Court delays unconstituional: lawyer

Court decision delays of over one year breach Samoa’s Constitution, the Queen’s Counsel representing National Pacific Insurance in recent a case that took 22 years for a judgement to be handed down says.  

Speaking to the Samoa Observer, John Upton Q.C. said both the business community and people of Samoa should be questioning why so many court cases are taking between three and 25 years to come to a conclusion.

“The Samoan community is entitled to expect a fair hearing, a prompt decision, an efficient court system,” Mr. Upton, who practices law in New Zealand, said.

“What Samoans do not expect is to wait up to 22 years for a decision. That is, in my humble opinion, is a total breach of the Constitution and totally unfair.”

Last August, Former Chief Justice Patu Falefatu Sapolu gave his decision over an insurance dispute between National Pacific Insurance and Vaivaimuli Corporation, ruling in favour of Vaivaimuli and ordering N.P.I. to pay $245,000.

The decision came 22 years after the original hearing in which Mr. Upton represented N.P.I. (alongside former private lawyer and now Supreme Court Justice Vui Clarence Nelson).

“I regard it as a disgraceful decision,” Mr. Upton said.

At the time, he recommended N.P.I. appeal the decision, and this month the Court of Appeal ruled the Supreme Court’s decision had been unsafe, both because of the long delay and the missing documents, and struck out its decision. 

“The thing that surprised me was that there was no explanation for the delay, no apology for it, no excuse for what had happened and we suddenly got a judgement […] to make it worse, in the period between the hearing and judgement the court had lost its files.

“As you can see from the Court of Appeal they didn’t think much of that at all, they were not impressed with it.”

In their decision, the Court of Appeal said the case was not complex, that the 2019 decision does not “withstand scrutiny” and after such a long delay it cannot even order a retrial.

“Vaivaimuli will never be able to bring to finality its claim against N.P.I., whatever the strengths and weaknesses of that claim. It has lost the chance of a successful outcome through no fault of its own.”

When approached over the phone on Tuesday, Chief Justice Patu said he had no comment on the delayed decisions he presided over. 

Mr. Upton believes the N.P.I. vs. Vaivaimuli Corporation case may be the longest delay in the courts of the Commonwealth at 22 years between hearing and decision. A final decision on costs is yet to be made, with the Court of Appeal making the “unusual step” of recommending the Government pay both parties full legal fees because of the delay.

As well as the case in question, Patu delivered 11 other judgments in 2019 that had been delayed by between three to 18 years after they were first brought to court.

“I think the extraordinary situation we had last year was disgraceful. Samoa should be taking every possible step to make sure it does not occur again.

“We have a situation where the business community and the local people are entitled to question what is going on and what is happening to our judicial system.”

Chief Justice Patu had so many outstanding cases to deliver on that at the time of his retirement, he was given an extension period to finish the decisions left on his desk.

Two of those 12 decisions delivered in 2019 did include apologies.  

In a decision for a case that began in 2004, and whose defence and their counsel have both died, the former Chief Justice wrote: “I convey my sincere apologies to the parties for the length of time it has taken to deliver this judgment. I respectfully thank you for your patience and understanding.”

In another, for a case that began in 2007, he said: “I sincerely regret that it has taken this long to deliver my judgment in this case. I convey my apologies to the parties and thank them for their patience.”

Mr. Upton said if there were tighter expectations on case timeframes, the former Chief Justice’s caseload could have been dealt with a long time ago.

A system should be put in place to monitor judges closely so that potential delays can be picked up early.

“If we [in New Zealand] had a case in which a judgement had not been delivered within say 12 months people would immediately be asking questions. That is what is needed in Samoa so that confidence is retained in your judicial system.

“It may be that the judge is overworked, it may be that the judge is lazy, [or] sick. But at least with a timeframe expected of judges, their performance can be watched and monitored and steps can be taken to deal with the situation if undue delays start to creep in.”

In the case of N.P.I. vs. Vaivaimuli, Ruby Drake the lawyer for Vaivaimuli Corporation wrote to the courthouse registrar every year following the hearing to enquire about a decision and says she never heard back.

In 2016 she wrote to the Minister of Justice and Courts Administration, who responded saying that following Chief Justice Patu’s return from a visit to China, he would be focusing on finishing his overdue cases.

“It’s just totally unsatisfactory,” Mr. Upton said. “Fortunately, he has now retired.”

There is no public record of which or how many cases remain outstanding a year or more on from their hearing dates, but the Samoa Observer understands there are “several,” including final decisions on costs.

In its decision over N.P.I. and Vaivaimuli, The Court of Appeal declined to take a position over whether the Government is liable for a breach of Article 9(1) in the Constitution which protects Samoan’s right to a fair trial, because the Government was not represented in the case.

The Samoa Law Society has been approached for comment. 



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