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Vanuatu Teachers Union v Obed [2013] VUCA 22; Civil Appeal Case 19 of 2013 (26 July 2013)

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

CIVIL APPEAL CASE NO. 19 OF 2013

BETWEEN:

VANUATU TEACHERS UNION
Appellant

AND:

KALO OBED
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Oliver Saksak
Hon. Justice Daniel Fatiaki
Hon. Justice Raynor Asher
Hon. Justice Dudley Aru
Hon. Justice Mary Sey

Counsel: Mr. Colin Leo for the Appellant
Mr. Robert Sugden for the Respondent

Date of hearing: 22nd July 2013
Date of judgment: 26th July 2013

JUDGMENT

1. This is an application by the Appellant (VTU) for leave to appeal against the decision of Spear J. dated 9 June 2011 in which VTU's application to set aside the Default Judgment dated 31 March 2008 was struck out.

2. VTU has also applied for a stay of the Supreme Court's Enforcement Warrant (Money Order) dated 22 March 2013 for the sum of VT15,705,095.

3. Before deciding whether to grant or refuse leave to appeal, it is necessary to have regard to some of the history to this case.

Background

4. This was initially a Claim for damages arising out of an accident which took place on 25 November 2003 when Kalo Obed was struck by a motor vehicle driven by Charles Kalo (First Defendant) who at all material times was employed by VTU (Second Defendant) as its Secretary General. The Claim was filed on 22 November 2006 and served on VTU's President, Wilfred Leo, on 23 November 2006. The First Defendant was served on 24 November 2006.

5. No Defences were filed and on 4 July 2007 a Request for Default Judgment against both Defendants together with supporting documentation were filed. On 27 July 2007, Default Judgment was given against the First Defendant and refused against the Second Defendant.

6. An Amended Claim was filed on 31 August 2007 and served on the Second Defendant on 15 October 2007. On 6 February 2008 the Request for Default Judgment against the Second defendant was filed, no Defence having been received. At a Conference held on 31 March 2008, Tuohy J. entered Default Judgment against the Second Defendant but he did not give any real reasons for his decision.

7. The case came back before Tuohy J. on 5 June 2008 for the assessment of damages payable by the Defendants but there was no appearance by either Mr. Kalo or the VTU. In a Reserved Judgment delivered by Tuohy J. on 24 June 2008, damages were assessed against both Defendants in the sum of VT 13,910,200 together with costs fixed at VT425,089.

8. On 22 July 2008 Mr. Kiel Loughman filed Civil Appeal Case No. 18 of 2008 on behalf of Charles Kalo and VTU against the Reserved Judgment dated 24 June 2008

9. In the meantime there was a series of enforcement conferences in the Supreme Court. On 1 October 2008, Dawson J. made an Order that the Judgment amount and costs in the decision of Justice Tuohy of 24th June 2008 were to be paid into Court by the Defendants no later than the 30th October 2008 or Enforcement proceedings would continue.

10. On 23 October 2008, Mr. Loughman filed and served a Notice of ceasing to act for both Defendants. Mr. Timakata commenced to act for the First Defendant and Mr. Morrison for the VTU. On 26 November 2008, a further enforcement conference took place. It was attended only by Mr. Morrison for the Second Defendant and he was excused from further attendance as the Claimant's lawyer stated that the Claimant wished to first seek satisfaction of his Judgment against the First Defendant. The Claimant undertook that time did not run from that time for the purposes of any application to set aside the Default Judgment that the Second Defendant might seek to make.

11. Civil Appeal Case No. 18 of 2008 had been listed in the Court of Appeal for call over on 24 November 2008. However, Mr. Loughman did not appear nor had an appeal book being filed. The Court listed the matter for hearing at 9.00 a.m. on 26 November 2008 but there was no appearance of Mr. Loughman or of the Appellants. The Court directed that notice be given to the Appellants and adjourned the matter for hearing on 4 December 2008. When the matter was called on 4 December 2008 Mr. Malcolm appeared for the Appellant Charles Kalo and informed the Court that Mr. Kalo had withdrawn his appeal. The Court of Appeal stated in a Memorandum dated 5 December 2008 that it was provided with proof that the VTU had been fully informed of the proposed hearing. As it did not appear the Court struck out the appeal for want of prosecution.

12. In a letter dated 11 June 2010, Mr. Sugden wrote to Mr. Morrison notifying him that the Claimant would be seeking to enforce the judgment against the VTU and that time was again running for VTU's application to set aside the Default Judgment.

13. On 9 September 2010 a further enforcement conference occurred and Mr. Morrison said he would be filing an application to set aside. However, it was not until 1 November 2010 that the VTU filed an application to set aside the Default Judgment dated 31 March 2008.

14. In seeking leave to appeal the Appellant needs to show facts which indicate that in the event of a re-trial there would be a chance of success. What this Court has to consider is twofold:

(a) Whether there was any meritorious defence; and

(b) Whether VTU has shown any satisfactory explanation for its failure to appear.

15. The Respondent's case was that VTU was vicariously liable for the accident occasioned by Mr. Kalo. Secondly, in paragraph 15 of the Amended Statement of Claim it was pleaded that the vehicle was not insured and prima facie there was a breach of statutory duty by the VTU under section 41 of the Road Traffic (Control) Act [CAP. 29].

16. The President of VTU, Wilfred Leo, deposed in paragraph 12 of his sworn statement dated 17th day of July 2013 that he verily believes that VTU has a strong Defence upon the premises that the collision with the Respondent occurred outside the course of employment of Charles Kalo and that VTU was not the registered owner of the vehicle during the accident. In paragraph 5 of the sworn statement of Loreen Bani she deposed that from her personal observation of the usage of the car, Mr. Charles Kalo used at least 90% of the car for private use and 10% on administrative work.

17. A proposed Defence was annexed to the sworn statement of Laurie Harrison dated 20th October 2010 and filed in the course of an application to set aside the Default Judgment. In paragraph 15 of that proposed Defence, VTU denied each and every allegation in paragraph 15 of the Amended Claim and further pleaded that, because it was not the registered owner of the vehicle, it was not required to obtain insurance to indemnify any driver of the vehicle in respect of any claim.

18. Section 41 of the Road Traffic (Control) Act [CAP. 29] provides that:
    

"No person shall use or cause or permit any other person to use any motor vehicle on a road unless there is in force in relation to that vehicle a policy of third party insurance covering liability arising from the use of such vehicle by any person on a road for the death or bodily injury of any person, other than a passenger in such motor vehicle issued by an insurance company."

19. The VTU was at all material times required to maintain insurance that indemnified any driver of the vehicle in respect of any claim that may be made against the driver for damages for personal injuries caused by the driver's negligence in driving the vehicle. The sworn statements filed by the Appellant fail to give us any evidence as to the circumstances of the collision and no explanation has been given as to why the vehicle was not insured.

20. There was a strong prima facie case under section 41 that the VTU was the owner of the vehicle and that there was a failure of its duty to insure it. We do not have sufficient information before this Court to warrant setting aside the Default Judgment dated 31 March 2008.

21. The inexcusable delay by VTU in bringing to a head the application to set aside culminated in the striking out by Spear J. on 9 June 2011 and VTU has not shown any satisfactory explanation for its numerous failures to appear.

22. In the circumstances we refuse leave to appeal so that the striking out Order made by Spear J. on 9 June 2011 remains.

23. In respect of the application to stay the Supreme Court's Enforcement Warrant dated 22 March 2013 for the sum of VT15,705,095, we decline to intervene and interfere with the enforcement because we are not satisfied that the VTU has taken all reasonable steps to raise the amount to pay out and satisfy the judgment debt.

24. The Appellant must pay the Respondent's costs at the standard rate.

Dated at Port Vila this 26th day of July 2013.

ON BEHALF OF THE COURT

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Hon. Chief Justice Vincent Lunabek