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Stanley v Vito [2009] WSCA 12 (9 October 2009)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A 04/09

BETWEEN:

HINI TOFILAU STANLEY
of Saleimoa, Minister of Religion and
ALOFISA STANLEY his wife.
Appellant

AND:

FUIMAONO LAFAELE VITO
of Togafuafua, Businessman
First Respondent

AND:

LAFAELE VITO & SONS LTD
a duly incorporated company having its office in Apia.
Second Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 6 October 2009

Counsel: Mr A S Vaai for appellant
Mr T M P Toailoa for respondent

Judgment: 09 October 2009

JUDGMENT OF THE COURT

Introduction

[1] The appellants seek an adjournment of their appeal set down for hearing this week. The respondent opposes any adjournment and asks that the appeal be dismissed with costs.

Procedural background

[2] On 6 February 2009 the respondent obtained judgment against the appellants for $541,681.83 and costs. The 30 day time limit for appealing imposed by Rule 18 of the Court of Appeal Rules 1961 expired on 8 March 2009. Without seeking any extension of time, the appellants filed a notice of appeal on 16 March 2009. The respondent filed a cross appeal on 26 March 2009.

[3] Given the lack of any application for extension of time from the appellants, the respondent filed an application to have the appeal struck out on 20 April 2009. The appellants saw this as a reason for taking no further steps to progress the appeal or to prepare the record on appeal. Instead, the appellants filed an opposition to the strike out application, applied to extend time and sat back to await the hearing of those matters.

[4] The outstanding applications came on for hearing on 26 August 2009. At the hearing the respondents withdrew their strike out application and leave to appeal was granted. Thereafter the appellants paid the required security but took no further steps to prepare the record on appeal.

[5] When the appeal was placed in the list for hearing at the current Court of Appeal session the appellants sought an adjournment. The ground advanced in support of the adjournment was that no-one within the appellants’ firm of solicitors was available to appear. The respondent made it clear that it would be actively opposing any adjournment and filed another application to have the appeal dismissed. The opposing arguments have been traversed before us.

Basis for adjournment

[6] Had the matter turned on the appellants’ principal argument we would have refused an adjournment. The solicitors for the appellants have known for many weeks that no counsel would be available to conduct the appeal at this session from within their own firm. In those circumstances there was a clear obligation to instruct counsel from some other firm to present the appeal on their behalf.

[7] However we accept that there is another point based on the unavailability of a record on appeal. In that regard Rule 14 of the Court of Appeal Rules provides:

14. Documents to be lodged with Registrar – When the appellant is ready to proceed with the hearing of the appeal but not in any event later than 3 months after the filing of the notice of appeal or of the order granting leave to appeal, as the case may be, he shall lodge with the Registrar:

1. Praecipe to set appeal down for hearing:
2. The record:
3. Six copies of the record for the use of the Judges of the Court of Appeal.
   

[8] Mr Vaai submits that pursuant to Rule 14 he is not obliged to file the requisite documents until 3 months after the order granting leave to appeal and that the time for this will not expire until 26 November 2009. Although Rule 14 is open to more than one interpretation, we accept that appellants should be given the benefit of the doubt on that point. It follows that on the state of the Rules as they presently stand, the appellants must be allowed until 26 November 2009 within which to file the requisite documents. The hearing of the appeal must necessarily be adjourned in the meantime.

[9] We would simply add that this is another instance in which the Court of Appeal Rules have shown themselves to be overdue for replacement. Generally speaking, time limits should be self-activating and placed in the Rules themselves. At least in cases where there is an appeal as of right, there should be no hiatus in which the parties wait for a Judge to become available before time for preparation of an appeal record starts to run. New Rules could also have clarified the status of the present cross-appeal if the principal appeal had been struck out. The existing Rules are silent on that subject.

Result

[10] The appeal and cross appeal are adjourned to the next session of this Court on the condition that the appellants forthwith take all steps necessary for preparation of the record on appeal.

[11] For the removal of doubt, the appellants must also take all other steps required by the Rules, Practice Notes, and Order granting leave, in accordance with their terms.

[12] The costs of the adjournment application and this hearing are reserved.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher