IN THE COURT OF APPEAL IN
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 155 of 1996
                                 
BETWEEN:
ANDRE FRANCOIS
First Applicant
AND:
DANTE LENISA and CATHERINA LENISA
Second Applicant
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
Coram: Hon. Justice John von Doussa
                                                                                                                                                                                                                                                                                                                                                                                                             Hon. Justice Daniel Fatiaki,
                                                                                                                                                                                                                                                                                                                                                                                                             Hon. Justice Reggett Marum
Counsel: Mr. C R de Robillard for the First Applicant,
                                                                                                                                                                                                                                                                                                                                                                                                                                              Second Applicants (Dante Lenisa and Catherina Lenisa) – no appearance
                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr. John Ridgway for the Third Applicant
                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr. Juris Ozols for the First and Fifth Respondents
                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr. John Malcolm for the Sixth Respondent
                                                                                                                                                                                                                                                                                                                                                                                                                                              Ms Susan Bothmann Barlow for the Seventh Respondent,
                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr. Mark Hurley for the Eighth Respondent
                                 
JUDGMENT
Listed before the Court is a notice of appeal and a notice of motion seeking leave to appeal from Orders made by the Hon. Justice Oliver Saksak 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