Apisai v Government of the Republic of Vanuatu [2007] VUCA 1; Civil Appeal Case 30 of 2006 (29 March 2007)

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

Civil Appeal Case No. 30 of 2006

BETWEEN:

MAEL APISAI
Appellant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Respondent

Coram: Justice Bruce Robertson
Justice Oliver Saksak
Justice Christopher Tuohy
Justice John Mansfield

Counsel: Mr. Hillary Toa for the Appellant
Mr. Ari Alon Jenshel & Mr. Tom Joe Botleng for the Respondent

Dates of Hearing: 29 March 2007
Date of Judgment: 29 March 2007

JUDGMENT

There was listed before the Court this morning an appeal against rulings of the Chief Justice made as long ago as the 26 May 2005 in which the Supreme Court struck out substantial parts of two statements which have been filed in support of Mr. Apisai’s claim.

The Court took the opportunity of taking with Mr. Toa in the presence of Mr. Apisai about the current amended statement of claim which is dated 2 April 2004.

The presiding Judge made no bones about the fact that there are substantial problems of causation, the level of compensation sought, the inter-relationship between the actions of the Government as the Defendant in this proceeding and the wrongs or the perception of wrongs which Mr. Apisai alleges.

The Court also discussed with Mr. Toa how the hurdle which is faced by any party challenging rulings about evidential admissibility is extraordinarily high. There may be areas in which there could be genuine differences of emphasis. Perhaps the suggestion is available that the Judge below had taken a particularly strong line on some points but equally there are other areas where the Judge appears to have taken a liberal and generous approach. All of which goes to the crux issue: it is not whether this Court might have reached different decisions, it is whether there were decisions made which were reasonably available to the Chief Justice.

More importantly, however, this is a dispute which is now almost five years old and which needs to be disposed of. There needs to be a sense of reality and pragmatism on both sides of the bar table.

It is inevitable if Mr. Apisai has not received any pay or compensatory amount in respect of his ill-fated term as Commissioner of Police that he is entitled to something. But the level is a matter which requires a serious reality check.

After discussion with the bench Mr. Toa took instructions from his client (although he did get a fairly pointed suggestion from the Court) and then sought leave to withdraw this appeal.

We are satisfied that is the responsible thing to do. This appeal will not advance the resolution of the case. It is likely to be unproductive. What the case does need, however, is some immediate action in the Supreme Court to see if a total resolution can be found.

In formally dismissing the appeal this Court urges that immediate action be taken to convene a settlement conference before a Judge to enable the parties to explore a sensible resolution of the outstanding issues in a way which is both pragmatic and principled.

There remains the question of costs on the present application before the Court. Mr. Jenshel (conscious of his proper responsibility to protect the client he represents), asks for costs. He suggested that it may be a case where it would be appropriate to reserve costs and leave them as a matter in the cause.

We are satisfied in the peculiar circumstances of this case it is better to close the matter entirely. Although there is a detriment to the Government if no costs order is made, that will be much smaller than the costs which it will incur (and never recover) if the matter continues on its present path.

The appeal is dismissed and in the unusual circumstances there will be no order as to costs.

Dated AT PORT VILA on 29th day of March 2007

BY THE COURT

Hon. Bruce ROBERTSON. J
Hon. Oliver. A. SAKSAK. J
Hon. Christopher .N. TUOHY. J
Hon. John MANSFIELD. J