Sandalwood Processing Products v Greenleaf Extracts [2001] VUSC 28; Civil Case 029 of 2000 (30 March 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.29 of 2000

BETWEEN:

SANDALWOOD PROCESSING PRODUCTS

Plaintiff

AND:

GREENLEAF EXTRACTS

First Defendant

AND:

BRAIN ROBERT HENSEL

Second Defendant

Date of Hearing: 30th March, 2001, 10 a.m

Coram: Mr Justice Oliver A. Saksak sitting in Chambers.

Counsel: Mr Saling Stephens of Counsel for the Plaintiff

Mr Edward Naliel of Counsel for the Second Defendant

INTERLOCUTORY JUDGEMENT

This is a chambers application issued by way of a Summons (General Form) under O.57, R.13 of the High Court Rules 1964. The Applicant seeks orders that he as Second Defendant in this Action be struck off as a Party, and that he be paid costs.

The grounds in support of the application are as appear in the affidavit of Mr Nigel Grant Morrison of Counsel for the Second Defendant. The affidavit dated 7^th November 2000 used in Civil Case No.76 of 2000 in the Magistrate’s Court was redated 21^st March, 2001 and refiled on 22^nd March, 2001. The relevant parts are –

(i) Paragraph 4 which reads:

“That letter dated 16^th October, 2000, with its attachment makes the following matters clear:

(i) Hensel was an employee of the First Defendant Company.

(ii) Hensel is neither an officer or shareholder of the Defendant Company.

(iii) Hensel acted in accord with the instructions of his employer, the First Defendant Company at all times.”

(ii) Paragraph 5 reads:

The Magistrates’ Court proceedings were discontinued on 6^th December 2000, we wrote to the lawyer for the Plaintiff by way of the letter annexed “B”.”

(iii) Paragraph 6 reads:

“To date, there has been no consent for the Plaintiff to discontinuance against the Second Defendant”.

Upon those grounds the Applicant further relies on O.27 R.4 of the Rules which reads:-

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, an din any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Dealing first with the affidavit of Mr Morrison Mr Stephens objects to its admission on the basis that it is hearsay. Further that it was not even used in the Magistrates Court. I accept that submission. Clearly paragraph 5 is hearsay evidence and cannot be admitted. Further the Court below did not rely on the affidavit because there was no need for it. Civil Case No.76 of 2000 was discontinued by Order dated 30^th November 2000. Civil Case No.70 remained in motion. This Court in exercising its appellate jurisdiction on 18^th October, 2000 Ordered among others that –

“3. The Plaintiff in Civil Case No.70 of 2000 file originating process in that proceedings within 7 days of these Orders.

4. Unless there is compliance with Order 3 herein the First and/or Second Defendant in Civil Case No.70 of 2000 be at liberty to have those proceedings struck out.”

It seems to me that the Plaintiff had filed a specially Endorsed Writ on 12^th October 2000 as Civil Case No.29 of 2000 continuing Civil Case No.70 of 2000 in the Magistrate’s Court. Orders 3 and 4 above are therefore pointless. That probably explains why no arguments were advanced alleging failure by the Plaintiff to comply with Order 3.

The matter then boils down to the grounds in O.27 R.4. That provision grants discretion to the Court to strike out any pleading on the ground that it discloses no reasonable cause of action. There is no evidence by the Second Defendant to support that argument. It follows therefore that his application must fail. I therefore dismiss his application and order that the Second Defendant pays the Plaintiff’s costs of today’s hearing.

The Plaintiff also has filed an Ex-parte summons seeking among others, that leave be granted to him to serve the First Defendant out of the jurisdiction. Mr Naliel informs the Court that he has no instructions to represent the First Defendant in this matter. That being so, leave is hereby granted to the Plaintiff to serve the First Defendant out of jurisdiction. The other orders ought are adjourned to a date to be fixed. Costs will be in the cause.

DATED at Luganville this 30^th day of March, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge