Why Court threw out lawsuit against Justice Fisher
Compiled by Joyetter Luamanu
The lawsuit against Court of Appeal Judge, Justice Robert Llyod Fisher, brought by lawyer, Leulua’iali’i Olinda Woodroffe, has been thrown out by the Supreme Court.
The decision was delivered by Justice Mata Tuatagaloa on 30 June, 2017.
Su’a Hellene Wallwork represented Justice Fisher in the hearing where Leulua’iali’i cited hurt and humiliation in her statement of claim.
The Office of the Attorney General is the second respondent. Leulua’iali’i accuses them of being responsible for the actions of Justice Fisher.
In delivering her decision, Justice Tuatagaloa ruled that “the doctrine of judiciary immunity applies to the first defendant therefore the claims against the first defendants is struck out.”
“It then naturally follows that the claims also fail against the second defendant who is only named as a party because of the first defendant.”
“If I’m wrong, the claims against the second defendant is nevertheless struck out because under the law, the second defendant is wrongfully brought in as a party to these proceedings.”
“In any event, the statement of claim is struck out in its entirety and I will fully cover that in my written decision.”
The following is Justice Tuatagaloa’s decision:
JUDGEMENT OF JUSTICE TUATAGALOA
1. On 04 August 2016 the plaintiff filed a Statement of Claim dated the same date against the above-named defendants.
2. On 22 September 2016 a Motion to Strike Out proceedings against both defendants dated 02 September 2016 was filed.
3. The plaintiff filed a notice of opposition to the motion to strike out on 19 October 2016.
4. These proceedings are concerned with this Motion to Strike Out.
1. I have taken the background to these proceedings from the pleadings and the transcript of what transpired before the Court of Appeal on 15 February 2016.
2. The Plaintiff represented a woman named Kirita Maria Kolotita Pune (Mrs Pune) in several land claims brought by Mrs Pune. One of these claims was heard in 2013 and the Chief Justice issued what is referred to as an ‘interim decision’ on 15 July 2014 which consisted of two paragraphs.
3. A full written decision with reasons by the Chief Justice was at the time of the appeal on 15 February 2016 before the Court of Appeal presided over by Justice Fisher as President and two others, remained outstanding.
4. The Plaintiff since she was instructed as Counsel in 2014 had been following up with the Ministry of Justice and His Honour Chief Justice for the full written decision. As a result the Plaintiff filed for leave to appeal to the Court of Appeal; this file is recorded as CA16/15 and subject of the proceedings. As mentioned before there were other land claims by Mrs Pune in which another was also before the Court of Appeal and this file is recorded as CA14/15.
5. The two land matters (CA14/15 and CA16/15) have Mrs Pune as plaintiff/appellant but the defendants or respondents (as I understand) were different. The two matters were heard and dealt with separately in the February 2016 sitting of the Court of Appeal.
6. The Plaintiff appeared as Counsel for the appellant before the Court of Appeal on 15 February 2016 in regards to CA16/15. The following were the cause of the comments by the first defendant:
(i) The Plaintiff appeared without a current practicing certificate.
(ii) There was no record of appeal or the record of appeal was incomplete. Instead of filing the record of appeal for CA16/15, the plaintiff filed the record of appeal in the CA14/15 appeal file and explained only when in Court that the same record was to be used for the CA16/15 appeal. The CA14/15 appeal file was not before the Court of Appeal that morning although it was the same appellant the respondents for the two matters were different.
(iii) The application for special leave to appeal in relation to Constitutional matters was not filed until the last working day before the hearing [electronic form] and on the morning of the hearing [hard copy].
(iv) The persistent failure of the Plaintiff to follow proper procedures according to the Court of Appeal Practice Direction issued in May 2011.
7. It was what the first defendant, Justice Fisher said to the plaintiff that resulted in her bringing these proceedings. It is the suggestion or being called ‘incompetent’ that the plaintiff takes great offense to.
8. The plaintiff claimed that the first defendant in open court consistently made criticisms of the plaintiff which in her opinion were high handed, unfair, unfounded, incorrect, gratuitous, inappropriate, abusive and made with a contumelious disregard of the plaintiff.
Statement of Claim:
1. The Plaintiff pleads two causes of action:
(i) Breach of Article 78 of the Constitution; and
(ii) Breach of Article 7 of the Constitution.
2. The plaintiff for each cause of action claims:
(a) A declaration that the first defendant’s actions breached the Constitution;
(b) General damages for hurt and humiliation of $1million;
(c) Exemplary damages of $1million;
The Grounds of the Strike Out:
1. I understand the defendants motion to strike out relies on the following:
(i) The proceedings against the first defendant are barred by the doctrine of judicial immunity (see Tafililupetiamalie v Attorney General  WSSC 62 (30 June 2015))
(ii) The Statement of Claim does not disclose a maintainable cause of action as:
(a) The facts pleaded cannot amount to a breach of a justiciable right; and
(b) The facts pleaded cannot give rise to a constitutional remedy.
(iii) The Statement of Claim is an abuse of process for the following reasons:
(a) The purpose of the proceedings is not to vindicate any right recognizable in law but the ulterior motive is to divert attention away from the way in which the plaintiff had conducted a case before the Court of Appeal; and
(b) The proceedings are emotionally motivated, scandalous, fanciful, without substance, and a waste of the Court’s time.
(iv) The second defendant is wrongfully named as a party pursuant to the Government Proceedings Act 1974.
Strike out jurisdiction and approach to strike out application:
1. There are two sources of the Court’s jurisdiction for striking out a statement of claim which discloses no cause of action that is tenable in law. These are (i) the Court’s inherent jurisdiction, and (ii) Rule 70 of the Supreme Court (Civil Procedure) Rules 1980. The motion to strike out is brought under both the inherent jurisdiction and Rule 70.
2. The approach which has been followed by the Samoan Courts when dealing with a motion to strike out a statement of claim as disclosing no reasonable cause of action is now well settled:
(a) A strike out application is dealt with on the footing that the pleaded facts can be proved;
(b) The causes of action must be so clearly untenable they cannot possibly succeed;
(c) It has been the practice of the Court with application to strike out, for the Court to take into account the contents of all relevant documents in the proceedings and not just the pleadings.
(d) The fact that an application raises difficult issues or questions of law and requires extensive argument does not exclude jurisdiction.
3. I am conscious that a litigant’s constitutional right of access to the court is not to be lightly denied, unless his or her claim is so plainly untenable that it cannot possibly succeed or be cured by amendment, is doomed to fail.
1. The threshold issue is whether the proceedings or claim by the plaintiff against the first defendant is barred by the doctrine of judicial immunity.
2. The First Defendant is the President of the Samoa Court of Appeal, the highest Court of the land. The alleged behaviour of the First Defendant of what he said was said in the sitting of the Court of Appeal in February 2016 when they presided over a matter in which the appellant was represented by the plaintiff. In other words what the first defendant said was when he was discharging his judicial function as one of the presiding judges of the Court of Appeal.
3. The doctrine of judicial immunity was extensively covered by the Honourable Chief Justice in Tafililupetiamalie v Attorney General in which case the plaintiff (Mrs Woodroffe) was counsel for the plaintiff. The Chief Justice at  relied on the judgments of Lord Denning in Sirros v Moore and Lord Bridge in Re McC (A Minor) and held that judicial immunity from liability in a civil suit for damages applies to Judges of superior courts and to Judges of inferior courts of record which immunity the Chief Justice held to also apply to Judges and Assessors of the Lands and Titles Court. The case of Tafililupetiamalie is the leading authority in this country on the issue of judicial immunity.
4. This may be the first case where a Judge of the Court of Appeal has been sued in this country but the issue of judicial immunity is not new. It is also not a developing area of the law as the doctrine which affords the protection of judges from being sued is said by Lord Denning in Sirros to have existed since 1613.
5. The authorities cited by both Counsels is very clear that the doctrine of judicial immunity is not there for the enjoyment of the judge alone, but is there for the protection of the public, it is to maintain public confidence in the judicial system. The plaintiff refers to the judgment of the Honourable Chief Justice Dame Sian Elias in Attorney General v Chapman  where she was one of two dissenting judges. Her Honour’s main ground for dissenting is that she believed there should be liability of the state for what Chapman was put through. The majority found that the removal of judicial immunity would influence a Judge’s ability to maintain independence in dealing with all cases rather than the Judge having to worry about what the consequences might be, whether there is a lawsuit against a judge personally or what statements should be made thereby affecting how their decisions should be made in Court. It’s those public policy reasons that trumped the Bill of Rights arguments that were put forward by Her Honour, Chief Justice Elias.
6. The authorities referred to by the plaintiff in her submissions all apply or rule in favour of the judicial immunity. Every jurisdiction that the authorities referred to Attorney General v Chapman (NZ), Taylor v Canada (Attorney General)(Canada) and Sirros v Moore(England) have applied or ruled in favour of judicial immunity. The case of Tafililupetiamalie has not departed from any of the above authorities on the doctrine of judicial immunity.
7. Lord Denning refers to where judicial immunity does not apply where conduct of Judges are akin to criminal conduct such as a judge accepting bribery or there is corruption or have perverted the course of justice the judge can be punished by the criminal courts. The test is, so long as the Judge is discharging judicial functions the judicial immunity applies.
8. The first defendant, Honourable Justice Fischer as President of the Court of Appeal was presiding over the matter to which the plaintiff was counsel for the appellant. The transcript of the proceedings before their Honours of the Court of Appeal dated 19 May 2017 to which the plaintiff’s claim originates from records what was said by the first defendant to the plaintiff appearing as counsel for the appellant. The first defendant’s reference to ‘incompetence of counsel’ was due to frustrations of the first defendant of the way the plaintiff handled this appeal. The plaintiff acknowledged the frustrations of the Court of Appeal for any ‘short forms’ of the appeal (p7 of transcript). Late filing of submissions, no record or incomplete record of appeal in the file to be heard; no memorandum filed to inform the court that the record of appeal is the same as that filed for another matter (CA14/15) of the same appellant or at least make another set for this appeal file (CA16/15), appearing without a current practicing certificate and then to top it off were some technical issues that the first defendant identified and faced by the plaintiff as counsel for the appellant triggered the comments by the first defendant. The first defendant’s comments to the plaintiff of instructing competent counsel was made in relation to these technical issues and the way forward to help progress the appellant’s matter.
9. The remarks, comments or reprimand of the Plaintiff by the First Defendant were made in the course of discharging his judicial duties. They were not made with any malice or ill will against the plaintiff or any of those things the Plaintiff says in her statement of claim. Certainly, His Honour’s comments and conduct were nowhere near conduct referred to by Lord Denning in  above. The doctrine of judicial immunity applies to the First Defendant.
10. The plaintiff fails the threshold issue of judicial immunity and the strike out application succeeds against the First Defendant.
11. Since the Second Defendant as a party only exists, or is sued because of the First Defendant it only there follows that if the matter is struck out against the First Defendant, the Second Defendant as a party becomes non-existent.
12. If I am wrong, the claim against the Second Defendant will be struck out on the basis that it is the wrong party to be named or brought into these proceedings.
Attorney General wrongly named as Second Defendant
1. The plaintiff in her submissions sues the Attorney General on behalf of the Government of Samoa as the employer of the First Defendant.
2. The Government Proceedings Act 1974 (GPA) provides for civil liabilities and rights of Government and its officers and for civil proceedings by and against the Government. A Judge or other judicial officer is not an ‘officer’ under GPA. An ‘officer’ is defined to include any servant of the Government and includes a Minister of the Government.
3. The method of making the Government a party is provided for by section 9 which in this case does not apply because a Judge is not an officer of Government. So clearly the Attorney General pursuant to the Government Proceedings Act 1974 is wrongfully named as Second Defendant.
4. The Judiciary is a separate arm of the State which includes the Legislative and the Executive. The Constitution by Article 83(f) further affirmed that a Judge or any other judicial officer is not an officer or public servant.
5. Although, the statement of claim is struck out I still wish to address the causes of action raised by the plaintiff.
Breach of Article 78 of Constitution
1. Article 78 is the Oath that must be taken by a Judge of the Court of Appeal before presiding as a Judge. Such oath must be taken before His Highness, the Head of State. The oath to be taken by Judges of the Supreme Court and Court of Appeal (Third Schedule of Constitution):
“I.........., swear by Almighty God that I will well and truly serve the Independent State of Samoa in accordance with the Constitution and the law; and I will do right to all manner of people, without fear or favour, affection or ill will. So help me God.”
2. The Plaintiff claims that the First Defendant’s behaviour of unfounded, incorrect, unfair and abusive comments towards her had resulted in a breach of Article 78 by failure to do right to all manner of people, without fear or favour, affection or ill will. The First Defendant had also breached Article 78 by failing to deal with her impartially. The Plaintiff therefore claims that the First Defendant in breaching his Oath has abandoned the protection afforded to him by the doctrine of judicial immunity.
3. The plaintiff in her oral submissions asks the Court to look outside the box and take Article 78 to mean that if a Judge does not comply with the Oath, results to a breach of Article 78 and therefore, also amounts to a constitutional remedy set out under the Constitution.
4. The Constitution of Samoa is based upon the separation of powers under the headings legislative, executive and judicial. Article 3 of Constitution refers to the ‘State’ as including Head of State, Cabinet and Parliament; it does not include the Judiciary. The Constitution provides for the independence of the Judiciary, security of tenure of the Judges and administration of the judiciary.
5. The ‘constitutional rights’ are provided for under Part II of the Constitution (Articles 3–15) which if breached then constitutional remedies will follow. Article 78 is administrative and/or procedural part of the Constitution that deals with the judiciary.
6. Article 78 does not give rise to a justiciable right or to a right guarantee under Article 9.
7. The Plaintiff asks the court to think outside the box. This would result in the Court making implications on Article 78 that are not there. Article 78 is simply the Oath to be taken or administered by a Judge of the Supreme or Appeal Court. It does not go any further than that. The Court of Appeal in Samoa Party v Attorney General at  on implication expounded as follows:
“Implications are not devised by the judiciary they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis. No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution or on its structure. However as an implication will be applied in a particular case to a specific factual situation, it may be expressed in terms related to that situation” (my emphasis).
8. Just because a Judge makes comments adversely about counsel or party to a proceeding, that does not mean they become impartial. This was the case, the Court of Appeal (which includes the First Defendant) despite the comments the Plaintiff takes issue to made directive in favour of the appellant represented by the plaintiff which directive resulted in the issuing of a full written decision by the Chief Justice. The court also reiterates paragraphs  and  above.
9. This cause of action is untenable and would be struck out.
Breach of Article 7 of Constitution
1. Article 7 is freedom from inhuman treatment, that is, “No person shall be subjected to torture or to inhuman or degrading treatment or punishment”. The plaintiff claims that the comments made or the vilification of her by the First Defendant had resulted in the breach of Article 7.
2. According to the Plaintiff the criticisms of her by the First Defendant amounted to degrading treatment as it grossly humiliated the plaintiff before others and that, the criticisms aroused in the plaintiff feelings of fear, anguish and inferiority capable of debasing the plaintiff. The plaintiff refers to the case of Nnamdi v Attorney General where the right under Article 7 was breached.
3. Counsel for the defendants submitted that the treatment claimed by the plaintiff to be a breach of Article 7 makes a mockery of Article 7. The two cases where Article 7 was considered in this jurisdiction were of criminal nature where those involved were in custody of the police. Counsel submitted that to trigger protection against torture, inhumane and degrading treatment provided under Article 7, the harm suffered must attend a minimum level of severity. Counsel refers the court to an Article by the Minnesota Law School on torture, cruel, inhuman and degrading treatment. The article refers to sources of international law that prohibit torture and cruel, inhuman or degrading treatment.
4. The international law referred to by the article refers to such treatment on prisoners of war and those in international armed conflicts where such treatment causes great suffering or serious injury to body or health but does not include pain and suffering arising only from inherent in or incidental to lawful sanctions.
5. Article 7 to my knowledge applies to rights of those who are held in custody by the police. Certainly in this country Article 7 has been applied in two cases which one of them the plaintiff refers to of Nnamdi v Attorney General which case involved a Nigerian immigrant who was held in custody by the police. His treatment by the police was found to be a breach of his rights under Article 7; Police v Sale was about the admissibility of the cautioned statement by the defendant. The defendant whilst waiting to be interviewed by the police was placed in a small room for some time and before being interviewed was told to strip naked in the presence of police officers. Such action or behaviour by the police was raised by the presiding judge to amount to a breach of Article 7.
6. The reprimanding of the Plaintiff by the First Defendant was not intentional to cause any severe harm or suffering nor made with any malice or ill will but were made for the lapses in the way the appeal was presented by the Plaintiff and the persistent failure to follow proper procedures according to the Court of Appeal Practice Direction 2011. Any humiliation the Plaintiff suffered falls way below what is considered or protected by Article 7.
7. This cause of action is also so untenable and would be struck out.
1. For the foregoing reasons:
(i) The doctrine of judicial immunity applies to the First Defendant and the claim against the First Defendant is struck out.
(ii) The claim against the Second Defendant fails as the claim is struck out against the First Defendant. If not it is nevertheless struck out as under the law it is the wrong party to be named.
2. In any event the whole statement of claim is struck out in its entirety.
3. Costs to the defendants. Memorandum of costs to be filed within 7 days from the date the written decision is made available.