Morin v Asset Management Unit [2007] VUCA 14; Civil Appeal Case 34 of 2007 (24 August 2007)

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

CIVIL APPEAL CASE No.34 OF 2007

BETWEEN:

DOMINIQUE MORIN
Appellant

AND:

ASSET MANAGEMENT UNIT
Respondent

AND:

DOMINIQUE GOVAN
Interested Party

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Ronald Young
Hon. Justice Edwin Goldsbrough
Hon. Justice Christopher Tuohy

Counsel: Mr Hillary Toa for the Appellant
Mr Daniel Yawha for the Respondent

Date of hearing: 21 August 2007
Date of judgment: 24 August 2007

JUDGMENT

1. At first mention of this appeal on Monday 13 August 2007 Asset Management Unit appeared through counsel. It was noted they are not parties in this appeal and they were excused further attendance.

2. In his original notice of appeal the Appellant appealed against the issuing of an Enforcement Warrant dated 14 June 2007. He also sought:-

(a) an order setting aside the Enforcement Warrant

(b) an order setting aside the Default Judgment dated 24 February 2004 in Civil Case 25 of 2003 made in the Magistrates’ Court

(c) an order quashing the decision of the Magistrates’ Court of 11 November 2004 refusing an application to set aside the order of 24 February 2004

(d) an order quashing the decision of the Supreme Court in Civil Case No 42 of 2005 (wherein the court refused an application for leave to appeal out of time against the decision of the Magistrates’ Court.)

(e) an order quashing the judgment of the Supreme Court of 4 September 2006 (wherein it was ordered that Civil Case 25 of 2003 be reverted to the Supreme Court for enforcement proceedings and that the Respondent to this appeal become a party to the proceedings in the Supreme Court now consolidated with Civil Case 158 of 2002.)

(f) ancillary orders.

3. By notice filed on 16 August 2007 the Appellant sought leave to appeal out of time in respect of (b), (c), (d) and (e).

4. During the hearing of the appeal counsel for the appellant conceded that there is no direct appeal from the Magistrates’ Court to the Court of Appeal, and so the matters left to be determined in this appeal relate to the leave to appeal out of time against the decision of the Supreme Court refusing leave to appeal out of time and the question of the outstanding Enforcement Warrant.

5. The event about which these proceedings were taken took place on 7 November 1998. The proceedings began by Specially Indorsed Writ of Summons filed on 10 September 2002. The subject matter is a fishing boat taken from the premises of the Respondent which the Respondent used to earn a living. The value of the boat was expressed to be Vt 450,000. The matter was first listed for hearing by notice dated 4 February 2003 on 24 April 2003. When both parties appeared by counsel a directions order was made on 28 May 2003 setting a new trial date of 16 July 2003. A defence and counterclaim was filed on 30 June 2003. A reply to that was filed on 9 July 2003. A further directions order was made on 16 July 2003 and thereafter further and better particulars of the claim were provided.

6. Abortive hearings were scheduled for 27 August 2003, 8 September 2003, 4 November 2003, 18 November 2003 and 12 December 2003. On the later date the matter was set down for trial beginning 23 February 2004 and further directions were given. On 23 February 2004 the matter was adjourned to 24 February 2004 for trial. On that day the Appellant failed to attend the hearing. By that time the Appellant had not filed any sworn statements as directed supporting his counter claim or the dispute as regards quantum.

7. Following the judgment an enforcement summons was issued returnable 1 July 2004 and an order made in August 2004 adjourning the proceedings to 6 September 2004 and making a wasted costs order against the Appellant. This was no doubt in response to the filing, on 5 August 2004, of an application to set aside the judgment of 24 February 2004. That application was determined in favour of the Respondent to this appeal on 11 November 2004.

8. Leave to appeal out of time related to the notion emanating from the Appellant that the original decision of the Magistrates’ Court of 24 February 2004 was a default judgment. Perusal of the record shows this not to be the case. The decision arrived at was after trial. The Appellant was not present at the hearing. However the proceedings did not produce a judgment in default. It is unfortunate that the Magistrates’ Court so described its own order subsequent to making it, however this error does not affect the nature of the judgment which remains a judgment after trial.

9. With this in mind, subsequent proceedings to set aside a default judgment were misconceived. Whether or not this court would grant leave to appeal out of time is no longer an issue, for only a default judgment can be set aside, not a judgment after trial. The only remedy available there is to appeal the decision. No such appeal has been filed.

10. In determining that further consideration of this aspect of the appeal is unnecessary, we note the history of these proceedings and observe in any event we would be unlikely to grant such leave. That is the case since, apart from the facts as to why the Appellant did not attend the hearing, the main thrust of his appeal is that he has not had the opportunity to be heard. He has not been heard, but not through lack of opportunity. The opportunity was afforded although not taken up. It cannot be proper to assert a denial of natural justice when the Appellant himself fails to appear and present his arguments at the correct time. To find otherwise would be to suggest that a trial cannot proceed in the absence of a party, however many opportunities are afforded for the absent party to finally appear. That is not the case in this jurisdiction and should not be so.

11. Turning to the enforcement warrant, the Appellant complains that no Enforcement Conference took place prior to the issue of the Enforcement Warrant. Enforcement proceedings are covered in Part 14 of the Civil Procedure Rule No 49 of 2002.

12. The order requiring payment of money by the Appellant was made in the Magistrates’ Court on 24 February 2004. On 6 December 2005 an enforcement order was sought and made requiring the Appellant to pay the amount due. The Appellant made one of his rare appearances in these proceedings at this Rule 14.5 hearing.

13. Subsequently enforcement proceedings in the Magistrates’ Court were adjourned when the matter was consolidated with other proceedings in the Supreme Court.

14. Following further default, the Respondent made application for an Enforcement Warrant to the Supreme Court. A summons was issued for an enforcement conference to be held in the Supreme Court sitting at Luganville on 16 March 2007. That enforcement conference did not take place for various reasons. A further such conference was scheduled for 14 June 2007. The Appellant did not attend and a Warrant of Arrest for contempt was issued, and an Enforcement Warrant in relation to the debt.

15. The Enforcement Conference did not take place in June 2007 because the Appellant did not turn up. Whilst the judge might consider an Enforcement Conference appropriate at the stage of the proceedings that had been reached, it is not a requirement of the Rules that such a Conference be held. This conference was to have been a Rule 14.12.2 Conference, not a Rule 14.5 Conference.

16. No other complaint was raised as regards the issue of the Enforcement Warrant. On that basis this part of the appeal must fail as having no legal justification. In any event it is difficult to see how Enforcement Proceedings can be attacked on other than procedural grounds when the original judgment is beyond challenge.

17. The Respondent seeks costs of this appeal on an indemnity basis. There are several reasons behind this application. The history of these proceedings is one. Another is the preparation and service of the appeal. The Respondent first heard of this appeal when counsel was advised by telephone of a Conference in the Supreme Court to review Civil Appeal 34 of 2007. No notice of appeal had by that time been served on the Respondent or his counsel. The appeal book itself was not filed with the Supreme Court until 10 August 2007, being the last working day before this session of the Court of Appeal was scheduled to commence. That being the case the Respondent, no doubt anxious that these proceedings were brought to conclusion, was obliged to prepare their own version of the appeal book. That should not have been necessary yet it was a reasonable step to take in the circumstances to avoid the risk of this matter being removed from the present session and further postponed.

18. For those reasons we consider that costs should be awarded to the Respondent in this appeal on an indemnity basis, that is to say actual and reasonable costs incurred, based on the rate of VT20,000 per hour. Costs in suitable form shall be submitted to the Supreme Court for taxation within 14 days from the date of this judgment and shall be paid by the Appellant within 28 days following taxation.

DATED at Port-Vila this 24th day of August 2007

BY THE COURT

Hon. Vincent LUNABEK CJ
Hon. Ronald YOUNG J
Hon. Edwin GOLDSBROUGH J
Hon. Christopher TUOHY J