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Moti v S, An Infant [2000] VUCA 3; Civil Appeal Case 03 of 2000 (12 May 2000)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Appeal Case No. 3 of 2000

IGN="CENTER">BETW>BETWEEN:

JULIAN MOTI
Appellant

AND:

S, An Infant
Respondent

Coram: Mr. Justice J. Bruce Robertson
Mr. Justice John W. von Doussa
Mr. Justice Daniel Fatiaki
Mr. Justice Roger J. Coventry

Counsel: Mr. Purnell S. C. for the Appellant
Mr. John Malcolm for the Respondent

Hearing Date: 10th May, 2000.
Judgment Date: 12th May, 2000.

JUDGMENT

This is an appeal against the interlocutory judgment of the Honourable Justice Vincent Lunabek ACed 30 September 1999.

The chronology of events is as follows:

That civil claim was also ascribed as "Criminal Case No. 12 of 1998";

In his Summons of 4 May 1999 the Appellant sought the striking out or staying of the Writ of Summons, (Civil Case 132 of 1998) on the grounds that:

1. It did not comply with Order 17, rules 14 and 19 of the Civil Procedure Rules;

2. That it was scandalous, frivolous or vexatious;

3. That it tended to prejudice, embarrass or delay the fair trial of the actions; and

4. That it was an abuse of the process of the Court.

The Cross-Motion of 10 May sought orders

1. Dismissing the motion of 4 May.

2-8. Dealing with directions for the progress of the case.

On 13 September the Acting Chief Justice made an order

1. That the Defendant Summons of 4 May 1999 be dismissed under the following conditions:

(a) That the Plaintiff by counsel amend the Writ by initiating the proceedings of the infant/Plaintiff by her next friend within 2 days as from today 13 September 1999 by 4 o’clock p.m.

(b) That the Plaintiff’s solicitor paid personally the costs of the Defendant related to this application to be taxed failing agreement.

2-8. …."

At the hearing of the Motions on 31 August and before this Court the appellant put forward a number of arguments which have been set out in their written submissions.

The essence of these submissions is as follows.

First, that once a civil claim had been made in a criminal proceeding under section 213 of the Criminal Procedure Code it could not be withdrawn. There were no rules made under section 217 and therefore by application of Article 95(2) Constitution the common law position as set out in Moore and Another v. Assignment Carrier Ltd. (1977) 2 AER 842 and Felix v. Shiva (1982) 3 AER 263, Kennedy v. Bowater Containers (1990) 2 QB 391 and Wicks v. Wicks (1998) Fam. R. 65 applied. In other words the Court could not and should not fill the gap.

Second, if for any reason the criminal proceeding fell the attached civil proceeding died a "self-executing death with it".

It was a statutory cause of action. There was no escape and if a plaintiff wrongly, because the criminal proceedings failed, took that course then the remedy would be against her solicitor, and not against the defendant by a freshly commenced civil proceeding.

Third, the Acting Chief Justice rejected the applicability of the cases of Moore, Felix, Wicks and Kennedy. He applied the provisions of Order 28 Rules of the Supreme Court Discontinuance, and held that the letter of 13 November 1998 was effective in withdrawing the proceeding under section 213 of the Criminal Procedure Code.

Therefore when the Writ of Summons ascribed number Civil Case 132 of 1998 was filed there was no civil proceeding in existence under section 213. The Appellant argued the Acting Chief Justice was wrong in each of the decisions and particularly that Order 28 required leave of the Court and payment of the defendant’s costs before discontinuance could take place. Neither of these actions had occurred.

Fourth, the Acting Chief Justice should have stayed the proceedings when the Writ of Summons was initiated incorrectly with the Plaintiff described as "S of Port Vila, child, by her guardian".

Fifth, that various parts of the pleadings were scandalous, frivolous, vexatious, tended to prejudice, embarrass or delay a fair trial and were on abuse of the process of the Court.

The starting point is section 213 of the Criminal Procedure Code. It states that:

"A court may hear and give judgment on a civil claim within its jurisdiction against a person charged before it with a criminal offence".

The first preliminary enquiry took place on 17 April 1998, and the Appellant was committed to the Supreme Court, that is the Magistrate "authorised the laying of the proposed information against the intended accused", (section 146 (1) of the Criminal Procedure Code). An information was laid before the Supreme Court. The civil claim was filed on 5 May.

However, on 23 April 1999 this Court, by issue of a Writ of Certiorari quashed the committal of 17 April 1998. The effect of the issue of that writ was that at no time was the appellant charged with a criminal offence before the Supreme Court. At best, therefore, the claim lodged on 5 May 1998, was a civil proceeding awaiting the arrival of a criminal charge to which it could attach itself. That criminal proceeding never arrived as the learned Magistrate, on 23 August 1999, at the fresh preliminary enquiry, found there was no case to answer.

The civil claim was one which was being made in the Supreme Court. That is where the letter was sent on 29 April 1998. The sum claimed was well outside the jurisdiction of a Magistrates’ Court.

In these circumstances, the civil proceedings commenced by the filing of the Writ of Summons on 2 December 1998 (Civil Case 132 of 1998) were valid and effective. The appellant has prepared and put before the Court detailed material concerning the application of the common law to the Courts of this country, including the article of Professor Don Patterson entitled "The application of the common law and equity in countries of the South Pacific", (Journal of Pacific Studies Volume 21, 1997). In the light of our findings there is no requirement to consider the arguments based on this material.

The reality of this case is that the plaintiff wishes to make a civil claim against the defendant in relation to sexual assaults which she says have occurred. She commenced that claim in the Supreme Court by way of section 213 of the Criminal Procedure Code. When it was clear that that claim was making no progress, - "I understand the criminal procedure has stalled through appeals"-, she sought to withdraw it and proceed by way of ordinary Writ of Summons, (Geoffrey Gee’s letter of 13 November 1998).

Ultimately, there was no necessity to withdraw the proceedings under section 213. The Writ of Summons could proceed. However even if the civil proceedings were validly instituted under section 213 we consider the action taken on the Respondents’ behalf would have been effective to bring these proceedings to an end.

There are no rules made under section 217 of the Criminal Procedure Code. This Part of the Code gives the ability to initiate civil proceedings yet, in the absence of rules, the Appellant argues, civil proceedings once commenced cannot be withdrawn.

The Part gives the right to have a civil claim heard in criminal proceedings. Sections 214, 215 and 216 set out the essential mechanics of how the claim should be lodged and proceed but leaves the more detailed rules of procedure, by section 217, to be made in accordance with section 30 of the Courts Act, CAP. 122. It cannot have been the intention of the framers of this Part to provide a cause of civil action which once initiated could never be stopped.

No rules have been made. There are therefore no rules, for example, stating what should be in the claim, the time limits for its service, whether a "defence" should be filed, how a claim could be withdrawn and all the normal procedures that would go with an ordinary civil claim. In the absence of those rules the Acting Chief Justice was entitled, indeed, it was the logical course, to look to the ordinary Rules of Court for a civil claim. Whilst in this case there was no necessity to withdraw the section 213 claim, had there been, then the Court would have been able to rely on Order 28.

It was argued that Order 28 requires leave of the court and payment of wasted costs before a claim might be discontinued. The clear wording of Rule 1, coupled with Rule 4 shows this is not the case.

The Appellant argued before the Acting Chief Justice and this Court that the Writ of Summons (Civil Case 132 of 1998) was incorrectly initiated. They say that as the plaintiff is an infant for the purposes of these Rules then by Order 17 Rule 14 she should have sued by her next friend and not, as was the case, by her guardian. The Writ therefore should have been struck out.

The learned Acting Chief Justice acknowledged this point at page 14 of his judgment but considered that "the best approach to be taken on this point, is not to strike out the proceedings but to permit the error to be corrected and to order the plaintiff’s solicitor, to pay personally the defendant’s costs related to this application". He was entitled to do this under Order 17 Rule 11, and indeed, the justice of the case for both parties meant this was the best course.

There are civil proceedings and the courts will look to fairness between the parties and not, as in criminal proceedings, tend to focus on the interests of the accused person. In this particular case had the Acting Chief Justice struck out the action purely on the basis of incorrect initiation, the plaintiff’s solicitors would almost certainly have reissued the proceedings correctly. The resolution of the real issues in the case, would have been delayed for no purpose and to no-ones’ benefit. The costs are paid in any event by the plaintiff’s solicitor.

In his Order at paragraph 1 the Acting Chief Justice dismissed the Defendant’s summons of 4 May 1999 on condition that the plaintiff rectify the defect in the initiation of the proceedings and "paid personally the costs of this application …". There is no doubt that that order as to costs was correct so far as the initiation of the proceedings was concerned. The Acting Chief Justice did not appear to address the question of costs so far as his dismissal of the remaining issues raised by the Defendant’s summons was concerned and the directions orders. That is a matter for his determination at some future stage in the progress of this case.

Both before the learned Acting Chief Justice and to a lesser degree before this court the Appellant argued that the pleadings were frivolous, vexatious, scandalous and an abuse of the process of the court. There are certain parts which are not entirely clear or would be susceptible to applications for further particulars or are perhaps unnecessarily pleaded. However, the claim is clear, as is the basis upon which it is brought and what is sought. The defects are remediable without striking out the entire action. Indeed, had the Acting Chief Justice done so another delay would have been built in which would have benefited no-one and not brought the court any nearer to resolving the principal issues in dispute.

Therefore for the reasons set out above we dismiss this appeal with costs.

This court is deeply concerned that a civil claim, relating to activities involving a 13 year old girl in mid 1997, and first lodged in May 1998, has, two years later, still not progressed beyond the lodging of the claim itself. We direct that the plaintiff makes any amendments that are required by 31 May 2000 and that thereafter the matter be given priority and heard as expeditiously as possible.

A final comment should be made. When Mr. Purnell was asked if there was any indication as to the reasoning processes of the Magistrate who determined at the preliminary enquiry that Mr. Moti should not be committed for trial, counsel correctly noted that such was not statutorily required. He referred to the decision of the former Chief Justice in Public Prosecutor –v- Hollingson Isachaar (Vanuatu Law Report, Vol. 1 at page 742) which we specifically adopted in, Moti v. Public Prosecutor Criminal Appeal Case 1 of 1998 as:

"The law of Vanuatu therefore requires two things of a magistrate, (i) that he decides whether there be a prima facie or not to commit for trial, and (ii) that he should give his decision in writing showing clearly whether he authorises or does not authorise the laying of an information. He then has the obligation to serve that decision on the prosecution and the accused. What the statute does not require him to do is to give reasons for his decision."

That is still our view but we draw to attention a further comment from the same judgment which we also again reiterate.

"Although there is no obligation under the law placed upon a magistrate to state his reasons when committing or when refusing to commit a defendant to stand his trial, there is also nothing to prevent him from doing so and, in some circumstances, common sense may dictate that in the interest of justice and in the public interest he should state his reasons for his decision."

Particularly when a magistrate discharges a person who has been provisionally charged and does not send him to the Supreme Court for trial, a brief summation of what has been influential in that decision should normally be recorded. In this case there appears to be a complainant continuing to make allegations which, if truthful and reliable, would found the charge. The magistrate’s function is not, except in the most exceptional circumstances, to weigh the strength of evidence but merely to decide whether there is material which if unchallenged at trial could reasonably lead to conviction. As a matter of common sense, dismissing a case in these circumstances calls for an indication of why the conclusion has been reached. Public confidence in the Judicial Process demands in these sorts of circumstances an identification and articulation of the process. The "jury issue" about the weight and strength of evidence is for the Supreme Court and not the Magistrate. The absence of this pragmatic approach in this case adds to a potential for confusion when the Court is concerned with ensuring open and accountable justice for all participants in a dispute.

Although ultimately Courts deliver justice according to law, that must flow from processes which are transparent and with integrity as a hallmark. This appeal has been determined by an uncompromising application of the relevant legal principles but the absence of what would sensibly have been expected from the Magistrate has been unhelpful.

Dated at Port Vila, this 12th day of May, 2000.

J. Bruce ROBERTSON, J
John W. von DOUSSA, J
Daniel FATIAKI, J
Roger J. Coventry, J

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