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Toa v Milai (Vanuatu) Ltd [2010] VUSC 56; Civil Case 03 of 2009 (7 May 2010)

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

Civil Case No. 03 of 2009

BETWEEN:

DOUGLAS TOA & 13 ORS
Claimants

AND:

MILAI (VANUATU) LIMITED
Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Miss Jane Tari for the Claimants
Mr Less John Napuati for the Defendant

RULING

1. This is an application by the defendant to have the claims of the Claimant struck out on ground that the claim does not disclose a cause of action against the defendant. The defendant seeks also an order for costs. It is supported by the sworn statement of Mr Napuati and of Mr Willie Nicholson.
   
2. In a very brief response, Miss Tari made submissions objecting to the strike out application on grounds specified in her sworn statement filed today 7th May 2010.
   
3. In his oral submissions, Mr Napuati referred to the Claimants’ contracts of employment annexed as "JA1" to the sworn statement of Joyce Antfalo. Counsel also drew the Court’s attention to the pleadings of the Claimants in paragraph’s 4 and 7 of their amended claim where the Claimants plead no reasonable time of notice given before termination, and their claim for 3 months outstanding salaries.
   
4. A question was put to Miss Tari whether the Claimants had filed any responses to the sworn statement of Joyce Antfalo in compliance with the direction orders of 3rd August 2009. The answer was in the negative.
   
5. Had the Claimants responded, they would have found out from their respective contracts that all of them were employed for less than 3 years with the defendant and as such, Section 49 of the Employment Act Cap. 160 is very clear that they are not entitled to payments in lieu of 3 months notice. They would have also found out that they all were given 14 days notice in their letters of 23rd June 2008.
   
6. This is a case where the Claimants should have been given good legal advice on their claims to assess their strength before instituting the action.
   
7. Counsel submits there were inaccuracies in the calculations of the Claimants’ entitlements. There is no evidence by the Claimants to show those inaccuracies.
   
8. The Court concludes therefore that the Claimants have not disclosed any cause of action against the defendants and therefore their action can be seen as frivolous and merely vexatious.
   
9. For those reasons, the application is allowed. Civil Case No. 3 of 2010 is struck out in its entirety.
   
10. The Claimants will pay the Defendant’s costs of and incidental to this action to be agreed, if not be taxed by the Master.
    

DATED at Luganville this 7th day of May 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge