Hapisai v Albert [2008] VUSC 3; Civil Case 107 of 2007 (28 February 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Appeal Jurisdiction)

Civil Case No. 107 of 2007

BETWEEN:

CHIEF EDWIN HAPISAI
Appellant

AND:

FAMILY ALBERT
Respondent

Coram: Justice Tuohy

Counsels: Mr. Saling for the Appellant
Mrs. Nari for Respondent

Date of Conference: 28th February 2008
Date of Decision: 28th February 2008

ORAL JUDGMENT

1. This is an appeal against a grant of summary judgment in favour of family Albert made by the Magistrate’s Court on the 28th May 2007. The appeal relates to both matters of process and the substantive issues. I have heard those counsel in relation to the process argument and what I have heard is sufficient for me to decide the appeal, so I have not embarked upon any argument as to whether the judgment is substantially correct or not.
   
2. What happened in this case was this. Family Albert’s counsel filed an application for summary judgment which followed Form 15 in the Rules except for one crucial omission. Form 15 of the Rules has a space under the heading "Application for Summary Judgment" for the following information: "Date of First Hearing" and then there is a gap for date of first hearing to be inserted by the Court when the application is filed, and underneath that in bold letters there are the words "You must attend Court on this date". That part of Form 15 was missed out when the application was drafted and filed and the omission was not picked up by the Court.
   
3. The reason why those words are in the form is because of the process set out for summary judgment in R9.6. R9.6 (3) says "An application for judgment must be (a) in form 15. This obviously was not in Form 15 or at least not in the full Form 15.
   
4. It then goes on in R9.6(4) to provide that the claimant must
   
   • (a) file the application and statement
     
   • (b) get a hearing date from the Court and ensure the date appears on the application and;
     
   • (c) serve a copy of the application and sworn statement on the defendant not less than 14 days before the hearing day
     

5. Then R9.5 goes on to provide that; The defendant:-

(a) may file sworn statement setting out the reasons why he has an arguable defence

(b) must serve the statement on the claimant at least 7 days before the hearing date

And then in R9.6 there is provision for a Claimant to file another sworn statement in reply.

6. The procedure set up by the Rules is that a hearing date must be put on the application by the Court when it is filed; that hearing date must be at least 14 days ahead because the defendant must be served with the application at least 14 days from the hearing date. The defendant then has a period up until 7 days before the hearing date to file any answering sworn statement and then the case can proceed on the hearing date.

7. As I have mentioned, there is no hearing date put on here so when the application was served the defendant was not told about the hearing date for the simple reason that none had been fixed. What then happened is that a little over 3 weeks after service (service took place on 26 April) a notice was issued by the Court which says "Notice of Hearing". It was dated 21st May and it said "Take notice that CC 13 of 2007 is listed before the Magistrate’s Court for mention on 28 May 2007 at 2:00 pm in the afternoon". That is not a notice that the summary judgment application would be heard on 28 May 2007 at 2:00 pm. Anyone served with that notice could not know that that was what was going to happen.

8. In any event, Mr. Stephens says that that notice was served on him only on 28 May itself in the morning when he attended the Magistrate’s Court on another matter. He then told the Clerk that he would not be able to appear because he was going to Santo. He did not appear at 2:00pm even though he knew that his case was for mention then and he did not arrange any other counsel to appear on his behalf.
   
9. Mrs. Nari did appear. She knew and the Magistrate knew that Mr. Stephens had been in Court that morning and they both knew that he knew at least that the case was being called at 2:00 pm. Mrs. Nari therefore sought summary judgment and the Magistrate granted it.
   
10. Later on the way back from Court at about 2:30 pm Mrs. Nari saw Mr. Stephens not at the airport but opposite the Market House. However what he did in the afternoon is not really the issue.
    
11. Mrs. Nari has argued that he did get the application more than 14 days before the hearing, actually, just over a month before; that he was given a notice that the case was for mention on the 28 May at 2:00 pm and therefore that, although there might have been an irregularity, in substance he was given notice and chose not to appear. I think the difficulty with that argument is two-fold. The first difficulty is that he was not given notice that the application for summary judgment would be heard at 2:00pm on the 28 May. The most he got was a notice that the case was for mention and he may well have decided that he could skip that appointment safely. In that respect what happened may be a lesson to him for the future.
    
12. The second problem with Mrs. Nari’s argument is that the notice itself was only dated 7 days prior to the hearing date of 28 May. Mr. Stephens says he actually only got it on the morning of the 28 May and the Court accepts that is quite likely. In any event whether he got it on the day it was issued or he got it on the 28 May, he did not get it 14 days or more before the 28 May and under the Rules relating to summary judgment he was entitled to be told of the summary judgment hearing at least 14 days before it took place. That is so that he can, if he wishes, file an answering sworn statement not less than 7 days before the hearing. He never got that opportunity in this case.
    
13. Mr. Stephens has made application for costs on the basis that counsel for the Respondent followed a process which was irregular in obtaining a summary judgment. While I consider that he has been successful on this appeal for the reasons I have given, I think that part of the responsibility for what happened falls on him. He deliberately did not turn up at 2:00pm on 28th May when he knew that this case was going to be called and he did not arrange for any other counsel to be there. If he had done so, I have no doubt, summary judgment would never have been granted and he would not have had to appeal it. So I think there is some fault on both sides here and in my view the interests of justice require that costs lie where they fall. Each party can pay their own costs in relation to this appeal.
    
14. The appeal is allowed and the proceeding sent back to the Magistrate’s Court for disposition.
    

Dated at Port Vila, this 28th day of February, 2008

BY THE COURT

C.N. TUOHY
Judge