Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Inifi v Attorney General [2025] WSSC 109 (8 December 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

Inifi v Attorney General and Alii & Faipule of Toamua [2025] WSSC 109 (8 December 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of an application for Reinstatement pursuant to rule 117 of the Supreme Court (Civil Procedure Rules) 1980

BETWEEN:

FAUSA SUGALU INIFI for and on behalf of Amerika and Savelio Pasia Family of Toamua and Vaitele

Plaintiff / Applicant

A N D:

ATTORNEY GENERAL Sued for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT

First Defendant / Respondent

A N D:

ALII & FAIPULE OF TOAMUA

Second Defendant / Respondent

Counsel: A. Faasau for Plaintiff / Applicant

DJ Fong and L Titimaea for the 1^st Respondent.

L. Sio-Ofoia for the 2^nd Defendants / Respondents

Hearing: 26 November 2025
Decision: 5 December 2025

DECISION OF CLARKE J (MOTION FOR REINSTATEMENT)

A. Introduction:

1. These proceedings are regrettably caused by the failure by applicant counsel to appear twice at the Supreme Court call-over, to instruct other counsel or file a memorandum with the Court advising of her unavailability to appear. As a result, Perese CJ struck out the applicant’s application for leave to amend.

B. Background:

2. The history of this matter has been somewhat unsatisfactory, compounded by the fact that the original Court file has not been located.
3. The applicant commenced proceedings in July 2020 by Statement of Claim dated 7 July 2020, followed by a First Amended Statement of Claim dated 8 July 2020. In October 2022, Tuatagaloa J delivered judgment on a strike out application brought by the Second Respondent. Thereafter, no further steps were taken until November 2024 when the applicant filed an Application for Leave to further amend the First Amended Statement of Claim. That application, opposed by the respondents, was scheduled for hearing on 8 May 2025.
4. The matter was listed before Perese CJ during the six-week callover. On 24 April 2025, applicant’s counsel did not appear. Perese CJ directed that the Registrar write to applicant’s counsel advising that attendance at callover was required, and that failure could result in the matter being struck out. The callover list circulated Tuesday 29 April 2025 for 1 May 2025 callover recorded that the matter was: “F.H. before Chief Justice Perese – ½ day (Both Respondents RTP. No appearance by A Faasau – Madam Registrar to write to Ms Faasau that she is required to appear in Court for her matter).”
5. At callover on 1 May 2025, applicant’s counsel again did not appear. The Chief Justice then struck out the application for leave to amend the Statement of Claim, the court notation recording:
   “This is an application by Ms Faasau to amend her claim. At the last callover, indicated that if Ms Faasau failed to turn up she risked having her application struck out. She has failed to appear once again and so the application for amendment of the Statement of Claim is struck out. Costs will be awarded and I will fix those on a date to come.”
6. Applicant counsel was informed on 7 May 2025 that the application had been struck out with the Registry adding: “Kindly note that you were copied in all emails for Call-overs.”
7. Following the strike out order of 1 May 2025, the matter returned to the civil mentions list 4 months later, 1 September 2025. The applicant now seeks reinstatement pursuant to rule 117, 135 and 139 of the Supreme Court (Civil Procedure) Rules 1980 (“the Rules”). Since the strike out, there has been 6 mentions of this matter, culminating in the reinstatement hearing before me on 26 November 2025.

C. Non-Appearance of Counsel Unacceptable:

8. Before turning to the substantive application for reinstatement, I first address generally the issue of non-appearance of counsel at mentions and callover. The failure of counsel to attend when their matters are called is unacceptable, and constitutes a breach of duty owed to the Court as officers of the Court. Importantly, this concern is not confined to counsel for the applicant in these proceedings, nor should this decision be read as directed solely at her absences in this case. If that were so, I would not take the time to address the matter in broader terms here.
9. It has become common for counsel to not appear at mentions and callovers. Such repeated absences convey to the Court an impression of disregard for the interests of clients and a lack of respect for the institution before which counsel have sworn their oath, worthy of repeating, that counsel:
   “...will truly and honestly conduct myself in the practice of a Barrister and Solicitor of the Supreme Court of Samoa according to the best of my knowledge and ability.”
10. Counsel’s overriding duty is to the Court, in aid of the administration of justice.^[1] Meeting the Court’s most basic expectation – attendance at scheduled matters – is fundamental to that duty. In the Motion for Reinstatement, counsel for the applicant suggested that responsibility for non-appearance lay in part with the Court Registry and other counsel stating:
    • “(b) The Court’s approach in this instance departs from past practice, where the Assistant Registrar (and sometimes counsel(s)) has previously been directed to notify Counsel of any decision made in their absence, especially a threat to make an adverse decision in their absence.”
11. It is not the role of the Registry or of other counsel to convey to absent counsel orders made in their absence. The callover list circulated on Tuesday, 29 April 2025, and sent to all firms including applicant’s counsel, nevertheless clearly recorded that counsel was required to appear.
12. Counsel for the applicant was therefore on notice, whether constructive^[2] or actual, of the need to attend. Explanations offered – including overseas travel for personal commitments, reliance on another counsel who was unable to attend due to unforeseen circumstances,^[3] and not having read the circulated callover list – do not suffice. Two callover were missed. Rule 33(2)(c) requires that unrestricted practicing certificate holders:
    • “must be present in Samoa to undertake the management of the practice on a permanent basis, or has made arrangements which are satisfactory to the Council, for a lawyer of appropriate experience to be permanently present to manage the practice;” (emphasis added)
13. Sole practitioners travelling overseas must ensure that their practice is managed in a way that upholds professional duties and the reputation of the profession. Robust systems must be implemented for proper supervision and compliance with the rules, including where necessary, the appointment of other senior counsel to supervise the practice in their absence. This case is not the first in which proceedings have been significantly impacted by counsel’s overseas travel and non-appearance at mention and callover.
14. The Supreme Court has authority to award costs against counsel for failing to appear, where such failure leads to otherwise avoidable steps and costs in proceedings. This jurisdiction is both compensatory and supervisory, ensuring that the Court’s processes are conducted efficiently and economically. In Harley and Anor v MacDonald [2001] UK PC 18, the Privy Council stated at [49]:
    • “In Myers v Elman [1940] AC 282, [1939] 4 All ER 484, Lord Wright described the court's inherent jurisdiction as to costs in this way at p 319 of the former report:
      • ‘The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally . . . The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
      • The jurisdiction is compensatory in that the court directs its attention to costs that would not have been incurred but for the failure in duty. It is punitive in that the order is directed against the practitioner personally, not the party to the litigation who would otherwise have had to pay the costs.”
15. The Privy Council in Harley went on to consider the type of conduct that that can be regarded as involving a serious breach of duty to the court and stated at [50], directly on point, that:
    • “[50] As a general rule allegations of breach of duty relating to the conduct of the case by a barrister or solicitor with a view to the making of a costs order should be confined strictly to questions which are apt for summary disposal by the court. Failures to appear, conduct which leads to an otherwise avoidable step in the proceedings or the prolongation of a hearing by gross repetition or extreme slowness in the presentation of evidence or argument are typical examples...” (emphasis added)
16. At the hearing of this application on the 26^th November 2025, I heard extensively from applicant’s counsel on the question of costs. Having considered her submissions, I have determined to award costs against counsel. The failure to appear was significant, without reasonable excuse, and has caused delay and additional costs to this litigation. This award concerns breach of duty to the court to appear, and does not involve any finding of breach of the professional conduct rules. I reiterate that the issue of non-appearance is not confined to applicant counsel in this proceeding; it has become a recurring problem across matters. The profession must recognise that failure to attend mention and callover can seriously impede the administration of justice and undermine public confidence in the legal system and the profession itself. In this case, it has also resulted in six mentions since September this year, a luncheon hearing on 17 November and the Court’s time to hear and deliver this decision. The hearing of the original application for leave to withdraw also delayed from May this year to, at the earliest, February next year of some nine months – all avoidable.
17. In this instance, I will make a fixed costs award against applicant’s counsel at the lower end of the spectrum, noting that this is the first occasion in some years that such a step has been taken,^[4] and arising from absences at mention and callover. However, counsel should be on notice that future failure to appear constituting a significant procedural default without reasonable excuse and which causes unnecessary costs to litigants, may be met with higher costs orders against counsel following full costs assessment.

D. The Law:

18. I now turn to the application for reinstatement. The Plaintiff’s application for reinstatement is brought pursuant to rule 117 and 139 of the Rules. These provide:
    • “139. Reinstatement - (1) When any proceedings have been struck out under the provisions of Rule 117 hereof any application for reinstatement shall be made by way of motion ex parte and, if the proceedings are reinstated, notice of reinstatement in the form 28 shall be served on the defendant personally at least seven clear days before the hearing.
      (2) Any order for reinstatement made pursuant to this rule shall be subject to such order for costs as the Court thinks fit.”

[19] Rule 117 then provides:

“117. Where plaintiff does not appear - If on the trial of any action the plaintiff does not appear, the Court may either adjourn the trial or strike out the proceedings.” (emphasis added)

E. Discussion:

19. It is not apparent to me that Perese CJ struck out the application to amend pursuant to rule 117 of the Rules. The order did not refer to rule 117, and in any event, that rule is directed to circumstances where a plaintiff fails to appear “on the trial”. The question therefore arises as to what constitutes “the trial of any action”, and whether “the trial” extends to a callover? In my respectful view, the calling of a matter in the call over is an administrative step in case management that does not form part of “the trial” for the purposes of rule 117.^[5] In Wall v Robertson [1900] NZGazLawRp 51; (1900) 19 NZLR 65, Stout CJ dealing with a rule that permitted discontinuance “before trial” found that: “‘Trial’ must mean that hearing at which the rights of the parties are to be finally decided.”^[6] In Digby v Digby [1912] NZGazLawRp 182; [1912] 31 NZLR 1183, Denniston J also dealing with a discontinuance under the rule stated that trial “cannot mean any date earlier than the day on which a case is called on for hearing, the parties or a party being present and ready to proceed.”^[7]
20. Although the judgment in Wall v Robertson refers to the “trial” as being when the “hearing at which the rights of the parties are to be finally decided”, I am not certain whether that is the case in an application for leave to amend. It may set the bar too high, for example, if counsel had failed to appear for the hearing for leave to amend. Arguably, that might constitute “the trial” for the purposes of rule 117. Nevertheless, what I am certain of is that calling the matter at callover is not “the trial” for the purposes of rule 117. Further, and problematic for the applicant, is that section 117 refers to the trial “of any action”. This however was not the “trial” of “an action”, but an application for leave to amend the action. The applicant’s application pursuant to rule 139, relying on rule 117, is misconceived.
21. Although the application is misconceived, the Supreme Court does possess and exercise “all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa.”^[8] As a Superior Court of Record,^[9] the Court has inherent jurisdiction by virtue of its status as a superior court of law. This jurisdiction enables the Court to fulfil its judicial function in a regular, orderly and effective manner including regulating its own procedures, preventing abuses of its processes, and ensuring fairness in judicial proceedings. That jurisdiction extends to strike out applications for non-appearance of counsel. I therefore understand the power to strike out the application to have been exercised in the Court’s inherent jurisdiction, and I treat the present application as having been brought under that jurisdiction.
22. [23] Turning to reinstatement, this is also not an application to re-instate the “proceedings” themselves. The applicant’s First Amended Statement of Claim remains before the Court. What is sought is reinstatement of his application for leave to amend that pleading. As no express procedure exists, rule 206 of the Rules can be applied where:
    • “Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice.”
23. The “ends of justice” approach is consistent with the New Zealand High Court’s practice under rule 7.40 of the New Zealand High Court Rules that permits reinstatement of an application struck out for non-appearance “in any manner that the judge considers just.” That broad discretion may take into account, among other considerations:
    • (a) the reasons for non-appearance;
    • (b) prejudice to the parties;
    • (c) the merits of the application struck out;
    • (d) delay on the part of the applicant whose application has been struck out;
    • (e) whether costs can be an adequate remedy; and
    • (f) the overriding consideration is the promotion of the ends of justice and whether it is “just” to reinstate the application.
24. Addressing these, the non-appearance at callover was attributable to applicant counsel and not the applicant. No reasonable excuse has been established.
25. On prejudice, the First Respondent from the bar table refers to a key witness (Ms Filisita Heather) no longer with the relevant Ministry, though still in Samoa. The Second Respondent refers to financial prejudice with the balance of the proceeds of the sale of the land amounting to $1,006,600.00 being “on hold since 2020”, pending determination of this claim and one of the Second Respondent’s witnesses having passed away and others being elderly. I do not see prejudice to the First Respondent. Ms Heather remains available as a witness. In terms of the Second Respondent, I accept that there is some financial prejudice with the lack of access to funds held pursuant to the injunction, however, there is no affidavit evidence as to deceased witnesses and any health risks they may have.
26. In terms of the merits of the application struck out, I am not able to asses this with any certainty. This is not helped by the absence of a draft Further / Second Amended Statement of Claim from the applicant showing the amendments sough to be made. The merits of the application for leave to amend was to be determined at the hearing of the struck out application.
27. Delay, the applicant waited 5½ months from when the application for leave to amend was struck out on the 1^st May 2025 before filing Motion for Reinstatement on the 20^th October 2025. Counsel was advised by email on the 7^th May 2025 of the application having been struck out. This delay is significant and unsatisfactory, but is regrettably characteristic of the conduct of these proceedings by the applicant with a two-year delay between Tuatagaloa J’s strike out decision of 17 October 2022 and the Motion for Leave to Amend the First Amended Statement of Claim filed on 18^th November 2024.
28. I accept that costs may be an adequate remedy for reinstatement of the application to amend the First Amended Statement of Claim. In this case, costs will be awarded against counsel.
29. The overriding consideration is the promotion of ends of justice and whether it is just to reinstate these proceedings. The application was struck out due to counsel and not the applicant. While I am also deeply concerned by the delay in bringing this application until some near 6 months later, too much of a hallmark of these proceedings, I am also reluctant to deprive the applicant of a potential basis to bring his claim in the circumstances without the determination of the merits of that application first. The promotion of the ends of justice leads me to the conclusion to grant the application for reinstatement, subject to payment of costs.

F. RESULT:

30. The result is as follows:
    • (a) the application for reinstatement of the applicant’s Notice of Motion Seeking Leave to Amend is granted;
    • (b) costs are ordered against applicant counsel in the sum of $750.00 for each of the first and second respondents, amounting to $1,500.00 in total. These costs are to be paid within 42 calendar days (6 weeks) of today;
    • (c) the applicant is directed to file and serve on all Respondents a draft Second Further Amended Statement of Claim no later than Monday 15^th December 2025, to form part of applicant’s application for leave to amend the First Amended Statement of Claim;^[10]
    • (d) this matter is adjourned for mention Monday 15 December 2025 at 2.00pm to set a hearing date for the application for leave to amend.
31. The Registrar is directed to provide a copy of this Ruling to the Secretary of the Law Society.

JUSTICE CLARKE

^[1] Rule 7.01, Rules of professional Conduct for Barristers and Solicitors of Samoa.
^[2] Law partners and firm principals are expected to read the callover list to identify their matters and ensure attendance or representation at Court.
^[3] The applicant provides no evidence of who was to attend to callover in her absence and what those arrangements were; what unforeseen bereavement occurred and why alternative steps could not be taken; why applicant counsel failed to see the callover list requiring her attendance at court.

[4] See: In re Chande Lutu Drabele [2003] WSSC 42 (7 February 2003)

^[5] See also: Edmonds v TJ Edmonds Ltd (in vol liq) [1937] NZLR 527.
^[6] At pp. 71 – 72.
^[7] At p.1184.
^[8] Article 70(1)(b), Constitution of the Independent State of Samoa.
^[9] Article 65, Constitution of the Independent State of Samoa.
^[10] This enables the Court and parties to properly understand the proposed amendments sought to be made.