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Republic of Vanuatu v Picchi [2001] VUCA 22; CA 14-00 (26 April 2001)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 14 of 2000

BETWEEN:

THE REPUBLIC OF VANUATU
Appellant

AND:

LUCIANA PICCHI
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki

Counsel: Mr. Juris Ozols for the Appellant
Messrs Patrick Finnigan & John Malcolm

Hearing date: 26 April 2001
Judgment date: 26 April 2001

ORAL JUDGMENT

There was listed before the Court today an appeal against a judgment delivered in the Supreme Court sitting at Port-Vila on 16 November 2000 in Civil Case 113 of 1997 in which an amended statement of defence was struck out. The Judge recorded that he re-entered judgment for the plaintiff and fixed a date for the hearing of the assessment of damages.

The appeal was advanced on the following grounds:

“(i) the learned Judge failed to take into account that the Plaintiff contributed to the delay in this matter in that the Plaintiff obtained default judgment on 31 March 1998 but did not bring a motion for hearing of assessment of damages until 7 March 2000;

(i) the learned Judge failed to take account of the default by the Plaintiff in the provision of the Affidavit of Documents, in that the Affidavit was not sworn by the Plaintiff but rather the partner of the Plaintiff’s advocate;
(ii) the learned Judge erred in accepting the Plaintiff’s assertion that the Defendant failed to comply with the time order for filing an amended defence when in fact the Registry of the Supreme Court was closed during the last week of the time limited for filing of an amended defence;
(iii) in relation to the failure of the Defendant to comply with the order to pay costs of the Plaintiff, the Honourable Court can and should take and have taken judicial notice of the fact that the Government of the Republic of Vanuatu can only provide funds, whether ordered by the Court or not, when they are the subject of an appropriation under the Finance and Economic Management Act 1998 and that no appropriation had been made for the payment of the cost awarded by the learned Judge following his setting aside of the default judgment;
(iv) the learned Judge erred in taking into account the fact that the Defendant had not provided any affidavits in that while the Court had given liberty to file affidavits it did not order the filing of affidavits;
(v) the learned Judge failed to consider that while the Defendant’s Affidavit of Discovery had been provided after the time order, the Affidavit of Discovery had in fact been made by the time of the hearing of the application to strike out the amended defence and both parties had had the opportunity to inspect, and had in fact inspected, the documents of each other;
(vi) the learned Judge failed to take into account the public interest in the Government of the Republic of Vanuatu being in a position to defend a claim against the Government for US$4.5 million, which sum is approximately 10% of the entire annual appropriation of the Government of the Republic of Vanuatu.”

It is perhaps fortunate that it is not necessary for this Court to rule on the issues which are raised in support of the appeal. Suffice to say that in respect of this matter which was commenced on 6^th August 1997, there has been a lamentable failure on the part of the Defendant to meet his duties and obligations to the Court as the Defendant in this proceedings.

The Court however is of the view that the Orders made in November are fundamentally flawed and must be set aside.

Although it is not apparent from the face of the document, the proceeding which was filed in August 1997 is advanced on the basis that it is a Constitutional Petition. In due course we are going to grant leave for an amended proceeding to be filed by the Applicant. It should be in proper form and entituled in such a way which makes it clear that it is a constitutional petition. At the moment it really reads much more as a claim in tort, which happens to get a petition of constitutionality attached to i) so as to avoid the impediments found in other parts of the laws of Vanuatu.

Article 5 of the Constitution provides for certain enumerated fundamental rights and freedoms of the individual expressed as follows:

“5.(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms 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-

(a) life;
(b) liberty;
(c) security of the person;
(d) protection of the law;
(e) freedom from inhuman treatment and forced labour;
(f) freedom of conscience and worship;
(g) freedom of expression;
(h) freedom of assembly and association;
(i) freedom of movement;
(j) protection for the privacy of the home and other property and from unjust deprivation of property;
(k) equal treatment under the law or administration action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provisions 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.

(2) Protection of the law shall include the following-

• (a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;
• (b) everyone is presumed innocent until a court establishes his guilt according to law;
• (c) everyone charged shall be informed promptly in a language he understands of the offence with which he is being charged;
• (d) if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceedings;
• (e) a person shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in this presence;
• (f) no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;
• (g) no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;
• (h) no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial.”
  

The enforcement mechanism is contained in Article 6 (1) & (2) which must be read in conjunction with the provisions of Article 53(1) & (2). These Articles read:

“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 or 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 payment of compensation, as it considers appropriate to enforce right.”

“53.(1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.”

To fully appreciate and understand the matter however, it is necessary to have regard to Section 218 of the Criminal Procedure Code [CAP 136], the provisions of which are:

“(1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53(1), 53(2) and 54 of the Constitution shall be by petition and shall be valid not matter how informally made.

(2) The Supreme Court may on its own motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require;
(3) The petitioner shall, within 7 days of the filing of his petition in the Supreme Court or within such longer period as the Court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents filed in relation to such petition to be served on the party or on all those parties whose actions are complained of;
(4) Any party who is served with a copy of the petition in pursuance of subsection (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.
(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and enquire into it. It shall summon the party or parties whose actions are complained of to attend the hearing.
(6) On the day appointed for hearing, the Supreme Court shall enquire into the matters raised by the petition and after hearing all parties concerned shall give its decision and its order or directions (if any) thereon in open court.”

It is clear from the provisions of 218(6) that where a constitutional petition is presented and heard, the Court (and it is the Court alone) has the obligation first to determine whether there has been a breach and secondly if there has been a breach to determine how the breach is to be remedied.

It is noted in Article 6(2) the orders which the Court may make upon the breach being established to enforce the right includes the payment of compensation. That same approach is found in Article 53(2) which indicates the breadth of orders which the Court can make to remedy the breach of any provisions of the Constitution.

This case has been presented and run so far on the basis that there were acts or omissions for which there should be financial compensation. A constitutional petition can never be as simple as that. There must first be an inquiry by the Court and a determination of breach. Then it for the Court to determine the most appropriate way for that breach to be remedied. It necessarily follows that any notion of default judgment is inappropriate and cannot stand.

Involved in such exercise necessarily is a consideration of the interrelationship between the constitutional right and the rest on the legal framework in this Republic.

As was made clear by the Privy Council in Maharaj v. A.G. of Trinidad and Tobago (No.2) [1978] UKPC 3; [1979] AC 385 a constitutional right of this sort creates a novel and different process unfamiliar to those schooled in the Westminster and Common Law tradition. But it clear that a Court can do so. However in making its assessment of the appropriate remedy, the Court will have to do so within the total legal framework and not simply viewing this matter in complete isolation.

Mr. Finnigan is particularly anxious that further time will be lost because of this conclusion and the return of the matter to the Supreme Court. There have been at least two fixtures that have been arranged for the hearing of the substantive matter. It appears unlikely that even the second of these can now be used.

We are not unsympathetic to that situation and the Attorney General must accept a large measure of responsibility for the delays which there have been. We were concerned when the matter was called at the beginning of the week to learn that there was a costs judgment which was unsatisfied. We are advised it has been paid today. To do so is clearly a primary obligation on the Attorney General in every case.

It appears to us that the fastest progress will be made if the parties cover in a deliberate and careful way all the outstanding issues which need attention.

Accordingly we direct first that an amended pleading is to be filed and served within 14 days. The plaintiff has indicated that there is one additional evidential matter which she may wish to include. This is also the opportunity to get the process into its correct form. We are aware that a petition may be in any form, but when presented by lawyers, the Court expects that it should be in a form which immediately identifies the area of law which is being relied upon, namely that she is seeking a remedy for a breach of her constitutional rights.

Secondly, the Attorney General is to provide a full and complete statement of defence in respect of that matter within a further 14 days identifying all issues which will require attention in the hearing.

Thirdly, there is an outstanding issue with regard to discovery. Within 21 days the plaintiff must indicate whether she wishes to proceed with this application. If she wishes to withdraw the application then it will require no further attention. If it requires attention it can be heard during a hearing which we will set for the week of 10 June.

Fourthly, there has been mentioned a question about Mr. Ozols acting in this matter in light of some earlier peripheral involvement. The matter as placed before us would not suggest that it would be disenabling in and of itself. However the matter needs to be flushed out now rather than becoming a potential cause for delay at some subsequent point.

There are very real issues which regard to the meaning and effect of Section 218(5) and the provision for the Court summonsing parties whose action are complained of to attend the hearing.

This throws into focus substantial issues about the hearing generally.

We have been advised that there could be impediments to the plaintiff entering the jurisdiction. We are aware that there have been discussions as to the possibility that part of the hearing be held outside of Vanuatu. We are not persuaded the jurisdiction to do that necessarily exists. It is a matter which can be adjudicated upon and determined in the Supreme Court. There are both legal and political issues which cannot be ignored with regard to such a suggestion.

Similarly, there are issues about getting the Court to summons some of the persons whose actions are complained of and how they are to be summonsed to attend when they are no longer in Vanuatu.

The concern of this Court is that entire matter is placed before the trial Judge in the week of 11^th June with sufficient time available then to deal with all pre-trial issues which are outstanding. Clearly a fundamental task for that week will be setting the hearing date and making all necessary arrangements to ensure that it takes place without delay.

This case will involve novel questions about the interrelationship between the constitutional provision which exists and the substantive law as passed by Parliament. Although there is the clear rule that where they conflict the Constitution will prevail, the trial Judge will be entitled to substantial assistance from both parties as to the jurisprudence which necessarily is to be applied in those circumstances to maintain the integrity of each to the greatest extent possible.

There will be no order for costs in respect to this appeal hearing.

We understand there are two outstanding costs issues which require quantification and immediate payment once the quantification has occurred and which do not require our involvement.

DATED at PORT-VILA, this 27^th DAY of APRIL, 2001

BY THE COURT

V. LUNABEK CJ
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J