William v Rovu [2005] VUCA 26; Civil Appeal Case 23 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 23 of 2005

BETWEEN:

SETHY LUWI WILLIAM
Appellant

AND:

TIMMY ROVU
Respondent

Coram: Chief Justice Vincent Lunabek
Mr Justice Bruce Robertson
Mr Justice Daniel Fatiaki
Mr Justice Patrick Treston
Mr Justice Hamlison Bulu

Counsel: Mr Robert Sugden for the Appellant
Messrs Jack Kilu and Richard Kalses for the Respondent

Date of hearing: 10 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal against an Order made by Justice Saksak in the Supreme Court at Luganville on 20 September 2005 following a hearing on 13 September. The Appellant was ordered to pay the Respondent the sum of VT1,289,559 plus interest of 4% and costs of and incidental to the action.

The appeal is advanced on the basis that the Supreme Court hearing took place in the absence of the Appellant and his counsel, notwithstanding a reasonable request to reschedule the hearing because of a clash which counsel had with a long running criminal case in the Supreme Court in Port-Vila at the same time.

There was a subsidiary point, that the award of damages for lost income for a three months period in a total sum of 558,000 Vatu was made without a sufficient evidential basis.

This is a matter which has escalated out of control.

On the 30th July 2004, a vehicle driven by the Appellant ran into a vehicle driven by the Respondent.

It appears at an early stage that there was an acknowledgement of liability. Negotiations as to the proper amount of compensation broke down and proceedings were commenced in the Supreme Court in April of this year claiming VT731,559 for the cost of repairs to the vehicle and VT558,000 for the loss of use of a business vehicle.

A statement of defence was filed which effectively admitted liability and emphasized that the point in issue was the quantum of the loss. In correspondence at that time there was an argument that proceedings should have been issued in the Magistrate’s Court as recovery could never be for more than 1,000,000 Vatu. This did not eventuate.

The case continued to be litigated with great vigour. There were inevitable problems because the Appellant who resides in Luganville had chosen to engage counsel who lives in Port-Vila. In the circumstances of the case, with relatively small amounts at stake, counsel was trying to minimize the number of trips for preliminary appearances from Efate to Santo each involving costs.

Eventually, there was a clear and unequivocal Order that there would be a hearing on quantum on the 13th September. Each of the parties was ordered to pay 15,000 Vatu towards the hearing fee before the hearing.

There is before us extensive correspondence about the facts which followed thereafter. Suffice to say Mr Sugden advised by faxed letter to the Court on 25 August 2005 (which was copied to the other lawyer) about his need for a new date because he had a conflict between the assigned hearing date and the continuation of a long-running conspiracy trial in Port-Vila. He asked to have the problem accommodated. His client says that until he knew what the new date was going to be, he did not think he had to pay the hearing fee. There was never any response from the Court to the request. Mr Sugden contacted opposing counsel Mr Kalses prior to the hearing.

Counsel for the Respondent was prepared to cooperate. Notwithstanding that the Judge on the day of the hearing noted that neither the Defendant nor his counsel was present and he proceeded to hear the case and reserved judgment. He found for the Claimant in a reserved decision delivered a week later.

We have already in this session had to consider the issues which arise in such circumstances. We repeat the general principles enunciated in Coconut Oil v. Tavoa & Terry, [2005] VUCA 24; CAC 16 of 2005 (18 November 2005).

The problem in this case is heightened because the amounts involved are so small within the scheme of things. The issues are of course important to the respective parties but the legal costs which have been incurred to date lack any proportionality to what is truly in dispute between them.

The starting point must be that counsel can never assume, until they have a clear and unequivocal communication of the Judge’s view, that a fixture date will not be maintained.

We again stress the need for the system itself to help deal with and resolve issues where there are conflicting dates in different Courts. There is a small bar in the country and there is a limited reservoir of people able to run cases. All that needs to be recognized and accommodated but at the same time lawyers, once they have been given a fixture date, must adhere to it unless and until they are released from it.

To refuse this appeal on this ground would do an injustice only to the client who cannot be held to be blamed for what occurred. Counsel for the Respondent has not argued in opposition to the appeal no doubt motivated in part by the knowledge that there will be times when he will require a similar indulgence and the reciprocal assistance of a fellow practitioner.

There was a second ground of appeal which related to the calculation of the quantum, especially the loss of use claim. It does appear that there is scarcity of evidence to support the contention which was advanced. The damage to the car was relatively minor and the period of 90 days loss of use of the vehicle, on its face, appears high. The daily profit rate claimed also raises some questions. One wonders what turnover was being generated to create an actual profit as high as that claimed.

We have no option but to allow this appeal and to remit the matter for a further hearing in the Supreme Court on the issue of quantum alone.

As we said in a previous case on the same point, because the matter has been remitted does not prevent clients from letting common sense and simple pragmatism have reign and to find a commercial resolution for this matter.

We are naturally concerned about how much has already been expended in legal costs on both sides in this case and we wonder whether the successful party will end up with any money in his pocket at the end of this exercise which has failed so far to meet their needs or their reasonable expectations.

DATED at Port-Vila this 18th Day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
PATRICK I. TRESTON J
HAMLISON BULU J