IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA
Civil Jurisdiction
Civil Appeal No. 6 2001
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LOUIS VATU and Family
of Beleru, Santo, Vanuatu
Appellants
AND:
ANDREW ANSER and Others
of Napauk Village, Santo,
Vanuatu
Respondents
Coram:
Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John Von Doussa
Justice Daniel Fatiaki
Justice Roger J. Coventry
JUDGMENT
In 1992 in Civil Case No54 of 1992 the then Chief
Justice made interim Orders pending the full hearing of an appeal case,
concerning land, from the Island Court. The hearing itself has not yet taken
place.
By summons filed on 9th October 2000
the appellants sought various Orders relating to the land. On 18 October the
learned Judge made the Orders
requested and required the appellants to file
and serve an originating summons within 48 hours. An originating summons was
filed on 20th October. It sought declarations concerning the
original interim Orders of 1992 and other declarations and Orders.
On 8th November the respondents
applied to set aside the Orders of 18 October 2000. Counsel for both parties
were present on 13
December when an Order was made for the originating
summons to be served on the appellants and adjourning the matters to 16
February at 9.00 am.
Counsel for the respondents was present on 16
February but not counsel for the appellants. Having heard argument the
learned
judge dismissed the originating summons for want of prosecution,
vacated the Orders of 18th October 2000 and ordered the
appellants to pay the respondent’s costs. It is against these decisions
that this appeal is
brought.
A preliminary point was raised by the
respondents. They argued that as the Supreme Court was acting in its
appellate jurisdiction
there could be no further appeal, (see Brysten-v-
Dorsen Civil Case No. 5 of 1997).
However, the Orders of 18 October 2000 required
the appellants to lodge an originating summons within 48 hours. That was a
fresh action and invoked the original jurisdiction of the Supreme Court. In
those circumstances this appeal is not from the
Supreme Court’s appellate
jurisdiction and we ruled the appeal could be heard. In doing so counsel for
the appellant had
conceded that the originating summons was wrongly
initiated with the 1992 case number when in fact it should have received a
new 2000 Civil Case number. Leave to make the necessary amendment was
granted.
The appellants’ counsel conceded that the
failure to attend at the hearing on 16 February was an oversight. Counsel
contended
that a number of courses short of striking out could and should
have been taken, for example the matter put back for a short
while and a
telephone call made or the matter adjourned to another day. Doubtless he
would accept he would be liable for
the wasted costs.
Counsel cited in support of his case the dictum
of this Court in Michel –v-the Director of Finance and the Attorney
General (Civil Case Number 68 of 1997) where it was said
“It
is essential that at every step in a process it is remembered that any
action taken should be designed to advance 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 and 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”
When asked why he did not simply make application to
set aside the Orders of 16 February 2001 counsel replied that he could find
no power in the Rules to do that. He brought the appeal as there were live,
important and undecided issues of merit in
the case.
Counsel for the respondent resisted the appeal. He
argued the appellants were aware of the hearing date and the matters to be
considered. It was not suggested a message was received by the Court
explaining the appellant’s absence. Order 57 rule
8 of the Western Pacific
High Commission, High Court (Civil Procedure) Rules 1984, the Rules
applicable to Vanuatu, states;
“When
any of the parties to a summons fail to a to attend …at any time appointed for
the consideration or further consideration
of the matter, the Court may
proceed ex parte, if considering the nature of the case it appears expedient
so to do; …”
Counsel argued that it was a matter of discretion and
the Judge chose to proceed ex parte. He heard the application and made
his
decision. It was open to the appellant to apply to set aside the Order or
commence the action afresh. That in essence
was the respondent’s argument.
Order 71 of the Rules states:-
“Where
no provision is made by these Rules the procedure, practice and forms in
force for the time being in the High Court
of Justice in England shall, so
far as they can be conveniently applied, be in force in the High Court of
the Western Pacific”
Order 32 of the Supreme Court Practice of England
provides for “Application and
Proceedings in chambers”. Rule 1
provides that “every application in
chambers not made ex parte must be made by summons”
Rule 5 (1) states
“where any party to a summons fails to attend on the first or any resumed
hearing thereof, the Court may proceed in his
absence if having regard to
the nature of the application, it
thinks it expedient so to do.
Rule 5 (4) states
“where an application made by summons has been dismissed without a hearing
by reason of the failure of the party who took
out the summons to attend the
hearing, the Court if satisfied that it is just to do so, may allow the
summons to be restored
to the list”.
Rule 6 states “
The Court may set aside an order made ex parte”
The appellant should simply have filed an application
before the Judge to set aside his order of 16 February 2001 and supported
his application with an affidavit setting out the reasons for the absence.
We are satisfied that had that been done the judge
would have set aside his Orders and probably have made an Order for wasted
costs against the appellant or his counsel. That simple procedure would have
meant the proceedings were delayed for the
shortest time possible and the
wasted costs minimised and paid by the defaulter. There would have been no
need for this
appeal.
It was open to the Judge to put the proceedings back
for an hour or two or for a few days whilst contact was made with the
defaulting party or his counsel and a new hearing time fixed. This course
necessarily places the initial onus of rectifying
the default upon the
non-defaulting party.
The act of striking out of an action is severe and
should only be used sparingly. This is especially so in cases where interim
orders have been made as these will fall with the main action. However, such
a course does place the onus on the defaulting
party to take the initiative
to put a matter right. If the defaulting party acts promptly, the delay and
cost consequences
are likely to be the same as where the hearing is
adjourned for a few hours or days for the presence of a party.
The failure of parties or counsel to attend or attend
on time causes difficulties for the court, wasted time and the running
up of
unnecessary costs. If there is no good excuse then a defaulting party must
expect to bear the onus of initiating
procedures to rectify the default and
be liable for wasted costs, which should, if possible, be assessed and made
payable
within one or two weeks.
In this particular case the learned Judge had before
him on 16 February the originating summons filed on 20 October 2000 and
the
respondents application to vacate the interim orders of 18th
October, the former was dismissed, the latter granted.
We are satisfied this appeal should be allowed. There
are live, important and undecided issues. We set aside the Order of 16
February 2001 dismissing the originating summons and order that it be
returned to the learned Judge for hearing. We are
informed from the bar
table that since 16th February activities have and are taking
place which would have been in breach of the interim Orders of 18 October
2000
had they continued. In these circumstances we dismiss the appeal
concerning those interim orders. It is open to the appellants
to return to
the trial Judge and seek their reinstatement. The appeal is allowed in
respect of the order that the appellants
pay the costs of this action in the
Supreme Court and that also is returned for hearing.
There will be no order for costs in this Court.
DATED at PORT VILA this 27th day of April 2001
BY THE COURT OF
APPEAL
Chief Justice
Vincent Lunabek
Justice Bruce Robertson
Justice John Von Doussa
Justice Daniel Fatiaki
Justice Roger J. Coventry
