AND:
SELB PACIFIC LIMITED
Third Applicant
AND:
JURIS OZOLS
First Respondent
AND:
THE HONOURABLE JUSTICE ROBERTSON
Second Respondent
AND:
THE HONOURABLE JUSTICE MUHAMAD
Third Respondent
AND:
THE HONOURABLE JUSTICE DILLON
Fourth Respondent
AND:
DANIEL MOUTON
Fifth Respondent
AND:
JOHN MALCOLM
Sixth Respondent
AND:
SUSAN BOTHMANN BARLOW
Seventh Respondent
AND:
GARRY BLAKE
Eighth Respondent
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JUDGMENT
ALIGNt">Listed before the Court is a notice of apof appeal peal and aand a notice of motion
seeking leave to appeal from
Orders made by th. Justice Oliver Saksak on k on 1st
October 1997 on a Constitutional Petition issued under s218 of the Criminal Procedure Code
[CAP 137]. His Lordship ordered:
(1) That the Third Applicant, Selb Pacific Limited, be struck out of
the Petition.
(2) That the whole of the Petition be dismissed.
The Order for dismissal of the Petition was made on applications
brought by a number of the Respondents either under Order 27
Rule 4 of the High Court
(Civil Procedure Rules) 1964 or Section 218 (4) of the Civil Procedure Code [CAP. 136].
The grounds
for each of these applications were that the Petition was without foundation
or vexatious or frivolous.
Background facts
The matters pleaded by the applicants in the Petition arise out of
earlier proceedings in the Supreme Court of the Republic of
Vanuatu. In Civil Case No. 42
of 1994 Daniel Mouton sued Selb Pacific Limited alleging that he had been wrongfully
dismissed
from his employment. He claimed a number of employee benefits including holiday
pay and a severance payment together with damages
for breach of contract. The total claim
was for VT21.368.000. Selb counter claimed alleging that the dismissal of Mr. Mouton
was
justified by a series of acts of serious misconduct which had caused the company extensive
loss on a number of construction
contracts performed by Selb under the supervision of Mr.
Mouton. The counter claim was initially for a total of VT102.704.000,
but subsequent
amendments to the pleadings increased this total. Following a twenty day trial before the
Hon. Chief Justice
Vaudin D’Imécourt, judgment was delivered on the claim and counter
claim on 13th April 1995. The Chief Justice awarded Mr. Mouton VT2.304.167 as a
severance allowance, subject to possible adjustment for matters
that were still
outstanding. On the counter claim he awarded Selb VT5.953.834 and an injunction
restraining Mr. Mouton
from exercising his trade in Vanuatu for two years. At a subsequent
hearing, costs in favour of Selb were awarded against Mr.
Mouton. In the result, judgment
was entered against Mr. Mouton for more than VT9 million.
Mr. Mouton appealed to the Court of Appeal. At a hearing in October
1995 the Court of Appeal stayed enforcement of the injunction
which restrained Mr. Mouton
from carrying on his trade. The substantive appeal came on for hearing before a
differently
constituted Court of Appeal in October 1996. An interim judgment was delivered
on 1st November 1996. The Court of Appeal was of the opinion that inadequate
discovery had been given by Selb prior to the trial, and
adjourned further consideration
of the appeal pending further and better discovery by Selb. The Court of Appeal, however,
considered that the Applicant was entitled at that stage to have the injunction set aside,
to be paid three months salary
in lieu of notice, and holiday of pay which did not appear
to be in dispute. The following interim orders were made by the Court
of Appeal:
(a) The sum of VT834.615 holiday pay together with VT2.100.000 salary
in lieu of notice to be paid by the Respondent to the
Appellant on or before the 1st
December 1996 pending final judgment, when these amounts will be either credited or
debited to the Appellant;
(b) The immediate release of the Peugeot 505 to Komeco Limited the
owner of that vehicle;
(c) The cancellation of the injunction against the Appellant issued on
the 13th April 1995.
(d) An order for discovery by the Respondent of all documentation
relevant to the proper quantification of the following
contracts viz. The Clos
d’Elluk; the Mitride House; the Santo Boat Shed; the Santo Road. Full discovery is to
be made by the Respondent prior to the 1st December 1996;
(e) An order that no applications shall be hereinafter instituted that
are in anyway related to these proceedings without
the leave of this Court;
(f) These proceedings are adjourned to the next sitting of the Court of
Appeal;
(g) Costs are reserved.
It is necessary at this point to digress. At the time of Mr.
Mouton’s employment and dismissal, the share holding in Selb,
a company incorporated
in Vanuatu, was owned as to 40% by Andre Francois (the First Applicant in the Petition)
and as to
60% by Dante Lenisa and Catherina Lenisa jointly (the Second Applicants in the
Petition). On 18th November 1994 Mr. Francois and Mr. and Mrs. Lenisa entered
into a protocole d’accord with Societe Jean Lefebvre Pacifique,
SA. In the result
there was a change in shareholders and the directors. However by clause 6 of the protocole
d’accord
Messrs. Francois and Lenisa warranted to the new owners of Selb:
"that no proceedings to this day have been commenced against
Selb other than that of Mr. MOUTON in respect of which Mr. D.
LENISA and A. FRANCOIS have
undertaken to pay the total amount of any judgment debt ordered against the Company SELB
by payment of the corresponding sum into a check account, following the payment and
irrevocable release of any rights
against the company SELB."
Mr. Francois and Mr. and Mrs. Lenisa claim to be entitled to the
benefit of the judgment in favour of Selb awarded against Mr.
Mouton, although it is not
apparent from the protocole d’accord or from other information before the Court why
this
would be so.
Mr. Francois and Mr. and Mrs. Lenisa were dissatisfied with the interim
decision of the Court of Appeal which had the effect
of imposing an immediate liability on
Selb to pay nearly VT3 million to Mr. Mouton which amount in turn would be recoverable
from Mr. Francois and Mr. and Mrs. Lenisa pursuant to Clause 6 of the protocole
d’accord.
Paragraphs (a) and (d) of the Judgment of the Court of Appeal were not
complied with by 1st December 1996 as the Orders required. On 2nd
December 1996 the Petition was issued by Mr. Francois and Mr. and Mrs. Lenisa, and Selb
was joined as the Third Applicant.
The Constitutional Petition
Mr. Juris Ozols who had acted as counsel for Mr. Mouton at trial is
named as the First Respondent. Mr. Mouton is the Fifth Respondent.
The Second, Third and
Fourth Respondents named are the Judges who comprised the Court of Appeal which handed
down the interim
decision on 1st November 1996. Mr. John Malcolm, Ms Susan
Bothmann Barlow and Mr. Garry Blake, the Sixth, Seventh and Eighth Respondents
respectively are solicitors who at one time or another acted for Selb.
The Petition set out seven grounds upon which relief is claimed and
pleaded those grounds at considerable length with particulars.
Grounds 1, 2, 5 and 7 make
allegations against the Judges of the Court Appeal to the effect that they, acting jointly
as
Judges of Appeal, unjustly deprived the Applicants of their property, namely the full
benefit of the Judgment of the Chief Justice
entered on the 13th April 1995 and
the consequential orders. Ground 4 also makes allegations against Mr. Ozols that he, in
conjunction with
the Judges of the Court of Appeal, discriminated against the First
Applicant on the grounds of race and/or place of origin,
traditional beliefs and/or
language and failed to provide the Applicants with their fundamental rights and protection
of
the law in that they participated in:
"(a) Exchange of perceived Racist Remarks between the First
Respondent and the Bench;
"(b) Refusal to take into account customary employment practice in
French community;
"(c) Finding that the statement by the First Applicant was
"puffery in the extreme";
"(d) English Legal Principles have overtaken the French by stealth
"
Ground 6 makes allegations against the former solicitors, and the
prayer for relief indicates that damages are claimed from them
in respect of the matters
alleged. Conduct is alleged on the part of the former solicitors which was either
negligent or
improper. In consequence of such conduct it is alleged that the Applicants
"threw away" or "wasted" legal
costs and that they "have unjustly
been deprived of property in the form of excessive or unjustified or unreasonable legal
costs and fees and/or through legal costs wasted due to the failure of their legal
representatives honouring their contractual
and/or professional obligations towards the
Applicants". These allegations seek to invoke Article 5(1)(j) of the Constitution.
Ground 6 also includes an allegation against the First Respondent to the effect that he
had improperly spoken to the First
Applicant during the course of the trial, with the
result that the First Applicant suffered stress.
The Petition, when filed, was not accompanied by any supporting
affidavit. It was issued by Mr. C R de Robillard who described
himself as Advocate for the
Applicants.
Events leading up to the dismissal of Petition
Although the Petition was filed on 2nd December 1996 some
months went by without it being listed. It appears that Mr. de Robillard was under the
impression that
the Petition would be listed for directions before a Judge, who would then
direct each of the parties how facts and other material
would be placed before the Court.
The matter was eventually listed before the primary Judge on short
notice. It seems probable that it was listed in consequence
of Messrs. Clayton Utz taking
out an application on 24th September 1997 to have Selb removed as an Applicant.
An Affidavit in support of that application deposed that the new Directors
of Selb had not
consented to the use of the Company’s name in the Petition, and desired to have no
part in it.
When the Application by Selb was notified to the other parties the
Respondents (other than the three Judges) made applications
to have the Petition
dismissed.
Mr. de Robillard was informed of the applications on 26th
September 1997 (a Friday). He was not then in Vanuatu. He was contacted at Chambers in
Sydney. He forwarded a long letter
dated 30th September 1996 to the Supreme
Court of Vanuatu, and it is clear that the letter was brought to the attention to the
primary
Judge on 1st October 1996. The letter makes many complaints about
alleged procedural irregularities, including the short notice which he
had received. He
said he was unable to be present on 1st October 1997, and sought to have the
matter adjourned.
When the matter came on for hearing, Mr. Francois (the First Applicant)
was present in person. The primary Judge held that Mr.
de Robillard was not a legal
practitioner entitled to represent the First and Second Applicants in the Petition. He
said
in his reasons for judgment "that being so, Mr. de Robillard’s letter of 30th
September 1997 requesting an adjournment was not worthy of consideration and the Court
proceeded on the basis that the
First and Second Applicants were not represented".
However, Mr. Francois was asked by the primary Judge whether he had
anything to say. Counsel has informed this Court that he
said in effect: "In the
absence of my lawyer it is difficult to defend myself today".
Mr. Francois himself requested an adjournment. This was refused.
The primary Judge held that the three Judges of the Court of Appeal had
been wrongly named and dismissed the proceedings against
them on that ground. He said that
it appeared that they had only been named because they had not completed the hearing of
the appeal before them. It would appear that the primary judge took the view that the
Petition was an improper attempt to
interfere with the proceedings before the Court of
Appeal. In respect of the balance of the proceedings the primary judge held
that the First
and Second Applicants did not have standing to bring the proceedings, that there was
nothing in the Petition
to show a Constitutional breach that warranted the filing of the
Petition, and that in any event the claims made against the
former solicitors were
vexatious or frivolous.
Events following the dismissal
After the dismissal Mr. Francois filed a notice of appeal,
purporting to act on his own behalf and on behalf of the Second Applicants
and Selb. It
was brought to his attention that the dismissal order by the primary Judge might be an
interlocutory order,
in which case leave to appeal would be necessary. This caused Mr.
Francois to file a notice of motion seeking leave to appeal
on 31st October
1997.
The application for leave to appeal came on for hearing before Saksak
J. on 26th November 1997. Further affidavit evidence filed on behalf of Selb
indicated that the new directors of Selb disassociated themselves
from the attempt to
appeal against the dismissal. Saksak J made an order permitting Selb to withdraw from the
purported
appeal, and otherwise adjourned the application. When the matter was called on
for hearing before this Court, Mr. Ridgway appeared
on behalf of Selb. He informed the
Court that the Directors of Selb maintained the position that they did not wish to be
associated with the applications before the Court.
Once again it is necessary to digress. At sittings of the Court of
Appeal in October 1997 and in January 1998 applications were
heard in Civil Appeal Case
No. 2 of 1995 (that is the part heard appeal from the original judgment of the Chief
Justice).
For those proceedings Mr. de Robillard had been granted temporary status as a
legal practitioner in the Republic of Vanuatu
to appear for Selb. The Court of Appeal
pointed out to the parties that it was no longer possible to constitute the Court which
started to hear the Appeal in 1996, and that it would be necessary to reconstitute the
Court of Appeal, and in so far as
it might be necessary, to rehear the appeal de novo.
Because of this Mr. de Robillard said that his client would not proceed
further with the
Petition against the Judges.
Appearances on the hearing before the Court of Appeal
When the notice of appeal, and the notice of motion came on for hearing
before this Court, Mr. de Robillard announced his appearance
only on behalf of Mr.
Francois (who we shall continue to refer to as the First Applicant). The Second Applicants
did not
appear, and at the request of the Court enquiries with their representative
indicated that they did not wish to take any further
part. Mr. de Robillard confirmed that
his client no longer wished to proceed against the Judges. Nevertheless he sought to
proceed with the appeal on the ground that the Petition was properly brought against Mr.
Ozols and the former legal practitioners.
Without deciding on Mr. de Robillard’s status as a legal
practitioner in this jurisdiction, the Court permitted him to represent
the First
Applicant.
The issues
The Counsel identified the following issues for decision:
(1) Whether leave to appeal is required;
(2) Whether the First Applicant has standing to bring the Petition;
(3) Whether the First and Second Applicants were denied procedural
fairness because the proceedings were not adjourned on
1st October 1997 for a
sufficient time to enable them to respond to the applications, and to be represented;
(4) Whether the Petition identifies one or more issues that justify the
filing of a Constitutional Petition.
Leave to appeal
The distinction between decisions which are interlocutory in nature and
those which are final is not easy to make. The authorities
are gathered together and
discussed in Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423. We think it is
probable that the decision under challenge was interlocutory in nature. However the last
of the identified
issues raises an important question as to the purpose and scope of a
Petition filed pursuant to Article 6. That issue warrants
the grant of leave. Accordingly
leave is granted, in so far as it is necessary.
Does the Petition raise a Constitutional issue?
We turn immediately to consider the purpose and scope of a Petition
under Article 6.
The jurisdiction vested in the Supreme Court by Article 6 empowers the
Court the redress an actual or threatened infringement
of a right or freedom guaranteed to
a person by Article 5. It is sufficient to set out the provisions of the Constitution that
are relied on by the First Applicant to consider this question:
"5. (1) The Republic of Vanuatu recognizes, that, subject to
any restrictions imposed by law on non-citizens, all persons
are entitled to the following
fundamental rights and freedom of the individual without discrimination on the grounds of
race, place of origin, religious or traditional beliefs, political opinions, language or
sex but subject to respect
for the rights and freedoms of others and to the legitimate
public interest in defence, safety, public order, welfare and
health –
…………
(d) protection of the law;
…………
(g) freedom of expression;
…………
(j) protection for the privacy of the home and other property and from
unjust deprivation of property;
(k) equal treatment under the law or administrative action, except that
no law shall be inconsistent with this sub-paragraph
insofar as it makes provision for the
special benefit, welfare, protection or advancement of females, children and young
persons, members of under-privileged groups or inhabitants of less developed areas."
…………
"6. (1) Anyone who considers that any of the rights
guaranteed to him by the Constitution has been, is being or is likely
to be infringed may,
independently of any other possible legal remedy, apply to the Supreme Court to enforce
that
right.
(2) The Supreme Court may make such orders, issue such writs and give
such directions, including the payments of compensation,
as it considers appropriate to
enforce the right."
The opening words of Article 5 are critical to the understanding of the
nature of the fundamental rights and freedoms that are
guaranteed. The words "The
Republic of Vanuatu recognizes..." are not apt to create new private rights and
obligations between individuals. The words are a covenant by the Republic
to all persons
(subject only to a qualification in respect of non-citizens) that in its relationship with
them the Republic
will recognize the fundamental rights and freedoms set out in Article 5.
The provisions of Article 6 provide the means by which
compliance by the Republic can be
enforced
The purpose of Article 5 is to protect the individual against arbitrary
or unjust treatment by the organs of government through
which the affairs of the Republic
are administered. The protection of private rights between individuals, as opposed to the
protection of rights between the individual and the Republic, is ensured by other
provisions of the Constitution, namely
the provisions of Chapter 4 that establish
Parliament to make laws for the peace, order and good government of Vanuatu, the
provisions of Chapter 7 that establish the Executive to implement those laws, and the
provisions of Chapter 8 which establish
the Judiciary to enable individuals to enforce
them.
For example, the protection afforded by Article 5(1)(f) against
"unjust deprivation of property" is a protection against
seizure or confiscation
by government action. The general law already provides a comprehensive package of rules to
protect
against the invasion of commercial, economic or proprietary interests of one
person by another person. Such rights are protected
by the criminal law, and by civil laws
such as the laws of contract and torts. In one sense if one person steals the goods of
another, the victim of the theft has suffered an "unjust deprivation of
property", but that injustice is not
one that finds protection in Article 5. The
injustice would be met by prosecution of the offender under the criminal law, and
by civil
action under the general law by the victim against the thief to recover the goods or their
value.
The provisions of Articles 6 (and also those of Article 53) provide a
new procedure for seeking the review of administrative
decisions by organs of government
and public officials, and the correction of inappropriate, unlawful or unjust exercises of
government power. At common law such decisions could only be attacked through one of the
prerogative writs, for example
by a writ of certiorari, mandamus or prohibition. The
procedures under these forms of writ were technical, restrictive and complex.
Articles 6
and 53 impose none of these complications, and Parliament has ensured that access to the
Courts is not to be
hindered by any want of formality: see s.218 (1) of the Criminal
Procedure Code.
The rights and freedoms guaranteed by Article 5 are to be accorded a
generous interpretation: Attorney-General v Timakata (1993) 2 Vanuatu Law Reports
679 at 682. But this does not mean that the provisions of Article 5 can be applied to
situations
that are quite outside their evident scope and purpose, which is to regulate
the relationship between the Republic and its people.
It follows from this purpose that proceedings brought under Article 6
will name the Attorney-General as representing Vanuatu;
see S.1 of the Law Officers Act
[CAP.118], and may also name the Minister, government officer, or other public official
whose exercise of power, or inaction, is said to constitute the Constitutional breach. If
a Constitutional Petition names as
a respondent someone who is a private individual, and
not a government official, this is likely be an indication that the Petition
is
misconceived, and that it seeks to complain about the infringement of rights which are not
rights and freedoms of the
kind protected by Article 5.
The First Applicant now seeks only to have the Petition reinstated
against Mr. Ozols and the former solicitors for Selb. The
rights that the First Applicant
complains have been infringed by those solicitors are private commercial or economic
rights.
The solicitors plainly were not exercising any administrative powers of
government. Article 5 has no application to the rights
and obligations that arose out of
the contractual relationship between the Applicants, or any of them, and their former
solicitors. The rights of the Applicants arising out of that relationship are private
rights of the kind that fall to be enforced
by the ordinary processes of the law. The
allegations made against Mr. Ozols, if they disclose any cause of action at all, would
be
actionable by private suit under the law of torts. The allegations against the solicitors
in the Petition raise no Constitutional
issue, and for this reason the Petition against
the solicitors was rightly dismissed as it is plainly and obviously without
foundation.
This conclusion is sufficient to dispose of the appeal. However we
briefly refer to other issues that were raised in argument.
Other issues
Ground 4 of the Petition originally alleged a contravention of Article
5(1)(d) of the Constitution by the Judges of the Court
of Appeal, in conjunction with Mr.
Ozols, in the manner recited earlier in these reasons. The statements alleged to have been
made by the Judges and counsel occurred in open court whilst the appeal was being argued.
The Constitution provides a system of democratic government for the
Republic which is based on the rule of law, and the application
of the principles of
natural justice: see Article 5(1)(d) and Attorney-General v Timakata (1992) Vanuatu Law
Reports 575 at 599, and on appeal (1993) 2 Vanuatu Law Reports 679 at 682. An essential
requirement
of the rules of natural justice is that a party to proceedings that adjudicate
on existing rights be given the opportunity to
put his or her case to the decision-maker.
It is beyond question that a litigant before a Court in judicial proceedings is entitled
to do so even if the submissions may appear irrational, distasteful or offensive to other
parties, or to the public generally.
The allegations made in Ground 4 of the Petition are
devoid of legal merit.
The allegations made against the Judges were in any event misconceived.
The Court of Appeal was acting in accordance with its
ordinary functions under the
Constitution, and the Courts Act [CAP 122]. If the effect of one of its orders was to
remove
property or money from a litigant, such a removal could not constitute an
"unjust deprivation of property" within
the meaning of Article 5(1)(f). The
deprivation would be one effected in accordance with the law.
The arguments addressed to the Court concerning the status of the First
Applicant to assert a claim against the former solicitors
for Selb raise questions about
the proper interpretation of the warrantee in the protocole d’accord. We are left
with
the impression that the documentary and other factual information before the Court on
this topic is incomplete. Moreover the
interpretation of the relevant provision of the
protocole d’accord is a matter on which Selb may wish to be heard. It is
therefore
inappropriate that we express a view on the matter as it is not necessary to do so to
resolve the appeal.
Detailed submissions were also made on whether the application to
dismiss the Petition should have been adjourned for a short
time, rather than proceed on 1st
October 1997. We consider that there was an element of unfairness in the procedure that
occurred. The First Applicant was
not to know that the Court would neither adjourn the
matter nor have regard to the letter of Mr. de Robillard until he was so
informed during
the hearing. The issues in the case were complex and the orders for summary dismissal
sought by the Respondents
would deprive the Applicants of any further opportunity to
present their arguments through counsel. We think an adjournment
should have been granted.
The First and Second Applicants should have been given the opportunity to consider their
position,
and to get other representation should they decide to do so.
For these reasons the appeal is dismissed.
As the appeal has failed against all the respondents, the First
Applicant must pay the costs of the respondents (other than the
Second, Third and Fourth
Respondents who have not taken any part in the appeal), and it is ordered accordingly.
DATED AT PORT-VILA this 25th day of June 1998.
BY THE COURT
J. W. VON DOUSSA
Daniel FATIAKI J
Reggett MARUM J
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