IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA
(Civil Jurisdiction)

Civil Appeal Case No. 10 of 2000

BETWEEN:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
First Appellant

AND:

THE COMMISSIONER OF POLICE OF THE REPUBLIC OF VANUATU
Second Appellant

AND:

RAYMOND AND JOSETTE VALLETTE
Respondent

Coram: Justice Bruce Robertson
Justice Von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Roger J Coventry

Dated: 24 April 2001

MINUTE

This is an appeal with leave by the defendants in the primary proceedings, the Government of the Republic of Vanuatu and the Commissioner of Police, arising from an oral judgment given by Marum J on 6th July 2000, refusing an application by the defendants to either strike out or dismiss the plaintiff’s claim.

The matter has a long history of interlocutory applications. The matter eventually came on for a trial before his Lordship on the 3rd July 2000. We are informed from the bar table that before the plaintiffs’ counsel opened the case, an oral application was made by counsel for the defendants to have the proceedings dismissed. It is not entirely clear to us on what basis that application was made. It is not clear whether it was an application to strike out the proceeding on the basis that the pleadings failed to disclose a cause of action, or whether it was made on some other basis. It seems probable that it was dealt with as an application seeking summary dismissal on the basis that there was no prospect of the claim succeeding on any basis.

The application was made by counsel for the defendants on three grounds. The first ground was that that s.40 of the Police Act [Cap 105] applied to bar the plaintiff’s proceedings. The second ground was that no duty of care could arise in relation to the policing activity the subject of the proceedings. The third ground was that the circumstances of the case taken at their highest could not demonstrate breaches of Articles 5(1)(c), 5(1)(d) or 5(1)(j) of the Constitution of the Republic of Vanuatu.

 Section 40 of the Police Act is not mentioned either in the amended statement of claim or in the defence. On the face of it, that section could provide a bar to the plaintiff’s claim. Whether it did provide a bar would depend on whether the police action was taken bona fide or not, or on whether the police action was action quite outside the scope of the powers given to the police under the Police Act. A third possibility, again not mentioned in the pleadings, is that s.40 is rendered invalid by reason of inconsistency with the fundamental rights given by Article 5 of the Constitution. 

The omission of the pleadings on either side to refer to s.40 was compounded by the terms in which the plaintiff pleaded his cause of action, in particular in paragraph 13 of the amended statement of claim which merely alleges “despite such request [that is a request for protection] or prior knowledge [of pending civil disturbance] the police and/or VMF declined to take any action to protect, defend or help the plaintiffs”. That pleading does not endeavour to particularise how any common law duty of care was broken, or the manner in which any breach of Constitutional rights was said to arise. In so far as Constitutional rights were concerned, it is not clear on the pleadings whether the plaintiff alleges a failure, negligent or otherwise, to provide security or protection in the manner they contend is required by the Constitution or whether there was a deliberate, wilful refusal on the part of the police authorities to provide protection. In the latter event there may also be a cause of action asserted by the plaintiffs of misfeasance in public office. Such a cause of action was suggested in a round about way by the submissions made by the counsel for the plaintiffs, but it is not pleaded.

His Lordship heard the submissions of counsel for the defendant and submissions in reply by the plaintiffs’ counsel. We do not have a transcript of these submission but it appears from what we were told today that plaintiffs’ counsel adverted to the factual material which would be disclosed by evidence which would explain or at least elucidate in many respects the deficiencies in the pleadings to which reference has just been made.

In dismissing the application for summary judgment the learned trial Judge seems to have recognised the inadequacies of the pleadings, and to have adopted a pragmatic approach, namely to require the parties to call their evidence so that the court could then identify the real issues existing between the parties and address them in the knowledge of the true facts. That is in one sense a commendable approach to litigation, but in another sense it is fraught with difficulty because others, particularly the Court of Appeal, are unable to identify precisely what the real issues were at every stage in the trial.

 In the course of argument today the parties have acknowledged the deficiencies in the pleadings. Discussion has also identified that a limited liability company rather than the named plaintiffs Mr. and Mrs. Vallette is probably the entity that has suffered the loss alleged, and accordingly the company should be joined as a party to the proceedings. It has further transpired that there is another civil action, No. 13 of 1998, on foot by the limited liability company against its insurer. Those proceedings will inevitably raise matters of fact common with those raised in the present proceedings, and it is desirable in the interest of every body that these two matters be heard together.

The parties are agreed that the above deficiencies should now be addressed and that the matter should then be returned to Marum J, as trial judge, for a pre trial conference. In the circumstances this Court gives the following directions:

1.	Leave to the plaintiffs [that is the respondents before this Court] before the 28 May 2001 to join Centre Garage Limited as a plaintiff in Civil Case 11 of 1998.

2.	Leave to the plaintiffs before the 28th May 2001 to further amend their Statement of Claim to identify-

(a)	the losses of each plaintiff

(b)	the precise causes of action and breaches of common law and/or Constitutional duty relied on, including the basis on which the plaintiffs say they avoid the operation of s.40 of the Police Act [Cap 105]

(c)	the remedy or remedies claimed for each of the alleged Constitutional breaches.

3.	That this matter go forward to trial in conjunction with and at the same time as Civil Action 13 of 1998, reserving however to the respondent in that action the right to apply to Marum J to vary this direction or to give further direction as to the conduct of trial involving both matters.

4.	Leave to the defendants to amend their defence by the 22nd June 2001. 

5.	That both Civil Action No. 11 of 1998 and Civil Action No. 13 of 1998 be listed for pre-trial conference before Marum. J as trial judge at 8.00 am on Monday 25 June 2001.

6.	The appeal will otherwise be dismissed with no order as to costs.

BY THE COURT OF APPEAL

Justice Bruce Robertson			Justice John Von Doussa

Justice Daniel Fatiaki				Justice Oliver Saksak

Justice Roger J Coventry