Ifiria Wharf and Stevedoring v Kaspar [2006] VUCA 4; CAC 29-05 (1 June 2006)

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

Civil Appeal Case No. 29 of 2005.

BETWEEN:

IFIRA WHARF AND STEVEDORING
Appellant

AND:

JUDITH KASPAR
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John W. Von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Oliver A. Saksak
Hon. Justice Hamlison Bulu

Counsel: Mr. J. Timakata for Appellant
Mr. D. Yawha for Respondent

Date of Hearing: 24 May 2006
Date of Decision: 01 June 2006

JUDGMENT

This is an appeal against a judgment of the Supreme Court in which the Respondent was awarded a total sum of VT6,983,168 (inclusive of 5% p.a. interest) together with costs for unjustified dismissal and breach of her fixed term employment contract with the Appellant company.

The judgment in the case is brief and is in the following terms:

"In the absence of the Defendant or its legal representative, I heard submissions from the counsel for the Claimant. Clearly this was an uncontested breach of the employment agreement. The claim for 3 months salary in lieu of notice and for travelling allowance was abandoned. I place no reliance on the Defendant's sworn statements because it was not represented and its witness was not available for cross-examination."

The circumstances under which the Appellant company ended up being unrepresented at the trial are set out in the judgment (at page 384) and are unedifying to counsel involved. It includes - the unexplained sudden change of counsel for the Appellant company at the last minute; the absence in the Court record of the relevant Notices formalizing the various changes of Appellant's counsel; the refusal by the trial judge of an oral application by the Appellant's counsel unsupported by any sworn statement for an adjournment of the trial; and the unexplained discourteous non-appearance of the Appellant's counsel when the trial resumed after a short adjournment.

The Appellant which is again represented by its original counsel appeals against the judgment on the following original grounds:

"1. His Lordship erred in fact and in law deciding to give judgment without giving the right to be heard to the Appellant.

2. In doing so His Lordship denied the right of the Appellant under the Constitution to be heard before giving a judgment in Civil Case No. 123 of 2004.
   
3. His Lordship erred in facts and in law when it refused the application for adjournment made by Counsel for the Appellant on the 24th day of October 2005."
   

At the hearing of the appeal counsel sought leave to add a further 2 grounds as follows:

"1. But for the absence of counsel there were legitimate issues to try and the Court should not have pre-emptively proceeded to summarily deal with the matter by way of judgment.

2. The interest of litigants to the Court should be considered paramount even over any inadvertence of counsel, if that was the case."
   

Appellant's counsel was also constrained at the hearing, to orally seek leave to appeal out of time as its Notice of Appeal filed on or after 28th November 2005 was several days out of time.

At the hearing of the appeal counsel abandoned ground (2) of the original grounds of appeal which referred to a denial of the Appellant's constitutional rights.

This is a claim for loss and damages for unjustified dismissal by a single parent with 2 school age children who was summarily dismissed by her employer the Appellant company barely 4 months after she began employment as its Financial Controller on a fixed term contract of 3 years commencing from 1st April 2001.

It is unclear why the Respondent waited for so long but there was some difficulty with her obtaining the services of counsel and then there were several unsuccessful attempts made by the Respondent and her counsel to settle her claim. Be that as it may proceedings were first issued on 17th June 2004. A response was filed by the Appellant's original solicitors on 22nd June 2004 indicating that the Appellant company was disputing all of the claim.

The following chronology of the action is set out as an important and relevant background to the claim and appeal:

(1) 21 July 2004 first conference held - no appearance by Appellants counsel; Defence ordered to be filed on 4th May 2004; second conference set for 20th August 2004;

(2) 19 August 2004 - Respondent filed a request for judgment in default of defence;

(3) 20 August 2004 - Appellant ordered to pay VT5,000 wasted costs and the date for service of a defence was extended to 27 August 2004. Next conference set for 31 August 2004.

(4) 31 August 2004 - orders were made dealing with mutual disclosure and inspection of documents by September 2004 and for the filing of sworn statements by the parties in October 2004. A trial preparation conference ('TPC') was fixed for 21 October 2004;

(5) 21 October 2004 - the Respondent appeared in person and Appellant's counsel called in sick. The TPC date was re-fixed for 23 November 2004;

(6) 23 November 2004 - the judge was advised that the General Manager of the Appellant company had died 1-2 years earlier and it was difficult for counsel to obtain proper instructions. A fresh TPC date was set for 22nd February 2005 with both counsels present;

(7) 22 February 2005 - the judge was informed that the Appellant's counsel who did not appear had not complied with the Court's discovery order or the order to file sworn statements. Judge ordered the Appellant to pay the Respondent VT5,000 wasted costs by 24 March 2004 and fixed 15 March 2004 as the date for the hearing of the Respondent's application for judgment (to be filed);

(8) 9 March 2005 - Respondent filed an application for judgment on the ground of the Appellant's repeated failure to comply with Court orders regarding the progress of the case;

(9) 15 March 2005 - the judge recorded that the Respondent's application for judgment would not be proceeded with because the Appellant had finally complied with the Court's orders. Sworn statements were ordered to be filed and served by both parties. A new TPC date was fixed for 6 April 2005;

(10) 6 April 2005 - a fresh TPC date was assigned owing to the absence overseas of the Appellant's main witness for medical treatment. The new date fixed 27 May 2005;

(11) 17 May 2005 - Appellant's counsel fell ill and a further TPC date was fixed for 6 June 2005;

(12) 6 June 2005 - Respondent's counsel sought an adjournment in order to attend to his father's funeral. A new TPC date was fixed for 22 June 2005;

(13) 22 June 2005 - the following orders were made in the presence of counsels for the parties:

"ORDERS

1. A trial date is set for 24 and 25 October 2005 commencing at 9am on each of those days.
   
2. Evidence will be by sworn statements and cross--examination only."
   

From the foregoing it can be seen that the Respondent delayed issuing proceedings for more than three years after her dismissal but once proceedings were issued, the Respondent has actively and diligently pursued her claim and had twice filed applications for judgment on the basis of repeated defaults by the Appellant company in failing to file and serve a defence, and then, in failing to disclose documents and lastly, in failing to file sworn statements despite Court orders to do the same. The Appellant was also required on two occasions to pay the Respondent's wasted costs.

It is also clear that the trial dates were set in the presence of and without objection from Appellant's counsel who thereafter had 4 months in which to make final preparations for the trial including making its witness available for cross-examination at the trial as required by the Respondent.

We note in passing that the Appellant company was unrepresented at the enforcement conference fixed in the Supreme Court judgment for 28th November 2005 which date was outside the period within which an appeal could have been filed against the judgment.

Furthermore to this day no attempt has been made by the Appellant company to explain and/or excuse its sudden change of counsel and why it was unrepresented at the trial of the action even by a responsible official.

If we may say so, one possible view of the matter is that the Appellant company did not have a credible defence to the Respondent's claim and was therefore unwilling and unable to proceed with the trial. What's more the sudden change of counsel could not have been due to a serious conflict arising between the Appellant and its original counsel otherwise counsel would not have reappeared to argue the appeal. Indeed in the absence of substantial explanation on oath the Appellant's change of counsel on the trial date had every appearance of being a stratagem.

Certainly counsel for the Appellant was able to confirm in response to questions posed by the members of the Court at the hearing of the appeal that there was no appeal against the trial judge's assessment and monetary awards.

In support of the appeal counsel submitted that the trial judge was duty bound to investigate the circumstances surrounding the absence of Appellant's counsel at the trial and why there had been a sudden change in Appellant's legal representation. We cannot agree.

Rule 12.9 of the Civil Procedure Rules No. 49 of 2002 is clear as to what a Court may do should the Defendant fail to attend when the trial commences. The Rule provides that in such a circumstance:

"(a) the Court may adjourn the proceeding to a date it fixes; or

(b) the Court may give judgment for the claimant; or

(c) the claimant with permission of the Court, may call evidence to establish that he or she is entitled to judgment against the defendant;"

Plainly in this case the trial judge adopted course (b) which he was perfectly entitled to do. In doing so, we are not persuaded by counsel's submissions that the trial judge erred and/or overlooked the overriding objective of the Civil Procedure Rules to deal with the case before him justly.

In adversarial litigation there are always two competing sides often with divergent interests and the court has a difficult duty at the best of times, and sometimes without the cooperation of counsel (which is assumed under the Rules), to actively manage the case so as to achieve a just conclusion efficiently and expeditiously.

This is not a case of an indigent or illiterate defendant acting in person, but one, in which the Defendant is a large, well established corporate entity which is described by its Executive Director as providing services and operations that " ... are the biggest and most extensive in Vanuatu", with its own in-house legal advisor who had head-hunted the Respondent from her previous permanent employment with an offer that her welfare would be looked after by the Appellant company.

Then counsel submits that there were legitimate issues still to be tried and the Court should not have proceeded pre-emptively. What those issues are was not disclosed by counsel at the hearing of the appeal nor are they obvious from an examination of the Appellant company's pleadings.

This was an action marked by numerous breaches of the Civil Procedure Rules by the Appellant which remain unexplained. It was an action that had taken over 16 months from inception to reach a trial date which was fixed 4 months in advance. Much of the delay in the case is directly attributable to the Appellant company and its advisers with the latest occurring on the actual date of trial.

In our opinion it was entirely consistent with the overriding objective of the Civil Procedure Rules for the trial judge to proceed with the trial in the absence of the Appellant. To have done otherwise would have been grossly unjust to the Respondent who had already suffered many delays.

If leave to appeal out of time were granted, the appeal would undoubtedly fail. In these circumstances we think the appropriate course is to refuse leave to appeal. The Appellant must bear the costs of the application to this Court.

The formal orders of the Court are:

(1) Leave to appeal refused.

(2) Appellant to pay the Respondent's costs to be determined if not agreed by the parties.

Dated at PORT VILA on 01 June 2006

BY THE COURT

Hon. Chief Justice Vincent Lunabek
Hon. J. Von Doussa J.
Hon. D. Fatiaki J.
Hon. O. A. Saksak J.
Hon. Hamlison Bulu J.