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Ioane-Cleverley v Land and Titles First Court [2024] WSSC 47 (12 June 2024)

IN THE SUPREME COURT OF SAMOA
Ioane-Cleverley & Ors v Land and Titles First Court & Ors [2024] WSSC 47 (12 June 2024)

MISC 73/23
CP 43/18

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

LUATUPU IOANE-CLEVERLEY of Saoluafata and Wellington, New Zealand Medical Doctor, MALAULAU POPO AIULU of Saoluafata, Matai, LEUMU ELISARA, of Saoluafata, Matai, MAO PETER RASCHE of Saoluafata, matai, TAAMAI KAPISI of Saoluafata, Matai; ASOMUA LMS of Saoluafata, Matai and AIGAMAUA FELETI of Saoluafata, Matai.

Applicants

A N D:

LAND AND TITLES FIRST COURT, continued under Article 104A of the Constitution of the Independent State of Samoa.

First Respondent

A N D:

PRESIDENT OF THE LAND AND TITLES COURT appointed under Article 104D of the Constitution of the Independent State of Samoa.

Second Respondent

A N D:

MULITALO LISONA LAVEA

Third Respondent

A N D:

GALEA’I PA’U TAFAOGALUPE MULITALO TAGALOAMATUA

Fourth Respondent

Counsel S. Ponifasio for Applicants

M Alai & J. Pickering for First and Second Respondents

B. Heather-Latu for Third Respondents

J Fuimaono-Sapolu for Fourth Respondents.

Hearing 14 December 2023, 17 April, 9 May and 5 June 2024
Ruling 12 June 2024

RULING (MOTION FOR REINSTATEMENT)

1. The applicants apply to “reinstate” part of proceedings “withdrawn” in November 2021. The application is opposed by the respondents.

Background

2. The applicants’ original proceedings had sought orders from this Court to (i) quash decisions of the Land and Titles Court (as it then was prior to the 2020 Constitutional and statutory changes) dated 29 May 2015 and the then President dated 10 February 2017; and (ii) declare certain documents in Land and Titles Court proceedings as not being genuine (the “questioned documents”). Underpinning the applicants’ complaints were (a) alleged procedural irregularities before the Land and Titles Court concerning the use and reliance by parties and the Land and Titles Court of certain “questioned documents’, the authenticity of which was challenged; and (b) the later refusal of the then President of the Land and Titles Court to grant leave to the applicants to appeal the decision of the Land and Titles Court. The applicants alleged that these breached their rights to a fair trial guaranteed by article 9 of the Constitution.
3. In September 2021, Vaai J heard a strike out motion filed by the first and second respondents to strike out the applicants Second Amended Statement of Claim and Second Amended Motion for Judicial Review, which advanced these issues. On the 22^nd November 2021, Vaai J then issued a memorandum to counsel concerning section 57 of the Land and Titles Act 2020 and article 4(1) of the Constitution. Vaai J noted that the effect of these provisions “suggests that the current judicial review challenges by the plaintiffs / applicants is an academic exercise.”^[1] A meeting would be held with counsel on the 24^th November to “seek counsel’s views...”
4. Following this memorandum, Ms Ponifasio in a memorandum to the Court dated 23^rd November 2021 indicated that the applicants would be consenting to the withdrawal of their Motion for Judicial Review insofar as it sought orders to quash the decisions of the Land and Titles Court of May 2015 and February 2017 (paragraph 2(i) above). Proceeding with that component of the claim would be an academic exercise. The applicants would however continue with its motion seeking declaratory orders in terms of the “questioned documents”.
5. The entry on the court file by Vaai J from the 24^th November 2021 of the In-Chambers meeting with counsel records:
   • “Meeting in chambers with counsels following the court’s memo to counsels. Applicants counsel gave the meeting a written memo requesting and consenting to withdrawal of their motion for judicial review and for the court to continue with their application for declaratory order. No objection by other counsels. Court will continue its ruling to ... declaratory orders in relation to questioned documents.”
6. On the 31^st May 2022, Vaai J then delivered his judgment striking out the application for declaratory orders as they related to the so called “questioned documents”. In his judgment, Vaai J also recorded at [14] that:
   • “In her written memorandum dated 23^rd November 2021, counsel for the plaintiffs agreed and consented to withdraw the motion for judicial review and for orders to set aside the 2015 decision of the Land and Titles Lower Court and the 2017 Appellate Court decision. She will proceed to file the application for review in the Land and Titles Court of Appeal and Review.”
7. The applicants apply for the “reinstatement” of their application to quash the decisions the Land and Titles Court of May 2015 and of the then President of February 2017. The application raises a number of issues:
   • (i) What is the status of the withdrawn parts of the Second Amended Statement of Claim and Second Amended Motion for Judicial Review?
   • (ii) Does ‘reinstatement’ apply?
   • (iii) Can the Applicants proceed with application to quash the 29 May 2015 and 10 February 2017 decisions?

Current Status of the Withdrawn Second Amended Statement of Claim and Second Amended Motion for Judicial Review

8. On the 17^th April 2024, the question of the current status of the proceedings sought to be reinstated by the applicants were raised with counsel. Ms Heather-Latu submitted that after Vaai J had dealt with the withdrawal in-Chambers, the matter was called in Court and that part of the Applicants’ proceedings struck out. Ms Ponifasio submitted that no such order was made and that the matter was not called in Court as a representative of the Attorney General’s Office was not present. The motion for judicial review was “withdrawn” and not struck out.
9. On the 18^th April 2024, if the proceeding was struck out, counsel were requested to identify the date so a transcript could be made available. This was to be notified to the Registry by Tuesday 23^rd April. No notification was received. An extension was then given to Wednesday 1^st May. Only Ms Ponifasio responded re-affirming the position for the applicants that the proceedings were withdrawn and not struck out.
10. Ms Heather-Latu who had contended that this part of the claim was “struck out” by Vaai J did not advise of any date. Based on her June 2024 submissions, I understand she no longer persists with the contention that Vaai J had formally struck out that part of the Second Amended Statement of Claim and Second Amended Motion for Judicial Review now sought to be reinstated.
11. The current status of the applicants’ motion for judicial review is key to the determination of the applicants’ application for reinstatement. The notation on the court record and judgment of Vaai J of 31^st May 2022 show that the applicants’ motion for judicial review were “withdrawn”. Of this, I am satisfied.
12. There are generally 3 ways for civil proceedings to be brought to an end. By (a) discontinuance pursuant to rule 109; (b) by being struck out; or (c) by entry of judgment. What then is the effect of the “withdrawal” in this case? All respondent counsel submits that the “withdrawal” should be treated as a “discontinuance” of that part of the applicants’ claim. I am referred to Flexi Solutions Ltd v Attorney General [2013] NZHC 622 and Jackson v Attorney General [2009] WSSC 122. Counsel for the applicants also concede that the withdrawal could be considered a “discontinuance”.
13. In Jackson v Attorney General, Nelson J dealt with the “withdrawal” of a party to that case. No formal Notice of Discontinuance had been filed for the applicant to discontinue its claim brought by way of motion. Although no Notice of Discontinuance had been filed, the Court proceeded on the basis that the application for withdrawal would be treated “as an application for discontinuance sanctioned by Rule 206 prescribing procedure for matters not specifically provided for... subject however to the provisions of Rule 109(3) ...”
14. In Flexi Solutions Limited v the Attorney General [2013] NZHC 622, the New Zealand High Court (Kos J) dealt with a similar issue where the applicant sought an order granting to the applicant “the right to bring this claim to trial at a later date when it has funding to do so.”^[2] In Flexi Solutions Limited, the applicant had filed a memorandum to “withdraw this action”. The withdrawal was interpreted by the respondent as a discontinuance. In Mallon J’s earlier ruling, he treated the applicant’s memorandum as an offer of discontinuance. Kos J agreed with that analysis characterizing it as one that could not be faulted.^[3] The issue Kos J was then confronted with was where the proceeding had earlier been discontinued, does the court have the jurisdiction to allow the “proceeding to be revived.”^[4]
15. Similar to the position of Mallon J in Flexi Solutions Limited v the Attorney General, I treat the applicants’ Memorandum to the Court dated 23^rd November 2021 as an offer by the applicants to discontinue part of their proceedings, counsel stating that the applicants would “consent to a withdrawal of its motion...” It is clear from applicant counsel’s Memorandum that the applicant no longer wished to pursue that part of their claim in the Supreme Court.
16. When the matter was then before Vaai J In-Chambers on the 24^th November, “[a]pplicants counsel gave the meeting a written memo requesting and consenting to withdrawal of their motion for judicial review and for the court to continue with their application for declaratory order. No objection by other counsels. Court will continue its ruling to ... declaratory orders in relation to questioned documents.” It is also clear from the In-Chambers meeting that the offer by the applicants to withdraw part of the applicants’ claim was accepted by respondents.
17. In reliance of the applicants’ election to withdraw the first part of their claim, the Court proceeded to issue judgment on the 31^st May 2022 only on the remaining question of the validity of the “challenged documents”. I am satisfied that the Court and the parties proceeded to judgment on the strike out application on the understanding that the application to quash the 29 May 2015 Land and Titles Court decision and 10 February 2017 of the then President was “at an end”, at least insofar as the Supreme Court is concerned. Had it been any different, it was simply a matter for Vaai J to also rule on that issue as the strike out hearing had already completed. The part of the proceeding withdrawn by the applicants were not left in general abeyance to be able to reinstated later. As urged by counsel, the appropriate course is to treat the withdrawal of the applicants’ claim seeking to quash the 29 May 2015 Land and Titles Court decision and 10 February 2017 of the then President as a discontinuance, sanctioned by rule 206. Although the term “discontinuance” was not used, that was the effect of the “withdrawal”.

Does Reinstatement Apply?

18. Having reached this conclusion, “reinstatement” in terms of the Supreme Court (Civil Procedure) Rules 1980 (“the Rules”) does not apply. The sole rule dealing with reinstatement is rule 139. Reinstatement pursuant to rule 139 is concerned only with proceedings struck out due to the non-appearance of counsel. That is not the case here for two reasons: (a) the proceedings were not struck out but “withdrawn”; and (b) it was not withdrawn due to non-appearance of counsel.
19. For completeness, I also briefly address applicant submissions for reinstatement relying on Jarden v Lawlor 12 PRNZ 516 cited in Page v Page [2001] NZHC 592. Reinstatement there concerned “proceedings struck out for non-compliance with timetable or ‘unless’ orders...”^[5] That is also not the case here and does not respectfully apply.

Can the Applicants presently proceed with application to quash the 29 May 2015 and 10 February 2017 decisions?

20. In short, no. As Kos J recognized in Flexi Solutions Ltd, consistent at law and in equity, the effect of a discontinuance is to terminate a proceeding. This however is “without prejudice to a new proceeding based on the same cause of action being commenced.” Rule 109 and 110 also reflects this. This Court does not have the jurisdiction to “revive” a proceeding that has been discontinued.

Result

21. The application for reinstatement is dismissed.
22. If costs are at issue, respondents at liberty to file memorandums as to costs within 14 days. Applicant to file response within a further 14 days.
    

JUSTICE CLARKE

^[1] Memorandum to Counsels for Meeting on Wednesday 24 November 2021 at [1].
^[2] At [1].
^[3] At [12].
^[4] At [11].
^[5] Jarden v Lawlor at [30].