IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA
Civil Jurisdiction
Civil Appeal No. 6 2001
 
BETWEEN:
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 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