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Dornic v Republic of Vanuatu [2012] VUSC 248; Civil Case 18 of 2002 & 29 of 2003 (26 November 2012)

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


Civil Case No. 18 of 2002 and
Civil Case No. 29 of 2003
Consolidated


BETWEEN:


CLAIRE DORNIC
First Claimant


AND:


LEA MCNICOL
Second Claimant


AND:


AUGUST WARTE
Third Claimant


AND:


MOSES MASSING
Fourth Claimant


AND:


REPUBLIC OF VANUATU
First Defendant


AND:


RONALD KALORIB
Second Defendant


AND:


SAMUEL WALTER
Third Defendant


AND:


MARK DONALD BULE
Fourth Defendant


AND:


PUBLIC PROSECUTOR
Fifth Defendant


AND:


PHILLIPE LUANKON
Sixth Defendant


Mr Justice Oliver A. Saksak


Mr Robert Sugden for the Claimants
Mr Justin Ngwele for the First to Fifth Defendants
Mr Saling Stephens for Sixth Defendant


Date of Hearing of Submissions: 17th July 2012
Date of Judgment: 26th November 2012


JUDGMENT


Civil Case No. 18 of 2002 – Background


1.1. The First and Second Claimants filed original proceedings in Civil Case No. 18 of 2002 on 30th January 2002 naming the Commissioner of Police as First Defendant. However on 12th March 2003, the Claimants filed an Amended Claim substituting the Republic for the Commissioner of Police and also naming the Public Prosecutor as Fifth Defendant.

1.2. On 27th November 2001 at or about 0930 hours a.m the Second, Third and Fourth Defendants, all Police Officers attended the First Claimant's property at Banban area of Luganville. They were accompanied by Philippe Luankon the Sixth Defendant and two other Police Officers (unnamed) who remained in the Police vehicle which was parked nearby.

1.3. Meanwhile the Second Defendant stated to the Claimants that there were complaints made against them which required them to accompany the Police to the Police Station. The Claimants resisted the demand. The Second Claimant then told the three named defendants that unless they arrested them, the Claimants would not accompany the police to the police station. At this, the Second Defendant then said, "Alright, we'll arrest you." The defendants did the arrest. The Claimants displayed some resistance by refusing to go into the police vehicle willingly. The defendants then took both defendants and put them into the waiting police vehicle. They were taken to the police station and kept for 1 ½ hours.

1.4. Whilst at the Police Station the Claimants asked to see a lawyer. Their request was granted and the lawyer arrived and advised the Claimants and then left the scene. The Police then interviewed the Claimants in relation to alleged theft of copra bags by the First Claimant and in relation to damage to the Sixth Defendant's lock by the Second Claimant. The Claimants were then released.

1.5. The Public Prosecutor then initiated criminal proceeding against the Claimants on 28th November 2001. The charge was malicious damage property laid under section 133 of the Penal Code Act Cap 135.

1.6. On 27th February 2002, the charge was withdrawn against the Second Claimant because by then he had returned to Australia.

1.7. The Sixth Defendant was an employee of the First Claimant. He occupied a senior position until 20th October 2001, when after a long standing dispute with the First Claimant, his employment was terminated. He was asked to leave the dwelling he occupied as licensee on the First Claimant's land. He refused to do so. The First Claimant then applied for an order from the Court. The Order was granted by the Magistrate's Court and served on the Sixth Defendant but he did not comply with it. Instead he sought assistance from the Police to arrest the Claimants on 27th November 2001.

1.8. The Claimants alleged in their claims as against the defendants that –

1.9. The First Claimant claims against all the defendants except the fifth defendant as follows:-

1.10. And the Second Claimant claims against all the defendants except the fifth defendant as follows:-

1.11. And both Claimants claim against all the defendants except the fifth defendant as follows:-

2.1. The Attorney General filed an Amended Defence to the Claimants claims on 16th April 2003 generally denying liability for all allegations made and sought the following reliefs:-


(a) That the First and Second Claimant's claims be dismissed as against the First and Fifth Defendants; and


(b) Costs.


2.2. On 25th August 2011 judgment was entered against the defendants with damages to be assessed.


Civil Case No. 29 of 2003 – Background


3.1. The Claimants are August Warte and Moses Massing, Third and Fourth Claimants in the consolidated action. The defendants are the Public Prosecutor as First Defendant and Philippe Luankon, the Sixth Defendant. The Claimants filed proceedings on 24th February 2003 as employees of Mrs Dornic, the First Claimant.


3.2. On 25th February 2002, the Public Prosecutor commenced criminal action against both Claimants in the Magistrate's Court in Luganville for charges of theft laid under section 125(a) of the Penal Code Act. It was alleged that the Claimants had stolen 80 empty second hand copra bags. They alleged the prosecution was actively instigated and procured by the sixth defendant, who was the complainantt in the Criminal Case No. 40 of 2002. The prosecution was however dismissed. The dismissal was appealed against but the appeal was also dismissed by the Supreme Court.


3.3. It is alleged the Claimants were interviewed by the Second Defendant Ronald Kalorib but it is alleged the evidence was fabricated by the Police. The result was that prosecution was brought without reasonable or probable cause.


3.4. The Claimants claim that as a result of the Prosecution they have suffered loss and damages which they particularized as –


(a) Pecuniary loss which are essentially legal costs of defending the prosecution;


(b) Damage to reputation; and


(c) Costs.


3.5. The Public Prosecutor did not file any defence. But the Sixth Defendant filed a defence and Counter-Claim on 2nd September 2003 generally denying liabilities for all claims and made a Counter-Claim for damages in the sum of VT31,929,040 and costs. The Claimants filed defences to Counter-Claims on 17th June 2004.


3.6. The Claimants filed a Request for Default Judgment on 25th August 2004. On 16th June 2006 the default judgment was granted against the Public Prosecutor as to liability with damages to be later assessed.


Defences of Defendants Struck Out


4. On 25th August 2011 the Court following an application by the Claimants orally struck out the defendants defences filed in relation to both proceedings and declined to accept sworn statements filed by the Second and Third Defendants. The reasons for the oral decision are published in the judgment dated 12th September 2011.


Written Submissions And Considerations of Civil Case No. 29 of 2003


5.1. In both proceedings Mr Stephens has not filed any written submissions in response to the Claimants' written submissions. At the hearing of submissions on 17th July 2012 Mr Stephens or his client this sixth defendant were not present. Neither did they appear at other prior hearings or conferences. No evidence was produced by the sixth defendant in support of his counter-claims. Accordingly, the counter-claims are dismissed.


5.2. In relation to Civil Case No. 29 of 2003, Mr Sugden filed written submissions on 8th July 2011. Counsel relied on Mac Gregor on Damages (17th Edition), Fleming on Torts (5th Edition) and the case of Thompson v. Commissioner of Police [1997] EWCA Civ 3083; [1998] QB 498 to submit that the third and fourth claimants are entitled to –


(a) damages for malicious prosecution;


(b) damages for pecuniary losses like legal costs incurred during the criminal proceedings; and


(c) damages for harm to reputation and injury to feelings.


5.3. Counsel deposed to a sworn statement filed on 8th July 2011 to which he annexed the Record of Time spent showing a total of 1,867 minutes at VT20.000 per hour plus disbursements in the total sum of VT14,171. The total costs was therefore the sum of VT714,296 claimed as special damages.


5.4. It appears Mr Ngwele has not addressed directly this aspect in his written submissions dated 17th July 2012 although at paragraph 26 it is submitted that the Claimants are not entitled to damages for:-


(a) Damage to reputation;


(b) Aggravated damages;


(c) Exemplary damages;


(d) Damages for emotional shock; and


(e) Damages for discomfort and inconvenience or injury to dignity.


5.5. Since the date of the filing of their claims in 2003 to the date of hearing of submissions neither of the third and fourth claimants had filed any evidence by sworn statements in support of their claims and/or in support of their assessment of damages.


5.6. The Claimants chose to proceed by way of Interrogatories. They submitted numerous questions for the Second, Third and Fourth Defendants to answer. The majority of these interrogatories were never answered and perhaps not surprisingly so. Two of the numerous documents disclosed by Counsel for the Claimants on which interrogatories were based were the Claimants admission statements dated 1st November 2001. By these, the Third and Fourth Claimants admitted to theft of 80 empty bags which they carried away to the first Claimant's property at Banban. There was a complaint made by the sixth defendant to that effect. Having made those admissions, prosecution then followed. Surely that can't have been malicious prosecution and surely the matter for which both were accused of could not have been scandalous.


5.7. In regard to the claim for pecuniary loss occasioned by the prosecution, the total sum of VT714,296 are claimed. The third and fourth claimants were prosecuted in good faith based on their respective admissions to the Police on 1st November 2001. Their case was dismissed for want of prosecution. When the Public Prosecutor appealed the appeal also was unsuccessful. These were lawful legal processes which required the Claimants to follow. In doing so, the Claimants had to spend money on the processes in order to acquit themselves of the allegations or charges for which they were charged. The expenses they incurred were to their benefit. And they should lie where they fell.


5.8. I therefore accept Mr Ngwele's submissions that the Third and Fourth Claimants are not entitled to any of the damages as claimed namely:-


(a) Damage for malicious prosecution;


(b) Damage to reputation and injury to feelings; and


(c) Special or pecuniary loss or damages.


5.9. Accordingly, the Claimants claims in Civil Case No. 29 of 2003 are hereby dismissed in its entirety.


Written Submissions And Consideration of Civil Case No. 18 of 2002


6.1. Counsel for the Claimants in Civil Case No. 18 of 2002 raised submissions on damages dated 14th October 2011, claiming the total damages in respect of the first Claimant in the sum of VT11Million plus costs, and in respect of the Second Claimant in the sum of VT8Million plus costs.


6.2. The Claimants' claims fell under the following heads of damages:-


(a) False imprisonment;


(b) Damage to reputations;


(c) Aggravated damages;


(d) Exemplary damages;


(e) Malicious prosecution; and


(f) Trespass to land (only by first Claimant).


6.3. Counsel relied on Halsbury's 4th Edition Vol. 12, paragraph 1158 as the basis for false imprisonment and aggravated damages and Fleming's "The Law of Torts" 5th Edition at page 28. He relied on the case of Thompson v. Commissioner of Police [1997] EWCA Civ 3083; [1998] QB 498 and Uren v. John Fairfax & Sons Ltd [1966] HCA 40; [1996] 117 CLR 118 as the basis for claims for basic and exemplary damages and for malicious damages.


6.4. Counsel for the defendants responded to these submissions and submitted the Claimants were not entitled to any damages under the different heads as claimed on the basis that:-


(a) The first claimant did not produce any evidence showing trespass, ownership and/or damage to her land. Counsel relied on the case of Malto Bong Alick v. Commissioner of Police, Civil Case 53 of 2001. The Court agrees with Counsel for the defendants that on the basis of the case cited, the first claimant is not entitled to any damages in respect to her claims for trespass to land. The claim for damages under this head is therefore dismissed.


(c) Both the first and second claimants did not produce any evidence showing their reputations were harmed as a result of a scandalous allegation; or that they both were put in danger of losing their lives, limbs or liberties, or that their properties were damaged. Counsel relied on Mc Gregor on Damages 15th Edition and the case of Savile v. Roberts (1699). Counsel submitted that any amounts of damages awarded under this heard should be VT250.000 based on the amount awarded in the case of Helder Rodrigues v. Republic of Vanuatu, Civil Case 192 of 2004.

The Court accepts these submissions. An award of VT250.000 will be made but it will be reduced to VT125.000 to each of the two Claimants. The reason for this reduction is made for the Claimants' contributions in aggravating the circumstances on 27th November 2001 by –


(i) Inviting the Police to make arrests;

(ii) Resisting the arrest;

(iii) Acknowledging that the Second Claimant assisted by the First Claimant cut, removed and replaced the sixth defendant's lock; and

(iv) Those actions became the basis of a complaint for which a criminal charge was subsequently laid, however the second claimant left the jurisdiction of the Court, making it difficult for the prosecutions to prosecute the case in a timely manner. His action could amount to absconding.

(d) In relation to damages for false imprisonment Counsel submitted that the Claimants did not establish that their arrest was unlawful. Counsel however proposed that if the Court was to award damages for this head, the case of John Reid Willie & Others v. Commissioner of Police, Civil Case 152 of 2008 should be followed. In that case the Claimants were awarded VT500,000 each as damages for false imprisonment.

The Court disagrees for reasons outlined in subparagraph (b)(i) – (iv) above. The Claimants are not entitled to any damages under this head of damages.


(e) In relation to exemplary and aggravated damages, Counsel for the defendant submitted that these were not pleaded in the amended statement of claim. Further, Counsel submitted that the conducts of the first, second, third and fourth defendants were such that they did not meet the test in Rookes v. Bernard [1964] UKHL 1; [1964] 1 All ER 367 at 407 and Harrisen v. Holloway (No.2) [1984] CAC 10 of 1984. As such, Counsel submitted that the first and second claimants are not entitled to any damages under these two heads.

The Court agrees with Counsel for the State on these submissions and for reasons already canvassed under paragraph 6.4 (b)(i) – (iv), the claimants' claims for exemplary and aggravated damages are hereby dismissed.


(f) Finally, Counsel for the State submitted that the claims of the first and second claimants are "massively-over-exaggerated".

The Court agrees entirely with that submission. The Claimants described the issue of cutting of the sixth defendant's lock as a "trivial matter", however they both blew out of proportion such a trivial matter by their own actions. They cannot therefore expect to be compensated for their own parts in aggravating the situation.


Conclusion


7.1. In the final analysis the Court concludes that the first and second claimants are entitled only to damages for malicious prosecutions as appears to have been conceded by the State. However, the amount of damages will be –


(a) For First Claimant – VT125,000; and


(b) For Second Claimant – VT125,000.


7.2. All the other damages claimed are hereby dismissed.


7.3. The Claimants claimed for costs. However as their claims succeed only in respect of one head of damages which represents about 10 percent of the total claims, they will be entitled only to 10 percent of the total costs of the action.


7.4. The First Defendant (the State) is hereby ordered to pay the total sum of VT250,000 to the Claimants and 10 percent of the total costs of Civil Case No. 18 of 2002 as agreed or determined by the Court.


DATED at Luganville this 26th day of November 2012.


BY THE COURT


OLIVER A. SAKSAK
Judge

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