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Kaukare v Cai [2009] VUSC 11; Civil Case 93 of 2008 (19 March 2009)

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

Civil Case No. 93 of 2008

BETWEEN:

JOSHUA ANDREW KAUKARE
Claimant

AND:

CAI AND OTHERS
First Defendant

AND:

ROBERT NIEL
Second Defendant

Coram: Justice N. R. DAWSON

Date of Hearing: 19th March, 2009
Date of Decision: 19th March, 2009

Counsel: Claimant: Mr. Kalotiti
1st Defendant: Mr. K. Loughman
2nd Defendant:" " "

DECISION

1. Today was set down for hear a Strike Out Application that has been filed by the Defendants. At a conference on 10th February, 2009 the Defendants were ordered to file and serve their Strike Out Application by 27th February, 2009. This Order was complied with by the Defendants.
   
2. The Claimant’s Response was Ordered to be filed and served by the 13th March, 2009. This Order was not complied with by the Claimant’s counsel. In fact on calling at the Court Office on the way to Court this afternoon I then picked up the Reply to the Strike Out Application that had been filed over the lunch period by counsel for the Defendants. This is a gross lack of courtesy by counsel for the Claimant, both to the Court and to opposing counsel. Neither the Defendant’s counsel or the Court has had the opportunity to read the Claimant’s Response or to refer to the cases cited in that Response. If the Claimant’s Response to the Application to Strike Out is correct then these cases are crucial to this hearing and it would be totally unfair to proceed with the hearing this afternoon to the Defendants without defence counsel having the opportunity to read and peruse those cases before the Strike Out Application was heard.
   
3. For that reason the Strike Out Application will not be heard today. The Defendant’s Counsel was otherwise ready to proceed today until ambushed by this late Response. The lack of courtesy shown by Claimant’s counsel to the Court and to opposing counsel is inexcusable and I am placing on record that it will not be tolerated on any future occasion. Costs of VT 5,000 are awarded against counsel for the Claimant, that is Mr. Yawha personally in favour of the Defendants. The Strike Out Application will be heard at another date which will be advised to counsel.
   

Dated at Port Vila, this 19th day of March, 2009

BY THE COURT

N. R. DAWSON
Judge