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McGrath v Samoa Rugby Union [2018] WSCA 11 (25 October 2018)

IN THE COURT OF APPEAL OF SAMOA
McGrath v Samoa Rugby Union & Anor [2018] WSCA 11

CA07/17

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

DAMIAN McGRATH
Appellant

A N D:

SAMOA RUGBY UNION
First Respondent

A N D:

VINCENT FEPULEAI
Second Respondent

Coram: Honourable Chief Justice Sapolu
Honourable Justice Fisher
Honourable Justice Harrison

Hearing: Wednesday 17 October 2018

Counsel: Sarona Ponifasio for the Appellant
Arthur Lesa appeared on behalf of Semi Leung-Wai for the First Respondent
Jason Annandale appeared on behalf of Patrick Fepuleai for the Second Respondent

Judgment: Thursday 25 October 2018

JUDGMENT OF THE COURT

Introduction

1. Damian McGrath is a professional rugby football coach. He is an English citizen who is presently employed and living in Canada.
2. In March 2016 the Samoa Rugby Union (the SRU) engaged Mr. McGrath on a two year contract of employment including coaching duties for the national sevens rugby team. In early September 2016 the Union dismissed Mr. McGrath. Later that month, a local newspaper reported comments made by Vincent Fepuleai, the SRU’s Chief Executive, about the circumstances of Mr. McGrath’s dismissal.
3. Mr. McGrath has issued proceedings against the Union and Mr. Fepuleai in the Supreme Court, claiming substantial damages for wrongful dismissal and defamation respectively. On 8 August 2018 Tuatagaloa J ordered Mr. McGrath to give security for costs for SAT$20,000 to the SRU and SAT$10,000 to Mr. Fepuleai.^[1] Mr. McGrath appeals against the amount of both orders.

Security for costs

4. The Supreme Court’s power to order a plaintiff who is not resident in Samoa to give security for costs is governed by Rule 30 of the Supreme Court (Civil Procedure Rules) 1980, which materially provides as follows:
   • “Plaintiff not Resident in Western Samoa – (1) in any civil proceeding and at any stage thereof the Supreme Court may require to deposit any sum of money as security for costs, and may stay the proceeding pending the making of that deposit. (2) When any sum has been so deposited as security for costs, it shall be disposed of in such manner as the Court directs.”^[2]
5. Ms. Ponifasio who appears for Mr. McGrath accepts that the threshold jurisdictional requirement for ordering security is established by virtue of Mr. McGrath’s residence in Canada. She also accepts that the Judge took into account the relevant discretionary criteria for ordering security. While the Judge did not undertake an evaluation of the competing merits of the claim and defence, she gave weight to evidence of Mr. McGrath’s limited financial ability to pay costs if his claim failed. He has no liquid assets. He says that he has proprietary interests in England which would be available to discharge an adverse costs judgment but has given no details. He also deposed that he had access to credit cards with a combined limit of £17,000in his wife’s name. But she has not given an undertaking to the Court.
6. The Judge gave most weight to the costs for the defendants of enforcing a costs judgment against Mr. McGrath which she was satisfied would not be “minimal or insignificant.”^[3] The Union’s estimate of the costs in defending the claim is about SAT$110,000; Mr. Fepuleai’s estimate is SAT$30,000 (down from an original SAT$90,000). The Judge did not explain why she fixed security for amounts well below these estimates.

Decision

7. Ms. Ponifasio submits that in fixing the amount of security the Judge erred by; (a) failing to consider whether the amounts of security denied Mr. McGrath’s competing rights to access to justice; (b) giving disproportionate weight to the costs of enforcing a costs judgment of a Samoan Court overseas; and (c) failing to provide for an order for security to be paid in two stages – first, to cover costs up to a Judicial Settlement Conference; and, second, if the conference is unsuccessful, to cover subsequent costs.
8. We disagree. We do not see any error in the Judge’s order. The amount of an order of security is essentially in the Supreme Court’s discretion once jurisdiction is established. Ms. Ponifasio has not shown that the Judge exercised her discretion on a wrong principle. She was entitled to give primary weight to the costs of enforcing a costs judgment. If there was statutory reciprocity of enforcement, the costs for both defendants of enforcing a costs judgment in a Court of foreign jurisdiction would well exceed SAT$100,000 with the real risk of a barren judgment given the uncertainty of Mr. McGrath’s financial circumstances. However, it was pointed out during argument that there is no reciprocity of enforcement of judgments between Samoa and Canada or the United Kingdom. In the result the defendants would be unable to enforce a costs judgment in either country but would be put instead to the substantial expense of re-litigating their substantive defences in courts in those countries^[4] by seeking an originating judgment for the Samoan costs award.
9. In these circumstances the amounts of the security orders were modest. In the absence of a statutory right to enforce a Samoan judgment in Canada or the United Kingdom, both defendants would necessarily incur large costs in obtaining a fresh judgment in a foreign jurisdiction. Mr. McGrath could not have complained if, for example, he was ordered to give security of SAT$50,000 and SAT$25,000 respectively. By our assessment, the amounts fixed are unlikely in any event to cover the first stage of the defendants’ costs to completion of a Judicial Settlement Conference.

Result

10. The appeal is dismissed.
11. The appellant is ordered to pay each respondent costs in the sum of SAT$4,000 together with reasonable disbursements.
    

HONOURABLE CHIEF JUSTICE SAPOLU
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON

^[1]McGrath v SRU & Anor (unreported judgment of Tuatagaloa J in the Supreme Court of Samoa on 08 August 2018).
^[2]Supreme Court (Civil Procedure Rules) 1980, rule 30.
^[3]McGrath v SRU & Anor (unreported judgment of Tuatagaloa J in the Supreme Court of Samoa on 08 August 2018). p.19.
^[4]Reciprocal Enforcement of Judgments Act 1970, section 2.