Esau v Sur [2006] VUCA 16; CAC 28-05 (6 October 2006)

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

BETWEEN:	JOHN ESAU
	First Appellant

AND:	RICHARD SUR
	First Respondent

AND:	API
	Second Respondent

AND:	JOEL ROBERT
	Third Respondent

AND:	MURIEL YERTA OF AMBRYM
	Fourth Respondent

Coram: Hon Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Hamlison Bulu
Hon. Justice Christopher N. Tuohy

This is an appeal brought by leave against the summary dismissal of a claim for damages for trespass brought by the appellant against the respondent. The appellant’s claim was wholly dismissed on 7 February 2003 at a conference hearing where counsel for the appellant was not present. The appellant’s claim was dismissed because he had not complied with an earlier order requiring him to give further and better particulars of his claim.

This matter has a long history. The appellant alleges that he is the land-owner entitled to immediate possession of land and premises known as "Talankara Land" near Shark Bay in East Santo. He alleges that on various dates commencing in 1992 the respondents have wrongfully entered on his land and caused considerable damage, and that they continue to trespass to this day. As we understand his claim, he alleges the respondents have established gardens on his land.

The submissions of the parties state that on 21 August 2001 the appellant applied to the Supreme Court for leave to file a claim out of time, and that leave to do so was granted on 13 March 2002, despite opposition from counsel for the respondents who alleged that the claim was nine years out of time. It is common ground that the proceedings were formally commenced on 13 March 2002. However, we have difficulty understanding counsels’ statements that this was in consequence of leave to issue proceeding out of time. Whilst the Limitation Act no. 4 of 1991 contains provisions which allow an extension of time in certain circumstances, those provisions only relate to claims for damages for personal injury. The Act makes no provision for extending the six year time limit imposed by s.3 within which claims for damages for property damage must be commenced. Moreover, as the appellant alleges continuing trespasses, his claim was not out of time in respect of tresspatory conduct and damage caused in the six years immediately preceding 13 March 2002. In those proceedings it remains open to the respondents to plead that damages for trespass committed earlier than 13 March 1996 are statute barred.

The statement of claim filed on 13 March 2002 contained incomplete particulars. Indeed, in places there were simply blanks for particulars still to be inserted. Not surprisingly, on 5 September 2002 the Court directed the plaintiff to file further and better particulars within 14 days and gave consequential directions for the defendants to file their defences 14 days thereafter. This order was made known to the appellant, but the particulars had not been given when the matter again came before the Court on 7 February 2003. As the appellant had not given particulars, the requirement that the respondents file their defences had not been triggered.

The order made on 5 September 2002 concluded with a direction that the registry allocate a hearing date after the elapse of fifty-six days. It is not clear whether the direction intended that the hearing be the trial date, or a date for a further conference. On 25 November 2002 the Court issued a notice to the parties advising that the proceeding would be listed before the primary judge at 8.30am on 7 February 2003. It would have been apparent from the Court file that the ordered particulars had not been given, and that the directions regarding further pleadings had not been carried out. In these circumstances we infer that the hearing listed for 7 February 2003 was not intended to be the trial date.

Mr. Toa has acted for the appellant from the inception of the proceedings. It seems that on 7 February 2003, he had other Court commitments in Port Vila and he wrote to the registry in Santo seeking to have the hearing on 7 February 2003 adjourned. Apparently he received no reply to this request and he simply assumed that an adjournment had been granted. Whatever the explanation, he was not present when the scheduled hearing on 7 February 2003 took place.

The appellant has filed an affidavit deposing that he and his daughter Grace Dickenson were present at the Santo Court House at the time when the hearing occurred, but he was given no opportunity to appear before the judge.

The primary judge’s notes records that the hearing occurred at the scheduled time on 7 February 2003. The judge recorded, that there was "no appearance" for or by plaintiff and that counsel for the respondents, who was present, informed the Court that the plaintiff (the appellant) was not in Court and that he had failed to comply with the orders of 5 September 2002. Counsel for the respondents sought an order dismissing the case. The judge’s notes then recorded:

"Sufficient notice has gone out to him dated 25/11/02. His action has put the defendants to costs.

(2) Plaintiff will pay the defendants costs for an incidental to this action."

It is not clear to us when the plaintiff became aware of the outcome of the hearing. Nothing seems to have occurred until 11 August 2004 when one of the respondents applied for an order restraining the appellant from trespassing on the land. At the hearing of that application, the appellant informed the judge that he intended to appeal against the earlier dismissal of his action. Affidavit material filed at that time by the appellant suggests that he had taken steps to gather papers which would enable his solicitor to prosecute the appeal but, for reasons which are not clear to us, no formal steps were taken by the solicitor to seek leave to appeal out of time, and to prosecute an appeal until 12 September 2005.

On that date applications were filed on the appellant’s behalf seeking leave to appeal, and to stay the operation of orders that had been made against him in favour of one of the respondents after the hearing on 11 August 2004. On reading the appellants sworn statements, which were not challenged by counsel for the respondents, the primary judge in a decision published on 12 September 2005 said that "leave to appeal out of time must be granted". The appellant’s statement included the assertion that he had been present in the precincts of the Court when the order of dismissal was made on 7 February 2003, and thereafter he had gathered up papers for his solicitor to appeal.

Regrettably, further delays then occurred in the prosecution of the appeal. On 25 April 2006 a notice of appeal was filed, and directions were given that the appellant file an appeal book so that the appeal could be heard in the Court of Appeal sittings in May 2006. In breach of the order no appeal book was filed, and the appeal was stood over until the present sittings. Again directions were given that an appeal book be filed, but the directions had not been complied with when the sittings commenced. Nevertheless the appeal was set down for hearing on 29 September 2006. The respondents applied to have the appeal dismissed for want of prosecution. Late on 28 September 2006 the appellant filed an appeal book.

When the appeal was called counsel for the respondents requested that because of the many delays which had occurred throughout the proceedings, the appeal should be dismissed.

It is true that there have been many regrettable delays. However, the mere length of delay is not in itself decisive. It is necessary that the Court always consider the underlying merits of the issues in the proceedings, and all the circumstances surrounding the delay.

In this case there was sworn evidence before the primary judge directed to the merits of his claim. That information discloses a credible basis for his claim to ownership, and as the alleged trespasses of the respondents were continuing, the claim cannot be dismissed on the simple ground that it is statute barred.

Of essential importance to the outcome of both the respondents’ application for dismissal of the appeal, and the appeal itself, are the circumstances surrounding the hearing on 7 February 2003.

The Civil Procedure Rules No. 49 of 2002 came into force on 31 January 2003. Rule 9.10 provides that if the claimant does not take steps in a proceeding that are required by the Rules to ensure the proceeding continues, or fails to comply with an order that the Court made during a proceeding, the Court may strike out the proceeding. This may be done at a conference. The primary judge therefore had the power to strike out the proceedings, but the Rules qualify the exercise of that power in a most important way to guard against the possibility that a matter will be struck out when there is good reason why that should not have occurred.

Rule 18.11 lays down a procedure that must be followed where a party seeks an order based on another party’s failure to comply with an order.
The Rule provides:

"(1) This rule applies if a party fails to comply with an order made in a proceeding dealing with the progress of the proceeding or steps to be taken in the proceeding.

In the present case no application of the kind required by Rule 18.11 (3) was made. The judge was therefore unaware that the appellant’s counsel was under a misapprehension that the proceedings would be adjourned and that the appellant had not been warned that non compliance with earlier orders could bring about the summary dismissal of the proceedings.

Moreover this procedural irregularity was compounded by the failure of the Court to follow the time honoured requirement that before the Court proceeds to make an order against a party who is not within the hearing room, that the party will be called. This is traditionally done by a Court officer three times loudly calling the name of the party outside the hearing room so that all those who might be waiting about will hear. Had that occurred in the present case, the presence of the appellant and his daughter would have come to the attention of the judge and the appellant could have been heard.

The procedural irregularity was also compounded by the failure to make any inquiry to ascertain why the appellant’s counsel was not present. Telephones are there to be used After all the warnings which this Court has given about the need to make inquiry before making orders that foreclose the opportunity of other parties to continue the proceedings, the failure to inquire will almost inevitably result in orders so made being set aside. Those warnings were clearly given in Fujitsu (NZ) v International Business Solution & others [1998] VUCA 13, and have been regularly repeated, most recently today in the Court’s judgment in Gilbert Dinh v Polar Holdings Ltd CAC 16 of 2006

In these circumstances it would be unjust to allow the dismissal of the appellant’s proceedings to remain. The order of 7 February 2003 must be set aside, and the matter returned to the primary judge.

The appellant however must appreciate that he is still in default under the orders made on 5 September 2002 requiring particulars of his claim to be given. It behoves him and his solicitor to give those particulars immediately and thereafter to comply expeditiously with future directions so that the real issues in the case can be brought to trial without further undue delay.

In his published decision of 12 September 2005, the primary judge expressed his conclusion that "leave to appeal out of time must be granted". It seems that he recognised that there was good reason to set aside the dismissal order made on 7 February 2003 but thought that this could only be done by appeal to the Court of Appeal. In our opinion it was within the power of the primary judge himself to take the simple expedient of setting aside the order that was made in the absence of a party on 7 February 2003, and thereupon continue the ordinary case management process to bring the matter to trial.

Whereas Rule 9.10 recognises the inherent power of a Court to strike out a proceeding where a party is in default of directions or guilty of delay, neither that Rules nor any other Rule addresses the power of the Court where it later appears that the order should not have been made. The Rule simply do not deal with this situation. However it does not follow that because the Rules are silent, the Court is without power to do what is necessary to achieve substantial justice between the parties. If the Rules are silent, the circumstances may require the Court to resort to its inherent jurisdiction.

The Supreme Court has unlimited jurisdiction throughout Vanuatu to determine any civil or criminal proceedings including matters of custom; and it has all jurisdiction that is necessary for the administration of justice: see: s.28 of the Judicial Services and Courts Act no. 54 of 2000 as amended. The Civil Procedure Rules No. 49 of 2002 also recognize the jurisdiction. Rule 1.7 provides:

"If these Rules do not deal with a proceeding or a step in the proceeding:

Although the primary judge had this power, the matter is now before the Court of Appeal and this Court undoubtedly also has the power to set aside the order of 7 February 2003 as requested by the notice of appeal.

The appeal will therefore be allowed, the order of 7 February 2003 are set aside, and the matter will be returned to the primary judge.

We do not consider there should be any order as to costs. The appellant has succeeded in the substantive appeal, and costs normally following the event. However the appellant has been guilty of gross delays, including in pursuing this appeal which has put the respondent through unnecessary expense. In all the circumstances we think that justice will be done by not ordering costs against either side in the appeal.

Hon. Chief Justice Vincent Lunabek	Hon. J. Bruce Robertson J.

Hon. John. W. Von Doussa J.	Hon. Daniel V. Fatiaki J.

Hon. Hamlison Bulu	Hon. Christopher N. Tuohy

Court of Appeal of Vanuatu

Esau v Sur [2006] VUCA 16; CAC 28-05 (6 October 2006)