Malcets v National Tourism Development Office [2005] VUSC 96; CC 012 2005 (8 August 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 12 of 2005

BETWEEN:

KENCY MALCETS & EMIL LELECTEI
Claimants

AND:

NATIONAL TOURISM DEVELOPMENT OFFICE
First Defendant

AND:

MALAMPA PROVINCIAL COUNCIL
Second Defendant

AND:

WALA ISLAND TOURISM BOARD COMMITTEE
Third Defendant

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mr Saling Stephens for the Claimants
Miss Florence Williams for the First Defendants
Mr George Boar for the Second Defendants
No Appearance by the Third Defendants

Date of Hearing of Applications: 13th July, 2005
Date of Judgment: 8th August, 2005

JUDGMENT

This is a reserved judgment. Two applications were made by the Second Defendants to the Court on 13^th July 2005. The First is an application to dismiss the whole claim of the Claimants filed on 16^th June, 2005. The Second is an application dated 28^th June 2005 for an Order setting aside the costs orders of this Court dated 13^th June 2005.

I propose first to deal with the second application. On 13^th June 2005 this matter was heard in conference in Luganville. Mr Stephens attended at Chambers with his two clients. None of the defendants or their lawyers were present. One other person travelled from Port Vila to Luganville on that day but was not in attendance at the chambers hearing. Among others, the Court awarded costs against the defendants comprising of travelling costs and costs of attending at conference assessed at the standard hourly rate.

Mr Boar argued and submitted that costs should have been reserved or to have been in the cause of the matter because it was a first conference and the defendants had not failed to comply with Court Orders. Miss Williams argued in support of Mr Boar’s submissions.

The evidence in support of this application are contained in the sworn statement of Mr Lambert Maltock sworn on 5^th July 2005.

Mr Stephens argued that the costs orders should be maintained. He submitted that by Mr Boar’s letter dated 13^th June, 2005 it was obvious that he knew about the conference hearing. He further submitted that there was non-compliance by the Defendants of Court Orders and that it was necessary for the Court to take a tough stand against defaulting parties by awarding costs against the defendants.

Costs are matters for the discretion of the Court. In any event they should be awarded only after the Court has heard all parties involved. In this case the Defendants were not present and they were not heard. When they applied to have the costs orders set aside, they in essence were asking for an opportunity to be heard although no liberty was granted in the order of 13^th June 2005 to do so.

In the view of this Court the reasons for not attending conference as explained by Mr Maltock are reasonable and therefore accepted by the Court. The application by the Second Defendant supported by the First Defendant is proper in the circumstances. The Court accepts Mr Boar’s submission that the proper course was to have either reserved costs or make them costs in the cause of the matter. Accordingly I order that the costs orders at paragraphs (4) and (5) respectively of the orders dated 13^th June 2005 be hereby set aside. In substitute as the new paragraph 4 the Court hereby orders that costs will remain in the cause of the matter.

I now move on to consider the first application: that the Claimant’s claim be struck out in its entirety on grounds as set out in the sworn statement of Mr Maltock dated 17^th June, 2005.

The Claimants filed their claims on 24^th March 2005. They act on behalf of the former Wala Island Tourism Board Committee. After the matter was called for the first conference on 13^th May 2005 during which the Defendants were not present, the Court granted leave to Mr Stephens to amend the claims for the Claimants within 5 days from 13^th May. They failed and only filed an amended claim on 27^th May 2005 some 14 days later.

Mr Boar acknowledged receipt of the amended claim and not the original claim of the Claimant. The following grounds were advanced by Counsel:-

(a) That there is no cause of action shown on the pleadings.
(b) That the claim is frivolous and vexatious and is an abuse of process.
(c) That there is no reasonable prospect of the Claimants succeeding.
(d) That the Claimants have failed to comply with the rules.
(e) That the Claimants do not have locus standi.

Miss Williams supported the application by Mr Boar. She indicated that her clients have not as at the hearing of these applications received their copy of the amended claims.

Mr Stephens in reply argued that the claim was served well in time before 13^th May 2005. He argued that as the case was still in its preliminary stages the Claimants were entitled to seek leave to amend their claims further at any stage. He questioned the authority of the committee making an inquiry into his clients committee. He submitted the case was not res judicata as submitted by Mr Boar because his clients had filed their claims in this Court in March 2005 prior to the Magistrate’s Court sitting. Counsel relied on the sworn statement of Kency Malcets dated 31^st January 2005 to show that his clients have standing in this matter.

I deal with the issues as follows:-

(1) Do the Claimants have standing?

I find no evidence by them showing that the former Committee to which the Claimants claim membership have a resolution appointing the Claimants to bring this action.
I am satisfied that the former Wala Island Tourism Board Committee to which the 2 Claimants claim membership was formed in contravention of section 3 of the Foreshore Development Act [CAP. 90].

I am equally satisfied that the proper and authorised body having standing to bring an action is the Wala Island Tourism Board Committee, the Third Defendants.

(2) Did the Claimants serve their Claim on the Second Defendant?

I accept the Second Defendants evidence that they were not served with a copy of the original claim. Rules require personal service. The Claimants have not produced any evidence showing service of their original claim on the Second Defendants.

(3) Do the Claimants have a cause of action?

For the findings and reasons given in relation to Issue 1, the answer to this question is in the negative.

(4) Is the Claimants Amended Claim valid?

On the face of it the amended claim is invalid. By comparison with the original claim, it is entirely a new claim. It is inappropriate and therefore not acceptable. It is an abuse of process. The Court agrees that it is frivolous and vexatious.

(5) Is there reasonable prospect of the Claimants succeeding?

The answer is in the negative for reasons already provided in relation to the above issues.

(6) Is the Matter res judicata?

The answer is in the affirmative.

It is correct that these Claimants filed their Claims on 24^th March 2005 prior to the Magistrate’s Court Orders issued on 26^th May 2005. Etienne Tiasinmal was Claimant acting on behalf of the Wala Tourism Commission against Yannick Malrurgani on behalf of the Wala Tourism Development Committee. It is not clear whether the Claimants were members of this Committee. However it is clear that Etienne Tiasinmal is a member of the current Committee, the Third Defendants which was elected pursuant to the Orders of the Malekula Island Court dated 22^nd March 2004. The Defendants did not appeal the Orders of the Magistrate’s Court dated 26^th May 2005. It appears to the Court from the affidavit materials that so many people have been involved in this matter at one time or another in the past. The proper cause of action for any person aggrieved by the Orders were to apply to set aside those Orders, or apply to be joined as parties if they were not already parties, or to have appealed the Orders. To start a separate proceedings in this Court when those Orders are very much alive and binding is an abuse of process.

Under these circumstances it is the view of this Court that the arguments and submissions by Mr Boar and Miss Williams are preferred and accepted. Accordingly the Claims of the Claimants are dismissed in their entirety.

In the circumstances of this case the Court is of the view that there will be no orders as to costs. Each Party will meet their own costs.

DATED at Luganville this 8^th day of August, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge