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Mouton v Selb Pacific Ltd (Judgment 2) [1997] VUCA 7; Civil Appeal Case 02 of 1995 (17 October 1997)

class="MsoNormal" aal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> IN THE COURT OF APPEAL OF
THE LIC OF VANUATU

(Civil Jurisdiction)

CIVIL APPEAL CASE No. 2 OF 1995

BETWEEN:

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> DANIEL N
Appellant

AND:

SELB PACIFIC LIMITED0pt">Respondent

Coram: Hon. Justice Bruce Robertson
Justice John von Doussa
Hon. Justice Kalkot Mastasastaskelekele

Counsel: Mr Juris Ozols for the Appellant
r Roger de Robillard for SELB Pacific Ltd
Dr Greg Greg D. Woods QC and John Baxter Wright for Mr Desplat and Mr Pirel

JUDGMENT

In the judgment of this Court delivered on 1st November 1996 ourt made the following Ordg Orders:

a) The sums of VT834,615 holiday pay together with VT2,100,000ry in lieu of notices to beto be paid by the Respondent to the Appellant on or before the 1 December 1996 pending final judgement, when these amounts will be either credited or debited to the Appellant;

b) The immedrelease of the Peugeot 505 to Komeco Limited the owne owner of that vehicle;

c) The cancellation of injunction against the Appellant issued on the 13 Apr3 April 1995;

d) An Order for discovery by e Respondent of all documentation relevant to the proper quer quantification of the following contracts viz. The Clos d’Elluck; the Mitride House; the Santo Boat Shed; the Santo Road. Full discovery is to be made by the Respondent prior to the 1 December 1996;

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e) An Order that no applications shall be herein after instituted that are in anyway related to these proceedings without the leave of this Court;

f) These proceedings are journed to the next sitting of the of the Court of Appeal;

g) Costs are reserved.

ass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> At the sittings e Court of Appeal in October 1997 this matter again appeared in the list. This time iime it came before the Court of Appeal on a Notice of Motion issued by leave as required by paragraph (e) of the above Order. The Notice of Motion sought orders to commit Mr Lenisa, Mr Desplat and Mr Pirel, Director’s of DELB Pacific Limited, to Port-Vila Prison for contempt of Court in failing to comply with the Orders of the Court of Appeal made on 1 November 1996, and to commit Mr Francois to the same prison for contempt in aiding and abetting SELB Pacific Limited in disobeying those orders.

When atter was called before this Court Mr de Robillard first raised as a preliminary poin point whether it was lawful and appropriate for Justice Robertson to sit because of apparent bias which Mr de Robillard contended arose from the following matters:

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Mr de Robillard noted that a Constitutional Petition had been issued by Mr Francois, Mr & Mrs Lenisa and SELB Pacific Limited against counsel for the Appellant in this case, the three Judges of the Court of Appeal who have sat on the case in 1996, the Appellant himself and three other members of the legal profession in Vila. We were advised that this Petition was struck out at the hearing before Saksak J. on 1 October 1997. None of the Judges named as parties had ever been served. No relief was sought in the Petition against them. Justice Robertson indicated that in those circumstances the well known tests for apparent bias had no application. Despite Mr de Robillard’s advice that it was his intention to seek re-instatement of the Petition or appeal against its dismissal, such future possibility was not a current impediment. Mr de Robillard further submitted that Justice Robertson should not sit because in delivering the judgment of the Court of Appeal in Re de Robillard, No.1 of 1997, although the Court held that the committal to prison of Mr de Robillard could not be sustained the Court was not entirely supportive of the acts and activities of Mr de Robillard, and at times criticised them. Similarly, Mr de Robillard noted that in cases before the Court in this Session, at times he had been questioned about assertions which he had made in various of his cases. Particularly, when counsel make flamboyant and loose submissions it is appropriate, necessary and inevitable that the Court will require the submissions to be detailed and disciplined. Again these normal parts of the functioning of a Court would not lead to the threshold which would make it necessary for a Judge to avoid sitting.

It is clear that in the ensuing year that although the repayments required under the 1st November 1996 Order a) were eventually received by Mr Mouton and the car was released as required by Order b), the issues required by Order d) had not been properly attended to.

Pursuant to the leave granted in May 1997, the proceedings for contempt were issued on 4 June 1997. Before us there was no proof of service of the Notice of Motion on Mr Francois or Mr Lenisa. Neither appeared, nor were they represented before us. In those circumstances the proceedings outstanding against them were adjourned pending attention to procedural requirements.

p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Mr Ozols then applied to have the counterclaim of the Respondent struck out for non-compliance with the discovery Order. Although this is a perfectly proper application to make, in the circumstances where everybody has taken procedural demands to an extreme position we were satisfied that it was inappropriate for the Court to entertain such an application on an oral basis made without notice even although the respondent company was represented before the Court by Mr de Robillard. We should note that there has been some change in the shareholding and directorship of the company and apparently the rights and responsibilities in respect of this litigation have remained with the former Directors who under a contractual arrangement are able to use the name of the company for the purpose of this litigation.

The Court regrets further delay, but it is of the parties’ own making. We repeated what was said by the Court of Appeal 12 months ago that this old dispute needs to be resolved. It has become a litigation battlefield with little focus on finding a solution. Everybody involved should now be willing and eager to involve themselves in some dispute resolution process which makes commercial sense and brings matters to a conclusion. They are wasting their time and their resources in the current approach to the proceedings.

However, if parties will not or cannot be sensible about theiblems then the Courts are aare available. Although there can be no question as to the intention of the Court of Appeal under Order d) of 1 November 1997 the behaviour in the ensuing period required that the Court amend that Order to specifically require discovery on oath by all persons who have had or now have control of relevant documents of all discoverable material. That must be complied with by 1 December 1997. And by way of clarification of Order d) the Court Ordered that compliance requires that discovery must be on oath by each of the former and present directors of the respondent company.

We should make it clear that if this Order, as amended, is not complied with, and an application is made to strike out the counterclaim on the basis of non compliance, then against the history of this matter it would only be in the most extraordinary circumstances that the relief would not be granted. The striking out of the counterclaim would mean that the Court would be in a position to conclude very quickly the other unresolved issues in Mr Mouton’s claim against SELB.

lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> The final issue was the application for committal for contempt against the other two Directors Mr Desplat and Mr Pirel. After discussions with counsel Mr Ozols sought and was granted leave to withdraw those proceedings.

An application was made for costs. We have concluded that it is not appropriate to make any order on the question of costs on that aspect case in isolation. Mr Ozols suggested there should be costs in his favour because of the failure to comply with the Order. Mr Woods submitted that there should be a costs Order in his client’s favour because committal to prison was never an appropriate means of enforcement. The parties acknowledged that the Court could decide that each party should bear their own costs, but we are satisfied that in the total circumstances of this case better justice will be done if the issue of costs in respect of that application is reserved and is a fact to be taken into account and assessed as part of the final resolution of all outstanding matters either by way of alternative dispute resolution, which we continue to encourage, or eventually in the Courts.

DATED AT PORT-VILA, this 17th DAY of OCTOBER 199an>

ON BEHALF OF THE COURT

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J. von DOUSSA J

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