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

Civil Case No. 36 of 2007

BETWEEN:

LEWIA KALTABANG
Claimant

AND:

DIRECTOR OF LANDS, LAND SURVEY AND LAND RECORDS DEPARTMENT
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Nakou for Claimant
Ms. Harders for Defendant

Date of Hearing: 12 March 2008
Date of Decision: 4 June 2008

RULING

1.	On 19 July 2007 the defendant applied for various orders including an order striking out the proceeding and an order under R.18.12 declaring the claimant a vexatious litigant.

2.	In my Ruling of 25 July 2007, I struck out the proceeding and noted that under R.18.12(3), the Court was required to refer matter to the Registrar for a report on the proceedings started by the person against whom the order is sought. That was not a straightforward task for the Registrar in view of the destruction by fire of all the Court’s records on 7 June 2007. However with the help of the State Law Office, he did supply a report to the Court.

3.	In accordance with R. 18.12(3)(b) the Claimant was summonsed to appear and show cause why she should not be declared a vexatious litigant. That hearing eventually took place on 12 March 2008. At the hearing I indicated to the parties the broad direction of the orders I would make but advised that I would provide a written ruling.

4.	The approach to be taken by the Court to an application of this nature is set out in R. 18.12 (5) which states:

"(5)        If the Supreme Court is satisfied that a person persistently and without reasonable cause has started vexatious proceedings or proceedings that disclose no reasonable cause of action, the court may declare the person to be a vexatious litigant."

5.	A declaration remains in force for the period stated in it which may not be longer than 2 years: R. 18.12 (6). The effect of a declaration is that the person named may not start a proceeding without leave of the Court: R. 18.12(7). A declaration may be limited to certain types of proceedings. The full power to prohibit the institution of proceedings without leave must import the lesser power to make a more limited order: see e.g. Attorney-General v. O’Neill [2007] NZHC 1526 where the Court made an order restricted to proceedings filed in a particular inferior tribunal.

6.	The 3 conditions precedent to the making of an order are:

a)	the claimant has started vexatious proceedings or proceedings that disclose no reasonable cause of action

b)	she has done so without reasonable cause

c)	she has done so persistently.

7.	The claimant has issued a number of proceedings, all relating to Etasrik customary land. Custom ownership of that land was established by a decision of the Island Court dated 3 October 2003 in Land Case No. 1 of 2001 which declared Sope Kalmatalu Family to be the custom owners. The Island Court judgment specifically found that the claimant had no right in the land. No appeal was brought against that judgment.

8.	Subsequently the claimant has sought unsuccessfully to challenge or avoid the effect of that decision in a number of proceedings Originally an application for judicial review of the Island Court decision was made in Civil Case 53 of 2004 in which the named claimant was Kalran Kalpoi. This was struck out by the Chief Justice on the basis that the wrong defendants were named. The claimant became a party to the appeal against the Chief Justice’s decision brought in Civil Appeal Case 26 of 2004. The Court of Appeal upheld the Chief Justice’s decision and in doing so pointed out that the appellants (including the claimant) could have appealed and did not, and that an application for judicial review did not function as an appeal.

9.	Then the claimant started Civil Case 137 of 2006 naming Kalran Loparu as defendant and Civil Case 169 of 2006 was started in which Ioan Kaltapang was claimant and the present claimant first defendant and Frank Kalpoi second defendant. All parties to both cases were in fact appellants in Civil Appeal Case 26 of 2004 or related. I am satisfied these cases did not involve genuine disputes between the named claimants and defendants but were a means of seeking to have the claimant registered as lessor of leases issued over Etasrik customary land in respect of which Family Sope Kalmatalu had been declared custom owners. I am satisfied that in real terms the claimant "started" Civil Case 169 of 2006 as well as Civil Case 137 of 2006. The claimant succeeded in obtaining consent orders to the effect that she should be registered as lessor but the present defendant declined to register them and the Court declined to order him to as he was never a party to the proceedings.

10.	Then the claimant filed this proceeding which was struck out by me on 25 July 2007 for the reasons given in my ruling of that date.

11.	Finally on 28 February 2008, the claimant filed an "Urgent Application pursuant to Rule 3.2(4)" seeking to become a party to Civil Case 59 of 2007 in which Claymore Limited was the claimant, the present defendant was first defendant, Sope Kalorib second defendant and Kalran Loparu, third defendant. I use the past tense because that proceeding had been completed by a judgment given on 12 December 2007 in which I ordered that the lessor named in certain leases over Etasrik land be rectified by substituting as lessor the representative of Family Sope Kalmatalu in order to give effect to the Island Court decision. The other orders sought by the claimant were an "amendment" to the order I made in my judgment of 12 December and an order restraining the present defendant from carrying out my order to rectify the register. Needless to say this application has progressed no further.

12.	I am satisfied that the claimant has started vexatious proceedings or proceedings which disclose no reasonable cause of action. There was no reasonable cause of action in the judicial review application, the striking out of which the claimant unsuccessfully appealed. The two "friendly" civil claims were an abuse and vexatious. The latest urgent application is both vexatious and without any reasonable foundation. There has been no reasonable cause for starting the latter 3 proceedings at least. They are simply devices to try to avoid the Island Court’s decision. The claimant has done this persistently.

13.	The power to make an order under R. 18.12 should not be exercised lightly. My assessment of the claimant is that she is a very genuine person. She is not motivated by ill-will or malice. She simply cannot or will not accept the finality of the Island Court decision. As a result, she has started all the above proceedings However, they put other people to trouble and expense in having to defend them. Those people are entitled to protection. In addition, these vexatious proceedings use up the very limited resources of the judicial system thus reducing the resources available to give to the many worthy and pressing litigants before the Court.

14.	I am satisfied that an order should be made but it should be limited to proceedings relating to Etasrik land. There is no suggestion that on unrelated issues the claimant would bring vexatious proceedings so there is no basis to restrict her general right to take issues to the Court for resolution.	

15.	The Court makes the following orders:-

1)	A declaration that the claimant Lewia Kaltabang is a vexatious litigant

2)	An order that the said Lewia Kaltabang may not within the period of 2 years from the date hereof start a civil proceeding relating in any way to Etasrik land without the leave of the Court.

16.	There will be no order for costs. In my view, they are not appropriate in an application of this nature. Costs are of course available in particular proceedings in which the claimant is a party.

Dated at Port Vila, this 4th day of June, 2008

BY THE COURT

C.N. TUOHY
Judge