IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
CIVIL CASE No. 101 OF 1997
IER">IN THE MATTER
OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU
AND:
IN THE MATTER
OF THE NATIONAL PROVIDENT FUND ACT [CAP. 189]
AND:
IN THE MATTER
of an Application by DINH VAN THAN
for declaratory and injunctive relief regarding
the purported termination by the HON. WILLIE JIMMY,
Minister of Finance.
BETWEEN:
DINH VAN THAN
Petitioner and Applicant
AND:
HON. WILLIE JIMMY
First Respondent
AND:
VANUATU NATIONAL PROVIDENT FUND BOARD
Second Respondent
AND:
GOVERNMENT OF THE REPUBLIC OF VANUATU
Third Respondent
AND:
PETER SALI
Fourth Respondent
Coram: Mr Justice Oliver A. Saksak
Counsel: Mr Mark Hurley for the Petitioner and Applicant
Mr Ishmael A. Kalsakau for the Respondents
JER">JUDGMENT
This Judgment provides the reasons for the Court’s decision given in respect of an
application by the Respondents made pursuant
to Section 2 of the Criminal Procedure
dure
Code Act [CAP 136]. The Respondents sought three orders:-
(a) That the Petition of the Petitioner be dismissed.
(b) That costs be awarded against the Petitioner.
The grounds upon which the Respondents based their application were that the Petition
was frivolous and vexatious. The Respondents
filed two affidavits and relied in particular
on that of the Fourth Respondent to support their application.
On hearing the application on 25th July Mr Hurley submitted that the procedure adopted
by the Respondents was erroneous and that
there was no evidence before the Court to
entertain the application. He sought a ruling on that submission.
I rule that the Respondents had a right to be heard before the Court could determine
the issue of whether or not the Petitioner’s
Petition was frivolous and vexatious.
The reason being that the Respondents had made formal applications filed in the Registry
of the Court. That being so the Court could not dismiss the application summarily unless
and until it first heard the Respondents.
I then heard Mr Kalsakau. He first argued that the decision of the Minister was made in
good faith. He argued that section 3(2)
of the VNPF Act [CAP 189] is not a termination
provision. He argued that there is no termination provision in the Act but the
Minister
had power to act under section 21 of the Interpretation Act [CAP. 132]. He agreed that the
qualifications referred to in section 3(1) of the VNPF Act relate only to appointments and
therefore submitted that the Minister was correct to terminate. These arguments go to some
extent into the substance of the
matter before the Court and I need not consider and
decide on them at this stage.
What the Court was concerned with at this preliminary hearing was whether or not the
Petitioner’s Petition was frivolous
and vexatious. In determining that issue the
Court had to have sufficient evidence before it. The affidavit relied on by the
Respondents was that if Mr Peter Sali, the Fourth Respondent. Counsel for the Respondents
took the Court through the affidavit
reading paragraph after paragraph and making
arguments and submissions. Having heard the evidence I was not satisfied as to
its
sufficiency. Most of the facts deposed to needed to be corroborated if I was to be
satisfied on a balance of probability.
That balance could not be discharged on the
affidavit of only one witness.
The application was brought pursuant to section 218 (4) of the Criminal Procedure Code
Act [CAP 136] which reads:-
"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."
On the face of the application before the Court it seems clear to me that the
Respondents concede that the Petition of the Petitioner
does contain legal issues which
the Court must decide on. This view is held because the Respondents have not made it a
ground to dismiss the petition that it is without foundation. When that concession is made
it is sufficient for the Court to
proceed to enquire further into the Petition under
subsection (5).
But the Respondents say that the Petition should be dismissed because it is frivolous
and vexatious. What are the definitions
of these terms? The Shorter Oxford English
Dictionary defines these as follows:-
(a) "Frivolous" - meaning silly, of little or no weight or importance, not
worth serious attention.
(b) ‘Vexatious" - with respect to legal actions which are instituted without
sufficient grounds for the purpose
of causing trouble or annoyance to the defendant.
In the English case of Norman -v- Matthews (1916), 85 L.J.K. 857, at p809 Lush J
said this concerning a frivolous action:-
"There is an inherent power in every Court to stay and dismiss actions or
applications which are frivolous and vexatious
and abusive of the process of the
Court...... In order to bring a case within the description it is not sufficient merely
to
say that the Plaintiff has no cause of action. It must appear that his alleged cause of
action is one which
on the face of it is clearly one which no reasonable person could
properly treat as bona fide, and content that he had a
grievance which he was entitled to
bring before the Court.
Applying this to the evidence I am not satisfied that the petition is frivolous and
vexatious and for the reasons given above
the application of the Respondents must be
dismissed.
DATED at Port Vila this 29th day of July 1997.
BY THE ORDER OF THE COURT
OLIVER A. SAKSAK
JUDGE
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