Court dismisses lawyer’s appeal
The Court of Appeal has upheld a Supreme Court decision in a lawsuit brought by prominent lawyer, Leuluaiali’i Olinda Woodroffe, against Justice Robert Lloyd Fisher.
The decision was delivered by Justice Panckhurst, Justice Tuala-Warren and Justice Vaepule Vaai last week.
“The appeal is dismissed,” the Court of Appeal ruled.
“The order of the Supreme Court striking-out the proceeding is conﬁrmed. The appellant must pay the respondents costs of SAT$28,845.00 being the total awarded in both courts.”
Leulua'ialii had sued Justice Fisher for an alleged breach of her rights when he made comments during an appeal hearing last year.
Leuluaiali’i said Justice Fisher had called her incompetent, among other insults, during the hearing.
The following is the Court’s decision in full:
JUDGMENT OF THE COURT Introduction 1. Mrs Woodroffe appeals against an order of the Supreme Court striking out her claim for compensation under the Constitution of the Independent State of Samoa. The claim alleged breaches of the Constitution in two respect; that she had been subjected to degrading treatment in breach of article 7, and that such treatment also breached article 78 by which Judges of this Court must take a judicial oath to “do right to all manner of people, without fear or favour, affection or ill will”. A declaration and compensation of $2,000,000 is claimed against each Respondent.
2. The Respondents are the Honourable Justice Fisher sued in this capacity as the President of this Court and the Attorney General sued on behalf of the Samoan Government. An application to strike out the claim based in essence on judicial immunity was filed on behalf of the Respondents. Such application was granted by Justice Tuatagaloa.
Some background 3. The events that gave rise to the claim occurred in the course of sittings on 15 February 2016. The context is important. Exchanges between the presiding Judge and Mrs Woodroffe, appearing as counsel, provide the basis of the claim. These exchanges, recorded at the time, must be assessed in the Court context in which they took place.
4. Mrs Woodroffe was counsel for appellants in a case to be heard during the session commencing that day. She appeared at a 9am callover and again at the hearing of the appeal at 2pm on l5 February. The appellants were a mother and daughter suing as the administratrix of the original plaintiff, their son and brother respectively.
The deceased had brought a proceeding against a sibling alleging that his brother had exercised undue influence over their elderly father and thereby secured the transfer of two parcels of land on Upolu into his name (the land case). The case was heard in 2003. The trial judge reserved his decision. An interim decision was not delivered until mid-2014. It comprised two sentences to the effect that although the deeds of conveyance by way of gift were fraudulent, relief could not be determined until a company that held mortgages over the land had been heard.
5. Mrs Woodroffe was not counsel when the undue influence claim was heard in 2003. She was instructed in 20l4, but by the administratrix of the original plaintiff’s estate, he having died in the meantime.
This was not the only development during the lengthy delay between the hearing and the interim decision. The defendant brother who had acquired the land by gift from his father had also died, and one of the parcels of land had been sold to a local company through a mortgagee sale.
6. Confronted with this complicated background Mrs Woodroffe turned to the Supreme Court and endeavoured to obtain a ﬁnal and reasoned judgment from the trial Judge, including a determination concerning entitlement to the remaining parcel of land. Despite various initiatives and appearances in the Supreme Court, progress proved elusive. This prompted Mrs Woodroffe to ﬁle an appeal in this Court against steps taken or not taken by the trial judge which were said to be in breach of the Constitution. A complaint of inordinate delay was the principal allegation.
7. This approach was problematic. No proceeding had been commenced in the Supreme Court seeking relief under the Constitution. Hence there was simply no basis for an appeal to this Court. Discussion at the afternoon hearing on l5 February centred on whether the interim decision might be susceptible of appeal. But the trial judge’s ﬁnding that the land transfers from father to son were fraudulent was in favour of Mrs Woodroffe’s clients. And, the trial judge’s refusal to grant relief until such time as he had heard from the company that acquired one parcel of land was understandable and appropriate. Potentially, the company was a bona ﬁde purchaser for value without notice.
8. This Court delivered a judgment on 19 February 20l6 in which it adjourned the appeal to allow time for the trial judge to give a ﬁnal and reasoned decision. The judgment also proffered a number of procedural suggestions intended to assist the parties in ﬁnding a way forward in relation to the 2003 land claim. On 29 August 2016 the trial judge provided reasons for judgment. These fully explained why he upheld the cause of action based on undue inﬂuence. Relief, however, was reserved to enable affected non-parties to be heard. Procedural difficulties 9. The relevant exchanges between the presiding judge and Mrs Woodroffe in signiﬁcant measure concerned procedural irregularities related to the appeal ﬁled with regard to the land claim. The ﬁrst problem was that Mrs Woodroffe did not hold a current practicing certiﬁcate from the Samoan Law Society. Counsel for the Law Society appeared at the morning callover to appraise the Court of the situation. Dispute arose concerning whether Mrs Woodroffe had satisﬁed the requirements to be the holder of a current certiﬁcate. The Court adopted the expedient of granting Mrs Woodroffe leave to appear noting that it only did so “in the interest of her clients.
10. Other irregularities arose from non-compliance with the Court of Appeal Rules and its Practice Direction. In summary these were:
a) That the intitulment of the land case was defective in that the administrators of the original defendant’s estate had not been substituted as parties, albeit an order for substitution had been made in the Supreme Court. The failure was described as “unsatisfactory” given the administrators “potential substantive liability and also their responsibility for costs.”
b) The record on appeal was ﬁled on the last working day before the hearing and in electronic form. A paper copy was not ﬁled until the morning of the hearing.
c) Both the electronic and paper copies were seriously incomplete. Mrs Woodroffe acknowledged this, but told the Court that the complete record was available on another Court of Appeal ﬁle for hearing that week, being an appeal against the removal of a caveat registered to prevent dealings with one of the parcels of land involved in the land claim. On inspection of that ﬁle it was found that it did not contain the missing elements of the record on appeal.
d) An application for special leave to appeal in relation to the alleged constitutional failures of the trial judge was also ﬁled late, namely on the last working day before the hearing in electronic form and on the morning of the hearing in paper form. e) The appellant’s submissions were likewise ﬁled on the last working day (electronically) and on the morning of the hearing (in paper form); and no chronology was included with the submissions.
11. In the judgment given at the end of the session the Court held that the “persistent failure to follow proper procedures has been unfair to the respondents, placed unnecessary pressure on Court staff and greatly increased the burden on members of the Court.”
The conduct in issue I2. Both the callover hearing at 9arm and the appeal hearing at 2pm have been transcribed. The former is brief, comprising only two pages. The hearing transcript is much longer, being eighteen pages of exchanges that covered a range of issues. Mrs Woodroffe’s statement of claim includes this at paragraph 22:
“The ﬁrst defendant in open court (with full gallery) consistently made criticisms of the plaintiff which were high handed, unfair, unfounded, incorrect, gratuitous, inappropriate, abusive and made with a contumelious disregard of the plaintiff, including:
(a) Stating that “if it were not for the importance of the appeal I think we might be minded to just dismiss it or at least adjourn it based on the delays and the incompetence of Counsel for the Appellants”.
(b) Telling the plaintiff that she had taken every opportunity she could to make the hearing more difficult than it needed to be.
(c) Asking the plaintiff whether she had given consideration to instructing competent counsel.
13. These remarks were made towards the commencement of the afternoon hearing. In our view they represent the highpoint in relation to the criticisms complained of. So far as we can tell the remarks made at the callover are relied upon as part of the narrative, but no direct quotes from that hearing are pleaded in the same manner as those set out above.
14. For reasons that will become apparent shortly, we regard the highpoints of the critical comments as of some real importance. This is not to diminish or disregard the exchanges as a whole, but rather recognises that a critical determination we must reach is whether the conduct, the exchanges at the callover and the hearing, is of a nature and degree sufﬁcient to enable a ﬁnding to be made that Mrs Woodroffe was subjected to degrading treatment in breach of the Constitution.
Strike out principles
15. The approach to evaluating a strike out application was common ground between the parties. As the judge below noted the application is to be dealt with on the assumption that the facts pleaded in the claim can be proved. An order striking out the claim may only be made if the causes of action are so clearly untenable that they cannot possibly succeed. If the claim can be saved by amendment of the pleadings, or parties, this may be permitted since a litigant’s right of access to the court is not to be lightly denied. Only when a claim is doomed to fail should an order striking it out be made.
16. That an application raises difficult and important questions of law and requires extensive argument does not exclude the jurisdiction. This was such a case. In addition to the extensive allegations in the pleadings, counsel and the Court had regard to the transcribed record of each hearing. These provided a verbatim account of the exchanges between counsel and the bench, subject to the odd imperfection. Mrs Woodroffe made the point that body-language and inﬂection were not apparent from the record which is obviously the case. We do not see this, however, as any impediment to our determination of the appeal.
Judicial immunity 17. This was the principal ground advanced in support of the application. Justice Tuatagaloa held that what the ﬁrst respondent said was in the course of his discharging his judicial function, that in the circumstances judicial immunity applied and that the two causes of action against him must therefore be struck out.
18. The ﬁrst cause of action asserted as the Constitutional breach that the Judge acted in breach of his judicial oath and Mrs Woodroffe submitted that this meant that his actions were not within his judicial function and also tainted by bad faith. In either case judicial immunity was said not to apply. In response to questioning counsel maintained that while the callover and the hearing were conducted by the judge in the exercise of his judicial function, immunity was lost whenever his “words, actions and manner clearly expressed ill-will towards the appellant” Similarly, when the ﬁrst respondent acted in bad faith judicial immunity no longer applied.
19. We shall consider the proposition that a breach of the Constitution can be committed by non-compliance with the judicial oath of Samoa later. For now we park that issue and focus on the principle of judicial immunity, in particular the breadth of the protection provided to judges of superior Courts. Before turning to this we acknowledge that as Mrs Woodroffe’s argument developed it became a little clearer how she envisaged ﬂuctuating immunity might operate in the course of a judicial hearing. Despite the breadth of the allegations made against the ﬁrst respondent, Mrs Woodroffe frequently returned to two passages from the afternoon hearing and stressed the humiliating impact that these had upon her. The ﬁrst was the Judge’s opening comment:
“I’ve already touched this morning on the unacceptable delays in providing the documents that we’ve required. If it weren’t for the importance of the appeal I think we might be minded to just dismiss it or at least adjourn it based on the delays and the incompetence of counsel for the appellant.
The fact is, however, that, your clients are much more important than you are, and we’re going to do our level best to deal with this matter in their interests, despite the fact that you have taken every opportunity you could to make the hearing today more difficult than it needed to be.”
A short time later this was said: “You’ve attempted to bring an application based on the Constitution and that might well have some prospect for you if that were done in the right way but, again, there would be a matter of trying to leap frog over the Supreme Court straight into this Court; it would be a matter of beginning proceedings under the Constitution in the Supreme Court, and if you didn’t like the decision you’ve got then appeal it to us. The case is so challenging from a technical point of view I wondered whether you’d given consideration to instructing competent counsel to sort it out.
20. At paragraph 31 of the statement of claim the payers for general damage of $1,000,000 and exemplary damages of the same amount are prefaced in this way:
“The ﬁrst defendant’s actions and breaches have caused hurt, humiliation, and ﬁnancial loss to the plaintiffs business, including potential future loss to the plaintiff‘ s business: Particulars:
c) The plaintiff is a respected senior lawyer and her competency drives clients to her and creates demand for her services. The actions of the ﬁrst defendant have brought the plaintiff into disrepute.
Hence the judge’s comments quoted above were prime examples of instances where he “Abandoned the protection afforded to (him) by the doctrine of judicial immunity”2 in Terms of Mrs Woodroffe’s argument.
21. Judicial immunity dates back to 1613.The rationale for its existence has been eloquently described on numerous occasions and in numerous jurisdictions. One example is to be found in Nahkla McCarthy in which a litigant sued the president of the New Zealand Court of Appeal. His claim was struck out. Woodhouse J explained the principle in this Way:
“An action complaining of the judicial work of a superior court judge is probably unique in New Zealand. In the United Kingdom the number of recorded attempts to bring a similar action during the past 150 years or more can be counted on the ﬁngers of one hand. None has succeeded.
It is not necessary to search for the reason. It lies in the 1ight of men and women to feel that when discharging his judicial responsibilities a judge will have no more reason to be affected by fear than he will allow himself to be subjected to inﬂuences of favour. Thus he is surrounded with an absolute immunity from civil proceedings for acts done or words spoken in the exercise of his judicial ofﬁce. But that immunity is in no sense a private right which might be regarded as having been conferred upon him and which he then might be said to enjoy. He is merely the repository of a public right which is designed to ensure that the administration of justice will be untrammelled by the collateral attacks of disappointed or disaffected litigants. That simple concept is gladly accepted, we believe, by the citizen and lawyer alike. And its strength extends to preventing civil proceedings against the judge in respect of his exercise of jurisdiction even thought he may act with gross carelessness or be moved by reasons of actual malice or even hatred.
A judge can, of course, be made to answer, and in a proper case pay dearly, for any criminal misconduct. Like any other citizen criminal proceedings may be brought against him. If the need arose steps could be taken in the Parliament to have him dismissed from ofﬁce. If in the course of his work he should fall into error the matter can become the subject of appeal. If he should wrongly deprive a man of his freedom then altogether apart from appeal, there is the remedy of habeas corpus. But in relation to the performance of his judicial ofﬁce the judge is immune from attack in civil proceedings”.
22. Here in Samoa the principle of judicial immunity was considered in 2015 by Chief Justice Sapolu in Taﬁlilupetiamalie v Attomey General, likewise in the context of a strike out application. We commend and adopt his survey of several cases from England, Australia and New Zealand. That survey and his discussion of the principles obviates the need for this Court to embark on any similar exercise
23. We add but one matter properly emphasised by Miss Wallwork in her submission. Counsel drew attention to article 114 of the Constitution which provided that existing law would continue in force after Independence Day. Article 111 deﬁned “law” to include “English common law” provided it was not excluded by Samoan law, and custom or usage having the force of law. And, article 118 provided that “existing judges” of the Supreme Court would continue to hold office on the same “terms and conditions” as prevailed before Independence Day. We accept that this combination of provisions made judicial immunity applicable in Samoa via the common law, as the Chief Justice noted in Taﬁlilupetiamalie.
24. We do not accept Mrs Woodroffe’s submission that the immunity may be lost on account of ill-will, bad faith or any like epithet. To the contrary even a judge actuated by malice or hatred is immune provided he or she is undertaking a judicial function. In short, the immunity is absolute in relation to judges of the Superior Courts, save for some limited exceptions of no present relevance. Accordingly the causes of action against the ﬁrst respondent in his personal capacity are doomed. Failure is inevitable regardless whether this cause of action is viewed from the assumed perspective of a breach of the judicial oath or a subjection to degrading treatment; but we shall need to revisit these assumptions when considering the appeal in relation to the second respondent.
The claim against the second respondent 25. The pleading of the third cause of action in the statement of claim is concise. Described as
a. “Breach of the Constitution” the pleading continues:
“In the alternative the Plaintiff repeats paragraph 1 to 31 above.
32. The second defendant is sued on behalf of the State of Samoa. 33. The Government of the State of Samoa is responsible for the actions of the ﬁrst defendant. 34. The Ministry concerned is the Ministry of Justice and Courts Administration”.
26. The relief sought is again a declaration and general and exemplary damages each of $1,000,000. Hence the gist of the allegations is that the President breached both his judicial oath and article 7 of the Constitution, and that the government is legally responsible for such breaches.
27. This represents a direct claim under the Constitution. This Court in a number of cases has considered when and how a breach of constitutional rights may provide a direct route to damages. In this regard article 4 of the Constitution is pivotal: 4. Remedies for enforcement of rights — (1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.
(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.”
28. Part II contains the fundamental rights, including the right to freedom from torture, inhuman or degrading treatment or punishment, but not article 78 that requires judges of the Court of Appeal to take the judicial oath. We shall consider the signiﬁcance of this in a moment.
29. In the Supreme Court the Judge found that the Attorney General was sued “as a party only” and considered that “if the matter is struck out against the First Defendant the Second Defendant as a party becomes non-existent”.6 Unfortunately, her attention had not been drawn to the line of cases in this Court concerning direct claims under the Constitution.
30. Reference to the most recent of these cases will sufﬁce. It concerned a Supreme Court damages award of $963,710 in favour of multiple claimants who had been unlawfully banished from their village. In this Court matais of the village challenged the award on the basis that the Supreme Court judge was wrong to uphold claims based on the torts of misfeasance in public office and negligence. The case is Punitia v Tutuila.The Court of Appeal decision included this:
“ The submissions were understandable given that much of the judgment was concerned with those torts. With respect to the (Supreme Court) Judge, however, it was unnecessary to embark upon causes of action in tort. They had not been pleaded by the respondents and, at least in the special circumstances of this case, it was unnecessary to do so. In this case the respondents were entitled to rely upon the breach of constitutional rights as a direct route to damages.
“ We agree that where defendants are sued as individuals it will normally be necessary and appropriate to rely upon tort or other private law causes of action. The long-established criteria for liability in tort and other private law causes of action will generally make them a better vehicle for establishing liability than the broad discretions and value judgments that constitutional remedies entail. Private law causes of action are, and will remain, the primary source of liability in Samoa. Breach of constitutional rights should generally be resorted to only where private law causes of action would not be a satisfactory substitute.
“ However there is no absolute rule to that effect. In Simpson v Attorney-General [Baigent’s Case]  3 NZLR 667 (CA) at 678, for example, Cooke P said this:
As to the level of compensation, on which again there is much international case law, I think that it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the afﬁrmed rights and to deter breaches are also proper considerations; but extravagant awards are to be avoided. If damages are awarded on causes of actions not based on the Bill of Rights, they must be allowed for in any award of compensation under the Bill of Rights so that there will be no double recovery. A legitimate alternative approach, having the advantage of simplicity, would be to make a global award under the Bill of Rights and nominal or concurrent award on any other successful causes of action.
“ Cooke P could see no difficulty in an action in which damages for breach for constitutional rights co-existed with private law causes of action so long as there was no duplication of compensation for the same loss.
31. With regard to compensation or damages the Court under the heading “Moderation in damages” emphasised that relief for human rights breaches were discretionary. Relief may be denied, or simply a declaration upholding the breach granted. Damages should be moderate, since signiﬁcant value judgments are involved, particularly in relation to general and exemplary damages. Special damages are different, bemuse their award requires proof of actual loss and amount leaving little room for argument on discretion.
32. The availability of compensation for a breach of a constitutional rights in Samoa means that we respectfully disagree with Justice Tuatagaloa’s ﬁrst reason for concluding that the claim against the second respondent was doomed. However, she also considered whether either of the asserted constitutional breaches were capable of being sustained in case her reasoning that the Attomey General’s liability depended on his being a party was misplaced. Likewise, we shall consider the arguments directed to articles 78 and 7; and then refer to the vexed quotation whether judicial immunity necessarily avails the Government in relation to the direct damages claim against it.
A breach of article 78 33. Article 78 stipulates that Judges of the Court of Appeal must on appointment “take and subscribe before the Head of State an oath in the form set out in the Third Schedule”. The words of the oath are: 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.
34. Justice Tuatagaloa held that “article 78 is administrative and/or a procedural part of the constitution that deals with the judiciary”. She continued it “does not give rise to a justiciable right or to a right guaranteed under article 9”. Article 9 deﬁnes the right to a fair trial in relation to both civil and criminal cases. For those reasons she concluded that this cause of action was untenable and should be struck out.
35. We agree that this cause of action is untenable and broadly for the same reasons as expressed by the Judge. It is also telling that article 78 is not a Pa.rt II fundamental right that may be enforced in the Supreme Court pursuant to article 4. (See ). Rather article 78 is in Part VI that deals with “The Judiciary”. Fundamental rights pertaining to a fair trial are prescribed in article 9, and apply to “every person” who is a civil litigant or charged with an offence, not to counsel. Even if article 78 somehow gave rise to a constitutional right available to counsel judicial immunity would remain in issue.
Degrading treatment 36. Article 7 of the Constitution provides:
7. Freedom from inhuman treatment - No person shall be subject to torture or to inhuman or degrading treatment or punishment.
Following reference to the submissions, an academic article and a limited number of cases that had been cited Justice Tuatagaloa concluded that “any humiliation that the Plaintiff suffered falls way below what is considered or protected by Article 7”. On this alternative basis she was fortiﬁed in the view that this cause of action was clearly untenable.
38. The statement of claim alleged:
30. The criticisms of the plaintiff, which were high handed, unfair, unfounded, incorrect, gratuitous, inappropriate, abusive and made with contumelious disregard of the plaintiff including the criticisms set forth in paragraph ll hereof, comprises “degrading treatment” in that:
(a) The treatment of the plaintiff by the ﬁrst defendant grossly humiliated the plaintiff before others, and/or
(b) The treatment of the plaintiff by the ﬁrst defendant aroused in the plaintiff feelings of fear, anguish, and inferiority, capable of humiliating and debasing the plaintiff.
39. Miss Wallwork submitted that the Judge was correct in ﬁnding that the treatment in this case did not approach the level required to support a ﬁnding of degrading treatment. Despite the researches of both counsel no case even factually close to this one could be found. This suggested that the treatment in this instance was at a level not worthy of consideration in human rights jurisprudence. Counsel characterised the exchanges complained of as a “telling off’ by the President of the Court in the context of a litany of procedural failures.
40. Mrs Woodroffe argued that the Judge had not recognised that article 7 describes three levels of treatment in diminishing order of severity and that this led her into error. These are torture, inhuman treatment and degrading treatment (or inhuman on degrading punishment). Counsel continued that degrading is deﬁned in the Oxford Dictionary as “causing a loss of self respect; humiliating”. This was exactly what she had suffered. Accordingly, this cause of action should have proceeded to a substantive hearing.
41. We do not accept that the Judge failed to appreciate that article 7 describes conduct of a diminishing order of severity. She identiﬁed subjection to degrading treatment as the alleged breach and remained focused on that concept. In any event this aspect requires a value judgment and it is essential that we consider it afresh, conscious that we are doing so in a strike-out context and that a litigant’s access to justice is not to be lightly denied.
42. The starting point is article 7 itself. The operative words are to be given their plain meaning, but with due regard to the Constitution as a whole and the speciﬁc context in which the words appear. Part II deals with fundamental rights. Article 7 concerns subjection to torture, inhuman or degrading treatment (or punishment). These are strong words, particularly when read in their context.
43. Counsel’s inability to ﬁnd any cases involving conduct at the present level is signiﬁcant. Such cases as were cited emphasized the need to evaluate each case on its particular facts and to have close regard to the contextual circumstances. It is for this reason that the factual context has been outlined in some detail earlier in this judgment.
44. In the course of argument Mrs Woodroffe was asked what course she would have taken had these events occurred in a New Zealand Court. To her credit she indicated that a complaint to the Judicial Conduct Commissioner would have been the obvious course. The Judicial Conduct Commissioner and Judicial Conduct Panel Act was passed in 2004. One purpose of the Act was “establishing an ofﬁce for the receipt and assessment of complaints about the conduct of judges”. 9 The Commissioner on receipt of the complaint may provide it to the judge concerned and investigate the matter. His powers include dismissal of the complaint, referring it to the Head of Bench on recommending that it be considered by a Judicial Conduct Panel. Similar arrangements exist in a number of common law jurisdictions.
45. Developments of this kind probably reﬂect at least three factors that are common to each of the different jurisdictions. First and foremost is judicial immunity. This principle is in effect a bar to any form of civil proceedings against a judge for actions occurring in the performance of his judicial function. Second, courtrooms are necessarily robust places. Litigants, counsel and judges must be free to speak without fear if justice is to be done, and standards maintained. Lastly, there are different levels of conduct that may cause offence to others. Reliance alone upon a jurisdiction founded on fundamental human rights may leave conduct at a lesser level of seriousness without a remedy. Hence, a number of countries have established complaints ofﬁce empowered to assess complaints against judges.
46. We agree with, and endorse, the conclusion reached by Justice Tuatagaloa that the conduct here was “way below” that required to establish degrading treatment under article 7. This conclusion is a value judgment, but one we are satisﬁed was inevitable in the circumstances of this case. The references to incompetence represented a strong rebuke, but one administered in extraordinary circumstances and out of concern for litigants who faced a complex situation. For these reasons the cause of action against the Government cannot possibly succeed and must also be struck out. Absent a breach of the constitution the claim cannot be saved by amendment, or otherwise, either.
Does judicial immunity preclude a remedy? 47. The application to strike-out asserted that the claim was both procedurally ﬂawed and named the wrong parties. These assertions concerned the naming of both the Judge in person and the Attorney General on behalf of the Government. We have not considered these procedural aspects, preferring instead to go direct to the substantive issues, whether judicial immunity and the non-sustainability of the constitutional breaches were fatal to the causes of action anyway. Our conclusions on these aspects are decisive of the appeal.
48. Nevertheless one aspect remains upon which we must brieﬂy comment. Mrs Woodroffe correctly pointed out that the Court’s judgment concerning the land case accepted that “The Supreme Court has the jurisdiction to grant wide-ranging remedies (including) by those in authority...”
49. This observation contemplated the feasibility of a claim against the State of Samoa if the trial judges delay in delivery of the land case judgment was found to be a breach of the Constitution. We have already explained why such a claim may be brought by reference to this Court’s decision in Punitia v Tutuila (at ). As Mrs Woodroffe noted this observation was, in a sense, supportive of her claim in the present case.
50. There remains, however, what we termed the “vexed issue” whether judicial immunity may avail the State in relation to a claim based on a judicial breach of the Constitution. Counsel referred to Attorney General v Chapman H a decision of the New Zealand Supreme Court. The majority concluded that the immunity does extend to preclude ﬁnancial remedies for breaches by the judicial branch of government. However, two of the ﬁve judges, including the Chief Justice, wrote emphatic dissenting judgments.
51. This is a complex issue. Moreover, there is a signiﬁcant difference between New Zealand and Samoan law. The New Zealand Bill of Rights Act 1990 makes no express provision for remedies. The Samoan Constitution does in article 4. Although counsel cited Chapman we did not have the beneﬁt of submissions on this important aspect. Nor need we decide it. It is best left to another day when the Court has heard full argument from counsel and the issue of whether Chapman should be followed in Samoa is alive.
52. In the Supreme Court the respondents were awarded costs in the sum of SAT$7,827.00. This represented two-thirds of the actual costs of the two counsels who appeared in support of the strike-out application. Although this award was initially made before the Judge had seen Mrs Woodroffe’s memorandum in opposition to costs (which was ﬁled late), this problem was rectiﬁed when a reasoned costs decision was subsequently delivered on 7 August 2017. No submission was advanced challenging the approach and outcome in the decision. Instead Mrs Woodroffe sought a reversal of the order should the appeal succeed.
53. Counsel ﬁled memoranda on costs in this Court at our direction. Both parties sought costs based on actual costs, albeit Mrs Woodroffe’s claim was challenged on the basis that a self-represented lawyer was not entitled to costs. The point is now moot. Respondent’s counsel sought indemnity costs of SAT$31,527.00 for two counsel.
54. We are not persuaded that indemnity costs are appropriate. We award two-thirds of actual, being SAT $2l,0l8.00. The award in the Supreme Court stands.
55. The appeal is dismissed. The order of the Supreme Court striking-out the proceeding is conﬁrmed.
56. The appellant must pay the respondents costs of SAT$28,845.00 being the total awarded in both courts.
Honourable Justice Panckhurst
Honourable Justice Tuala-Warren
Honourable Justice Vaepule Vaai