Tasale v Government of the Republic of Vanuatu [2009] VUSC 33; Civil Case 162 of 2008 (19 May 2009)

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

Civil Case No. 162 of 2008

BETWEEN:

DAVID JAMES TASALE
Claimant

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice N. R. DAWSON

Date of Decision: 19th May, 2009

Counsel: Claimant: Mr. D. Yawha
Defendant: Mr. I. Kalsakau

DECISION

1. The defendant applied to strike out the claimant’s Supreme Court Claim on 25th November 2008. It was agreed by counsel that they would each file their submissions with the Court and the Court would issue its decision sometime after 20th April, 2009. Both parties have filed their submissions and this decision issues accordingly.
   
2. The Claimant in its Supreme Court Claim alleges that Police Officers went to Nguna Island and arrested the complainant along with some other boys, and detained him at the Port Vila Police Station for almost 24 hours without lawful justification. The claim alleges that the claimant had his fundamental rights of freedom of movement and liberty pursuant to Article 5 (1) (b) and (d) of the Constitution infringed.
   
3. The Defendant submits that the alleged breaches of Articles 5 (1)(b) and (d) of the Constitution is in substance a constitutional application and pursuant to Article 6 of the Constitution, anyone who considers that any of the rights guaranteed to them have been infringed may apply to the Supreme Court pursuant to Article 6 of the Constitution to enforce these rights. It also submits that Rule 2.2 of the Constitutional Procedural Rules 2003 require that a proceeding under Article 6 must be made by way of the Constitutional Application.
   
4. The Claimant in his submissions says that the Claim is not a Constitutional Application but a claim under the tort of negligence. The claimant submits that if the claim is not satisfactorily pleaded to the tort of negligence then the Court should make a direction for the claim to be amended to enable the particulars of negligence to be more specifically set out.
   
5. "The Law of Torts" ninth edition on John G. Fleming, at page 117 says "Negligence is conduct falling below the standard demanded for the protection of others against unreasonable risk of harm. This standard of conduct is ordinarily measured by what the reasonable person of ordinary prudence would do in the circumstances". In this case the claimant is bringing an action against the defendant based upon the deliberate actions of police officers. The actions of the police officers as pleaded do not fall within the definition of negligence. The claim is quite clearly based upon alleged breach of fundamental rights guaranteed to the claimant under the Constitution. Rule 2.2 of the Constitutional Procedure Rules 2003, makes it abundantly clear that any such proceeding pursuant to Article 6 must be by way of a Constitutional Application.
   
6. The Civil Procedure Rules state:
   

"4.11 (1) A party may amend a statement of the case to:

(a) better identify the issues between the parties; or

(b) correct a mistake or defect; or

(c) provide better facts about each issue."

In this case the Supreme Court Claim is fundamentally flawed as it is a claim in negligence when claim should be a Constitutional Application. The claim cannot be corrected by way of amendment and no such direction will be given by this Court.

7. The claimants Supreme Court Claim is struck out. Costs are awarded against the Claimant in favour of the defendant at an amount to be agreed upon by the parties failing such agreement then to be fixed by this Court.
   

Dated at Port Vila, this 19th day of May, 2009

BY THE COURT

N. R. DAWSON
Judge