Heromingly v Govan [2006] VUSC 15; CC 180 2005 (17 February 2006)

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

Civil Case No. 180 of 2005

BETWEEN:

GLENDA & MARCO HEROMINGLY
Appellants

AND:

DOMINIQUE GOVAN
Respondent

Coram: Justice Treston

Mr. K. Loughman for Appellants/Applicants
Mr. G. Boar for Respondent

JUDGMENT ON URGENT APPLICATION TO SET ASIDE SUPREME COURT ORDERS.

BACKGROUND

On 12 October 2005, the Applicants Glenda & Marco Heromingly had been the Defendants in the Magistrates' Court claim in Civil Case 273 of 2004 and filed a notice of appeal against the judgment of the Magistrates' Court of 19 September 2005.

The original claim concerned land situated at Rentapao area, Efate, whereunder relief was sought by the Respondent against the Appellants for them to vacate his property, remove their shed and pay arrears of rent of VT252,000. At the Magistrates' Court there was no appearance either by counsel for the Appellants or by the Appellants themselves. Judgment was entered for the Respondent. The Appellants appealed.

Pursuant to Rule 16.30 of the Civil Procedure Rules No. 49 of 2002, this Court convened a first hearing date on 2 December 2005. At that hearing the Appellants were represented by Mr Timakata and the Respondent was represented by Mr Boar. Orders were made as follows: -

"1. The Appellants must file and serve an appeal book, approved by the Respondent, by 3pm on 16 December 2005.

2. The parties may have supervised access to Magistrates' Court file 273/04 for the purposes of preparing the appeal book.
   
3. The Appellants must file and serve written submission by 3pm on 20 January 2006.
   
4. The Respondent must file and serve written submissions in response by 3pm on 3 February 2005.
   
5. A hearing is set for 9am on 10 February 2006."
   

The Appellants failed to file and serve an appeal book in accordance with Order 1.

The Appellants failed to file and serve written submissions in accordance with Order 3. In an abundance of caution, the Respondent filed written submissions on 9 February 2006.

When the appeal was called on 10 February 2006, the Respondent and his counsel appeared but there was no appearance of counsel for the Appellant or the Appellants themselves. That reflected what had occurred in the Magistrates' Court on 19 September 2005.

Having heard from counsel for the Respondent, the Court made the following Orders:-

"(1) No appeal book filed.

(2) No submissions filled by Appellants.

(3) Respondent filed submission on 09 February 2006.

(4) Appeal dismissed for want of prosecution

(5) Costs VT20,000 to the Respondent against the Appellants to be paid in full on or before 10 March 2006.

(6) Magistrates' Court file to be remitted back to the Court for enforcement action on judgment of 19 September 2005."

After those Orders had been made the Judge was in the Registry office when a letter was received from counsel for the Appellants. The full text of that letter is as follows:-

" Indigene Lawyers

Advocates

BA Victoria University

LLB, Waikato University

Legal & Consultancy Services

_____________________________________________________

February 9, 2005

Mr Alilee John

Chief Registrar

Supreme Court of the Republic of Vanuatu

Court House

PMB 9041

Port Vila

Republic of Vanuatu

Attn:

Dear Sir

CIVIL CASE 180 OF 2005 GLENDA & MARCO HEROMINGLY AND DOMINIQUE GOVAN - APPEAL

We write with respect to the subject matter.

We advise that Mr Timakata is currently receiving treatment for a medical condition which also requires overseas specialist treatment. In this respect Mr Timakata will not be able to attend to matters before the Court commencing Friday February 10, 2005 and he will be overseas in Australia from February 11th, 2006 to February 25th, 2006.

We kindly seek that the Judges and Magistrates be informed of the above and that the matters which are listed during this period and which Mr Timakata is involved in be adjourned and schedule (sic) to the following month of March 2006.

We attach a copy of Mr Timakata's medical certificate to that effect.

We sincerely apologize for the inconvenience caused and thank you for your urgent assistance in this regard.

Yours sincerely

INDIGENE AVOCATS

(Sign)

John William TIMAKATA"

Significantly that letter appeared to have been written and signed by named counsel for the Appellants and the annexed medical certificate, which was incomplete was as follows:-

"THE MEDICAL CENTRE P.O. Box / B. P. 704

Dr Kaiva Tulimanu DSM. DIP.TROP.MED PORT VILA, VANUATU

Dr Jean-Luc Bador DE Tel: [phone] Surgery/Cabinet

Dr Frank Spooner MBE D.S.M. D. OBST. (678) 25860/22925 After hours/Nuit

Fax: [phone]

The above gentleman had developed Hemorrhoids for 2 episodes for a duration of 1 yr interval.

The last episodes came in December 05 but it has not healed completely yet. This condition needed treatment and a long period of rest/ convalescent. Mr Timakata needed to be seen by a specialist Ano- Rectal surgeon and also for treatment as Vanuatu has no resident Ano- Rectal surgeon, Mr Timakata has to be seen and treated abroad.

Before travelling abroad for treatment, he should have lengthy period of rest and treatment locally. He would need 4-6..."

The medical condition was Haemorrhoids which would not appear to render someone incapable of drafting Court documents or even attending Court.

In any event, the Orders of 10 February 2006 were made by this Court primarily because the Appellants had taken no steps to comply with the Court Orders of 2 December 2005 and no explanation or communication from them or their legal counsel had been made to the Court as to any delay.

At the last Court of Appeal sessions in Vanuatu in November 2005, the Court advised the public and members of the profession that failure to comply with directions as to appeals in that Court would in future result in appeals being dismissed.

APPLICATION

On 13 February 2006, an urgent application to set aside the Supreme Court Order of 10 February 2006 was filed, applying for Orders as follows: -

"1. Supreme Court orders (Nos 1 to 6) dated 10th February 2006 be set aside;

2. The enforcement/execution of Magistrate Court judgment dated 19th September 2005 be stayed pending the appeal of the same in the Supreme Court;
   
3. The Supreme Court orders of 02nd December 2005 be re-issued;
   
4. Costs
   
5. Any other orders the Court deems appropriate."
   

The grounds for the application were as follows: -

"1. The Applicant has an interest in the land;

2. The Supreme Court orders of 10th February 2006 did not take into consideration Mr Timakata's letter to the Court dated 09th February 2006;
   
3. The applicant was never heard prior to the orders of 10th February 2006 and needs to be given an opportunity to be heard;
   
4. The Magistrate Court in its summary judgment dated 19th September 2005 erred in holding that the " crux of the matter is ownership";
   
5. The Magistrate Court without any trial erred in holding that " the defendant does not have a real prospect of defending this claim";
   
6. The grounds in the sworn statement of Mr. LAWSON SAMUEL dated 13th February 2006 on behalf of the applicants;
   
7. Any other grounds counsel may advance"
   

None of the sworn statement in support of the application, one of which was filed at the hearing, addressed the issue of why no action has been taken to file and serve an appeal book or file and serve submissions and in fact the sworn statement of counsel who appeared for the applicants, Mr. Arnold Kiel Loughman, indicated in paragraph 3 that he understood that the directions orders were not complied with and he was not in a position to comment as to why there was known (sic) compliance of the Supreme Court direction orders.

The other contents of the sworn statements were largely directed at the factual issues of the dispute.

DECISION

I indicated that the urgent application would be declined.

REASONS

Nothing new was raised in the urgent application concerning the Appellants' failure to comply with the orders made by the Court on 2 December 2005.

The orders made on 10 February 2006 were made primarily on the basis that the orders of 2 December 2005 had simply been ignored by the Appellants. Whether or not Mr. Timakata or any other lawyer from his practice had attended the Court on 10 February 2006 the result would have been the same. There was a blatant disregard of the orders of the Court in relation to the appeal. Such disregard of Court orders cannot be tolerated. The matter must be looked at not only from the perspective of the Appellants but also from the perspective of the Respondent who had done all he needed to do in relation to the appeal.

The Appellants had characterized their approach to the claim by the Respondent in the Magistrates' Court and in their own appeal to the Supreme Court by non-compliance with orders and non-attendance at Court. They are simply the authors of their own misfortune.

If they are dissatisfied with the service they received from their lawyers, they have their common law rights against that lawyer but the Respondent ought not to be prejudicial by the inaction and non appearance of the Appellants and/or their counsel.

Having heard submissions on behalf of the applicants to the urgent application, I could see no proper reason to set aside the orders which had been made on 10 February 2006 nor to stay the enforcement/execution of the Magistrates' Court judgment of 19 September 2005 nor to re-issue the orders that had been made 2 December 2005.

For those reason the application was declined.

I also awarded costs of VT7,500 to the Respondent to the application, Mr. Dominique Govan, against the Applicants to be paid on or before 3pm on 17 March 2006.

Dated at Port Vila on 17 February 2006

BY THE COURT

P. I. TRESTON
Judge.