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Shing v Tapangararua [2007] VUSC 75; Civil Case 74 of 2007 (17 September 2007)

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

Civil Case No. 74 of 2007

BETWEEN:

DIRECTOR OF FINANCE,
Mr. Benjamin SHING
Claimant

AND:

MINISTER OF FINANCE,
Hon. Willie Jimmy TAPANGARARUA
Defendant

Coram: Justice H. Bulu

Counsels: Messrs. Dudley Aru and Frederick Gilu for the Applicant
Respondent in person

Date of Hearing: 11 September 2007

Date of Decision: 17 September 2007.

RESERVED JUDGMENT ON APPLICATION TO STRIKE OUT PROCEEDING

Introduction

1. Mr. Shing is employed by the Government of Vanuatu as its Director of Finance at the Department of Finance within the Ministry of Finance. On 19 May 2007 this Court granted certain restraining orders including an order restraining the Defendant, his servants, agents and assignees from purporting to terminate the employment of Mr. Shing from the Public Service Commission, pending the determination of the substantive claim. Order 7 required Mr. Shing to file his substantive claim within 14 days from 19 May 2007. Mr. Shing has failed to file the substantive claim pursuant to that order.
   

Application to strike out proceedings

2. Having failed to file the substantive claim within the prescribed 14 days, the Defendant on 12 July 2007 filed an Application pursuant to Rules 9.10 and 18.11 of the Civil Procedure Rules No. 49 of 2002 to have the proceedings struck out. Rule 9.10 states as follows:-
   

“(1) This rule applies if the Claimant does not:-

(a) ...
(b) comply with an order of the Court made during a proceeding.

(2) The Court may strike out a proceeding:-

(a) at a conference; or

(b) at a hearing;

(c) as set out in subrule (3); or

(d) without notice, if there has been no step taken in the proceedings for 6 months.

(3) If no steps have been taken in a proceeding for 3 months, the Court may:-

(a) give the Claimant notice to appear on the date in the notice to show cause why the proceeding should not be struck out;

(b) ....”

3. Rule 18.11 provides:-
   

(a) That a proceeding may be struck out if a party fails to comply with an order of the Court made in the proceeding.

(b) For the defaulter to show cause why an order should not be made against him or her.

4. The Application of the Defendant on 12 July 2007 was supported by a sworn statement of Frederick Gilu. The Application has the effect of causing the Claimant, Mr. Shing to show cause why the proceedings should not be struck out. The Court also issued directives to the Claimant to appear today to show cause why the proceedings should not be struck out.
   

Applicant’s case

5. The Applicant, Minister Willie Jimmy Tapangararua, through his counsels, submit that the Application to strike out the proceeding be granted because:-
   
   • (a) Order 7 dated 19 May 2007 clearly states that Mr. Shing must file his substantive claim within 14 days of that date, and he has failed to do so and continues to fail to file the claim up to today.
     
   • (b) Claimant knew of the orders of 19 May 2007. He knew that he only had 14 days from 19th May 2007 to file his substantive claim.
     
   • (c) Timakata is still the lawyer for the Claimant on record. He has not filed his Notice of Ceasing to act for the Claimant, Mr. Shing, pursuant to the Rules.
     

Respondent’s case

6. Mr. Shing appeared in person without his lawyer. He submitted that the proceeding should not be struck out because:-
   
   • (a) This morning is the first time he saw his lawyer since they filed his Application in May.
     
   • (b) He has tried phoning and emailing him but he could not catch him nor get him to respond.
     
   • (c) He has been to Indigène Lawyers several times without appointment to try and contact his lawyer but he could never catch him in office.
     
   • (d) He needs a lawyer to prepare and file his substantive claim. He is not a lawyer.
     
   • (e) The failure to file any substantive claim within time is due to his lawyer not acting within time prescribed.
     

Discussions

7. This Court on 19 May 2007 issued certain interim orders to maintain the status quo until the substantive claim is determined. The maintenance of the status quo is dependent upon order 7 being complied with and made that day which required Mr. Shing to file his substantive claim within 14 days. Mr. Shing has failed to comply with that order. There are no ambiguities at all about the terms of that order.
   
8. The only reason advanced by Mr. Shing for failing to comply with the Order is that it was his lawyer who failed to take the right action within the prescribed time. He failed to file the substantive claim.
   
9. Mr. Timakata did appear before the Court and advised the Court of his position and then left. That position is as follows:-
   
   • (a) He did brief Mr. Shing of the orders dated 19 May 2007 and advised him that they had to file the substantive claim within 14 days.
     
   • (b) At that same time the Defendant wanted matters to be resolved. The draft claim was prepared but not filed as he hoped a resolution would be reached. Some discussions took place about reconciliation between the Minister and Mr. Shing “long fasin blong yumi”. That still has not taken place.
     
   • (c) That he stopped acting for Mr. Shing about one month ago.
     
10. Mr. Timakata did not however, advice Mr. Shing that he had stopped acting for him until this morning prior to the commencement of this proceeding. I find that difficult to follow especially from a senior counsel. However, that is a separate matter and I leave it at that.
    
11. It would seem to me that the appropriate test in this case, is whether a reasonable person, on not being able to contact his lawyer, and knowing the time frame within which to file a substantive claim, and that time frame is about to run out or has run out and sits around and do nothing about complying with the Court order, his conduct is justifiable as the lawyer has his interests in his hands, and therefore the proceedings ought not to be struck out.
    
12. It begs the question, what has Mr. Shing done to comply with the order when he could not contact his lawyer and knew of the date line. He did concede that he knew about the 14 days period within which he must file his substantive claim. Mr. Shing has told the Court that all he did was tried to contact his lawyer.
    
13. Mr. Shing however:-
    
    • (a) did not take any step to advise the Court that he was having some difficulties complying with order 7 and would like sometime given to him for the purpose.
      
    • (b) did not advise the Court within 14 days nor at any other time thereafter that he was having some difficulties.
      
14. There is nothing on record that shows he made some communications with the clerk of this Court or the Chief Registrar to communicate his difficulties by phone or letter. Having failed to contact his lawyer, he simply disregarded order 7 of the orders dated 19 May 2007. That, in my view, is not an action of a reasonable person in a situation such as was facing him. The Supreme Court order gave him 14 days within which to put his case before the Court for proper adjudication. He is being threatened of losing his employment and the Court has given him that opportunity to tell the Court what his case is. A person properly concerned about complying with the terms of an order of the Supreme Court, faced with a situation such as that would, in my view, advise the Court directly of difficulties he was facing to comply with the order, seeking an extension of time to comply with the order. No such action was taken.
    
15. All that Mr. Shing gave to the Court was from the bar table. That is not evidence. He has filed no sworn statement at all to show why he failed to comply with Order 7 of 19 May 2007 within the time required.
    
16. As such, it is my view that the order sought in this Application is to be granted.
    

Orders

17. The orders of the Court are:-
    

(a) Civil Case No. 74 of 2007 is struck out;

(b) Claimant to pay the Defendant’s costs and to be taxed if not agreed.

DATED at Port Vila, this 17th day of September, 2007.

H. BULU
Judge.