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

Civil Case No.156 of 2005

BETWEEN:

JUDITH MELSUL
Claimant

AND:

THE PUBLIC SERVICE COMMISSION
Defendant

Coram: Justice C. N. Tuohy

Mr. Sugden for Claimant
Mr. Botleng for Defendant (Witness Mrs. Abel, Director General of Health present)

Chamber hearing: 26 October 2006
Date of Decision: 26 October 2006

ORAL RULING

1.	This is an application by the claimant pursuant to Rule 18.11 of the Civil Procedure Rules No. 49 of 2002 that the defendant’s defence be struck out and judgment be entered for the claimant as a result of the breach by the defendants of procedural orders on a number of occasions.

2.	The particulars of the breaches are set out in the application and have been confirmed by sworn statement. There are ten separate breaches of Court orders spanning the period from 6 February 2006 to 16 August 2006. On two occasions, the defendants failed to attend conferences either personally or by counsel. On three occasions the defendants failed to file and serve sworn statements as ordered by the Court. The defendants have failed to comply with two separate orders to pay wasted costs of VT5,000. On three occasions the defendants have failed to make disclosure within the time required by the Court’s orders.

3.	This present application was filed on 31 August 2006 so the defendants have had several weeks knowing that they were facing an application to strike out the defence and for judgment based on their failures to comply with Court orders. Sadly that has not resulted in them complying with the Court orders except in one respect. They have now filed sworn statements by Mrs. Abel dated 16 October 2006 and by Secretary of the Public Service Commission Mr. Mark Bebe dated 25 October 2006, that is yesterday. However, they have continued to fail to give disclosure despite three Court orders directing them to do so and they continue to fail to pay or to comply with the two separate Court orders to pay VT5,000 to the claimant for wasted costs.

4.	Although Mr. Botleng valiantly attempted defend the defendants in relation to their failure to comply, he was unable to provide any adequate excuse for such failure. As far as the disclosure is concerned, he advised that the Secretary of the Public Service Commission had told him that he was very busy with the pressures of other work and had been overseas on occasions. That might be an explanation that would justify one extension. It is not an explanation or an adequate excuse for failing to comply with orders to make disclosure made on 16 March, 12 June and 16 August 2006. 

5.	I have to say that it is disappointing that a State body has persistently failed to comply with orders of the Supreme Court but sadly that is the situation here.

6.	As far as disclosure is concerned, I am satisfied from the submissions made by counsel that the defendant must have possession of a number of documents which are relevant to the proceeding and which ought to be before the Court or at least disclosed to the other party if justice is to be done in this case. In particular it seems clear that there ought to be minutes of the meeting of the Commission at which the claimant’s employment was terminated together with any other documentation which was given out before or at that meeting. There may also be other documentation relating to the claimant’s claim that her termination was the result of a difference between the Director General and the Director about lines of command. Until a sworn statement of disclosure is given it is not possible to know whether there are documents of this nature which are relevant and existing or whether there are any other relevant documents. That is why the order for disclosure was made and ought to be complied with.

7.	As for the wasted costs, that is a simple matter. The Court ordered they be paid consequent upon the defendant’s failure to comply with earlier orders thus costing the claimant legal fees which she ought not to have incurred. If the Court makes an order for costs against a party, that order should be complied with particularly by a State body.

8.	I am satisfied therefore that the defendants have failed to show cause why an order under Rule 18.11 should not be made against them.

9.	Under Rule 18.11 (4) there are number of options available to the Court. One of them is to make another order. I consider that the interest of substantial justice are best served by giving the defendants one final chance to comply with the Court’s orders. If they do not do so this time, their defence will be struck out and they would be debarred from defending the claim any further and it will proceed to trial as an undefended matter. A claimant is also entitled to have his or her claim dealt with fairly.

10.	The order of the Court pursuant to Rule 18.11 (4) (d) is as follows:

(i)	Unless the defendants by 3pm on 30 November 2006;

(a)	Pay the sum of VT15,000 (which includes VT5,000 wasted costs for today’s hearing) and;

(b)	File and serve a sworn statement being a list of documents pursuant to Part 8 of the Civil Procedure Rules.

The defendants’ defence shall be struck out and the defendants be barred from further defending the proceeding.

11.	 If this should happen the proceeding will continue as an undefended proceeding and will obviously require a formal proof hearing.

12.	There will be a further trial preparation conference on Monday 4 December 2006 at 8.30am at which time it will be clear whether or not the defendants have been debarred from defending this claim further.

Dated AT PORT VILA on 26 October 2006

BY THE COURT

C. N. TUOHY
Judge