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Maltape v Aki [2007] VUCA 5; Civil Appeal Case 33 of 2006 (4 April 2007)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No. 33 of 2006

IN THE MATTER OF:

An Appeal from the Supreme Court of the Republic of Vanuatu

BETWEEN:

SHADRACK MALTAPE
Appellant

AND:

ANDRE AKI
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice Hamlison Bulu
Justice Christopher Tuohy
Justice John Mansfield

Counsel: Mr Willie Daniel for Appellant
Mr Saling Stephens for Respondent

Date of Hearing: 3 April 2007
Date of Judgment: 4 April 2007

JUDGMENT

Introduction

This is an appeal against the judgment of Justice O. Saksak dated 13 September 2006 (the Primary Judge) when he entered judgment against the Appellant in the amount of VT1,010,000, and struck out the defence and counterclaim of the Appellant.

The primary judge refused the application of the Appellant to have the matter adjourned to another date when the Appellant and his counsel would be available for the trial. He accepted the submissions of the Respondent that the matter has been delayed for far too long and this had been due largely to the non-attendance of the Appellant at previous hearings. Secondly, that he has failed to pay the trial fee of VT15.000 as was directed on 2 May 2006.

The Judgment is dated 13 September 2006 but Counsel agree that the proper date of the judgment is 14 September 2006.

The issue arising in this appeal is whether the Court should have granted an adjournment.

A chronology of events is set out below:

On 14 September 2006, when neither the Appellant nor his Counsel turned up for hearing, the Court entered judgment against the Appellant and struck out the defence and counter-claim of the Appellant.

The complaint by the Appellant is that the learned judge erred in law and in fact:

(a) in rejecting their request for adjournment in their letter of 13 September 2006 on the basis that Counsel could not get on a flight to Santo for the trial.

(b) in holding that the matter had been delayed for too long by the defendant’s failure to attend previous hearings to form the basis for granting judgment by default.

(c) in holding that the basis for granting default judgment was the non-payment of the trial fee of VT15,000.

(d) in holding that the Appellant’s defence and counter-claim are unfounded and cannot by substantiated and must be struck out.

(e) in entering judgment in favour of the Claimant on his evidence read and accepted by the Court.

Mr Stephens in reply contended on behalf of the Respondent:

• That the Appellant has been found guilty of not complying with court orders in the past.
  
• That the Appellants explanation of not being able to confirm a ticket on 13 September 2006 is questionable. No evidence had been adduced to show that they did purchase air tickets, confirmed their travel, but for other grounds could not board the plane.
  
• That the Appellant is a person who always sleeps on his right and should not be given a further chance. To give him another chance be seen by others as not doing justice to the case.
  
• Asked that the appeal be dismissed with costs.
  

That the learned Trial Judge erred in not granting an adjournment as requested by the Appellant through his Counsel in the letter dated 13 September 2006. Clearly the letter was drawn to the attention of the Court. The Appellant had asked the Court for the adjournment on the basis that he "is unable to secure a seat up to Santo today as the plane was fully booked." We do not agree with the reasoning of the Trial Judge that "the matter had been delayed for too long and this has been largely due to the defendants failure to attend previous hearings" as good cause to refuse the Application for adjournment on this occasion.

The request for adjournment was for a period of approximately 7 days. Another date could have been easily managed then or soon thereafter. Costs against the Appellant would have been the appropriate remedy then, but not striking out of the defence and counter claim and then entering default judgment against the Appellant.

For those reasons, the first and second grounds must succeed.

Rule 4.12(3) gives a discretion to the judge to do a number of things when a party fails to pay the trial fee. If a party fails to pay his or her trial fee by 14 days before trial date the judge may –

• order that the party is not to participate in the trial; or
• make any other appropriate order.
  

The circumstances of each particular case must be considered on its merits to determine what would be the proper order to make under that rule.

In this case, security for costs had been paid by the Appellant into Court in the amount of VT110,000 on 10 November 2005. The security for costs goes towards showing the Appellant’s genuiness about the proceedings. Rule 4.12(3) imposes a discretion on the judge to "make any other appropriate order" in a given case. An appropriate order in the circumstances of this case could have included another order giving a new date for the payment of the trial fee.

The Trial Judge found that the "Claimant has responded to the Defendant’s defence to counter-claim on 27th April 2006. He filed further sworn statement on 16th June 2006 responding to the Defendants’ pleadings and sworn statement denying and counter-claim attacking his claims and assertions. The Defendant has not filed any further responses to these. It leads the Court to agree that the defences and counter-claim of the Defendants are unfounded and cannot be substantiated." With the greatest of respect we do not believe those are relevant grounds to be taken into account and on which the decision is based to strike out the Appellants’ defences and counter-claim. The proper process would require the Defendant to show cause why his defences and counter claim should be struck out and summary judgment entered against him. That would have to be done pursuant to rule 9.6 of the Civil Procedure Rules.

We are of the view that the Judgment of the Court below cannot stand. Even if there had been good grounds to refuse an adjournment, the Court did not have the powers to do what it did on 14 September 2006.

On the day of the trial, Mr Stephens, Counsel for the Defendant (Claimant in the matter below) applied to the Court for the grant of default judgment in favour of his client on the basis of non appearances in several conferences and "including non appearance by the Defendant nor his counsel today." Mr Stephens used the prescribed form for applications for default judgment under Part 9 of the Rules. He, however informed this Court that the real intention was that he was applying for relief under rule 18.11. That cannot be right as the procedures established under that rule have not been complied with. No application had been made –

(a) setting out the details of the failure to comply with the order; and

(b) have with it a sworn statement in support of the Application; and

(c) filed and served with the sworn statement, on the non-complying party at least 3 business days before the hearing date of the Application.

It is essential that if a party applies under the rules the party must state clearly what rule is being used and must follow the process required. The purpose is to allow the non complying party to be heard before the Court makes its decisions on the matter.

Rule12.9 vests discretions in the Court to do various things if a defendant fails to attend when the trial starts. The court –

(a) may adjourn the proceedings to a date it fixes; or

(b) may give judgment for the Claimant; or

(c) the Claimant, with the permission of the Court, may call evidence to establish that he or she is entitles to judgment against the defendant.

The rules are there to assist the Courts "deal with cases justly." Parties to a proceeding have an important role to play to assist the Court to act in accordance with the overriding objective. That means that Counsel, as Officers of the Court, have a duty to help the Court deal with cases justly. A Counsel must, when making an application comply with the rules and must identify which rule he or she is applying under. That did not happen in this case.

For those reasons given, the appeal must be allowed.

DATED at LUGANVILLE this 4th day of April 2007.

BY THE COURT

Hon. Vincent LUNABEK, Chief Justice
Hon. J. Bruce ROBERTSON
Hon. J. Hamlison BULU J
Hon. J. Christopher TOUHY
Hon. J. John MANSFIELD