Berry v Soalo [2007] VUSC 10; Civil Case 71 of 2000 (12 March 2007)

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

Civil Case No 71 of 2000

BETWEEN:

NOEL BERRY
Claimant

AND:

ALICK SOALO
Defendant

Coram: Justice C.N. Tuohy

Dates of Hearing: 12 March 2007
Date of Decision: 12 March 2007

Council: Mr. Toa for Claimant
Mr. Kilu for Defendant

ORAL JUDGMENT

I have heard in Chambers today argument in relation to a four fold application filed by Mr. Soalo, the Defendant in this proceeding. The application is headed "To suspend enforcement proceeding, to stay execution of judgment, to invoke the Court’s inherent powers and to obtain leave to appeal out of time". In effect it is the latter two of those which are the important applications because whether the judgment is enforced or suspended or execution stayed depends on what the Court decides in relation to the last two applications.

The application to invoke inherent powers is in effect an application to hear again the application decided by Justice Treston on 1 August 2006, that is, an application for a re-hearing of the trial to assess the amount of damages which took place on1 February 2006.

The last application is an alternative to that one which is for leave to appeal out time against Justice Treston’s decision of 1 August 2006 in which he declined to re-hear the trial of 1 February 2006.

I have decided to refuse the first of those applications but to grant the second of them. I will give full reasons in writing as soon as I have the opportunity. I am giving these reasons orally to the parties now so that they will have some understanding of the decision today. I am also giving it orally because granting leave to appeal will require very quick action on Mr. Soalo’s part to get a case ready for the Court of Appeal session starting on 26 March 2007.

Returning to the first application to invoke the Court inherent power, I cannot escape the conclusion that Mr. Kilu’s argument here really is asking the Supreme Court to hear an appeal against a decision of the Supreme Court. The case he relied upon, Fujitsu (NZ) Limited v. International Business Solutions Limited, CAC 07 of 1998, his authority for the proposition that a Court has the power to order a rehearing and set aside a judgment given after trial in the absence of one party. It is authority that Justice Treston had the jurisdiction on 1 August 2006 to reach the opposite decision to the one which he made. However, it is not authority that I can re-hear the argument that Justice Treston dealt with on 1 August and come to different conclusion to him on the exactly the same facts. But this is what Mr. Kilu is asking me to do. There is no authority for it in the Rules that I have been referred to and no authority in precedent for that to be done, and it seems to breach the basic principle that the only appeal against a decision of a Court is to a higher Court, not to another person sitting in the same Court. So I refuse that application.

However, the second application is an application for leave to appeal Justice Treston’s decision of 1 August 2006 out of time. In my view there is a right to appeal that decision given under the Court of Appeal Rules 1973. It was an effect a final decision in the sense that it brought to a conclusion the proceeding in the Supreme Court.

The time for filing given by the Court of Appeal Rules 1973 is 30 days. Under Rules 4 and 9, there is provision for this Court, indeed the Court of Appeal itself, to enlarge that time. The time for filing an appeal as of right expired on or about 31 August. Mr. Kilu has said that the judgement of 1 August took some time to get to Mr. Soalo because of the place where he lives which is in a village behind the Airport at Bauerfield. I am not impressed with that. It is not difficult for messages to be given to people living in places like that within a matter of hours at most. I feel confident that Mr. Soalo learnt about the decision of 1 August within hours or a short time from the time it was delivered. Mr. Soalo appeared at the Enforcement Conference on 11 September which was my first contact with the case. That was only 11 or 12 days after the time for filing an appeal had expired.

However, Mr. Soalo appeared on that occasion without the benefit of counsel and I spent some time explaining to him that the process was really completed at that stage, as it was. On 13 October, which was the next conference, Mr. Kilu did appear for Mr. Soalo. Mr. Kilu then indicated that he wished to apply for suspension of enforcement of the judgment and that he intended to apply to the Court to review Justice Treston’s decision. At that time I queried the jurisdiction for the Court to review its own decision. As I have just decided, I have found that the Court does not have the power to review its own decision or, to put in another way, to sit on appeal on the decision of another Judge of this Court. I suggested then to Mr. Kilu that, if he had any remedy, it was an appeal to Court of Appeal against the decision of 1 August and pointed out to him that that itself was out of time. Finally an application for leave to appeal out of time was not filed until 28 November which is really unacceptable given the great concern that Mr. Soalo has in this case that the original judgment is unfair to him and has the potential to effectively destroy the foundation of his family’s lives by taking away from him his customary land. That is the position that he is presenting to the Court. In those circumstances it is very surprising that there was delay in filing an appeal against Justice Treston’s decision of 1 August and further delay after the Court had made it clear that this was remedy which should be considered.

Nevertheless, I intend to grant leave, as I mentioned already, for the appeal to be filed out of time to the Court of Appeal. The reason for that is because I consider that in the interests of justice, Mr. Soalo should be permitted to fully argue before the highest Court in the land whether or not he can have another chance to dispute the amount of damages in this case, despite his non-appearance at the original trial when that was done in 2001 and the non-appearance the second time in February 2006. Why I believe it is in the interests of justice is because of a number of reasons: first, the amount involved here is a very large sum and the effect of the judgment is incredibly important to both parties. The judgment certainly does have the potential for Mr. Soalo to lose, not his customary land, but the leasehold interest that he has in his customary land. Secondly, It seems to me that the fault for non-appearance on 1 February may well not have been Mr. Soalo’s personally, but his legal advisor’s. Thirdly, I have noted that in the judgment of 1 February 2006, Justice Treston did not seem to bring to bear his own mind and asses quantum on the basis of all the evidence that has been put before the Court between 2001 and 2006. Rather he simply reinstated the judgement of Justice Marum. So that I am not sure whether in fact a judicial mind has been directed towards actually fixing the amount of damages in this case based on whole updated evidence before the Court. Rather its seems to me that Justice Treston simply reinstated the judgment of Justice Marum. I think there is a difference between simply reinstating the whole judgment and assessing the matter anew and coming to a decision. I am not sure whether Justice Treston did come to his own decision of 1 February 2006 as opposed to simply reinstating the original judgment because there was no one there on behalf of Mr. Soalo. So I have a concern that Mr. Soalo may possibly suffer some injustice if he is not given his final chance to attempt to convince the highest Court in the land that he should be allowed to have a further trial about the amount of damages.

Now I have given an early hearing to this present application and make this decision orally because I am well aware that a Court of Appeal session is coming in the next two or three weeks. My intention is that the appeal against Justice Treston’s decision of 1 August will be heard in this session. I do not intend at this stage to stay execution of the original judgment or suspend enforcement action. The reason is because, if Mr. Soalo fails to prosecute the appeal which I grant him leave to bring out of time quickly, diligently and expeditiously and fails to get it into this session of the Court of Appeal, he may find that the original judgment will be enforced pending his appeal anyway. So Mr. Soalo and his advisers will be required to file an appeal book by the end of this week. That should not be difficult. The appeal is only against the 1 February decision. The appeal does not ask the Court of Appeal to decide the quantum of damages. All the appeal is about is whether Judge Treston’s decision of 1 August should stand or be reversed. All the material required is already on file. No sworn statements have to be prepared. All that is necessary is the notice of appeal to be filed, because it still has not been, along with a copy of the order I have just made granting leave for it to be filed out of time together with the judgment of 1 August which the appeal is against, together with the sworn statements or other material necessary to argue an appeal against the judgment of 1 August 2006. All that needs to be put in an appeal book and filed by Friday. I repeat if that is not done in time, if the appeal is not done in the next session, it is likely that the Court will not stay the judgment pending a hearing of the appeal sometime in the never-never because the basic law says a decision stands unless and until overturned by the Court of Appeal and the basic law says a party that has a judgment is entitled to the fruit of the judgment even if an appeal is pending.

ADDENDUM: Having reviewed this transcript of my oral judgement I see no reason to add any further written reasons.

Dated AT PORT VILA on 26 March 2007

BY THE COURT

C.N.TUOHY
Judge