Freddy v Kenneth [2014] VUSC 192; CIvil Appeal Case 11 of 2013 (23 April 2014)

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

Civil Appeal Case No. 11 /2013

BETWEEN:

CHARLEY FREDDY
Appellant

AND:

HAROLD KENNETH
Respondent

Hearing: 23 April 2014
Judgment: 23 April 2014

Before: Justice Stephen Harrop
Appearances: Justin Ngwele for Appellant
Saling Stephens for the Respondent

ORAL JUDGMENT ALLOWING APPEAL

1. This is an appeal by Mr Freddy against a Magistrate's decision on 8 November 2013 to dismiss his claim. At the outset of today's conference the parties agreed that it was appropriate that the appeal be allowed and the matter remitted to the Magistrate's Court for rehearing. I agree and order accordingly.
   
2. It is appropriate that I record in outline why I agree with the view of counsel.
   
3. This claim was lodged on 8 May 2013 and after a default judgment had been entered in favour of the claimant but then set aside there was a conference before the learned Magistrate on 22 October 2013 at which Mr Ngwele and Mr Stephens were present. The Magistrate was satisfied that the claimant needed extra time to file evidence in reply and the defendant was also given a further 7 days to file any further pleadings, although I infer that ought to have been a reference to any further evidence.
   
4. The matter was adjourned to 8 November 2013 and in that short period of time both parties did file further evidence. Mr Freddy filed a sworn statement on 28 October 2013 and Mr Kenneth filed a further statement on 7 November 2013.
   
5. On 8 November 2013, Mr Ngwele did not appear apparently because he had a hearing before Justice Fatiaki in the Supreme Court at the same time. Mr Stephens did appear and whether or not he made any sort of application, the Magistrate decided to dismiss the claim. She stated: "Having heard the defence counsel today and having considered further sworn statements of the claimant and further sworn statement of the defendant, the Court is satisfied that there is no prospect of succeeding this claim (sic) as the claimant has committed fundamental breaches of the written agreement of the parties to make monthly payments of Vt 90,000 per month, thus a ground of termination of contract. Accordingly the Court dismisses the matter..."
   
6. I note in passing that the dismissal order is said to be dated the 8th day of November 2012 but obviously that was meant to be 2013.
   
7. On behalf of the appellant Mr Ngwele apologised for not attending the conference and immediately appealed. He expressed concern that Mr Stephens may have "ambushed" his client in the absence of Mr Ngwele.
   
8. The first thing that needs to be said is that, regrettably as is often the case, counsel in Port Vila do not turn up to conferencers and hearings on each and every occasion when they are required by the Court to do so. Far too often in my short experience in Vanuatu have I seen examples of this. Typically there is no apology nor any effort to arrange for alternative counsel to appear as should always be the case where there are good reasons for an inability to appear. This case is a good example of what can happen if that professional responsibility is not observed.
   
9. That said however, this is a case where there is extensive evidence on the file on both sides and it is clearly strongly contested. I am not purporting to make any assessment of the merits of the claim or of the defence but it is on the grounds of natural justice that I consider the appeal must be allowed.
   
10. The conference scheduled for 8 November 2013 was said to be a pre-trial conference, so Mr Ngwele had no idea that there would be any application to dismiss the case or indeed any assessment by the learned Magistrate of the prospects of success of either the claimant or the defendant. Effectively what happened is that the Magistrate summarily dismissed the claim based on her own assessment of the sworn statements without giving counsel for the appellant notice that that was being considered or, obviously, an opportunity to argue that that should not happen. In these circumstances, natural justice requires that the appeal be allowed and that there be a full and fair opportunity for this case to be determined on its merits in the Magistrate's Court.
    
11. Mr Ngwele submitted it was appropriate that I should direct that a different Magistrate hear the case on its return to the Magistrate Court. First, I am not sure that I have any power to so direct. The option I have under rule 16.32 is simply to refer part or all of the proceeding back to the Magistrate's Court for rehearing. But even if I have power to direct that another Magistrate hear the case, I decline to exercise it.
    
12. In general terms a judicial officer, whether Magistrate or Judge, should be able to deal with a matter again after a successful appeal against a decision they made earlier in the case.. Judicial officers ought not to, and generally I believe do not, take personally successful appeal decisions. They ought to be able, without difficulty or any reason for loss of confidence by either party, to try a case fairly in those circumstances. There may of course be exceptions such as where a Judge has made strong adverse findings of credibility against a party earlier in the case, or indeed in another case altogether.
    
13. That said, the appearance of justice is obviously important and from Mr Freddy's perspective if the same Magistrate hears the case and ultimately decides to dismiss his claim on the basis that he has committed fundamental breaches of the written agreement to make the monthly payments thereby justifying termination of the contract by the Mr Kenneth, he may, however wrongly in fact, come away with the perception that the Magistrate has not applied her mind fairly and independently to the issues . He may feel that she has not properly considered the submissions made by Mr Ngwele but rather simply adhered to the view she adopted when dismissing the claim on 8 November 2013.
    
14. For that reason I leave it to the Chief Magistrate to determine which Magistrate should deal with this matter on its return to the Magistrate's Court.
    
15. There will be no order for costs.
    

BY THE COURT