Vuti v Government of Vanuatu [2011] VUCA 21; Civil Appeal 07 of 2011 (22 July 2011)

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

CIVIL APPEAL CASE No.07 OF 2011

BETWEEN:

LENNOX VUTI
Appellant

AND:

GOVERNMENT OF VANUATU
Respondent

Coram: Hon. Justice J. von Doussa
Hon. Justice O. Saksak
Hon. Justice D. Fatiaki
Hon. Justice R. Spear
Hon. Justice P. Heath

Counsel: No appearance for the Appellant
Robin Tom Kapapa appearing as agent for Mr Bill Bani
Mr Godden Avock for the Respondent

Date of hearing: 11 &12th July 2011
Date of judgment: 22nd July 2011

JUDGMENT

1. When this matter was called at the Call Over of appeals in the list for the session of the Court of Appeal commencing on 11 July 2011 there was no appearance of Mr Bill Bani who is the lawyer on the Court record as counsel for the appellant. Furthermore, detailed grounds of appeal had not been filed as required by the Review Orders made on 22 June 2011. The Court adjourned the matter to the following morning and requested counsel for the respondent to contact the office of the appellant's lawyers requesting that counsel appear for the appellant to explain the position.
   
2. Later on 11 July 2011 the Court Registry received a copy of a letter written by Mr Bani dated 7 July 2011 addressed to another firm of lawyers in Port-Vila. The letter relevantly reads:
   

"(i) Vuti -v- Government - Civil Appeal Case No. 7 of 2011.

In this matter, we appear for the Appellant Mr. Lennox Vuti. The Appellant has paid his Appeal fee and only lodged a Notice of Appeal. Appellant has not fully complied with Direction Orders to file proper Grounds of Appeal. Counsel apologizes to the Court.

Counsel requests that this matter be stood over to next session. Reason for Counsel's absence is that I am attending the inaugural launch of the South Pacific Lawyer's Association in Sydney from 9th to 12th July, 2011. Thereafter, I will attend the official opening of Vanuatu Trade Commission Office in Hong Kong and will return on 23rd July, 2011.

There will be a call - over as usual at approximately 9am on Monday 11th July, 2011. Please attend as our Agent and inform the Court accordingly."

3. When the appeal was called again on 12 July 2011 Mr Kapapa appeared for Mr Bani and formally made a request for the appeal to be stood over for the reasons given in Mr Bani's letter.
   
4. Mr Bani presently holds office as the President of Vanuatu Law Society, and it is in that capacity that he is attending the meetings referred to in the letter.
   
5. The establishment of the Vanuatu Law Society marked an important milestone in the development in the legal system in Vanuatu. The Law Society is a body through which members of the legal profession can inform public debate on important and current social and political issues, on law reform, and on the importance of the rule of law on which depends the democratic system of government provided for in the Constitution of the Republic of Vanuatu. The function of the Society also includes the provision of information about the law and education programmes for its members.
   
6. The attendance of the President of the Law Society at international meetings of other associations of lawyers and at major government functions is important both for the reputation of the Law Society, and for the Law Society, through its President, to be kept abreast of developments in other legal systems.
   
7. However, important though the role of the President of the Law Society undoubtedly is, the holder of the office must accommodate the responsibilities of office in ways that do not compromise the duties and responsibilities which he or she owes to clients. Subject to a lawyer's overriding duty as an officer of the Court, a lawyer's first responsibility must be to clients who have retained his or her services. In particular, Rule 13 of the recently gazetted Rules of Etiquette and Conduct of Legal Practitioners, Order No.106 of 2011, provides:
   

"In providing regulated legal services to a client, a lawyer must always act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care."

8. When a hearing or other appointment is set down for a fixed time in a matter where the lawyer is acting, the lawyer is expected to meet that commitment by acting competently and in a timely manner. If some commitment clashes with the Court appointed fixture, the lawyer must make arrangements to cover the obligation to the client in relation to the Court appointed commitment. This might be achieved by making a timely formal application supported by affidavit and notice to all parties to have the Court fix another time, or by arranging other representation for the client.
   
9. In the present case, neither of these steps were taken. Moreover, the Order to file grounds of appeal and Court books had not been attended to even though the approach of the next session of the Court of Appeal was well known.
   
10. The due administration of justice through the constitutional Court processes depends on litigants, through their lawyers, complying with procedural directions relating to the preparation of cases for hearing and as to dates and times for hearings. The Court for its part plans the use of its scarce resources and time in the expectation that lawyers for their part will meet their obligations. If lawyers fail to do so, time and court resources are wasted and other litigants who await the hearing of their matters are disadvantaged. The Court must therefore insist on due compliance by litigants and their lawyers with Court orders. When compliance does not occur the Court will not stand idly by allowing its orders to be disregarded. On the contrary, the Court will make orders against the defaulting party.
    
11. In the present case, Mr Bani appears regrettably to have put his obligations to his clients to one side and given priority to his obligations as President of the Law Society. We have acknowledged the importance of the role of the President, but performance of that role is not an excuse which this Court can allow for the failure to take appropriate steps to ensure that the time and resource of other litigants is not wasted. It is totally unacceptable for a lawyer simply to disregard a Court of Appeal fixture to the extent not only of not appearing, but not even filing documents relating to the appeal as ordered by the Review Judge.
    
12. In the ordinary course where serious defaults of this kind occur the Court will dismiss the appeal on the ground that it has not been prosecuted in a timely manner, and will compensate the other parties for their wasted time and efforts with an order for costs in their favour. In our opinion, that is the course that should occur in this case. As a matter of law, litigants are bound by the conduct of their lawyers. However, we recognize that the appellant himself is probably unaware that this result would follow from the conduct of his lawyer about, which until, now he is probably also unaware. For this reason, whilst the appeal will be formally dismissed for want of prosecution, we shall reserve liberty to the appellant to apply to reinstate the appeal and we shall set a timetable that must be complied with if an application to reinstate is made. We direct the Registrar to notify the appellant directly so that he is promptly made aware of these orders and why they have been made.
    
13. We defer making any costs order on the dismissal of the appeal so that Mr Bani is given the opportunity to be heard on that question.
    
14. For these reasons, the Orders of the Court are:
    

1. Appeal dismissed for want of prosecution.

2. Liberty to the appellant to apply by no later than Friday 5th August 2011 to have the appeal reinstated.

3. Any application to reinstate the appeal shall be supported by an affidavit going both to the reasons for non appearance of counsel for the appellant at the July 2011 session of the Court of Appeal, and to the merits of the appeal itself. The application must also be supported by detailed grounds of appeal and the appeal books required to be filed under the Review Orders made on 22 June 2011.

4. In the event of an application being made to reinstate the appeal, management of that application shall be conducted by the Review Judge for the next session of the Court of Appeal.

5. The respondent's application for costs in relation to the appeal is adjourned to the next session of the Court of Appeal.

6. We direct the Registrar to provide a copy of this judgment direct to the appellant.

DATED at Port-Vila, this 22nd day of July 2011

BY THE COURT

Hon. J. von Doussa J

Hon. O. A. Saksak J

Hon. D. Fatiaki J

Hon. R. Spear J

Hon. P. Heath J