Vanuatu Broadcasting and Television Corporation v Malere [2008] VUCA 2; Civil Appeal Case 03 of 2008 (30 April 2008)

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

CIVIL APPEAL CASE No.03 OF 2008

BETWEEN:

VANUATU BROADCASTING & TELEVISION CORPORATION
Appellant

AND:

JOSEPH MALERE
First Respondent

AND:

PASCAL LABAN
Second Respondent

AND:

WILLIE DANIEL
Third Respondent

AND:

JOSEPH LAUTO
Fourth Respondent

AND:

HILAIRE BULE
Fifth Respondent

AND:

GAETON ABONG
Sixth Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsel: Mr Ronald Warsal for the Appellant
Mr John Malcolm for the Respondents

Date of hearing: 21st April 2008
Date of judgment: 30th April 2008

JUDGMENT

All the Respondents were employed by the Appellant for between three and a half and twelve years until between 15 March 2005 and 14 June 2005 when they were all dismissed.

In their letters of dismissal there was an allegation of serious misconduct which each of the Respondents denied. They claimed that their employment had been terminated in breach of their rights under the Employment Act [CAP.160] and in breach of common law rights.

A composite Statement of Claim on behalf of all of them was filed in the Supreme Court on the 28 November 2005.

On the 18 January 2006, the Appellants filed a defence through Mr John Timakata. It could not have been more minimalist in its approach. It admitted the employment which had existed and the particulars in respect of the specific employment and dismissal date of each Respondent, and the amount they were earning at the relevant time. It specifically denied that the terminations were wrongful or in breach of the Employment Act. It admitted the particulars of what their entitlements would have been under the Employment Act. It specifically denied-

• their claim to a six times severance calculation;
• that the Claimants had used their best endeavours to mitigate the loss they had suffered;
• that the dismissals were in breach of the common law duty of fairness and trust;
• that they had been caused emotional harm or upset.
  

During 2006 there were two conferences. A timetable order was made on the 10th November of that year. The Claimants had prior to that filed a list of documents and each had completed sworn statements which were filed between October and December 2006. Nothing was done for or on behalf of the Appellant.

It is hardly surprising therefore that on 8th March 2007 the Respondent filed an application for the Appellant to show cause under rule 18.11. That was served on 12 March 2007 at the office of the Appellant’s then solicitor.

There were a series of conferences scheduled but somehow the hearing of this application was not considered until the 8th February 2008. It means that there was an overwhelming period of time in which the Appellant could have done something to remedy its failures and omissions.

Although there is no evidence, we were told from the bar (and it is not in dispute) that about the 5th February 2008, the General Manager of the Appellant approached Mr Warsal and asked him to act. Mr Warsal was informed that Mr Timakata claimed a lien over the file and thus Mr Warsal could not know where matters were at. Secondly Mr Warsal told the Appellants’ representative that he was about to leave for New Zealand and would not be available on the 8th February. He did however indicate that he would ask one of his colleagues to attend the hearing on the 8th February and seek an adjournment for 14 days.

When a lawyer makes a claim of a lien over a file to unpaid costs particular problems can arise with regard to the client seeking further access to justice. When the colleague went to request the adjournment he had no file, no knowledge of the background and Mr Warsal was overseas.

That there had been a remarkable degree of patience and forbearance on behalf of the Respondents so it was hardly surprising that the judge having reviewed what had taken place, determined not to grant an adjournment. Whether in the long run it would have been more efficacious to have done so is a question of assessment and judgment. But there was an exercise of discretion which has not been shown to be wrong.

There is another aspect of this appeal which has not been addressed at all. Where a party in the position of this Appellant comes before a Court seeking a review it is incumbent upon it to show that there is some substance and merit in its defence which it did not have the opportunity to present.

Mr Warsal talked about various things that his clients may have wanted to say but they have had more than sufficient time to put their case before the Court in the two years from the commencement of this proceeding until judgment was entered. It is impossible to read the material on the file without concluding that this was one of those situations where a party was simply using the Court system to play for time and to avoid meeting clear responsibilities which it had to former employees.

In the 2 months since judgment was entered there has been no endeavour to demonstrate any serious defence.

We are in no doubt that there is no basis upon which the Court could intervene or interfere with the judge’s discretion to refuse an adjournment. A judgment on liability against the Appellant was inevitable.

The issue which has required attention is whether the quantum judgment is sustainable. Regrettably the judge gave no reason for any of the Orders he made. It is apparent that they are simply a reflection of the claims made by Mr Malcolm on the basis of some calculations which have been undertaken by the Labour Department. The orders simply mirror the pleadings.

There are serious problems about that. There can be no question that each of the Respondents has entitlements under the Employment Act.

First they were each entitled under section 49(3)(a) to 3 months pay in lieu of notice.

Secondly, they were each entitled to a severance allowance under section 56(2(a)(i) on the basis of years of service.

There appears to be no argument as to various entitlements under section 29(i) in respect of annual leave which had not been taken.

The amounts to which the individual men were entitled in respect of those calculations were between 400,065VT and 1,323,000VT.

The matters which however were not straight forward were the entitlements to six times their severance allowance under section 56(4) of the Employment Act and their claim of 750,000VT each for common law damages.

In the course of hearing before us Mr Malcolm advised that 750,000VT was a typing error and that the claim was only for 75,000VT. Judgment was entered on a basis that included the substantially larger sum.

On the question of the possibility of an assessment of 6 times the severance sum under Section 56(4) the first thing to be noted is that it is not an automatic entitlement. The Court has an ability to make an order up to that maximum but it is not a right. It requires an assessment of the circumstances and a proper judicial determination to be made.

The judge in this case said nothing on the point and therefore his Orders cannot be sustained. Parties in litigation are entitled to know why a judge has made a particular assessment and of course a Court reviewing the matter on an appeal can only do so if the reasoning is available.

There are two possibilities with regard to the meaning of Section 56(4). In some cases it has been treated as a reflection of the circumstances which lead to the dismissal and in others it has been treated more as compensatory for a person who is unable to obtain work. Whether in this case it matters which of the approaches is adopted we do not know and, it is possible that under either approach a good case could be advanced, but we have no option but to allow the appeal on this ground and the issue will have to go to trial if there is no agreement reached.

In a similar way the claim for common law damages is not something which is simply granted where a party makes a claim. It must be demonstrated in accordance with applicable approaches adopted for compensation in this area that a payment is appropriate and justified and the level of it has to be determined. See Vanuatu Maritime Authority v. Bani Timbaci [2005] VUCA19 CAC 24 of 2005 (18 November 2005).

The 750,000VT is clearly outside of the range which could be appropriate. Mr Malcolm said it is an error. It may well be that his amended target of 75,000VT is more appropriate. But again it requires an assessment and adjudication by the judge. We therefore have no option in this case because of the absence of the reasoning but to allow the appeal in part.

There is no basis to allow any further consideration of what we call the base entitlement. The judgment for them will be confirmed. These people have been held out of their proper entitlements for in the vicinity of 3 years. They are entitled to immediate payment. If it is not made then the Respondents are free to take immediate enforcement action. There is no basis upon which there can be any ground for stay, delay or further denial of the fruits of that part of the judgment. The Appellant needs to understand the peril in which it will place itself if it does not immediately make payments.

Judgment is confirmed against the Appellant in favour of the Respondents as follows:

1. Joseph Malere - 600,500 VT

2. Gaetaon Abong - 615,708 VT

3. Pascal Laban - 913,053 VT

4. Willie Daniel - 671,322 VT

5. Joseph Lauto - 1,019,592 VT

6. Hilaire Bule - 1,373,904 VT

Each of those sums will attract Interests at 5% calculated from the 28th November 2005.

The Orders made in the Supreme Court in respect of entitlements under Section 54(6) of the Employment Act, common law damages and costs and interests are quashed.

The issue of costs in the Supreme Court and entitlements under Section 56(4) of Employment Act and for common law damages are sent back to the trial judge for assessment unless settlement can be reached. The Appellant should understand that if it is unrealistic and obstructive in this matter, it is at risk of having solicitor and client costs awarded against it.

Although the Appellant has been successful in one part of this appeal, it has generally been the loser and there will be an order in favour of each of the Respondents for costs against the Appellant in the sum of the 25,000 VT, in other words a total of 150,000 VT against the Appellant.

DATED at Port-Vila this 30th day of April 2008

BY THE COURT

Hon.Vincent LUNABEK CJ
Hon. Bruce ROBERTSON J
Hon. Oliver SAKSAK J
Hon. Christopher TUOHY J
Hon. John MANSFIELD J