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

Civil Case No.08 of 2006

BETWEEN:

INTER-PACIFIC INVESTMENTS LIMITED
Claimant

AND

CHRIS SULIS
First Defendant

AND

GOVERNMENT OF VANUATU
Second Defendant

Coram: Justice C. N. Tuohy

Dates of Hearing: 17 April 2007
Date of Decision: 23 April 2007

Council: Mr. James Tari for Claimant
Mr. Rosewarne for First Defendant
Mr. Frederic Loughman for Second Defendant

RESERVED JUDGMENT (No. 2)

Introduction 

1.	In my judgment dated 22 March 2007, I gave leave to the parties to file further submissions on the issue of whether this Court has the power of its own motion to non-suit the claimant, this permitting him to bring his proceeding again.

Submission

2.	Both counsel have filed written submissions which the Court has found helpful. 

3.	Mr. Tari submitted that the remedy of non-suit was available in British law at the Date of Independence and it therefore became part of the law of Vanuatu under Article 95 (3) of the Constitution. He submitted that it had not been expressly revoked by Parliament since and therefore remained part of the law, notwithstanding that it is not contained in the new Civil Procedure Rules No. 49 of 2002.

4.	He also submitted that the Court had the inherent power to order a non-suit, notwithstanding the absence of specific provision in the Civil Procedure Rules. He submitted that such jurisdiction arose from Article 49 (1) of the Constitution and s 28 (1) of the Judicial Services and Courts Act.

5.	Mr. Rosewarne submitted that the remedy of non-suit is not available in Vanuatu, neither at the option of the claimant nor on the Court’s own motion. He submitted that the remedy had been impliedly abolished in England prior to the beginning of the 20th century and in other jurisdictions where provisions for discontinuance had been introduced into the relevant civil procedure code. In support, he cited Fox –v- Star Newspapers [1900] AC 19 and the Tasmanian case of Allan –v- Hocking [2006] TA SSC 2.

6.	He argued that that was also the case in Vanuatu in that the Civil Procedure Rules No. 49 of 2002 have provision for discontinuance and no provision for non-suit.

7.	He also submitted that, even if it was available, this was not a case in which it should be applied given that the claimant had a full opportunity of presenting his case and that justice requires finality rather than giving him a second chance.

8.	Finally, he submitted that at common law, the remedy of non-suit was only available with the claimant’s consent and this is too late a stage for the claimant to be allowed to request it.

Discussion

9.	Originally in England, before the introduction of the 1883 Rules of the Supreme Court, there was a power at common law to claim a non-suit (or a plaintiff in equity to dismiss his bill at his own motion). In Fox –v- The Star Newspaper Company Limited [1900] A.C. 19, the House of Lords held that the introduction of the Rules, in particular the Rule relating to "Discontinuance" (Order 26), abolished and replaced the former system.

10.	At Independence, the Civil Procedure Rules in force in Vanuatu were the Western Pacific High Court (Civil Procedure) Rules 1964. These continued in force after Independence pursuant to Article 95 (2) of the Constitution as part of "the British…. Laws in force or applied in Vanuatu immediately before the Day of Independence".

11.	Order 28 of those Rules covered "Discontinuance". It was in a form similar to the corresponding Rule of the Supreme Court (U.K) (Order 26). It permitted a plaintiff to discontinue with leave of the Court before at or after the hearing or trial. The Court could impose terms as to costs and permit the bringing of a further action if it thought it just to do so.

12.	However as from 31 January 2003, these Rules were repealed and replaced by the current Civil Procedure Rules No. 49 of 2002. (sec R 18.16 and 18.17).

13.	The 2002 Rules introduced a substantially different regime as to discontinuance, contained in R 9.9. In particular, the claimant now has an absolute right to discontinue at any time, the Court no longer has a function in the process and a discontinued claim cannot be revived. The new R.9.9, unlike the preceding Order 28, contains no vestige of the old non-suit procedure.

14.	Accordingly, the non-suit at common law has been abolished and nothing remains of it in the current Civil Procedure Rules. The only possible source for its recognition is Article 49 (1) of the Constitution or s. 28 (1) of the Judicial Services and Courts Act.

15.	Article 49 is no assistance. It relates primarily to jurisdiction to hear claims. As to powers, these are limited to those conferred by the Constitution or by law. Even without Article 49, it is obvious that a Court can only exercise a power which is conferred on it by law.

16.	Section 28 (1) (b) confers on the Supreme Court "all jurisdiction that is necessary for the administration of justice in Vanuatu". I do not think this issue is a question of jurisdiction. It is a narrower issue of the existence of a procedural remedy in an area where there is an existing body of law. I consider that it would be wrong for the Court to try to utilise s. 28 (1) to create a procedural remedy which is no longer recognised in the law of civil procedure. If that is thought necessary, it should be done by an amendment to the Rules.

Conclusion

17.	Accordingly, with the help of counsel’s submissions and the authorities cited in them, I conclude that the remedy of non-suit is not available in Vanuatu. There will therefore be judgment for the defendants. Given that result and in view of the findings which the Court reached on the substantive issues, my clear preliminary view is that justice would be best served if costs lie where they fall. However, if any counsel seeks to persuade me otherwise, he is to file and serve submissions on costs within 14 days.

Dated AT PORT VILA on 23 April 2007

BY THE COURT

C.N. TUOHY
Judge