Ombudsman v Kalsakau [1997] VUSC 30; Civil Case 072 of 1997 (25 August 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 72 OF 1997

BETWEEN:

THE OMBUDSMAN
Plaintiff

AND:

ISHMAEL ALATOI KALSAKAU,
of Port-Vila, Legal Officer
Defendant

Counsel: Msslaossland for the Ombudsman
Mr Kalsakau on his own behalf

JUDGMENT

By way of Motion dated 26th June, 1997, the Defendant Ishmael A. Kalsakau applies for the following:

1. THAT the Service of and the Writ of Summons, in Civil Case No. 72 of 1997 be set aside.

2. THAT the Defendant pays the Plaintiff the costs of and occasioned by this application.

The Motion is issued on the ground that the Writ of Summons and Statement of Claim are irregular.

Issue:

Was the service of the Writ of Summons issued by the Plaintiff/ Ombudsman in compliance with Order 37 of the Western Pacific High Court (Civil Procedure) Rules of 1964 of the "Blue Book"?

As a preliminary matter, Mr Kalsakau being aware of the fact that he did not comply strictly with Order 69 Rule 3 of the "Blue Book", submits that his letter of 5th August, 1997 contains the grounds of objection and that that letter be treated as part of the Notice of Motion.

Order 69 Rule 3 in fact says:

"Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the Summons or Notice of Motion."

The Ombudsman through her Counsel, does not stand on the defective nature of the application and take the content of the said letter of 5th August, 1997 in support of the application.

Brief Backgrounds

By letter dated 21 May 1997, the Ombudsman of the Republic, pursuant to Section 14(1)(a) (ii) of the Ombudsman Act No. 14 of 1995, wrote a private and confidential letter to the Defendant about a complaint made to his Office by one Mr R. de Robillard.

The complaint is about:

(1) The Defendant’s conduct at cocktail party for opening of Supreme Court;

(2) Statement made in Radio Interview.

By letter of 20 May 1997, the Defendant replied to the Ombudsman letter of 21 May 1997. [This cannot be right, something wrong with the dates! If there is any error as to date in Mr Kalsakau’s letter, it is not pertinent to the substance of the issue here]. In any event, in that letter of "20" May 1997, the Defendant questioned as to whether the Ombudsman has jurisdiction to enquire affairs of a private nature between two (2) individuals which if occurred, occurred at a time when the employee was not at the disposal of an employer and cannot be said to be exercising his duties as employee of the Government at the time in which the incident is alleged to have been taken place.

By letter of 28 May 1997, the Ombudsman replied to Mr Kalsakau’s letter, accepting that when she wrote to him she assumed that since Section 14(1)(a)(ii) does not distinguish between conduct of a Government employee at work and outside working hours that he (Kalsakau) fells within her jurisdiction. She also said she had apprehended that Mr Kalsakau was invited to the Cocktail party by reason of his employment as a legal officer at the Attorney General’s Chambers.

She further said in her letter of 28 May 1997 that upon receiving legal advice from her Counsel, she decided to test the interpretation of Section 14(1)(a)(ii) before the Supreme Court. In order to do so, she was advised to initiate the proceedings before this Court via the procedure for Special Cases as set forth in Order 37 of the High Court (Civil Procedure) Rules, 1964.

She also framed the issue and advised Mr Kalsakau whether he is agreed that the issue for determination be as follows:

"Where a government officer or employee attends an official function (in the instance the 1997 opening of the Supreme Court cocktail party) outside normal working hours does the Ombudsman have jurisdiction, pursuant to Section 14 (1)(a)(ii) of the Ombudsman Act No. 14 of 1995, to enquire into the conduct of that government employee or officer."

She also said that the matter be dealt with in camera and that unless she heard to the contrary she will assume that Mr Kalsakau is in agreement and that this application be filed next Monday. She finally requested the Defendant to give his answers by close of business Friday (end of same week) failing which she will issue the Defendant/Kalsakau a Summons.

The Ombudsman did not hear or receive anything from Defendant/Kalsakau until 5th August 1997. Mr Kalsakau mentioned that the letter of 5 August 1997 should have been received by the Ombudsman on 19th August but due to a late return from the Supreme Court Registry, he sent it together with his Notice of Motion.

The said letter of 5 August , 1997 contained three(3) main grounds of objections for the Ombudsman to serve the Writ of Summons and the Statement of Claims under Order 37 of the High Court (Civil Procedure) Rules as follows:

(a) The Ombudsman’s Writ of Summons does not reflect any consent between the parties to the suit; or there is no agreement by the Defendant to the manner in which the issue is framed;

(b) There is no trial before the Court that gives the Ombudsman the automatic right to invoke the special case provision under Order 37;

(c) There is no indication as to whichever party shall become liable for costs as per Rules 6 and 9 of Order 37.

The Ombudsman through Counsel makes submissions in response to the Defendant’s grounds of objections as follows:

As to point (a) above, it is contended for the Ombudsman that there is a narrow issue of interpretation of Section 14(1)(a)(ii) to be resolved. Defendant Kalsakau does not want to give his consent to a sensible, pragmatic and efficient procedure to resolve the issue. He should say why or if he wants to do it another way then he should give his proposal. If not, it is put for the Ombudsman that the Court has a wide ability to deal with such a situation under Order 69 Rule 1 which states:

"Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and upon such terms as the Court shall think fit."

It is further said that if Mr Kalsakau is still unhappy with the way the issue had been drafted he should tell the Court how he would like the issue to be phrased. If not, then the Court can direct that it be phrased as suggested by the Ombudsman (3 months ago).

The purpose of Order 37 of the High court Rules of 1964 is to provide the environment of consent between parties and settlement of issues by the parties before the Court on simple and friendly procedure. This can be seen through the provisions of Order 37 itself. Part I of Order 37 RR 1 to 7 relates to framing a special case on question of law for the opinion of the Court.

Rule 1 says to the effect that the special cases be made by consent between parties and signed by the parties or their advocates (R.3) and Rule 6 says that the parties may enter into an agreement in writing as to who will pay the costs of the causes or matters.

Under O.37 R.2 the Court can, if necessary, direct that a question or issue shall be stated by or in the form of a special case but the parties cannot under R.2 agree between themselves, without obtaining the order of the Court, to state questions of law in the form of a special case. If a case is directed by the Court, it should be signed by the parties or their advocates.

On the Defendant’s first ground of objection, I am of the opinion that if there is any consent between the parties, it should appear clearly before the Court. Or, on 20th August 1997, there is a substantive argument before this Court as to whether the Defendant consented or not. This cannot be right and it is contrary to the spirit and purpose of Order 37 upon which the Plaintiff/Ombudsman seeks to rely on.

The Defendant’s second point of objection is that "there is no trial before the Court that gives the Plaintiff/Ombudsman the automatic right to invoke the special case provision."

It is contended for the Plaintiff that this is not necessarily correct. RR1 and 2 are unclear as to whether there actually has to be a factual contest to be determined at trial as a prerequisite before the special case procedure can be turned to. In the alternative the Ombudsman relies on Order 35 R.1 which states:

"Notwithstanding the provision of any other Rule of court, at any time before or at the hearing, the Court may, if it thinks fit, on the application of any party, or of its own Motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues, which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of one kind and partly of the other."

Order 37 R.1 says the parties to any "cause or matter" may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court..."

Order 37 R.2 says, "if it appears to the Court, that there is in any "cause or matter" a question of law, which would be convenient to have decided before any evidence is given or any question or issue of fact is tried... the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court either by special case or in such other manner as the Court may deem expedient ...."

The expression "cause or matters" is the action as it stands between the existing parties.

Under O.37 r.1, it is my view that there is no need to have a trial before the Court. Since the parties consent to bring the question of law for the opinion of the Court, and arrangements were made for the payments of costs, there is no requirement to have a factual contest to be determined at trial as a condition sine qua non (or prerequisite) before using the special case procedure. Under such situation, RR1, 3 and 6 of Order 37 be applied together.

On the contrary, under O.37 r.2, it is my view that, if the Plaintiff/Ombudsman seeks to rely upon that rule there has to be a factual contest to be determined at trial as a prerequisite before the special case procedure can be invoked.

I have to stress also the point that the defendant cannot forever hide behind the procedural technicality of the rules and he will one day or another have to address the issue he was asked to deal with.

In the alternative, the Plaintiff/Ombudsman relies on O.35 r.1. Having heard both parties to the question of framing the issue to be put before this Court for its opinion in this case, I express the pinion that the court cannot substitute itself to the parties to write and settle issue of question of law in place and lieu of the respective parties otherwise than under O.37 r.2. But as I said earlier, there must be a trial as a prerequisite before Order 37 Rule 2 can be turned to. I note that the Plaintiff has framed the issue and suggested to the Defendant for his consent. I was asked to declare that such an issue as framed by the Plaintiff be put and determined by this Court as such. I decline to do so at this stage for the reason mentioned above. Unless the parties agree to that effect under O.37 r.1.

As to the Defendant’s third point of objection, the Plaintiff says that it is irrelevant and wrong. Rule 9 of O.37 relates to issues of fact without proceedings. Whereas the issue stated in the Ombudsman’s proceedings is one of law. This is quite right.

Further the Ombudsman says R.6 of O.37 is not mandatory but since it has been raised now by the Defendant Kalsakau, the Plaintiff/Ombudsman would be happy with either costs lying where they fall or that the losing party pay the other a fixed amount, say VT 10,000.

Order 37 r.6 is part of the consent process within the purpose of Order 37. Whether it is mandatory or not, it is part of that process and if a party disputes as the Defendant did in this case, it is appropriate for the Court to leave to the parties to enter into an agreement as to payment of money and costs. If the parties cannot come to any agreement and a special case has to be ordered by the Court, then the Court has the jurisdiction to order costs according to normal rules.

I, therefore, come to the conclusion that the answer to the question for the determination of this Court is: NO.

I, accordingly, order that:

1. The service of and the Writ of Summons in Civil Case No. 92 of 1997 be set aside as irregular.

2. I order no cost.

3. I, furthermore (if I may) make the following recommendation [without enforceable effect]:

Common sense, cheap and quick procedure recommend strongly that both parties find a flexible way acceptable to both to sort out this question of interpretation [which is simple indeed].

This can be done under proper procedure as set out in RR 1, 3 & 6 of Order 37 of the High Court Rules 1964. Otherwise, the Defendant will be subjected to Ombudsman’s Summons under the Ombudsman’s Act No. 14 of 1995.

DATED AT PORT-VILA, this 25th DAY OF AUGUST 1997

BY THE COURT

VINCENT LUNABEK J.
Acting Chief Justice