case may be and leave the summons at the given address. If the party resides overseas, it is the responsibility of the person upon whom the summons is served or the residents at the address where the summons is left to notify the overseas party of the summons. I am not required to comment on the adequacy of this procedure for the purpose of serving notice of Court proceedings on a party.
  8. It is stated in the said affidavit of the registrar of the LTC that when the summons in this case was served by the LTC officer at the applicant's local address at Leulumoega, the server found out that the applicant resides overseas. The server was advised by someone at the given address that the applicant had returned to Australia where he permanently resides but had left no contact address or telephone number. This information is also noted on the copy of the summons attached to the said affidavit. Presumably this was done by the Court officer who delivered the summons to Leulumoega. There is, however, no mention whether a 'receipt of delivery' document was signed or whether the summons was left at the given address.
  9. The applicant in his affidavit of 19 October 2010, says that he never knew about any hearing of his new petition before the LTC as he had never been served with notice of a hearing. He was surprised when he came to Samoa in December 2005 and discovered that his petition had been dismissed by the LTC on 17 June 2005.
  10. In his supplementary affidavit of 24 May 2011, the applicant further says that letters from the LTC to him are delivered to him personally if he is in Samoa or if he is in Australia such letters are delivered to his family at Leulumoega and his family would notify him in Australia. He has never had any problems with his family notifying him of LTC matters and he has never had any problems attending LTC hearings of cases he is involved in.
  11. The applicant also says in his supplementary affidavit that no summons for the hearing set for 17 June 2005 was left at his local address otherwise his family at Leulumoega would have informed him of the hearing date of his petition which had been dismissed by the LTC in his absence.
  12. At the hearing scheduled for 17 June 2005, the applicant and Suluga did not appear. Only the second respondent appeared. Whilst it is clear from the decision made by the LTC that it was made aware of the application by Suluga to withdraw his petition, it appears that the LTC was not made aware that the applicant might not have received the summons or given notice of the hearing date.
  13. In its decision given on 17 June 2005, the LTC dismissed the applicant's petition LC 10744 P1 dated 8 November 2004 and Suluga's petition LC10744 dated 9 June 2004. The reasons given by the LTC for its decision, though somewhat short in terms of clarity and accuracy, may be stated as follows:
  14. It would thus appear that no hearing was held. The LTC must have looked at the new petitions and at its previous decisions in 1996 and 2004 and decided that the issues raised in the new petitions concerning the "Matua o le Aiga Samoa" at Leulumoega and whether the title Samoa is one of the "Pou o le Toaiva" had already been determined in 1996 and therefore the Court did not have jurisdiction to hear the same issues again.
  15. Even though the LTC held that the Court in its 2004 decision affirmed its decision in 1996, that is not entirely accurate. The 1996 decision was already conclusive as there was no appeal against it. The 1996 decision did not need any affirmation in 2004 to give it any additional finality. In any event, the 2004 proceedings were concerned with different parties and a different issue, namely, the correct honorific salutation of the village of Leulumoega. The references in the 2004 decision to the 1996 decision may best be regarded as obiter. They do not form part of the ratio decidendi of the 2004 decision.
  16. The statement in the reasons given by the LTC in its 2005 decision that the applicant Leoli did not appeal the 1996 decision and the 2004 decision is partly correct and partly incorrect. It is correct that the applicant did not appeal the 1996 decision but it is incorrect that the applicant did not appeal the 2004 decision because he did file an appeal dated 16 June 2004 against that decision. This was properly conceded by counsel for the LTC in her submissions.
  17. However, the said appeal by the applicant does not relate to the 1996 decision or any of the issues determined in that decision. The appeal relates to the 2004 proceedings and the decision in those proceedings which dealt with a different issue. The appeal is therefore not relevant to the gist of the 2005 decision, which is that the new petitions raise the same issues that the LTC had determined in the 1996 decision and therefore the Court had no jurisdiction to hear and determine the same issues again.

The applicant's motion for judicial review


  1. The applicant in his motion for judicial review seeks an order by way of certiorari to quash the 2005 decision by the LTC or in the alternative a declaration that the said decision is null and void. The grounds in support of the motion may be stated as follows:

The first respondent's motion to strike out


  1. The LTC, as first respondent, seeks to strike out the applicant's motion for judicial review on grounds which may be stated as follows:

The strike out jurisdiction


  1. The strike out principles apply to a motion to strike out proceedings for judicial review: Tiotionuuese et al v Land and Titles Court (2011) (unreported judgment of the Supreme Court delivered on 31 January 2011). These principles are well known. The facts on which the motion for judicial review is based are assumed to be true. The strike out jurisdiction is to be sparingly exercised. It is only to be exercised where it is plain and obvious that the proceedings are so clearly untenable that they cannot possibly succeed. The right of access to a Court is not to be lightly denied to a litigant.
  2. The jurisdiction to strike out proceedings for judicial review is inherent: see, for example, Mulitalo Tialino Penaia et al v Land and Titles Court et al (2011) (unreported reasons for judgment of the Supreme Court delivered on 17 June 2011, per Vaai J).

Discussion


Alleged breach of the applicant's right to a fair trial under Article 9 of the Constitution


(a) The right to a fair trial
  1. The applicant claims that the LTC has breached his right to a fair trial guaranteed under Article 9 of the Constitution when it dismissed his new petition in his absence without affording him a reasonable opportunity to be heard.
  2. Article 9 (1), insofar as relevant, provides:

"(1) In the determination of his civil rights and obligation..., every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law".


  1. Article 9 is not concerned with a trial or a fair trial per se, but with a person's right to a fair trial in the determination of his civil rights and obligations. It is that right to a fair trial which the applicant claims the LTC had breached by making a determination on his petition in his absence notwithstanding that in terms of Article 9 he is entitled to a fair and public hearing of his petition before the LTC. In other words, the applicant is saying that the LTC by dismissing his petition, in his absence, without a hearing to which he was entitled under Article 9 had breached his right to a fair trial.
(b) Notice of the hearing
  1. It is clear from the applicant's affidavit evidence that he did not receive any notice of the hearing set down for 17 June 2005. The applicant says that after he found out in December 2005 when he came to Samoa from Australia that his petition had been dismissed on 17 June 2005, he made enquiries with his family at Leulumoega who confirmed to him that no notice of a hearing was ever served on them. Prior notice of a trial is an essential requirement of the right to a fair trial. In the absence of such notice, there will be a denial of the right.
  2. That is contrary to what the registrar of the LTC says in his affidavit evidence that a Court officer did deliver the summons for the applicant to his local address at Leulumoega but was told by someone at that address that the applicant had returned to Australia but had left no contact details or phone number.
  3. In terms of the strike out principles, I have to assume that the facts on which the motion for judicial review is based are true, that is to say, capable of being proved. In this connection, it would have been helpful if the members of the applicant's family at Leulumoega who told the applicant that no summons had been served on them had provided affidavits. Likewise, it would have been helpful if the Court officer who is said to have delivered the summons to the applicant's local address had provided an affidavit. What the applicant and the registrar of the LTC say in their respective affidavits in relation to the service or non-service of the summons are both hearsay.
  4. Be that as it may, it is clear that if the applicant's family, as claimed by the applicant, was not served with a summons, that was no fault of the LTC. It is not a function or duty of the LTC to serve on the parties the summonses for Court proceedings. However, even if the non-delivery of the summons was no fault of the LTC, that does not preclude the applicant from making the complaint that he has been denied the right to a fair trial or procedural fairness: R v Criminal Injuries Compensation Board, ex parte A [1992] AC 330; F P (Ivan) v Secretary of State for the Home Department [2007] EWCA 13; Isak v Refugee Status Appeals Authority [2010] NZHC 1111. Those were asylum and refugee cases. But the principles discussed therein show that even if it is no fault of a decision-maker that notice of a hearing was not served on a party, that will not preclude a party from complaining of a denial of natural justice or procedural fairness if a decision unfavourable to him is made in his absence. Note, however, that in R v Home Secretary, ex parte Al-Mehdawi [1990] 1AC 876, 887, which was a deportation case, Lord Bridge of Harwich, in a judgment with which the other Law Lords concurred, held that a litigant who is not heard because of the neglect or fault of his solicitor cannot complain that procedural fairness or natural justice has been denied to him. Al-Mehdawi was not followed in R v Criminal Injuries Compensation Board, ex parte A [1992] AC 330; FP (Ivan) v Secretary of State for the Home Department [2007] EWCA 13: Isak v Refugees Status Appeals Authority [2010] NZHC 1111. However, in the Australian text Judicial Review of Administrative Action (2009) 4th ed by Professor Aronson et al, the learned authors state at p.511 that Al-Mehdawi has been cited in a number of Australian cases in support of the notion that unfairness which is the fault of a party's legal advisers does not establish a breach of natural justice. I do not have to decide in these proceedings between the English and Australian positions.
(c) Was there a breach of the applicant's right to a fair trial
  1. In my respectful view, there was a breach of the applicant's right to a fair trial in terms of Article 9 of the Constitution. In terms of Article 9, the applicant was entitled to a fair trial in the determination of his petition. That did not happen as the LTC on 17 June 2005 dismissed the applicant's petition in his absence without affording him any hearing. It does not, however, appear from the 2005 decision that the LTC was aware that the summons to the applicant had not been delivered to the applicant's local address as claimed by the applicant. But that is immaterial to the question of whether there was a breach of the right to a fair trial.
  2. It follows that the decision of 17 July 2005 by the LTC was made in breach of the applicant's right to a fair trial.

A hearing of the applicant's petition would not have made a difference to the 2005 decision


(a) Submission by counsel for the LTC as first respondent
  1. As already mentioned, the LTC in the 2005 proceedings does not seem to have been aware that the summons for the hearing of those proceedings had not been delivered to the applicant's local address at Leulumoega as claimed by the applicant. The LTC must have relied on the information in the relevant Court file which is set out in the affidavit of the registrar filed in support of the present motion to strike out. That information shows that a Court officer had delivered the summons to the applicant's local address at this family at Leulumoega. Someone at that address told the Court officer that the applicant had returned to Australia where he permanently resides but had left no contact address or telephone number. The LTC must have acted on that information and proceeded to deal with the petitions before it including the petition by the applicant. Strictly speaking, it was no fault of the LTC that it proceeded to do so.
  2. Counsel for the LTC submitted that even if the applicant had been given a hearing on his petition dated 8 November 2004, it would have made no difference to the decision made by the LTC on 17 June 2005. This is because the issues raised by the applicant in this petition of 8 November 2004 had already been determined by the LTC in its 1996 decision and there was no appeal against that decision. The LTC in its decision of 17 June 2005 was correct in dismissing the applicant's petition of 8 November 2004 for the reason that it has no jurisdiction to revisit the issues raised in the applicant's petition as those issues had already been determined by the LTC in its 1996 decision. The submission by counsel for the LTC does raise the principle of issue estoppel.
(b) The 1996 decision
  1. In the 1996 proceedings before the LTC, the parties were the applicant, Suluga Tavete, and Samoa Pita, the second respondent. These are the same parties to the 2005 proceedings. Each of the parties to the 1996 proceedings filed a petition. The petition by the applicant sought from the LTC an order to confirm that the "Matua o le Aiga Samoa" is the title Leoli which the applicant holds; the petition by Suluga Tavete sought from the LTC an order that the "Matua o le Aiga" is the title Suluga which Suluga Tavete holds; and the petition by the second respondent sought from the LTC an order to confirm that the "Matua o le Aiga Samoa" is the title Samoa which the second respondent holds. In addition, the second respondent sought an order to confirm that the title Samoa is one of the "Pou o le Toaiva" at Leulumoega. This was clearly in relation to the title Samoa held by the second respondent himself and not any other title Samoa.
  2. In its decision delivered on 9 April 1996, the LTC in paragraphs 1 and 5 rejected all the petitions by the parties that the "Matua o le Aiga Samoa" or the "Matua o le Aiga" is vested in the title Leoli held by the applicant, or the title Suluga held by Suluga Tavete, or the title Samoa held by the second respondent. In addition, the LTC in paragraph 1 of its decision held that the title Samoa or Sāmoa is one of the "Pou o le Toaiva" at Leulumoega. This was clearly with reference to the title Samoa or Samoa held by the second respondent. There was no other holder of the title Samoa who was present or being represented in the 1996 proceedings. There was also no other holder of the title Samoa or Sāmoa who petitioned the LTC in the 1996 proceedings that the title Samoa or Sāmoa is one of the "Pou o le Toaiva" at Leulumoega except the second respondent.
  3. There was no appeal against the 1996 decision. So that decision has remained up to now.
(c) The 2004 decision
  1. The proceedings before the LTC in 2004 were not concerned with the issues of the "Matua o le Aiga Samoa" or "Matua o le Aiga" or the "Pou o le Toaiva" at Leulumoega which had been determined by the LTC in 1996. The 2004 proceedings were concerned with a different issue, namely, the correct honorific salutation of the village of Leulumoega. The parties to the 2004 proceedings were also different from the parties to the 1996 proceedings even though the present applicant was one of the parties to both those proceedings.
  2. In its decision delivered on 22 April 2004 in relation to the 2004 proceedings, the LTC made passing references to its 1996 decision under the heading "Faatomuaga" (Introduction) in paras 5 and 6. Those references are clearly a restatement of what the LTC had stated in its 1996 decision that the "Matua o le Aiga Samoa" is not vested in the title Leoli, Suluga, or Samoa (paras 5) and that the title Samoa is one of the "Pou o le Toaiva" (para 6). Those references in the 2004 decision to the 1996 decision were clearly obiter as the 2004 proceedings were concerned with a different issue. They do not form any part of the ratio decidendi of the 2004 decision.
  3. The appeal filed by the present applicant against the 2004 is not directed at the 1996 decision or any of the issues determined in that decision. It is directed at the issue of what is the correct honorific salutation of the village of Leulumoega. That appeal is still pending before the LTC.
(d) The 2005 decision
  1. Suluga Tavete who was a party to the 1996 proceedings filed a new petition dated 9 June 2004 again seeking from the LTC an order to confirm that the "Matua o le Aiga Samoa" is the title Suluga. The present applicant filed a new petition dated 8 November 2004 seeking from the LTC an order to reject the petition by Suluga. In addition, the applicant in his new petition sought an order from the LTC to confirm his interpretation of the 1996 decision that the title Samoa or Sāmoa determined by the LTC in its 1996 decision to be one of the "Pou o le Toaiva" is not the same as the title Samoa held by the second respondent. In response, the second respondent filed a new petition dated 14 March 2005 again seeking an order from the LTC to confirm that the "Matua o le Aiga Samoa" is the title Samoa and to reject the petitions by the applicant and Suluga.
  2. It is clear that Suluga and the second respondent were seeking to re-litigate the very same issue as to which title is the "Matua o le Aiga Samoa" even though that issue had been determined in the 1996 decision. In this regard, the applicant in his new petition was correct in seeking from the LTC an order to reject the petition by Suluga.
  3. In addition, the applicant in his new petition was also seeking to place a different interpretation on which title Samoa is one of the "Pou o le Toaiva" as determined by the LTC in its 1996 decision. As already pointed out, the applicant's interpretation in this regard is contrary to the clear meaning of the 1996 decision as to which title Samoa is one of the "Pou o le Toaiva". It is clearly the title Samoa held by the second respondent.
  4. In its decision of 17 June 2005 in relation to the 2005 proceedings, the LTC dismissed the petition by the applicant and the petition by Suluga. The reasons given by the LTC in dismissing both petitions may be stated as follows:
  5. It would appear from the 2005 decision that the LTC by dismissing the petition by Suluga which in any event had been withdrawn, had effectively granted the applicant's new petition for an order to reject Suluga's petition. So the applicant cannot complain about that part of the 2005 decision even though he was not present when the LTC made its decision. The 2005 decision effectively gave the applicant what he wanted from the LTC in relation to Suluga's new petition. The remaining issue raised in the applicant's petition is that the title Samoa determined in the 1996 decision to be one of the "Pou o le Toaiva" is not the title Samoa held by the second respondent. As I have already said, this is clearly contrary to the terms and meaning of the 1996 decision. The applicant's interpretation has no merit.
  6. Furthermore, even though the 2005 decision is correct that the applicant did not appeal the 1996 decision, it is mistaken in saying that the applicant did not appeal the 2004 decision because the applicant did file an appeal dated 16 June 2004 against that decision. However, the 2004 decision was not relevant to the gist of the 2005 proceedings and the 2005 decision. As already pointed out, the issues that were before the LTC in 2005 for determination were the same issues that had been determined by the LTC in the 1996 decision. The 2004 proceedings were concerned with a different issue and different parties even though the applicant was a party to both the 1996 and 2004 proceedings. The LTC in the 2004 proceedings did not have to affirm the 1996 decision. That decision was already firm and stood alone. The passing references in the introduction of the 2004 decision to the 1996 decision were clearly obiter and did not form part of the ratio decidendi of the 2004 decision. In my respectful view, the reference to the 2004 decision in the 2005 decision was not necessary at all for the purpose of the 2005 decision. As a consequence of referring to the 2004 decision, the LTC fell into error when it says in the 2005 decision that the applicant has not appealed the 2004 decision when he had actually done so. However, I accept the submission by counsel for the LTC that this mistake of fact by the LTC was not material to the gist of the matter the LTC had to determine in 2005 and should not be allowed to vitiate the whole of the 2005 decision. I will return to mistake of fact as a ground of review later in this judgment.
(e) Issue estoppel
  1. In the recent case of Ainuu v Land and Titles Court [2011] WSSC 36, the Court held that the principle of issue estoppel which applies to civil litigation also applies to proceedings in the LTC. This is because of the public interest in the finality of litigation and the protection of a party to civil litigation from being vexed or harassed twice in the same matter.
  2. Issue estoppel was discussed in detail in Ainuu v Land and Titles Court [2011] WSSC 36; Reed v Mataeliga [2005] WSSC 1. I need not repeat the whole of that discussion. But in Ainuu v Land and Titles Court, it was held that the principle of issue estoppel, perhaps with some modifications, applies to proceedings in the LTC. I still maintain that position.
  3. The three requirements of issue estoppel to be established were stated in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.2) [1967] 1 AC 853, 935 where Lord Guest in the House of Lords said:

"The requirements of issue estoppel still remain (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.


  1. In the Canadian case of Apotex Inc v Mark & Co [2002] FCA 210 Malone JA said:

"[Issue estoppel] is said to arise where the same question has been decided, the judicial decision which is said to create the estoppel is final, and the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised. Issue estoppel applies to preclude re-litigation of an issue which has been conclusively and finally decided in previous litigation between the same parties or their privies"


  1. In Reed v Mataeliga [2005] WSSC 1, this Court said:

"Issue estoppel.... applies to an issue of fact or law which has been determined in a judicial proceeding by a Court of competent jurisdiction to prevent either party to such proceeding from raising the same issue again in a subsequent proceeding between the same parties. The same applies not only to the parties but also to their privies. In explaining issue estoppel in Blair v Curran [1939] HCA 23, (1939) 62 CLR 464, Dixon J said at p. 531:


" 'A judicial determination directly involving an issue fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies' ".


  1. In applying those statements of principles to the present proceedings, of the issue of whether the "Matua o le Aiga Samoa" is the title Leoli, Suluga, or Samoa had already been determined by the LTC in the 1996 decision. In terms of the provisions of Part III of the Land and Titles Act 1981, the 1996 decision was final. It was also not appealed. The parties to the 1996 proceedings and the 1996 decision were the same as the parties who petitioned the LTC in 2004 and 2005 whether the "Matua o le Aiga Samoa" is vested in the title Suluga or Samoa. It is, therefore, evident that the three requirements of issue estoppel exist in the present proceedings. It follows that issue estoppel applies to preclude the parties from re-litigating the same issue concerning the "Matua o le Aiga Samoa" that had been determined between them in the 1996 decision.
  2. Likewise, it is clear from the 1996 decision that the LTC had determined that one of the "Pou o le Toaiva" is the title Samoa. That is the title Samoa held by the second respondent. Issue estoppel would also apply to that part of the applicant's petition dated 8 November 2004 which mistakenly claims that the title Samoa held by the second respondent is not the same as the title Samoa determined in the 1996 decision to be one of the "Pou o le Toaiva". The LTC was therefore correct in holding in the 2005 decision that it has no jurisdiction to entertain the applicant's petition as the issue it raised had been determined in the 1996 decision. I find the interpretation given by the applicant to this part of the 1996 decision to be unjustified.
  3. It follows from what I have said that even if the applicant's petition had been accorded a hearing in 2005 it would have made no difference to the substance of the 2005 decision.

Delay


  1. The issue of delay was also raised in support of the strike out motion. The 2005 decision was delivered on 17 June 2005. The applicant's motion to review the 2005 decision was not filed until 2 November 2010. This was about 5 years and 4 months after the said decision was delivered. The explanation given by the applicant for this delay is that he was not aware of the 2005 decision because he and his family at Leulumoega were not served with a notice of the hearing scheduled for 17 June 2005. He only became aware of the 2005 decision when he visited Samoa in December 2005. He then wrote to the President of the LTC on or about 12 December 2005 raising his concern as to the alleged breach of his right to a fair trial but his request was declined as advised by letter dated 20 January 2006 from the registrar of the LTC. The applicant says he wrote again to the President in May 2006 and followed this up several times but there has been no favourable response.
  2. Evidently, when the applicant became aware of the 2005 decision, the maximum period of two months for filing an appeal, which includes a possible extension of time to file an appeal, had expired on 17 August 2005 given that the LTC's decision was delivered on 17 June 2005. If the material delay is to be counted from about 20 January 2006, which was the date of the registrar's letter advising the applicant that his request to the President of the LTC had been declined, to the time the motion for review was filed on 2 November 2010, the period of delay would be about 4 years and 9 months.
  3. The issue of delay as it relates to a motion for review was discussed by this Court in two recent judgments: Tiotionuuese et al v Land and Titles Court (2011) (unreported judgment) of the Supreme Court delivered on 31 January 2011, per Sapolu CJ); Ainuu v Land and Titles Court [2011] WSSC 13. I do not propose to repeat in full what I said in those two judgments about delay for the purpose of a motion to strike out review proceedings on the ground of delay.
  4. What I want to refer to here is the difference between the English approach and the New Zealand approach to the issue of delay. This was noted by Cooke P in Hauraki Catchment Board v Andrews [1987] NZCA 267; [1987] 1 NZLR 445, 448 which is cited in Tiotionuuese. In England, judicial review has prima facie to be applied for within three months. This is provided for under the English Rules of Court. In New Zealand, there is no such time requirement for bringing a motion for review. Delay is left to the discretion of the Court according to the facts of each case. The English approach is clearly rigid compared to the New Zealand approach which is more flexible.
  5. Samoa does not have any provision in its Supreme Court (Civil Procedure) Rules 1980 like the English Rules which prescribe a time period within which to bring a motion for review. Like New Zealand, we have no such time requirement. We have therefore followed the New Zealand approach to the issue of delay for the purpose of a motion to strike out review proceedings and leave it to the discretion of the Court to deal with it according to the facts of each case, again see Tiotionuuese and Ainuu. In terms of the New Zealand approach, prejudice to a respondent or third party because of delay is an important and relevant consideration.
  6. On the facts of this case, the LTC on 9 April 1996 determined that the "Matua o le Aiga Samoa" was not vested in the title Leoli, Suluga, or Samoa. It also determined that the title Samoa is one of the "Pou o le Toaiva". The applicant and the second respondent were parties to the 1996 proceedings and decision. That decision was not appealed.
  7. The applicant in his petition of 8 November 2004 was in effect seeking to question the 1996 decision by alleging that the title Samoa determined by the LTC to be one of the "Pou o le Toaiva" is different from the title Samoa held by the second respondent. This was about 8 years and 8 months after the LTC delivered its decision on 9 April 1996. Obviously this was well beyond the maximum period of two months allowed in the Land and Titles Act 1981 to appeal a decision of the LTC as a Court of First Instance. It is difficult to accept that the applicant should be allowed to question the 1996 decision after about 8 years and 8 months. If the applicant had wanted to challenge the 1996 decision, his remedy was to appeal that decision within the time period allowed under the Act and not to wait for about 8 years and 8 months and then file a new petition. This would be tantamount to using a new petition to circumvent the appeal provisions of the Act after a very lengthy delay.
  8. Even though there was no evidence of actual prejudice to the second respondent because of the delay, I am of the view that the second respondent must have acted on the basis of the 1996 when there was no appeal and held himself out as one of the "Pou o le Toaiva". His family and village, in particular his village council, must also have recognised, greeted, and addressed him as one of the "Pou o le Toaiva" because of the 1996 decision. It will be highly prejudicial to the second respondent if the Court after 8 years and 8 months is to decide that his title Samoa was not the title Samoa determined in the 1996 decision to be one of the "Pou o le Toaiva". Here, the Court is presuming on the basis of its knowledge and experience of Samoan custom and our own way of life that the second respondent must have acted on the basis of the 1996 decision as one of the "Pou o le Toaiva" and was recognised, greeted, and addressed as such within his family and village. See the discussion on presumptive prejudice in Ainuu v Land and Titles Court [2011] WSSC 13.
  9. Then the petition of 8 November 2004 by the applicant was dismissed by the LTC on 17 June 2005. The applicant's letter of 12 December 2005 to the President of the LTC was declined by letter dated 20 January 2006 from the registrar. However, it was not until 2 November 2010 that the applicant filed his present motion for review of the LTC's decision of 17 June 2005. From about 20 January 2006 to 2 December 2010 was another time lapse of about 4 years and 9 months.
  10. So the total period of material delay from the 1996 decision which determined that the title Samoa is one of the "Pou o le Toaiva" to 2 November 2010 when the applicant filed his present motion for review which effectively questions the meaning of the 1996 decision would be about 13 years and 5 months. On any count, this is quite a lengthy delay and the Court is entitled to presume prejudice to the second respondent for the reasons I have already given.

Exercise of discretion


  1. Remedies for judicial review which are sometimes referred to as public law remedies are discretionary. They are not automatic. This means even if the applicant can establish the ground or grounds of his motion for review, the Court in the exercise of its discretion may still refuse to grant a remedy.
  2. Even though the applicant has established that the decision of 17 June 2005 by the LTC was in breach of his right to a fair trial under Article 9 of the Constitution, I have decided in the exercise of my discretion not to grant the remedies sought by the applicant in his motion for review.
  3. For clarity and ease of understanding, it would be helpful to refer again to the crucial parts of the applicant's new petition which was dismissed by the LTC in its 2005 decision in the absence of the applicant. In the first part, the applicant sought an order to reject the new petition by Suluga that the "Matua o le Aiga Samoa" is vested in the title Suluga because that issue had already been determined by the LTC in 1996. In the second part of the applicant's new petition, he sought an order that the title Samoa determined by the LTC in 1996 to be the "Matua o le Anita Samoa" is different from the title Samoa held by the second respondent.
  4. In relation to the first part of the applicant's new petition, if Suluga had not withdrawn his new petition and the hearing had proceeded, issue estoppel would have applied to preclude Suluga from re-litigating the issue concerning the "Matua o le Aiga Samoa" because that issue had determined by the LTC in its 1996 decision. The applicant was clearly right in seeking an order from the LTC to reject Suluga's petition.
  5. Suluga, however, withdrew his petition and it was dismissed by the LTC in its 2005 decision in the absence of Suluga and the applicant. By dismissing the petition by Suluga, the LTC was effectively granting to the applicant what he wanted in his petition which was an order to reject the petition by Suluga. So the first part of the applicant's petition became an academic point. And the applicant has no real cause for complaint against the 2005 decision which had effectively given him what he wanted.
  6. It follows that to allow the applicant's motion for review simply to satisfy the applicant's right to a fair trial when Suluga had withdrawn his petition and was dismissed by the LTC would be an expensive, time wasting, and futile exercise. The LTC would inevitably come to the same result and again dismiss Suluga's petition as sought by the applicant in his new petition. In these circumstances, I accept the submission by counsel for the LTC that even if the applicant's petition had been accorded a fair hearing, it would have made no difference to the outcome of the 2005 proceedings. The LTC would still have dismissed Suluga's petition which had been withdrawn and also because the issue raised in Suluga's petition had already been determined by the LTC in the 1996 decision.
  7. In relation to the second part of the applicant's new petition, the LTC had clearly determined in 1996 in relation to the title Samoa held by the second respondent that the title Samoa is one of the "Matua o le Toaiva" at Leulumoega. The applicant who was a party to 1996 proceedings did not appeal the LTC decision in those proceedings. The principle of issue estoppel would apply to preclude the applicant from re-litigating the same issue.
  8. Furthermore, under the provisions of the Land and Titles Act 1981, a right of appeal is provided against decisions of the LTC sitting as a Court of First Instance which the LTC did in the 1996 proceedings. The applicant did not exercise that right of appeal. But his new petition dated 8 November 2004 which was the subject of the 2005 decision is directed at the 1996 decision. In effect, this means that for about 8 years and 8 months after the 1996 decision which the applicant did not appeal, he was questioning that decision even thought it is clear that the said decision was referring to the title Samoa held by the second respondent. This would be tantamount to using a new petition to circumvent the appeal provisions of the Act and it smacks of abuse of process.
  9. In addition, the material delay involved in this case is too long, that is, whether it is assessed from the date of the 1996 decision to 8 November 2004 when the applicant filed his new petition or from the date of the 1996 decision to 2 December 2010 when the applicant filed his present motion for review. In view of the long delay, I would presume that the second respondent has suffered prejudice for the reasons already given. It would be unrealistic to expect the applicant, his family, and his village not to have acted on the basis of the 1996 decision during all these years given the Court's knowledge and experience of our Samoan custom and way of life particularly in a village.
  10. For those reasons, I have also decided, in the exercise of my discretion, not to grant the remedies sought by the applicant in his motion for review, insofar as the second part of his petition is concerned, even though the applicant has established that the LTC's 2005 decision was in breach of the applicant's right to a fair trial under Article 9 of the Constitution. In arriving at this conclusion it should be borne in mind that to refuse a remedy in the exercise of the Court's discretion even though there is an established breach of the Article 9 right to a fair trial or procedural fairness is something exceptional which requires strong reasons. Such reasons exist in this case.
  11. The strike out motion must succeed and the applicant's motion for judicial review is struck out.

Mistake of fact


  1. As one of the grounds of the applicant's motion for review is that the 2005 decision of the LTC is factually incorrect because it says in its reasons that the applicant did not appeal the 2004 decision when he had actually filed an appeal, counsel for the LTC addressed the issue of mistake of fact in her submissions in some detail. I have already accepted the submission by counsel for the LTC that the mistake of fact in the reasons for the 2005 decision was not material to the gist of that decision. So the mistake of fact in question does not affect the conclusion I have reached on the strike out motion.
  2. Because of the importance and novelty of mistake of fact as a ground of judicial review for the purpose of Samoan law and in deference to the well prepared submissions by counsel for the LTC on this aspect of the proceedings, I have decided to say something about mistake of fact as a ground of review. This is assuming, without deciding, that a decision of the LTC can be reviewed on the ground of mistake of fact and not just for breach of a fundamental right under the Constitution.
  3. This is the first Samoan case in which mistake of fact has been raised in relation to judicial review proceedings. There is, therefore, no previous Samoan case on this issue. As a result, I have to refer to authorities in other jurisdictions, some of which were cited by counsel for the LTC in her submissions.
(a) The English position
  1. Mistake of fact is recognised in English law as a ground of judicial review to set aside a decision. In R v Criminal Injuries Compensation Board ex parte A [1999] UKHL 21; [1999] 2 AC 330 at 333-336, Lord Slynn accepted that the Court has jurisdiction to quash a decision on the ground of mistake of fact. He said:

"Your Lordships have been asked to say that there is jurisdiction to quash the Board's decision because that decision was reached on a material error of fact. Reference has been made to Administrative Law (Wade and Forsyth (7th edition)) in which it is said at pp. 316-318 that:


" 'Mere factual mistake has become a ground of judicial review, described as 'misunderstanding or ignorance of an established and relevant fact', [Secretary of State for Education v Tameside MBC [1976] UKHL 6; [1977] AC 1014, 1030] or acting upon an incorrect basis of fact'... This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong fact are a cause of injustice which the Courts should be able to remedy'".


  1. Lord Slynn also accepted the following passage from Judicial Review of Administrative Action 5th ed by de Smith, Woolf and Jowell where the learned authors state at p. 288:

"The taking into account of mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this context material error of fact has always been a recognised ground for judicial intervention.


  1. The above passage from Judicial Review of Administrative Action 5th ed by de Smith, Woolf and Jowell reflects a lingering uncertainty as to whether mistake of fact is a separate ground of judicial review in its own right or whether it has to fall within one of the traditional grounds of judicial review. I am not required to express a view on that uncertainty.
  2. In the more recent case of E v Secretary of State for the Home Department [2004] EWCA 49 which was cited by counsel for the LTC in the present proceedings, the English Court of Appeal at para 52 came to the conclusion 'that mistake of fact is now a ground for judicial review in its own right', that is, if the mistake of fact gives rise to unfairness. The gist of the decision in E v Secretary of State for the Home Department [2004] EWCA 49 in relation to mistake of fact was stated by Carnworth LJ who delivered the judgment of the Court. His Lordship referred to what has been the 'narrow view' and the 'broad view' as to the scope of mistake of fact as a ground of review and then analysed the principle underlying mistake of fact. He then said at para 66:

"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge...Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB (R v Criminal Injuries Compensation Board ex parte A [1999] UKHL 21; [1999] 2 AC 330]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was un-contentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning"


  1. Applying the above analysis to the facts of the present proceedings in order to see whether there is a mistake of fact giving rise to unfairness, there is no dispute that the statement by the LTC in its reasons for the 2005 division that there was no appeal by the applicant against the 2004 decision was a mistake as to an existing fact. That is because there was actually such an appeal by the applicant. That appeal is still pending. The fact that there is such an appeal is also un-contentious because it was properly conceded by counsel for the LTC. The applicant was also not responsible for the mistake. However, the mistake, as already shown, played no material part in the 2005 decision of the LTC. It was not relevant to the 2005 decision. The 2005 decision would still have been the same without the mistake. It follows that even though there was a mistake of fact in the reasons for the LTC's 2005 decision, it is not a mistake that would have given rise to an unfairness to the applicant.
(b) The New Zealand position
  1. Even though in New Zealand, a decision can be set aside on the ground of mistake of fact, the scope of mistake of fact as a ground of judicial review seems uncertain. It also seems uncertain whether in New Zealand mistake of fact is a separate ground of judicial review in its own right or whether it has to fall within one of the traditional grounds of review.
  2. In Lewis v Wilson & Horton Ltd [2000] NZCA 175, Elias CJ in delivering the judgment of the New Zealand Court of Appeal said at para [92]:

"Whatever the scope of mistake of fact as a ground of judicial review (as to which see Daganayasi v Minister of Immigration [1980] 2 NZLR 130, NZ Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLRS 44), the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be opened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to exercise of power or where the error of fact results in a decision which is unreasonable. In such cases, the decision-making process will have miscarried".


  1. It would appear from the above passage from Lewis v Wilson & Horton Ltd [2000] NZCA 175 that the New Zealand Court of Appeal has adopted a restricted approach to review on mistake of fact compared to the broad approach adopted by Cooke J in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 and NZ Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLRS 44). In terms of the decision in Lewis v Wilson & Horton Ltd [2000] NZCA 175, a decision is not reviewable for mistake of fact unless the mistake relates to a fact which is a condition precedent to the exercise of power, that is to say, 'a jurisdictional fact' or it results in an unreasonable decision, that is to say, unreasonableness.
  2. If the approach adopted in Lewis v Wilson & Horton Ltd is applied to the facts of the present proceedings, the mistake of fact in the reasons of the 2005 decision by the LTC was not a mistake in relation to a 'jurisdictional fact' or a fact which is a condition precedent to the exercise of the jurisdiction by the LTC. It was a mistake committed whilst the LTC was exercising its jurisdiction.
  3. In terms of unreasonableness, I am of the clear view that the mistake of fact in the reasons for the 2005 decision by the LTC did not result in an unreasonable decision.
  4. It follows that in terms of the approach adopted in Lewis v Wilson & Horton Ltd [2000] NZCA 175, the mistake of fact in the present proceedings is not sufficient to set aside the 2005 decision by the LTC.
  5. On the question of whether mistake of fact is a separate ground of judicial review or whether it should came within one of the traditional grounds of review, it would seem from Lewis v Wilson & Horton Ltd [2000] NZCA 175 that for a decision to be set aside for mistake of fact, the mistake must be one in relation to a jurisdictional fact or it must come under the ground for review of unreasonableness.
  6. In Diagnostic Medlab Ltd v Auckland District Health Board [2007] NZAC 177, Asher J said at para [324]:

"In Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) the Judges expressed different views as to the existence of a mistake of fact doctrine, and a cautious approach to its existence was taken in New Zealand Fisheries Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) and Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA). It is easiest to see a mistake of fact as an example of traditional Wednesbury unreasonableness, or an error of law, or a consideration of an irrelevant matter or a failure to consider a relevant matter. In Lewis v Wilson & Horton Ltd [2000] 3 NZLR 456 (CA) Elias CJ stated at [63]:


" 'Where the facts cannot support a decision, judicial review is available on the partially overlapping grounds of error of law (on the basis that it must be inferred that the decision maker has misconceived the law) or unreasonableness'


"Thus, I conclude that the mistake of fact submission will be available if it falls into one of the orthodox grounds of judicial review".


(c) General comments
  1. As it will appear from the above discussion, the present position under English law in relation to mistake of fact is that a mistake of fact giving rise to unfairness is a separate ground of judicial review in its own right: E v Secretary of State for the Home Department [2004] EWCA 49, paras 45, 66.
  2. In New Zealand, it would seem that at present mistake of fact as a ground of judicial review would have to come within one of the traditional grounds of judicial review: Lewis v Wilson & Horton Ltd [2000] NZCA 175, [2000] 3 NZLR 456; Diagnostic Medlab Ltd v Auckland District Health Board [2007] NZHC 177. The New Zealand position is similar to the position stated in the passage from Judicial Review of Administrative Action 5th ed by de Smith, Woolf and Jowell cited earlier in this judgment.
  3. My impression of the relevant case law is that mistake of fact as a ground of judicial review is still in a developmental state. It is therefore somewhat early days to decide in this case the direction for Samoan law to go in this area.

Conclusion


  1. For the above reasons, I conclude that the strike out motion should succeed. The applicant's motion for judicial review is therefore struck out.
  2. Counsel to file submissions as to costs in ten (10) days if agreement as to costs between the parties cannot be reached.
  3. Finally, I regret that some repetitions have been necessary because of the facts in these proceedings.

----------------------------


CHIEF JUSTICE


Solicitor
Ponifasio Law Firm for applicant
Attorney General's Office, Apia for first respondent

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