BETWEEN:
MUNICIPALITY OF LUGANVILLE
Appellant
AND:
WENDY GARU
Respondent
Coram: Acting Chief Justice Vincent Lunabek;
Mr. Justice J. Bruce Robertson;
Mr. Justice J. von Doussa;
Mr. Justice D. Fatiaki
Counsel: Mr Mark Hurley for the Appellant;
Mr Edward Nalial for the Respondent
Hearing: 30th September 1999
JUDGMENT
This is an appeal against the decision
delivered in the Supreme Court at Luganville on 20th July 1999 when Justice
Saksak declined a Notice of Motion dated 3 November 1997 which sought to set aside a
default judgment
of 22nd April 1997 upon the basis that the Court was ‘functus
officio’ in as much as the Orders sought by the Defendant were the same as Orders
sought by a Notice of Motion dated 2nd June 1997, which had been heard and
dismissed by the Court on 16th September 1997.
This is yet another example of litigation
in the Republic of Vanuatu having got out of hand because of a singular failure of
communication between counsel. Why lawyers cannot remember that more than a hundred years
ago Alexander Graham Bell invented
the telephone and make inquiries between themselves and
their colleagues when there is not an appearance in a proceeding to
ascertain whether that
is because of mistake or oversight or a lack of knowledge of the fixture. The constant
failure to
take such basic and simple precautionary action does not in the long run
advantage the client who is be represented by the person
who fails to make such inquiries,
and only leads to additional delay, unnecessary cost and brings the administration of
justice into disrepute.
The High Court (Civil Procedures) Rules
1964 deal with the conduct of civil cases in this jurisdiction. It is always to be
remembered that Rules of Court are to facilitate the fair sensible and prompt disposal of
litigation. Rules drafted 35 years
ago have some inherent disadvantages when dealing with
a contemporary court system. They must be treated as a means of facilitating
the fair and
prompt disposal of litigation rather than as a set of obstacles to be used to avoid the
proper focus on issues.
It is worth repeating what this Court said in Michel -v-Service
Commission & Others, Civil Case 7 of 1998:-
"It is essential that at every
step in a process it is remembered that any action taken should be designed to advanced
the speedy just and proper determination of a real dispute. Substance must have priority
over form.
Except in the most exceptional
circumstances every step should involve hearing all persons who have a legitimate or
genuine interest in the determination which has to be made.
Experience in a number of high profile
cases in recent years should demonstrate to the Bar that a step which is taken without
hearing from all who have a genuine interest will not advance the case but will slow the
process and eventually
be to the disadvantage of the party [who] initiates such
approach."
The respondent was employed by the
appellant. Her employment was terminated on 26 February 1997 which led to the filing and
service of a Specially Endorsed Writ of Summons and Statement of Claim seeking various
entitlements for unjustified dismissal.
An appearance has entered on behalf of the
appellant and the respondent’s solicitor advised accordingly in terms of Order 12.
It is instructive to note that Order 13 provides a framework to deal with a default
of appearance and includes an obligation to file an affidavit of service. It is
implicit
in the provision that a person who has entered an appearance will thereafter be kept
informed by the Court and
the opposing counsel of any step taken.
The lawyers agreed to a 14 day extension
for a defence to be filed. It is common ground that at this time the appellant had been
suspended by Ministerial instrument on 24 February 1997 and Havo Moli had been appointed
to exercise the powers of the
Council.
The letter which agreed to that extension
which was dated 27 March 1997 had included the following paragraph:
"… We are prepared to allow
you a further 14 days from the date of this letter in order to obtain instructions
with a
view to settling our claim. If no such offer is forthcoming, we require you to file a
Defence within that
period, failing which we will make application to enter
judgment."
A statement of the defence was not filed
within the agreed period. Counsel for the respondent apparently without further reference
to counsel for the appellant, obtained a default judgment by writing to the Court on 14th
April 1997 and requesting judgment be entered in default of a defence. We are of the view
that in as much as an appearance
had been entered it was improper for the solicitor for
the respondent to communicate with the Court without forwarding a copy
of that letter to
appellant’s solicitor or for the Court to receive or act upon such a communication
without referring
the same to the counsel who had entered the appearance. There appears to
be endemic in this jurisdiction a practice of lawyers
communicating informally with the
Court and the Court administratively responding. It is bad practice and any communication
should occur strictly in accordance with the law and where the existence of another
interested party is clearly known they
should be included in the process.
We discuss later the issue of the default
judgment in respect of the provisions of Order 29 Rule 2 which provides that the
Plaintiff’s claim can be only for a debt or liquidated demand.
Having obtained the default judgment, the
respondent’s legal advisers informed the appellant’s lawyer accordingly.
He
sought instructions which were understandably a little delayed because of the unusual
circumstances relating to the
suspension of the Municipal Council. On 3 June 1997 a Notice
of Motion was filed seeking to set aside the default judgment.
This was listed for hearing on 20th
June 1997. There appears no question that there were various adjournments until the matter
was eventually heard on 16 September
1997.
There is uncontroverted evidence from
counsel for the appellant that he was not advised of that date of hearing and the Court
file does not indicate that there is any other evidence of his having been notified of
that date. There being no appearance
at the hearing on 16th September, the
application was then dismissed.
We pause to reflect on that situation. It
appears a total nonsense that a representative of the appellant would have sought to
set
the default judgment aside and then willfully and voluntarily not appeared at the relevant
hearing. Why an inquiry
was not made at that stage as to the reasons for counsel’s
non-appearance defies any logical understanding.
The proceedings have been filed by a
counsel who could easily be contacted and if the matter had been addressed at that stage
some progress could have been made. Instead for a further 2 years this matter has been
bogged down in legal manoeuvering
which has not assisted either party.
Sometime later counsel acting for the
appellant learnt of what occurred. There was, in October, some contact between counsel
and
absolutely predictably the filing of a further Motion. Counsel for the appellant deposes
that there was never any return
from the Court of these matters. In the meantime the
respondent’s solicitors have filed an ex parte application for a Garnishee
Order and
taken other enforcement proceedings.
On 25 November 1998 an Order was made for
a temporary stay pending the hearing of the defendant’s application to set aside.
All of the time, effort, costs and
expenses which where involved in these proceedings could have been avoided if people have
been sensible at an early stage. Litigation is about problem-solving not game-playing and
this case plainly demonstrates
the futility of non communication.
There are some revealing internal Court
memoranda which have been brought to attention which indicate that there may have been
some problems within the administrative area of the Court as well as between counsel.
Whatever the reasons for the problems
it is patently obvious that there should have been a
much more sensible approach to the non-appearance of counsel on both of
the relevant
dates.
When the matter eventually came again
before the Learned Supreme Court Judge on the 28th July 1999 the Judge took the
view that he could not re-consider the matter because the later application was a re-run
of
the matter which had already been dealt with. We do not accept that assessment. The
November 1997 application had been filed
among other things on the basis that counsel for
the appellant had not known of the hearing at which the previous application
seeking the
same relief had been dismissed. There is nothing in the rules which prevents a Court from
dealing with those
sorts of reality. The provisions of Order 69 of the High Court (Civil
Procedures) Rules of 1964 allows ample scope to deal with
the position. Similarly there is
the clearest jurisdiction provided under Order 13 Rule 8 which provides:-
"Pursuant to any of the preceding
rules of this Order it shall be lawful for the Court to set aside or vary such judgment
upon such terms as may be just."
We are satisfied that the Notice of Motion
dated 3 November 1997 should have been considered on its merits and that the Court
was in
error to find it was ‘functus officio’. What the appellant was constantly
complaining about was the fact that it had been denied its day in Court. It had entered an
appearance and although there clearly was a default in respect of the defence, that is not
a reason why the Court should
close its mind to the possibility of a re-consideration of
the matter.
It would be of course be open to an
Appellate Court to send the matter back but in light of the history of this matter we are
of the view that we should now proceed to address the substantive issues which so urgently
require attention.
If one stands back from all the procedural
to-ing and fro-ing, it is clear that what is being requested is that the Court should
consider whether the entry of default judgment should be set aside.
It is argued that that should be done
first because the appellant had no notice of any hearing in respect of it, and secondly,
that as a matter of law it was not such a claim in which it was appropriate for judgment
to be entered by default.
The first issue is easily determined
because there is simply no evidence which could satisfy the Court that the appellant knew
of the hearing of 16 September 1997 such as would prevent the Court from considering the
merits of the matter when it was
brought to its attention.
We are satisfied that there is no relevant
delay in respect of the appellant seeking to have its position considered once it
became
aware of what happened. The time between the entering of the original default judgment on
the 22nd April 1997 and the application to set it aside on 3rd June
1997 are explicable and within an acceptable limit.
Similarly the application to set aside the
Orders of 16th September 1997 with the filing of an application on 3 November
1997 is well within bounds because the appellant did not become
aware of what had occurred
in the latter part of October. The contemporary correspondence makes it absolutely plain
that
what had occurred was a complete surprise and was objected to.
When we turn to consider the merits of the
application we are satisfied however that even after all these interminable hearings
nothing has even now arisen which would suggest that there ever was or could be any
reasonable defence to at least one
of the claims made. The claim for past salary was
clearly a debt or liquidated demand is strictly within the relevant rule and
which in the
circumstance could be dealt with by default.
The fact that the Writ sought also other
claims does not prevent the claims which were properly within this peculiar jurisdiction
being satisfied.
There is no reason why Order 29 Rule 2
should be read down to prevent the entry of judgment by default in respect of a debt or
liquidated demand where default judgment is appropriate and procedural integrity has been
insured, simply because there
has been another claim as well. The relevant portions are
severable.
We have listened with care to all the
respondent has said but we are satisfied that there is not nor ever was any defence in
respect of that matter.
However, we are equally satisfied that it
was never competent for the Court to enter judgment by default in respect of the claims
for severance. They were not debts or liquidated demands. The Court was required to make
an assessment of the circumstances
and a hearing was essential. In respect of the
remainder of the claim the material available on the file raises seriously arguable
issues
as to the justification for dismissal and should go to trial. We note from the Court file
that the default judgment
was entered by the Registrar of the Court who has the power to
do so. But in this case, it was irregular to enter judgment by
default in respect of
claims for severance.
The appeal is accordingly allowed. The
default judgment is set aside. In substitution we find that the respondent is entitled
to
a default judgment for outstanding salary to date of termination namely: VT37,700.
The issue of an employee’s
entitlement because of an unjustified dismissal and entitlement pursuant to section 50(4)
and 56(4) of the Employment Act CAP 160 are plainly matters for trial and are accordingly
remitted to the Supreme Court for hearing if the parties cannot otherwise resolve
the issues.
DATED AT PORT-VILA, this ........ DAY of OCTOBER, 1999
VINCENT LUNABEK, ACJ
J. BRUCE ROBERTSON, J
JOHN von DOUSSA, J
DANIEL FATIAKI, J
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