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Stephen v Government of Vanuatu [2005] VUSC 81; CC 041 2003 (16 June 2005)

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

Civil Case No. 41 of 2003

BETWEEN:

JOHNNY ALBERT STEPHEN
Claimant

AND:

GOVERNMENT OF VANUATU
First Defendant

AND:

POLICE COMMISSIONER
Second Defendant

Coram: Justice P I Treston

Mr. Nakou for the Claimant who also appeared in person
Ms. William-Reur for First and Second Defendants

Date of Hearing: 16 June 2005

JUDGMENT ON APPLICATION TO STRIKE OUT ACTION

FACTS

This is a long outstanding matter having been filed on 13 March 2003. The original claim was for VT5, 890, 033, 000 and consisted of damages for value of contracts, contracts, business name, suspension period, personal name, family rights, employer rights, husband and wife strained relationship.

The matter had a chequered history and various amended statements of claim were filed. Much of the claim was ultimately discontinued against the First and Second Defendants and another Defendant Frank Damasi when it transpired that many parts of the claim had already been dealt with in the Magistrates' Court in another action.

On 4 February 2005 the First and Second Defendants had filed an application that the proceeding be struck out and counsel for the First and Second Defendants sought to have that application heard when leave was been granted to the Claimant to file an amended statement of claim. Thereafter the Claimant had simply filed the already previously amended claim with many deletions which in fact did not take into account that the action against Mr. Damasi had been discontinued.

Orders were made at a conference on 20 May 2005 as follows: -

(1) "The First and Second Defendants must file and serve written submissions and copy authorities in support of their application to strike out the claim filed on 24 February 2005 by 3pm on 1 June 2005.

(2) The Claimant must file and serve written submission and copy authorities in response by 3pm on 15 June 2005.

(3) The application to strike out will be heard at 9am on 16 June 2005."

Submissions for the First and Second Defendants together with copy authorities were filed and served on 3 June 2005. Although that was some two days late little rests upon that.

The Claimant did not file and serve written submissions in response as required by 3pm on 15 June 2005 nor were they filed at all and when the application came on for hearing at 9am on 16 June 2005, counsel for the Claimant sought an adjournment for one or two weeks so that he could obtain further instructions from his client who, he submitted, may not wish to press on with the matter.

Counsel for the Defendants opposed any further adjournment on the basis that there had been almost one month since the orders were made in relation to the hearing on 16 June 2005 and the whole matter had dragged on for too long.

I indicated to counsel that I would not grant a further adjournment and I declined the application and I allowed counsel for the Claimant five minutes to obtain further instructions from his client.

When the Court reconvened, Mr. Nakou for the Claimant indicated that he did not have instructions from his client and could not get instructions. Mr. Stephens entered the Court, uplifted his belongings and, despite being addressed directly by the Court, did not respond and left the precincts of the Court house.

It was clear that the actions of the Claimant indicated that he did not wish to pursue the matter and in addition my perusal of the submissions on behalf of First and Second Defendants left me with the view that the application had merit.

As the application was not opposed, I made the following orders: -

1. The claim is struck out.
   
2. The Claimant must pay costs to the First and Second Defendants on a standard basis as agreed or as determined by the Court.
   
3. A conference to determine costs is set for 8am on 20 July 2005.
   

Dated AT PORT VILA, this 16^th day of June 2005

BY THE COURT

P. I. TRESTON
Judge