IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
APPELLATE
JURISDICTION
CIVIL
APPEAL CASE No. 4 OF 2000
lass="MsoNormal" aal" align="center" style="text-align:center">BETWEEN:
THE
REPUBLIC OF VANUATU
Appellant
AND:
LUCIANA
PICCHI
Respondent
Coram: Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Counsel: Mr. Juris
Ozols for the Appellant
Messrs Patrick Finnigan & John Malcolm
Hearing date: 26 April
2001
Judgment date: 26 April 2001
ORAL
JUDGMENT
There
was listed before the Court today an appeal against a judgment delivered in
the Supreme Court sitting at Port-Vila
on 16 November 2000 in Civil Case 113
of 1997 in which an amended statement of defence was struck out. The Judge
recorded
that he re-entered judgment for the plaintiff and fixed a date for
the hearing of the assessment of damages.
The appeal was advanced on the following
grounds:
�(i) the learned Judge failed to take into account
that the Plaintiff contributed to the delay in this matter in that the
Plaintiff
obtained default judgment on 31 March 1998 but did not bring a
motion for hearing of assessment of damages until 7 March 2000;
(ii) the learned Judge failed to take account of the
default by the Plaintiff in the provision of the Affidavit of Documents,
in
that the Affidavit was not sworn by the Plaintiff but rather the partner of
the Plaintiff�s advocate;
(iii) the learned Judge erred in accepting the
Plaintiff�s assertion that the Defendant failed to comply with the time
order
for filing an amended defence when in fact the Registry of the Supreme
Court was closed during the last week of the time limited
for filing of an
amended defence;
(iv) in relation to the failure of the Defendant to
comply with the order to pay costs of the Plaintiff, the Honourable Court
can and should take and have taken judicial notice of the fact that the
Government of the Republic of Vanuatu can only
provide funds, whether
ordered by the Court or not, when they are the subject of an appropriation
under the Finance and
Economic Management Act 1998 and that no appropriation
had been made for the payment of the cost awarded by the learned Judge
following his setting aside of the default judgment;
(v) the learned Judge erred in taking into account the
fact that the Defendant had not provided any affidavits in that while
the
Court had given liberty to file affidavits it did not order the filing of
affidavits;
(vi) the learned Judge failed to consider that while
the Defendant�s Affidavit of Discovery had been provided after the time
order, the Affidavit of Discovery had in fact been made by the time of the
hearing of the application to strike out the
amended defence and both
parties had had the opportunity to inspect, and had in fact inspected, the
documents of each other;
(vii) the learned Judge failed to take into account the
public interest in the Government of the Republic of Vanuatu being in
a
position to defend a claim against the Government for US$4.5 million, which
sum is approximately 10% of the entire annual
appropriation of the
Government of the Republic of Vanuatu.�
It is perhaps fortunate that it is not necessary
for this Court to rule on the issues which are raised in support of the
appeal. Suffice to say that in respect of this matter which was commenced on
6th August 1997, there has been a lamentable failure on the part
of the Defendant to meet his duties and obligations to the Court
as the
Defendant in this proceedings.
The Court however is of the view that the Orders
made in November are fundamentally flawed and must be set aside.
Although
it is not apparent from the face of the document, the proceeding which was
filed in August 1997 is advanced on
the basis that it is a Constitutional
Petition. In due course we are going to grant leave for an amended
proceeding to
be filed by the Applicant. It should be in proper form and
entituled in such a way which makes it clear that it is a constitutional
petition. At the moment it really reads much more as a claim in tort, which
happens to get a petition of constitutionality
attached to it so as to avoid
the impediments found in other parts of the laws of Vanuatu.
Article
5 of the Constitution provides for certain enumerated fundamental rights and
freedoms of the individual expressed
as follows:
�5.(1)The Republic of Vanuatu recognises, that,
subject to any restrictions imposed by law on non-citizens, all persons are
entitled to the following fundamental rights and freedoms of the individual
without discrimination on the grounds of race,
place of origin, religious or
traditional beliefs, political opinions, language or sex but subject to
respect for the rights
and freedoms of others and to the legitimate public
interest in defence, safety, public order, welfare and health-
(a) life;
(b) liberty;
(c) security of the person;
(d) protection of the law;
(e) freedom from inhuman treatment and forced labour;
(f) freedom of conscience and worship;
(g) freedom of expression;
(h) freedom of assembly and association;
(i) freedom of movement;
(j) protection for the
privacy of the home and other property and from unjust deprivation of
property;
(k) equal treatment under
the law or administration action, except that no law shall be inconsistent
with this sub-paragraph
insofar as it makes provisions for the special
benefit, welfare, protection or advancement of females, children and young
persons, members of under-privileged groups or inhabitants of less developed
areas.
(2) Protection of the law shall include the following-
(a) everyone charged with
an offence shall have a fair hearing, within a reasonable time, by an
independent and impartial
court and be afforded a lawyer if it is a serious
offence;
(b) everyone is presumed innocent until a court
establishes his guilt according to law;
(c) everyone charged shall be informed promptly in a
language he understands of the offence with which he is being charged;
(d) if an accused does not understand the language to
be used in the proceedings he shall be provided with an interpreter
throughout the proceedings;
(e) a person shall not be tried in his absence without
his consent unless he makes it impossible for the court to proceed in
this
presence;
(f) no-one shall be convicted in respect of an act or
omission which did not constitute an offence known to written or custom
law
at the time it was committed;
(g) no-one shall be punished with a greater penalty
than that which exists at the time of the commission of the offence;
(h) no person who has been pardoned, or tried and
convicted or acquitted, shall be tried again for the same offence or any
other offence of which he could have been convicted at his trial.�
The
enforcement mechanism is contained in Article 6 (1) & (2) which must be
read in conjunction with the provisions
of Article 53(1) & (2). These
Articles read:
�6.(1) Anyone who considers that any of the rights
guaranteed to him by the Constitution has been, is being or is likely to be
infringed may, independently or any other possible legal remedy, apply to
the Supreme Court to enforce that right.
(2) The Supreme Court may make such orders, issue such
writs and give such directions, including the payment of compensation,
as it
considers appropriate to enforce right.�
�53.(1) Anyone who considers that a provision of the
Constitution has been infringed in relation to him may, without prejudice
to
any other legal remedy available to him, apply to the Supreme Court for
redress.
(2) The Supreme Court has jurisdiction to determine the
matter and to make such order as it considers appropriate to enforce
the
provisions of the Constitution.�
To
fully appreciate and understand the matter however, it is necessary to have
regard to Section 218 of the Criminal Procedure Code [CAP 136], the
provisions of which are:
�(1) Every application to the Supreme Court for the
exercise of its jurisdiction under Articles 6, 53(1), 53(2) and 54 of the
Constitution shall be by petition and shall be valid not matter how
informally made.
(2) The Supreme Court may on its own motion or upon
application being made therefor by any party interested in the petition
summon the petitioner before it to obtain any further information or
documents it may require;
(3) The petitioner shall, within 7 days of the filing
of his petition in the Supreme Court or within such longer period as the
Court may on application being made therefor order, cause a copy of the
petition together with copies of supporting documents
filed in relation to
such petition to be served on the party or on all those parties whose
actions are complained of;
(4) Any party who is served with a copy of the petition
in pursuance of subsection (3) may without prejudice to any other legal
remedy available to such party apply to the Supreme Court for an order
dismissing the petition on the ground that the petition
is without
foundation or vexatious or frivolous.
(5) Unless the Supreme Court shall be satisfied in the
first instance that the petition is without foundation or vexatious or
frivolous, it shall set the matter down for hearing and enquire into it. It
shall summon the party or parties whose actions
are complained of to attend
the hearing.
(6) On the day appointed
for hearing, the Supreme Court shall enquire into the matters raised by the
petition and after
hearing all parties concerned shall give its decision and
its order or directions (if any) thereon in open court.�
It
is cleom them the provisions of 218(6) that where a constitutional petition
is presented and heard, the Court (and it
is the Courne) has the
obligation first to determine whether there has been a breach and secondlyondly
if there has been
a breach to determine how the breach is to be remedied.
It is noted in Article 6(2) the orders which the
Court may make upon the breach being established to enforce the right
includes
the payment of compensation. That same approach is found in Article
53(2) which indicates the breadth of orders which the Court
can make to
remedy the breach of any provisions of the Constitution.
This case has been presented and run so far on
the basis that there were acts or omissions for which there should be
financial
compensation. A constitutional petition can never be as simple as
that. There must first be an inquiry by the Court and a determination
of
breach. Then it for the Court to determine the most appropriate way for that
breach to be remedied. It necessarily follows
that any notion of default
judgment is inappropriate and cannot stand.
Involved in such exercise necessarily is a
consideration of the interrelationship between the constitutional right and
the
rest on the legal framework in this Republic.
As was made clear by the
Privy Council in Maharaj v. A.G. of Trinidad and Tobago (No.2) [1978] UKPC 3; [1979]
AC 385 a constitutional right of this sort creates a novel and
different process unfamiliar to those schooled in the Westminster and
Common
Law tradition. But it clear that a Court can do so. However in making its
assessment of the appropriate remedy,
the Court will have to do so within
the total legal framework and not simply viewing this matter in complete
isolation.
Mr. Finnigan is particularly anxious that
further time will be lost because of this conclusion and the return of the
matter
to the Supreme Court. There have been at least two fixtures that have
been arranged for the hearing of the substantive matter.
It appears unlikely
that even the second of these can now be used.
We are not unsympathetic to that situation and
the Attorney General must accept a large measure of responsibility for the
delays which there have been. We were concerned when the matter was called
at the beginning of the week to learn that there
was a costs judgment which
was unsatisfied. We are advised it has been paid today. To do so is clearly
a primary obligation
on the Attorney General in every case.
It appears to us that the fastest progress will
be made if the parties cover in a deliberate and careful way all the
outstanding
issues which need attention.
Accordingly we direct first that an amended
pleading is to be filed and served within 14 days. The plaintiff has
indicated
that there is one additional evidential matter which she may wish
to include. This is also the opportunity to get the process
into its correct
form. We are aware that a petition may be in any form, but when presented by
lawyers, the Court expects
that it should be in a form which immediately
identifies the area of law which is being relied upon, namely that she is
seeking a remedy for a breach of her constitutional rights.
Secondly, the Attorney General is to provide a
full and complete statement of defence in respect of that matter within a
further 14 days identifying all issues which will require attention in the
hearing.
Thirdly, there is an outstanding issue with
regard to discovery. Within 21 days the plaintiff must indicate whether she
wishes to proceed with this application. If she wishes to withdraw the
application then it will require no further attention.
If it requires
attention it can be heard during a hearing which we will set for the week of
10 June.
Fourthly, there has been mentioned a question
about Mr. Ozols acting in this matter in light of some earlier peripheral
involvement. The matter as placed before us would not suggest that it would
be disenabling in and of itself. However the matter
needs to be flushed out
now rather than becoming a potential cause for delay at some subsequent
point.
There are very real issues which regard to the
meaning and effect of Section 218(5) and the provision for the Court
summonsing
parties whose action are complained of to attend the hearing.
This throws into focus substantial issues about
the hearing generally.
We have been advised that there could be
impediments to the plaintiff entering the jurisdiction. We are aware that
there
have been discussions as to the possibility that part of the hearing
be held outside of Vanuatu. We are not persuaded the jurisdiction
to do that
necessarily exists. It is a matter which can be adjudicated upon and
determined in the Supreme Court. There
are both legal and political issues
which cannot be ignored with regard to such a suggestion.
Similarly, there are issues about getting the
Court to summons some of the persons whose actions are complained of and how
they are to be summonsed to attend when they are no longer in Vanuatu.
The concern of this Court is that entire matter
is placed before the trial Judge in the week of 11th June with
sufficient time available then to deal with all pre-trial issues which are
outstanding. Clearly a fundamental
task for that week will be setting the
hearing date and making all necessary arrangements to ensure that it takes
place
without delay.
This case will involve novel questions about the
interrelationship between the constitutional provision which exists and the
substantive law as passed by Parliament. Although there is the clear rule
that where they conflict the Constitution will
prevail, the trial Judge will
be entitled to substantial assistance from both parties as to the
jurisprudence which necessarily
is to be applied in those circumstances to
maintain the integrity of each to the greatest extent possible.
There will be no order for costs in respect to
this appeal hearing.
We understand there are two outstanding costs
issues which require quantification and immediate payment once the
quantification
has occurred and which do not require our involvement.
DATED
at PORT-VILA, this 27th DAY of APRIL, 2001
BY THE COURT
V. LUNABEK CJ
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKIJ
