Presents steps to follow when a party seeks to initiate an action in Court by filing a Statement of Claim and Ordinary Summons.

Description

The Statement of Claim sets out details of the plaintiff’s claim against the defendant. IT must contain sufficient information to show the general nature of the claim, and specify the relief sought, which may include an amount for interest. The statement of claim must also include the address for service of the plaintiff.

The Supreme Court has jurisdiction to hear and determine any action where in debt, demand or damage, or the value of the chattels claimed is more than $20,000.00.

The Ordinary Summons is a notice of the claim to the defendant stating the place, and time to hear the case, filing of a statement of defense and warning the defendant that, if no defense is filed, the plaintiff may seek judgment immediately and judgment may be given in the defendant’s absence.

Documents Required

• Statement of Claim (plus service copies)
• Ordinary Summons (plus service copies)

Note:
When checking the Ordinary Summons and Statements of Claim, a Registrar or Deputy Registrar may raise issues or omissions but should accept the documents for filing if the applicant want to file unless:

• They are not signed by the appropriate person;
• There is no filing fee;
• It is the wrong Court for filing;
• The amount of claim exceeds the jurisdiction of the Court; or
• They are substantially wrong or deficit

Fee Payable: $100

Overview

Describes the process to be followed when a party seeks to file an originating application (Motion). 

Description

An originating application is a request for an order or direction from the Court made in relation to a proceeding that is not commenced by way of Statement of Claim. A civil proceeding is commenced by way of Motion (Originating Application) where the proceedings is NOT in respect of:

• Recovery of debt
• Recovery of land and chattels
• An order for specific performance

Originating applications are similar to interlocutory applications and many of the rules applying to interlocutory application also apply to originating applications. (Refer to Supreme Court 1980, r 65).

An originating application should be submitted with an affidavit in support. Other documents might also be filed in support of an originating application.

Originating applications may be made either ex parte or on notice. Some originating applications are heard in open Court while others may be dealt with in Chambers.

When setting a hearing date for an on notice application, time should be allowed for service while taking into account the urgency of the application.

Documents Required

Originating Notice of Motion (Application) (plus service copies) Affidavit(s) in support).

Note:

On Notice Applications

It is the responsibility of the applicant to serve any respondent with an originating application.

Fee Payable: $18

Overview

Describes the steps that should be followed when a defendant makes a claim against a plaintiff.

Description

A counter claim is a claim made by a defendant against the plaintiff. It may or may not arise directly from the original claim.

There is no set form for a counter claim. A counter claim may be filed in the form of a Statement of Claim or it can be combined with the Statement of Defense.

The defendant is responsible for serving a counter claim on the plaintiff.

A counter claim must be filed in the Court and a copy served on the plaintiff within the time stated in the Ordinary Summons (10 days). (The Supreme Court (Civil Procedure) Rules 1980 r96).

Documents Required

Counterclaim (Maybe included in a Statement of Defense).

Fee Payable

There is no fee payable on the filing of a counterclaim.

4.1  Process a General Interlocutory Application

Overview

Provides steps that should be followed when a party seeks the direction of the Court by filing a general interlocutory application.

Description

An interlocutory application is request for an order or direction from the Court made in relation to a proceeding (or intended proceeding), and intended to help move that proceeding on to the next stage (i.e. towards final hearing). Interlocutory applications are only incidental to a substantive claim, or the main dispute between parties, and relate to matters or procedure.

Either the plaintiff, defendant or other party in a proceeding may make an interlocutory application.

Interlocutory applications are usually supported by an affidavit.

‘On Notice’ Applications

“On Notice” interlocutory applications are interlocutory applications that need to be served on another party(s). It is responsibility of the applicant to serve the respondent(s) with an interlocutory application. (Refer to The Supreme Court (Civil Procedure Rules) 1980 r65 (C)).

On notice interlocutory applications can be opposed by a respondent by filing a Notice of Opposition.

‘Ex Parte’ Applications

“Ex Parte” interlocutory applications are interlocutory applications that do not need to be served on another party. (Refer to The Supreme Court (Civil Procedure Rules) 1980 r65 (a)). 

Note:

Time of Filing

While interlocutory applications would normally be made between commencement of proceedings and final hearing, some urgent interlocutory applications can be before commencement of proceedings. (Urgent interlocutory applications made before commencement of proceedings are usually only granted on condition that proceedings are formally commenced).

Hearings

Interlocutory matters are allocated a hearing date at the time of filing. The date of hearing is written on the notice of application, which is the responsibility of the applicant, which is the responsibility of the applicant to serve on the other party(s), if applicable (Refer to The Supreme Court (Civil Procedure Rules) 1980 r65 (C)).

Urgent matters should be allocated a hearing time that reflects their urgency. This may be the day of filing.

Interlocutory matters need to be determined before the substantive case is set down for hearing.

Registrars Powers

Some Interlocutory applications can be dealt with by a Registrar or Deputy Registrar.

Orders

Generally interlocutory orders are not required to be drawn up and sealed. However, there are some exceptions. (Refer to The Supreme Court (Civil Procedure Rules) 1980 r76 (1)).

Documents Required

• Application for Interlocutory Orders
• Affidavit(s) in support
• Memorandum (may accompany)

Fee Payable

$18 Supreme Court (Fees and Costs) Amendment Rules 1988)

5.2 Process an Interim Injunction

Overview

The purpose of this document is to describe the steps that should be followed when processing an application for an interim injunction.

Description

An interim injunction stops a party(s) to a dispute either taking a particular action, or refusing to take a particular action. For example, an interim injunction might stop a person from demolishing a certain building; or equally, it might stop a big construction company from refusing to carry out any further work on a contract. In all cases interim injunctions are temporary and last only as long as it takes for the substantive issues to come to hearing.

An interim injunction is also referred to as an interlocutory injunction, as it is made by interlocutory application r71.

Only a Judge can consider as application for an interim injunction.

Notes:

Applications

Applications for Interim injunctions may be made after the commencement of proceedings, although they are frequently made at the same time as proceedings are commencement. Urgent applications for Interim injunctions can be made before the commencement of proceedings and may be granted by a Judge on the terms that proceedings will be commenced.

Applications for Interim injunctions may be made on notice, but they are commonly made ex parte due to the need for urgency.

There is a filing fee for an application for Interim Injunction. This is the same fee payable for other interlocutory applications. (Refer to Supreme Court (Fees and Costs) Amendment Rules 1988 Item) An application for interim injunction with an affidavit in support. However, in very urgent cases, counsel may request that leave be granted for evidence to be given under oath in front of the Judge. This is for the Judge to decide.

Undertaking as to Damages

An applicant for an interim injunction must sign an undertaking that he/she will pay any damages sustained by the other party as a result of granting of the injunction, as directed by the Court. An Undertaking as to Damages must be filed with an application for Interim injunction.

Service

The applicant is responsible for service of the application and supporting documents if on notice.

Orders/Directions

It is the applicant’s responsibility to draft an order for signature. It is preferable, but not necessary, to provide this at the time of filing the application.

There is no fee for sealing an order made as a result of an application for interim injunction

The Judge may make further directions as a result of an interim injunction, which the Registry may have to action. For example, setting down a hearing date within a certain timeframe.

Documents Required

Application for Interim Injunction

• Affidavit(s) in support
• Undertaking as to damages
• Memorandum (may accompany)

Fee Payable

$18 Supreme Court (Fees and Costs) Amendment Rules 1988)

5.3 Process an Application for a Writ of Arrest

Overview

The purpose of this document is to outline the steps to be taken when an application is made for a Writ of Arrest of an absconding debtor.

Description

An application for a Write of arrest is made o the court where the plaintiff has good grounds for believing that a defendant is about to leave Samoa with the intention of evading payment of a sum the plaintiff alleges is owing. (Refer to The Supreme Court (Civil Procedure) Rules 1980, Part XVII r184)

Applications are URGENT are to be in form 48.  This form includes an affidavit in support although the affidavit may be separate document.

Applications are to be auctioned immediately and treated as URGENT through all stages.

An application can only be made were proceedings have been commenced in the Court and before a judgment has been obtained. The purpose of a writ of arrest is to prevent the defendant from leaving Samoa, and is not an enforcement process.

Applicants are required to lodge the order in Form 49 and the notice in Form 50.

Notes:

Because of Urgency, plaintiff’s solicitors must notify the court that a writ is being prepared and will require urgent action

• Ensure a Judge is made aware of expected application;
• Solicitors applying are to ensure transport is provided. 

Documents Required

• Application for Writ of Arrest (Form 48)
• Affidavit in Support
• Order (Form 49)
• Notice to defendant (Form 50)

If the plaintiff has not already done so they may also commence civil proceedings by way of Ordinary Summons and statement of Claim at the same time.

Fee Payable: $18