IN THE SUPREME COURT OF SAMOA
Ale v Attorney General [2023] WSSC 31 (25 May 2023)

Case name: 	Ale v Attorney General	
		
Citation: 	[2023] WSSC 31	
		
Decision date: 	25 May 2023	
		
Parties: 	ITULAU JUNIOR ALE, unemployed of Solosolo & Lotopa, Apia (Plaintiff/Applicant) v ATTORNEY GENERAL, for and on behalf of MINISTRY OF POLICE, FIRE AND PRISONS (Defendant/Respondent).	
		
Hearing date(s): 	01st & 05th May 2023	
		
File number(s): 	MISC 04/22	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Vui Clarence Nelson	
		
On appeal from:		
		
Order:	The defendants Motion to Strike Out based on section 67(1) of the Police Service Act 2009 fails, it is dismissed.
The plaintiffs Motion for extension of time pursuant to section 21 of the Limitation Act 1975 also fails, it too is dismissed.
Both Motions having failed, each party shall bear their own costs.	
		
Representation: 	A. Su’a for the Plaintiff/Applicant
V. Leilua of the Attorney General’s Office for Defendant/Respondent 	
		
Catchwords: 	Disciplinary charges – denied allegations – resigned – challenged dismissal – material prejudice.	
		
Words and phrases:	“Samoa Police Service employee” – “suspended from place of employment while internal investigation carried out” – “protection for members” – “limitation of actions” – “savings for other limitation enactments”.	
		
Legislation cited:	Limitation Act 1975, ss. 21; 21(1)(a); 21(1)(b); 21(2); 30;
Police Service Act 2009, ss. 3; 49(2); 52; 53; 57(1)(a); 57(1)(c); 66; 67; 67(1); 67(2); 67(3); 67(4); 67(5). 	
		
Cases cited:	Brewer v Auckland Hospital Board [1957] NZLR 951;
Tett v Attorney General [1957] NZLR 1063;
Tupito v Attorney General [2019] WSCA 5;
Tupito & Anor v Attorney General [2019] WSSC 7 (12 April 2019).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ITUAU JUNIOR ALE, unemployed of Solosolo and Lotopa, Apia.

Plaintiff/Applicant

AND:

ATTORNEY GENERAL, for and on behalf of MINISTRY OF POLICE, FIRE AND PRISONS.

Defendant/ Respondent

Counsel:	A. Su’a for plaintiff/applicant
		V. Leilua of Attorney General’s Office for defendant/respondent

Hearing:	01 and 05 May 2023

Decision:	25 May 2023

DECISION OF NELSON J
(Application for extension of time)
Background 
1. 	The plaintiff is a 15-year veteran of the Samoa Police Service and was at all material times employed under the provisions of the Police Service Act 2009 (“the Act”) as continued by section 3 thereof:  
	“3. Continuation of the Samoa Police Service – (1) The Police Service of Samoa established under section 3 of the repealed (Police Service) Act is continued under the name of the Samoa Police Service, and shall have the structure, functions and administrative arrangements provided for by this Act, and regulations made and General Instructions issued under this Act. 
	(2) 	A member of the Police Service established under the repealed Act is, without further authority than this Act, deemed to have been appointed as a member of the Samoa Police Service under this Act in the rank held by the member in the Police Service as at the commencement of this Act. 
	(3) 	A member deemed to be a member of the Samoa Police Service by reason of subsection (2) holds office subject to any condition applying to the appointment of that member in the Police Service at the time of commencement of this Act, including: 
	(a) 	a member whose appointment is permanent shall continue to have a permanent appointment as if made under this Act; 
	(b) 	a member whose appointment is temporary shall continue to have a temporary appointment as if made under this Act; and 
	(c) 	a member on probationary appointment under the repealed Act continues to hold office on a probationary basis as if made under this Act.”
2. 	On or about 13 September 2019 he was suspended pursuant to section 52 of the Act pending the outcome of an internal investigation into his conduct.  On 24 September 2019 he was served with twelve (12) disciplinary charges covering a wide range of matters.  On 03 October through previous counsel he denied all the allegations against him but on 08 October 2019 he resigned without prior notice from the Police Service for the reasons given in his letter of resignation.
3. 	Subsequent to this, the uncontested evidence of the defendant by way of an affidavit from Police Senior Sergeant John Fanuualii is that:
	“On 17 October 2019 Mr Ale was called in to the Ministry to meet with the former Commissioner, Legal Team, Deputy Commissioner Papalii Monalisa Tiai-Keti, the Officer in Charge of the Professional Standards Unit Papalii Eneliko Masipau and myself.
	Mr Ale was first given the opportunity to respond to the allegations against him and any other matters he wanted to comment on. Mr Ale was apologetic and further clarified his position requesting to accept his resignation.  Mr Ale was informed of the former Commissioners position to deny his resignation and to dismiss his service from the Ministry.
	Mr Ale was then informed that his dismissal was on the basis that the allegations against him are serious, which have been proven with sufficient evidence. Mr Ale was informed that his actions cannot be tolerated within the Ministry.
	At the conclusion of the said meeting, Mr Ale was informed that he is open to appealing the former Commissioners decision if he wishes to do so within the next seven (7) days pursuant to section 49(2) of the Police Service Act 2009.
	On 24 October 2019 the appeal period had lapsed and the former Commissioner formally issued the letter dismissing Mr Ale from the Ministry to which Mr Ale received but had refused to sign.”
This generally accords with the plaintiffs affidavit filed in this matter.  
4. 	The plaintiffs dismissal was effected pursuant to section 57(1)(c) of the Act which allows for termination of service “where the member has been duly dismissed for poor work performance or a breach of duty.”  Section 57(1)(a) also allows for termination in the event of a one month written notice to the Commissioner of a members “intention to leave the Service.” 
5. 	The plaintiff took no further steps to appeal or otherwise question the dismissal until some six months later on 04 May 2020 when his counsel wrote to the Commissioner of Police alleging his termination was procedurally unlawful and requesting “you to consider withdrawal of your termination letter and allow our client to resign and receive his full benefits and entitlements.” No response came from the Police.
6. 	On 06 September 2021 almost two years post-dismissal, plaintiffs replacement counsel wrote again to the Police reiterating the earlier proposal.  On 15 October 2021 the Police rejected the proposal and reaffirmed the Commissioners decision to dismiss. On 21 December 2021 the plaintiff served on the defendant a notice of intended proceedings pursuant to section 21 of the Limitation Act 1975 and on 08 February 2022 he commenced court proceedings by a Notice of Motion for extension of time pursuant to the said section 21.
7. 	There are two potential obstacles to the plaintiffs proposed challenge to his dismissal: the first as argued by the defendant is section 67(1) of the Act which imposes a 12-month time limit on “actions against any person for anything done under the authority of this Act.”  Based on this the defendant has filed a Motion to Strike out the plaintiffs intended Claim as being out of time. The second hurdle is satisfying the court that the requirements of section 21(2) of the Limitation Act have been met and that it is “just” to grant an extension of time.
Police Service Act, section 67(1):
8. 	Section 67(1) of the Police Service Act must be read in its entirety and in context:
	“Division 3 – Protection of Members
	66. Protection for members – (1) If an action is brought against any member of the Service for any act done in obedience to a warrant, order or process of any Court or judicial officer or Registrar of any Court, that member is not responsible for any irregularity in the issuing of the warrant, order or process or for want of jurisdiction in the Court, Judicial Officer or Registrar.
	(2) On the production of any such warrant, order or process, and on proof to the satisfaction of the tribunal that the signature on it is in the handwriting of the person whose name appears subscribed thereto, and that the person is reputed to be and acts as a Judicial Officer or Registrar, as the case may be, of the Court purporting to exercise jurisdiction in the case, and that the acts complained of were done in obedience to the warrant, order or process, the tribunal trying the issue shall find a verdict for that member, and the member shall recover all the costs of defending the suit.
	67. Limitation of Actions – (1) For the protection of members and persons acting in the execution of this Act, all actions against any person for anything done under the authority of this Act shall be commenced within 1 year after the cause of action has arisen.
	(2) Notice in writing of the action and of the basis of the action shall be given to the relevant member or person and the Attorney General at least 1 month before the commencement of the action. 
	(3) The plaintiff in an action is not entitled to recover damages if: 
	(a) a sufficient offer to make amends is made before the action is brought; or 
	(b) a sufficient sum of money is paid into Court by or on behalf of the defendant after the action is brought, together with the costs incurred up to that time. 
	(4) If: 
	(a) a verdict is given for the defendant; or 
	(b) the plaintiff is non-suited or discontinues the action; or 
	(c) judgment is given against the plaintiff, – 
	the defendant shall recover the full costs of defending the action. 
	(5) If a verdict is given for the plaintiff in any such action, the plaintiff shall not have costs against the defendant unless the Court before which the trial is held certifies its approval of the action and of the verdict obtained in the action.”
9. 	The defendant argues that pursuant to section 67(1), the Commissioner in dismissing the plaintiff was a person “acting under the authority of the Act” and as such is entitled to the protection of the one-year time limit.  There being no power to extend time, any claim the plaintiff may have is statute barred.
10. 	Furthermore, by virtue of section 30 of the Limitation Act 1975 the court has no jurisdiction to entertain a claim by the plaintiff pursuant to the Limitation legislation. Section 30 provides:
	“30. Savings for other limitation enactments – This Act does not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment.”
11. 	With respect, this is a mis-reading of section 67(1).  The section is contained in Part 6 of the Act which deals with ‘Duties and Powers of Members’ and in Division 3 thereof headed ‘Protection of Members’; as distinct from the duties and powers of the Commissioner and Assistant Commissioners which is dealt with by Part 3 Division 3 of the Act. “Members” is defined by section 2 as meaning employees of the Police Service i.e. Police officers. So that when section 67(1) speaks of “members and persons acting in the execution of this Act”, it is referring to the rank and file of the Police Service. For their protection in respect of anything done by them as Police officers under the authority of the Act, there is imposed the one-year time limit for actions.  The section is designed to apply to actions brought by third parties against them and not actions brought by them as against the Commissioner.  This is why section 67(2) speaks of written notice to the “relevant member” i.e. the officer concerned as well as the Attorney General who represents Government and the Commissioner. And why sections 67(3) - (5) refer to an “offer to make amends’, “damages” and a “verdict.”
12. 	This is also why the preceding section 66 ‘Protection for members’ explicitly refers to actions brought against members for acts done in pursuance of a “warrant, order or process of any court etc” and exempts the member from responsibility for any irregularity in the “warrant order or process etc”.  Clearly section 67 flows on from this to impose a one-year time limit for the better protection of “members and persons acting in the execution of the Act.”  Demonstrating a clear Parliamentary intent that such claims be determined quickly and expeditiously to ensure the continuing and efficient functioning of the Police Service.
13. 	Disciplinary procedures and appeals against decisions of the Commissioner are specifically provided for elsewhere in the Act, viz in Part V in particular section 53 ‘Appeals involving breach of duty’. A 7-day time limit is prescribed for challenging these decisions.  This in my view is the statutory regime established by the legislation and the argument based on section 67(1) of the Act must accordingly fail.  Furthermore, absent a limitation period, section 30 of the Limitation Act has no application. 
The Limitation Act, section 21:
14. 	The defendants second argument and his Notice of Motion relies on whether or not the court is satisfied that the criteria required for an extension of time pursuant to section 21(2) of the Limitation Act 1975 have been met.  In this regard, section 21 relevantly provides:
	“21. Protection of persons acting in execution of statutory or other public duty –(1) No action is to be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless:
	(a) notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and of his or her solicitor or agent (if any) in the matter is given by the prospective plaintiff to the prospective defendant as soon as practicable after the accrual of the cause of action; and 
	(b) the action is commenced before the expiration of 1 year from the date on which the cause of action accrued: 
	PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased: 
	PROVIDED ALSO THAT the notice required by paragraph (a) may be given, and an action may thereafter be brought, while the act, neglect, or default continues: 
	PROVIDED FURTHER THAT any such person may consent to the bringing of such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the prospective defendant as aforesaid.
	(2) Despite subsection (1), application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the intended defendant under subsection (1); and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose where it considers that the failure to give the notice or the delay in bringing the action, as the case may be, was occasioned by mistake or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the failure or delay. 
	(2A) No leave may be granted by a Court where an action has been commenced and no notice of the action was served under subsection (1)(a) before the commencement of the action.”
15. 	It is common ground that the plaintiffs cause of action if any arose on dismissal on 24 October 2019 and that the one-year time limit imposed on proposed actions by section 21(1)(b) can be extended by the court pursuant to section 21(2).  The plaintiffs unchallenged affidavit evidence is that impecuniosity and an inability to afford legal representation were the main reasons for his failure to act within time.  He also seeks to lay some blame on his former counsel who he says failed to act expeditiously but there is no merit in this as it was always open to him to instruct his counsel accordingly or alternatively to himself appeal or otherwise challenge the Commissioners decision to dismiss as conveyed to him at the 17 October meeting and by the 24 October 2019 notice of termination.  He was after all a veteran Police officer and should have been well conversant with the terms and conditions of his employment. The plaintiff further claims that in any event, the two year plus delay has not materially prejudiced the defendant. 
16. 	The approach to applications of this nature was usefully summarized in the recent Court of Appeal decision in Tupito v Attorney General [2019] WSCA 5.  The first question as stated by my sister Tuatagaloa, J in Tupito at first instance (unreported judgment 12 April 2019) and approved in the Court of Appeal is whether the act complained about was an act “done in pursuance or execution or intended execution of any Act by Parliament or of any public duty or authority….” Clearly the answer is in the affirmative as the Commissioner was in dismissing the plaintiff exercising his functions and duties under the Police Service Act.  Secondly whether there was in fact non-compliance with section 21(1)(a) in that the necessary notice was not served “as soon as practicable after the accrual of the cause of action.”  Again the answer would be in the affirmative as the notice here was only served two years post-dismissal.
17. 	The third and for our purposes the critical question is whether the failure to give notice or the delay “was occasioned by mistake or by any other reasonable cause” or whether the defendant was “materially prejudiced in his defence or otherwise by the failure or delay.”  As Tuatagaloa, J explained in Tupito: “The requirement is disjunctive by use of the word “or” which means that the intended plaintiff does not have to prove all the requirements but that one will suffice if the court finds that the delay was occasioned by either one of the three requirements”.  In other words the requirements are mutually exclusive and it is sufficient for a plaintiff to only establish the presence of one.
18. 	In the instant case the plaintiff does not rely on any mistake but instead advances impecuniosity and inability to meet legal fees as the “reasonable cause” for the failure to give notice within time and for the delay in filing proceedings.  The court accepts that this may be a practical “cause” for the delay but the question is whether it amounts to a “reasonable cause”.
19. 	In considering the matter, one is driven to ask as to where the line should be drawn.  Is it reasonable to allow a three months delay or six months, two years, three years?  Should causes of action against public officials and bodies be permitted to theoretically continue to subsist in the judicial ether until such time as a plaintiff becomes pecunios and able to afford legal counsel?  As North, J noted in Tett v Attorney General [1957] NZLR 1063, 1066 the court should be wary of granting relief which would “make nonsense of a section which was intended to protect public bodies (including the Crown) from stale claims.”
20. 	The answer perhaps lies in the fact that all litigation at some point must achieve finality.  It would be a chaotic state of affairs to allow claims to be held over the heads of officialdom until a plaintiffs financial circumstances improve.  Each case no doubt falls to be assessed on its merits but in the present case, allowing the plaintiff to delay matters until he could “afford to engage another solicitor” is not in my respectful view a “reasonable cause” for delay.  
21. 	The plaintiff has also failed to provide any independent or verifiable evidence of his impecuniosity or why it proved impossible for two years to retain replacement counsel or as to the magnitude of the “substantive required legal costs” for mounting a challenge which is essentially procedural in nature.  His challenge originally was as to the process of his termination rather than the result.  The court is being asked to rely on nothing more than bare assertions as to his financial position in his affidavit.  This is not in my view sufficient to satisfy the onus upon him to demonstrate a reasonable cause for his delay.  As explained in Tett: 
	“In applications under s.23(2) of the Limitation Act 1950 (the equivalent New Zealand provision) the onus is on the applicant to show that “the delay” was occasioned either by mistake or by any other reasonable cause, or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.
	In either case the burden of satisfying the Court rests throughout on the applicant and is not discharged: “by raising prima facie presumptions supposed to throw the final burden on the defendant.””
22. 	As noted by the New Zealand Court of Appeal in Brewer v Auckland Hospital Board [1957] NZLR 951, 958:
	“No doubt when sufficient evidence is adduced by a party upon when the onus rests to discharge that onus, it then shifts and remains discharged until or unless it is moved back upon the shoulders of the applicant by evidence from the other party, which is sufficient to shift the onus back upon the shoulders of the applicant.  The fact that an onus may be shifted during the progress of a hearing by evidence which is sufficient to discharge that onus in no way lessens the onus, and there is nothing in Lord Atkinson’s statement in Haywood v Westleigh Colliery Co. Ltd. [1915] A.C. 540, 546, dealing with the fact that an onus may be shifted during the progress of a hearing, which would suggest that the onus resting upon the applicant is thereby lessened.  Indeed, in that very case, both Lord Loreburn and Lord Sumner make it clear that the final question to the Court must always be: Has the applicant on the whole case carried the mind of the Court to that point where it considers that the applicant has established that the failure to give notice or the delay in bringing the action was occasioned by mistake or other reasonable cause, or that the defendant was not materially prejudiced in his defence or otherwise?”
23. 	In relation to the issue of “material prejudice” the Court of Appeal in Tupito stated: 
	“It is undeniable that there will be dimming of memories, and scattering of witnesses, since the incident in question.  However, in every case those developments are unavoidable to a greater or lesser degree.”
24. 	Balanced against that are the observations of the court in Tett: 
	“I do not agree that the dimming of memory operates equally in the case of both plaintiff and defendant.  In my experience, delay often assists a plaintiff and nearly always hinders a defendant for the plaintiff has lived with his case and, even although he is by nature of an honest disposition, he very often begins to believe that that which he would like to think happened really did happen. A defendant particularly if he be a local body or the Crown on the other hand is usually at a distinct disadvantage for such defendants are nearly always obliged to rely on the evidence of servants and others who have very little interest in the matter, and certainly had no reason to retain a clear memory on the details of an accident in which they were not directly involved.”
25. 	The plaintiff here submits there is no material prejudice to the defendant if an extension is granted.  But has not provided any basis whatsoever for this assertion or evidence to support his argument other than a reference in his affidavit to the former Commissioner still being resident in Samoa. While I take judicial notice of the fact that Deputy Commissioner Keti is still employed by the Police Service, the plaintiff has not established to any extent the position concerning other potential witnesses such as those present at the 17 October 2019 meeting with the plaintiff.  The main thrust of the plaintiffs application was the “reasonable cause” argument dealt with above.
26. 	The defendant unhelpfully responds in its submission that it “cannot determine if there is any prejudice on the part of the Respondent”.  Presumably in reliance on the following passages from Tett at page 1067 of the judgment: 
	“The Court, in the absence of evidence to the contrary, will not assume against the applicant that there may be particular or specific grounds of prejudice, but it will require to be reasonably satisfied by evidence called by the applicant that there is no ground for supposing that the defendant will be materially prejudiced by the delay.
	Unless the defendant wishes to raise particular matters of prejudice, he is entitled (if he wishes) to resist the application on the grounds of general prejudice without filing any answering affidavits; and if he elects to take that course it will not be assumed against him that no prejudice exists, merely because he does not think it expedient to disclose in advance of the trial the strength or weakness of his case.”
27. 	Along similar lines are the observation of Adams, J in the Court of Appeal in Brewer at page 954 where after noting that the purpose of the limitation was “to promote justice by protecting litigants from the prejudices and dangers inherent in stale claims” he went on to say:
	“The intending litigant who has allowed his claim to become statute-barred, but who is permitted nevertheless to apply for indulgence, has upon his shoulder the burden of satisfying the Court that in his particular case it is just to depart from the general policy of the statute.  Some degree of prejudice to the defendant is almost inevitable where a claim is long delayed, if for no other reasons than that the memories of witnesses will have become dulled, and that an element of suspicion attaches itself even to the evidence of witnesses who do in fact remember clearly.  On the other hand, proof of actual prejudice is difficult, and it is dangerously easy to conclude that there is none, merely because the matters in regard to which prejudice may arise cannot be specifically pointed out or foreseen.  No defendant possessed of a good defence would willingly have his case heard long after the event….
	In many a case there might be few things that could be more detrimental to the defendant than a disclosure which would enable the intending plaintiff to become aware in advance of the strength or weakness of the case which the defendant hopes to present at the trial.  This is an important consideration; and, in my opinion, the intending plaintiff should in general be required to rely solely on the strength of his own evidence in support of his application. To require the defendant to explain precisely where and how he has been prejudiced might well be tantamount to insisting on an unwise disclosure of his case.”
28. 	Or perhaps what the defendant is really saying is that any prejudice to its case may not be discernable until trial.  This aspect was referred to by Justice Adams in Brewer at page 955: 
	“Still another difficulty in these cases is that the Court, when asked for leave under a provision such as we are concerned with here, is in effect called upon to decide in advance whether the defendant will or will not be prejudiced by the delay.  The proper time for such an inquiry would seem rather to be after the event, and a defendant who has been unable to prove prejudice in advance might well be in a position, after trial, to show that he had in fact been gravely prejudiced.  Had we felt it our duty to grant the desired leave in the present case, I should have wished to consider whether some form of condition ought not to be imposed which would enable the Court to review the question of prejudice after the event.”
29. 	As noted supra, the onus is on the plaintiff to satisfy the court the delay has not materially prejudiced the defendant.  His evidence in this regard is scant and I am not persuaded he has established as he must that there has been no material prejudice to the defendant. On this limb the plaintiffs argument also fails.
30. 	The authorities make it clear that even if a plaintiff can establish any one of the tripartite of mistake, reasonable cause and no material prejudice, he must still satisfy the court it is “just” to grant an extension.  This was the approach of both Tuatagaloa, J and the Court of Appeal in Tupito. As Adams, J explained in Brewer at page 953:
	“Section 23(2) of the Limitation Act 1950 confers upon the Court a jurisdiction to grant leave, but only where the Court “considers” (that is to say, is satisfied) that the delay was “occasioned by mistake or by any other reasonable cause”, or that “the defendant was not materially prejudiced in his defence or otherwise by the failure or delay”.  There are thus, in effect, two alternative conditions precedent to the jurisdiction.  But it does not follow from the fact that the intending plaintiff is able to satisfy the Court that one or other of those two conditions is fulfilled that he is automatically entitled to relief.  Unless one or other is fulfilled, the court can go no further; but, if this initial barrier be surmounted, there always remains the question whether the Court will, in the exercise of its discretion, deem it just to grant the desired leave.
	There is perhaps a danger that the conditions precedent may attract so much attention as to cause the existence of the discretion to be overlooked.  The dominant words of the section are, however, those which state that “the Court may, if it thinks it is just to do so, grant leave accordingly”, and those words are clear and unambiguous.  In some contexts, the permissive and discretionary word “may” has been construed as equivalent to “shall”.  But, even if “shall” were substituted for “may” in s.23(2), the jurisdiction would still be one exercisable only “if the Court thinks it just to do so”.  Accordingly, the intending plaintiff who has succeeded in satisfying one or other of the two preliminary conditions has still to persuade the Court that it is just to grant the desired leave, and that the discretion of the Court should be exercised in his favour.”
31. 	In view of the courts conclusion that none of the requisite tests have been met, it is not necessary to decide if it is “just” to grant the relief sought.  But if I had to decide the point, the additional circumstances to be considered would include the fact that the plaintiff voluntarily tendered his resignation on 08 October 2019 while the charges against him were pending, thereby triggering section 45 of the Act (‘Resignation from the Service’) in particular section 45(6) where-under he would be liable to “forfeit all arrears of pay then due to the member and any other allowances or benefits the member may be entitled to at the time of the resignation”; and the fact that his original complaint was directed at the loss of his benefits and entitlements and not at the lawfulness of his dismissal; and the absence of an explanation as to why if he had fiscal and other issues with legal representation, he did not himself take action against the Commissioners decision dismissing him; especially after being advised at the 17 October 2019 meeting he had seven (7) days to appeal the said decision. Having due regard to those and the other circumstances of this matter, I would have declined the application for extension of time.  
Orders
32. 	The defendants Motion to Strike Out based on section 67(1) of the Police Service Act 2009 fails, it is dismissed.
33. 	The plaintiffs Motion for extension of time pursuant to section 21 of the Limitation Act 1975 also fails, it too is dismissed.
34. 	Both Motions having failed, each party shall bear their own costs.
JUSTICE NELSON