Tari v Harvey [2006] VUCA 8; CAC 09-06 (1 June 2006)

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

CIVIL APPEAL CASE No. 09 of 2006

BETWEEN:

DUDLEY TARI
Appellant

AND:

PAUL HARVEY
First Respondent

AND:

RAY CHITTY
Second Respondent

Coram: Justice John von Doussa
Justice Daniel Fatiaki
Justice Patrick Treston
Justice Hamlison Bulu

Counsel: Mr Hillary Toa for Dudley Tari
Mr Robert Sugden for Paul Harvey
No representation for Raymond Chitty

Date of hearing: 30th May 2006
Date of judgment: 1st June 2006

REASONS

On the application of Mr Sugden, counsel for the Respondent Paul Harvey, an application for Leave to Appeal filed by Dudley Tari on 18 April 2006 was listed for hearing before the Court of Appeal on 30 May 2006.

Mr Sugden argued that the application remained on foot notwithstanding that it had been dismissed by the Chief Justice on 24 April 2006, and should be disposed of by an order of this Court.

Mr Toa appeared for Dudley Tari. He submitted that the application for Leave to Appeal was an application made to a single judge. In it, Dudley Tari sought leave to appeal from an Order of the Chief Justice made on 1st March 2006 which set aside a default judgment against Paul Harvey on the ground that the originating proceedings had not been validly served.

Mr Toa submitted that The refusal of leave by the Chief Justice ended the application, and nothing about it remained on foot. There was in reality no ongoing issue or application which could be listed before the Court of Appeal.

The procedure in appeals to this Court is governed by the Court Appeal Rules 1973. For present purposes it is only necessary to set out the following Rules:

" 9. The Court of Appeal, or a judge thereof, or a judge of the High Court, or, in the case of the Gilbert and Ellice Islands Colony, a judge of the High Court or the Senior Magistrate, may enlarge the time prescribed by the Rules for the doing of anything to which these Rules apply.

......

20. Except where by Ordinance otherwise provided and subject to rule 21, any notice of appeal, whether from an interlocutory or final decision of the High Court, shall be filed with the Registrar of the High Court within thirty days after the decision complained of, calculated from the date on which the judgment of the High Court was signed, entered or otherwise perfected.
    

21.(1) No notice of appeal against any interlocutory order of the High Court, whether made at first instance or in exercise of its appellate jurisdiction, in any civil case or matter shall be filed unless leave to appeal has first been obtained from a judge of the High Court, or in the case of the Gilbert and Ellice Islands Colony, a judge of the High Court or the Senior Magistrate, or, if such leave be refused, from the Court of Appeal.

(2) Every application for leave to appeal under this rule shall be by summons in chambers to be filed with the Registrar of the High Court or with the Registrar of the Court of Appeal, as the case may be, within the period prescribed in rule 20 for the filing of notice of appeal:

Provided that upon the filing of an application for leave to appeal time within which, if leave be granted, the notice of appeal shall be filed shall be extended by such period as a judge of the High Court, the Senior Magistrate, or a judge of the Court of Appeal, as the case may be, shall consider appropriate having regard to all the circumstances."

In the present case, the Order which Dudley Tari sought to challenge was an interlocutory order. Such an order may not be appealed against and no notice of appeal "... shall be filed unless leave to appeal has first been obtained..." [see: Rule 21(1) above.]

On 28 March 2006 Dudley Tari filed a Notice of Appeal without first obtaining leave. When the substance of Rule 21 was drawn to the attention of his legal advisors an application for Leave to Appeal was filed. Mr Sugden acknowledges that the Notice of Appeal filed without leave having first been obtained did not institute a valid appeal, and he concedes that the Notice of Appeal could not be brought on for hearing before this Court.

Mr Sugden argued however that where an application for Leave to Appeal made to a single judge is dismissed, that application nevertheless remains on foot and should be placed before the Court of Appeal for further consideration.

He argued that if this was not the case it could give rise to a situation where an applicant who failed to obtain leave from a single judge would be disabled from seeking leave from the Court of Appeal as the time for seeking leave under Rule 20 may have expired.

Mr Sugden observed that in the past there had been cases where a party who had failed to get leave from a single judge had appeared before the Court of Appeal and succeeded in obtaining leave to appeal without the necessity of filing a fresh Application for Leave to Appeal addressed to the Court of Appeal.

We are unable to agree with Mr Sugden’s arguments. Rule 21(2) makes it plain that an application for leave to appeal made to a single judge is filed with " The Registrar of the High Court" , i.e. with the Registrar of the Supreme Court, and that an application to the Court of Appeal is a different proceeding filed with the Registrar of the Court of Appeal.

The suggestion that an application for Leave to Appeal which is made to a single judge, and fails, then automatically goes on to the Court of Appeal would have the extraordinary consequence that an applicant who was content to accept the refusal of leave by a single judge, perhaps to avoid the costs involved in the Court of Appeal taking the same view as the single judge, would nevertheless find himself before the Court of Appeal even if he no longer wished to proceed with his appeal.

We prefer the submissions of Mr Toa that when the Chief Justice refused leave to appeal, that concluded the application for Leave to Appeal filed on 18 April 2006 and unless and until his client filed another Application for Leave to Appeal with the Registrar of the Court of Appeal, the matter could not proceed to the Court of Appeal.

Mr Sugden’s attempt to support his interpretation of Rule 21 by reference to the 30 day time limit prescribed in Rule 20 within which an application for leave to appeal must be filed overlooks the power of the Court of Appeal in an appropriate case to enlarge time under Rule 9. Mr Sugden’s reference to there having been other cases in the past where leave to appeal has been given by the Court of Appeal without there being on file a regularly issued Application for Leave to Appeal to the Court of Appeal also overlooks Rule 16 that provides that non-compliance with the rules does not prevent further prosecution of an appeal where the non-compliance is not wilful and may be waived.

In the cases to which Mr Sugden drew our attention, the prospective appellant had taken some steps, though irregular, to appeal to the Court of Appeal, and was seeking to proceed with an appeal. That is not this case. Moreover, in the other cases the Court of Appeal had been persuaded that Rule 16 could be invoked to allow the matter to proceed to hearing before the Court of Appeal.

Although we consider that there is no application before the Court, the Court nevertheless has an inherent power in a situation like the present to award costs against the party which brings another party before the Court to argue the jurisdiction of the Court. However in this case, having regard to the history of the matter, we are not persuaded that any order for costs should be made.

The Court publishes these reasons, but makes no order.

DATED at PORT-VILA this 1st day of June 2006

BY THE COURT

John von DOUSSA J
Daniel FATIAKI J
Patrick Treston J
Hamlison BULU J