Sam v Council for the Ongoing Government of Tokelau [2012] NZHC 2775 (26 October 2012)

Last Updated: 5 November 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2151 [2012] NZHC 2775

BETWEEN PISAINA LEILUA-LEI SAM Plaintiff

AND THE COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU

First Defendant

AND FAIPULE FOUA TOLOA Second Defendant

Judgment: 26 October 2012

_{DECISION OF ASSOCIATE JUDGE D.I. GENDALL}

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this decision at

3.30 pm on 26 October 2012.

_{Solicitors: Woods Fletcher & Associates Ltd, Level 5, 15 Brandon Street, Wellington 6140}

PL SAM V THE COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU & ANOR HC WN CIV-

2012-485-2151 [26 October 2012]

Introduction

[1] Before the Court is an application by the plaintiff requesting directions in this proceeding as to:

(a) Whether the High Court Rules (New Zealand) are the appropriate rules of civil procedure which will apply in this proceeding; and

(b) How service of this proceeding may be effected on the first defendant and the second defendant.

[2] The plaintiff here is Pisaina Leilua-Lei Sam (Ms Sam), a former Director of Finance of Tokelau based in the Apia Office of the Tokelau Public Service. In this proceeding, she is bringing a claim against her former employer, the Council for the Ongoing Government of Tokelau, and the Chairperson of the Council and Minister of Finance of Tokelau.

[3] Tokelau’s status as a non-self-governing territory means that it is officially administered by the New Zealand Government, with some devolution of law-making power to the General Fono, a body of representatives of the people of Tokelau. Between the General Fono meetings, the three Faipule (village heads) and three Pulenuku (mayors) meet as the Council for the Ongoing Government of Tokelau, which exercises executive authority in respect of the territory. The Tokelau Act 1948 and the Tokelau Amendment Act 1986 establish the governance and court structure on the islands. And, s 3 of the Tokelau Act 1948 declares that Tokelau forms part of New Zealand.

Procedural rules

[4] The first preliminary issue in this case is which procedural rules govern the present proceeding: the Crimes, Procedure and Evidence Rules 2003 (promulgated by the General Fono of Tokelau) or the New Zealand High Court Rules.

[5] The High Court of New Zealand, the Court of Appeal of New Zealand and specially appointed Commissioners have jurisdiction in respect of Tokelau.[1] Section

7(1) of the Tokelau Amendment Act 1986 limits the Commissioner’s civil

jurisdiction to claims up to $1,000.00. The present claim exceeds this limit and is therefore within the jurisdiction of the High Court of New Zealand.

[6] The High Court’s jurisdiction in respect of Tokelau is prescribed by s 3 of the

Tokelau Amendment Act 1986:

3 High Court of New Zealand to be a Court of Law for Tokelau

(1) The High Court of New Zealand shall have all jurisdiction which may be necessary to administer the law of Tokelau in the same manner in all respects as if that jurisdiction had been conferred upon that Court as a separate Court of justice in and for Tokelau.

(2) The jurisdiction conferred on the High Court by subsection (1) of this section may, subject to the provisions of any regulations made under the principal Act and to the provisions of any rules made by the General Fono, be exercised in the same manner in all respects as if Tokelau was for all purposes part of New Zealand.

(3) In the exercise of the jurisdiction conferred on it by subsection (1) of this section, the High Court may sit either in Tokelau or in New Zealand, or in such other appropriate place as the Chief Justice may direct.

[7] I consider that with regard to Tokelau, this section takes precedence over r

1.4(1) High Court Rules which states:

(1) The practice and procedure of the (New Zealand) High Court in all civil

proceedings and interlocutory applications is regulated by these rules ...”.

[8] The High Court’s jurisdiction will therefore be exercised in the same manner as it ordinarily would, applying its own rules of civil procedure, subject to the provisions of any rules made by the General Fono.[2]

[9] Therefore, as I see it the High Court Rules apply to the extent that they are not inconsistent with the Crimes, Procedure and Evidence Rules of Tokelau 2003 (the 2003 Rules).

[10] It then becomes a matter of interpretation whether or not there is inconsistency between the High Court Rules and the 2003 Rules with respect to civil proceedings over $1000. Here, the plaintiff submits that the civil procedure component of the 2003 Rules only applies to claims heard by a Commissioner and that civil claims over $1,000.00 are subject to the High Court Rules. I disagree.

[11] I do not accept that the 2003 Rules were intended only to apply within the jurisdiction of the Commissioner’s Court. There are two subparts under the section headed “Part II Procedure” of the 2003 Rules that are relevant to civil claims of this nature: “General” (Rules 83 onwards) and “Civil Process” (Rules 142 onwards). The first four rules under the “General” heading refer only to cases heard before the Commissioner. However, r 87 states that “every civil case ... in the High Court shall, unless the court otherwise directs, be decided on the papers”. Rule 90 specifically allows the Commissioner to reserve a question of law that arises in its jurisdiction for consideration by the High Court. References to “a court of Tokelau” in contrast to “the Court of a Commissioner” throughout the Procedure component of the 2003 rules in my view would suggest that the former term encompasses all Courts that have jurisdiction in respect of Tokelau, including the High Court.

[12] Turning to the “Civil Process section”, the first rule being r 142 sets out the procedural prerequisites to the Commissioner’s jurisdiction, but there is no equivalent provision for the High Court’s jurisdiction. Rule 143 goes on to limit civil claims for damages to property loss, which may potentially pose difficulties for the plaintiff’s claim for breach of contract damages, but that is another question here.

[13] Rule 145 goes on to govern actions against the Government of Tokelau, and states:

145 Crown Proceedings

(1) Subject to paragraph (6) and to any other enactment, the Crown shall be subject to all the civil liabilities to which, if it were a private individual of full age and capacity, it would be subject.

(2) Suit on behalf of the Crown may be brought in the name of the Government of Tokelau by the Council of Faipule or by any person appointed by the Administrator for the purpose.

(3) A person who wishes to make a claim against the Crown in respect of Tokelau, may in respect of the claim bring a suit against the Government of Tokelau in any court of Tokelau.

(4) If the Crown is a party to a suit –

(i) all process in the suit required to be served on that party shall be served on the Council of Faipule;

(ii) the rights of parties shall be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

(5) If a judgment is given in favour of the Crown and against any other person, the Crown may enforce the judgment against that person by any process that could be had in a suit between subject and subject.

(6) (i) No execution or attachment, or process in the nature of execution or attachment, shall be issued against the property or revenues of the Crown in any suit.

(ii) If judgment is given against the Crown the court shall give to the party in whose favour a judgment is given a certificate in Form 16 of Schedule 1.

(iii) On receipt of the certificate of a judgment against the Crown, the General Fono shall satisfy the judgment out of money available in the General Administration Account.

[14] Subsection (3) would allow the plaintiff to bring proceedings against the Government of Tokelau (including the Council) in any court in Tokelau, including the High Court. Additionally, the form referred to in r 145(6)(ii) (Form 16 of Schedule 1 being a “Certificate of Judgment against the Crown.”) allows the Court option of either the High Court/Court of the Commissioner. As does the correct form for lodging a civil claim (Form 17 of Schedule 1).

[15] Taking all the matters I have noted above into account, I consider that the

2003 Rules are not limited to claims under $1,000.00 that are heard in the Commissioner’s Court, but also apply to the New Zealand High Court when exercising its jurisdiction in respect of Tokelau. These rules of civil procedure, as issued by the General Fono, apply in the present proceeding, and where they may be silent on relevant matters which are otherwise covered by the New Zealand High Court Rules, those latter rules apply here.

Service

[16] The second preliminary issue relates to service of this proceeding on the defendants. Rules 97 and 98 of the 2003 Rules deal with service and provide:

97 Service

(1) A court document that is to be served shall be –

(i) in the language of the court unless the court and the parties otherwise agree; and

(ii) served by a constable, by delivering it personally to the person to be served or, if that person cannot be conveniently found, by leaving it with some person at the last or most usual place of residence of the person to be served.

(2) Where a person in respect of whom a notice to appear has been issued is beyond the jurisdiction of a court of Tokelau, but is within the jurisdiction of another court, the Commissioner may transmit the notice to the other court with a request for the service of the notice.

(3) A document which is required to be served on a corporate body shall be served by leaving the document –

(i) at the registered office, or principal place of business of the corporate body;

(ii) in the case of a foreign corporate body, with a person authorised to accept service of process on behalf of the body.

(4) The service of a court document may be proved –

(i) by filing an affidavit of the service in Form 1 of Schedule 1 endorsed on a true copy of the document served; or

(ii) by the person who served the document attending before the court and deponing on oath to the service.

98 Service by Post and Outside Tokelau

(1) Where an enactment authorises or requires a document to be served by post, the service shall be effected by properly addressing, prepaying and posting a letter containing the document and be presumed to have been effected at the time when the letter would be delivered in the ordinary course of post.

(2) Where service outside Tokelau is required the court document shall be delivered to the Council of Faipule with an English translation for such action as the Council of Faipule thinks fit in the circumstances.

[17] Personal service in respect of the second defendant in the first instance would require service on him personally by a constable in accordance with r 97(1)(ii). This is subject to a proviso if the second defendant “cannot be conveniently found”. It is unclear at this stage whether the second defendant resides primarily in Tokelau or Samoa, but if it is assumed he is in Tokelau, personal service may not be practical or “convenient” due to Tokelau’s relative isolation and access difficulties. If it is accepted that service in Tokelau cannot be reasonably effected, as the second defendant cannot be “conveniently found”, under r 97(1) documents can be left with a person at the “last or most usual place of residence” of the second defendant. This may well prove to be an address in Apia, Samoa occupied by or associated with the Tokelau public service. Therefore, in my view this Court should direct service on the second defendant personally if possible and failing this, by leaving documents with the occupants at the Tokelau Apia Liaison Office, where the Tokelau public service is located. An order to include this aspect is to follow.

[18] Personal service in respect of the first defendant is also somewhat difficult.[3]

The Council was established under the authority of the Administrator of Tokelau, Head of the Special Relations Unit at the New Zealand Ministry of Foreign Affairs and Trade. The Council does not have a permanent residence or “place of business” in Tokelau and instead is said to be based at the Tokelau Apia Liaison office in

Samoa.[4] Therefore, the options for personal service on this body as I see it are:

(a) Serving the Ulu-o-Tokelau, the chairperson of the first defendant (who incidentally is also the second defendant);

(b) Serving the Administrator at the Ministry of Foreign Affairs and Trade

Office in Wellington;

(c) Directing service at an address ordered by the Court, the most practical being the Tokelau Apia Liaison Office.

[19] As (a) is generally impractical for the reasons outlined above, in my view (b) and (c) are better alternatives and are likely to be the most effective and appropriate method of service in this case.

[20] In conclusion, the appropriate course here in my view is for the Court to direct service:

(a) on the first defendant by the following methods:

(i) serving documents on a responsible occupant of the Tokelau Apia Liaison Office at Samoa, which can be effected by either personal service on that occupant or by posting documents by airmail/fast post to PO Box 3298, Apia, Samoa; and by

(ii) serving documents on the Administrator of Tokelau by leaving these with a responsible person at the offices of the New

_{Zealand Ministry of Foreign Affairs and Trade at Wellington;}

and,

(b) on the second defendant by the following methods:

(i) by endeavouring within a reasonable period from today to have a Constable serve the second defendant by delivering the documents to him personally in terms of r 97(i)(ii);

(ii) and failing this occurring within a reasonable period from today, by serving those documents addressed to the second defendant on a responsible occupant of the Tokelau Apia Liaison Office at Samoa, which can be effected by either personal service on that occupant or by posting those documents by airmail/fast post to PO Box 3298, Apia, Samoa.

[21] If costs on the present applications are sought here, they are reserved and can be dealt with by memoranda.

‘Associate Judge D. I. Gendall’

---

[1] Tokelau Amendment Act 1986, ss 3, 4 and 7.

[2] Tokelau Amendment Act 1986, s 3(2).

[3] Rule 145(4)(i) which deals with Crown proceedings requires service on the Council of Faipule, which can be effected by service on the first defendant.

[4] New Zealand Foreign Affairs and Trade ‘Official Country Information Paper for Tokelau’

http://www.mfat.govt.nz/Countries/Pacific/Tokelau.php