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Peters v ANZ Bank Vanuatu Ltd [2002] VUCA 41; CA 12-02 (1 November 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

APPELLATE JURISDICTION
CIVIL APPEAL CASE No.12 of 2002
BETWEEN

CLERA PETERS

Appellant
AND

THE ANZ BANK VANUATU LTD

Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak

Counsel: Mr. Hillary Toa for the Appellant
Mr. Mark Hurley for the Respondent

Hearing date: 25th and 30th October 2002
Judgment date: 01st November 2002

JUDGMENT

The appellant appeals against the refusal by Coventry J on 29 May 2002 to re-instate a matter which Marum J purported to strike out on 28 February 2000. In the Order under appeal His Lordship observed that the cause of action which the appellant was seeking to pursue occurred some six and half years ago. He said there were witness problems of availability and recollection, and as it was over two years between the date when Marum J purported to strike out the matter and the appellant’s application to have it restored, the matter should not be re-instated.

To understand the submissions made on the appellant’s behalf it is necessary to have regard to the nature of the cause of action, and the history of proceedings which have occurred between the parties.

The appellant was an employee of the respondent. The respondent purported to dismiss her on 11 November 1995.

On 16 November 1998 the appellant commenced proceedings in the Magistrate’s Court claiming severance allowance, payment in lieu of notice, for leave not taken, and interest. On 2 December 1998 the respondent filed a defence alleging that the employment of the appellant had been terminated on the basis of gross misconduct and for that reason denied the appellant’s claim.

On 26 January 1999 the respondent filed a Notice of Motion in the Magistrate’s Court seeking an Order that pursuant to Section 11(1) of the Courts Act [CAP.122] the Magistrate’s Court reserve for the consideration of the Supreme Court on a case stated basis the following question of law:

“Whether breaches of the Defendant’s standard banking procedures and of its Instruction Manual and/or clauses 5 and 12(d) of the Plaintiff’s Service Agreement dated 5^th April 1991 with the Plaintiff amounts to serious misconduct for the purposes of Section 50(1) of the Employment Act [CAP.160]?”

On 28 January 1999 Magistrate Stephen Felix made an Order pursuant to Section 11(1) of the Courts Act reserving the above question of law for consideration of the Supreme Court.

The Public Solicitor was acting in the proceedings on the appellant’s behalf. On 29 April 1999 the Public Solicitor wrote to the Registrar of the Court saying that the reserved question needed to be listed for hearing. Having not received a reply, the Public Solicitor wrote again to the Registrar on 19 August 1999. On 30th August 1999 the Registrar listed the matter for a Conference hearing on 1st September 1999. On that occasion a hearing date for the matter was set for 28 February 2000.

On 22nd February 2000 the Public Solicitor wrote to the Court saying he would be in Santo on 28 February 2000, and asking that the matter be re-listed on another date after 7 March 2000. A copy of that letter was sent to the respondent’s solicitors. The Public Solicitor received no response to this letter from the Registrar either before or after 28 February 2000.

The matter came on for hearing before Marum J on 28 February 2000. Counsel did not appear for either party. His Lordship made the following Order:

“Pursuant to section 11 of the Court Act this matter was adjourned to today for the hearing of counsel pursuant to directions of the Court of the 1^st September 1999 for hearing of the matter. The Court has jurisdiction under section 11 of the Court Act either to require counsel to be heard or not. The Court on 1^st September 1999 made direction for hearing of counsel for the exercise of its power under s.11 of the said Act. As neither counsel appeared it is only proper to strike out the matter.

Court Order: Matter is hereby struck out.”

It appears that the appellant’s solicitors were not informed of the order that had been made.

It was not until 12 February 2001 that the Public Solicitor again wrote to the Registrar of the Court inquiring as to the position. On 16 February 2001 the Public Solicitor was informed that the matter had been struck out and that it would be necessary for the appellant to file a formal application, and pay the appropriate fees, to have the matter re-instated.

The appellant did not make such an application until 17 April 2002. The Court then listed the application to have the matter re-instated for hearing before Coventry J on 16 May 2002. On that day only counsel for the respondent appeared. The respondent opposed the order and said that an important witness for the respondent was no longer in the country. Coventry J adjourned the matter to 29 May 2002 and directed that the respondent need not attend on that occasion. His Lordship indicated that if the Court were to find a prima facie case to set aside the Order made by Marum J a further date would be fixed to hear argument from the respondent.

On the adjourned hearing on 28 May 2001, after hearing counsel for the appellant, Coventry J was not satisfied that there was a prima facie case to re-instate the matter, and made the Order now under appeal. From the brief reasons given by Coventry J it appears His Lordship made his decision on the basis that the entire proceedings in the Magistrate’s Court had been transferred to the Supreme Court, with the consequence that it was for the Supreme Court to hear and determine the whole of the appellant’s claim.

In support of the present appeal, counsel for the appellant points out that a referral of the question of law under section 11 does not have the consequence of transferring the whole matter to the Supreme Court. Section 11 of the Courts Act provides:

“(1) A magistrate may at his discretion reserve for the consideration of the Supreme Court on a case to be stated by him any question of law which may arise on the trial of any criminal or civil proceedings. The magistrate shall not deliver his judgment on the proceedings before him until he has received the opinion of the Supreme Court and the Supreme Court shall have power to determine every such question with or without hearing argument.

(2) Notwithstanding the provisions of section 14 the Supreme Court shall be constituted for the purposes of subsection (1) by a single judge sitting alone.”

It is clear from s.11(1) that the order of the Magistrate referred only the question of law for the consideration of the Supreme Court. The proceedings commenced in the Magistrate’s Court remained in the Magistrate’s Court, although the effect of the Order s.11(1) was to freeze further action in the Magistrate’s Court until the Supreme Court had delivered its opinion on the reserved question. It follows that the claim by Mrs. Peters commenced in the Magistrate’s Court is still on foot in the Magistrate’s Court, but it cannot be heard and determined until the Magistrate’s Court receives the opinion of the Supreme Court on the reserved question.

It was the respondent who applied to the Magistrate’s Court to have the question of law reserved. For this reason we think it was up to the respondent rather than the appellant to make sure the matter progressed in the Supreme Court and that the Supreme Court gave its opinion. However in the proceedings before Coventry J it appears that the appellant rather than the respondent inappropriately has been blamed for the delay. From the history of events set out above it is apparent that the respondent has done nothing to have the matter listed for consideration by the Supreme Court at any time since the order reserving the question of law was made.

It appears that Marum J was not aware of the request that had been made to vacate the hearing date on 28 February 2000. However the respondent was aware of the request, and it was for that reason that the respondent did not appear before Marum J. The respondent, as well as the appellant, assumed that another date was to be fixed. When the respondent ascertained that Marum J had purported to dismiss “the matter”, the respondent should have taken steps to have the reserved question re-listed for the consideration of the Supreme Court.

It is essential that the reserved question be re-listed for hearing before a judge of the Supreme Court, so that the Supreme Court’s opinion can be given. Until that occurs the Magistrate’s Court is unable to proceed with the hearing of the appellant’s claim.

If it is the case that one of the respondent’s important witnesses is no longer in Vanuatu, or for some other reason the presentation of the respondent’s case is now more difficult than it would have been in January 1999 when the Magistrate’s Court was asked to reserve a question of law, we think the respondent’s difficulties are of its own making. It was the respondent that sought to have the question of law reserved, and it is the respondent that has failed to ensure that an answer to the question was given.

Section 11(2) of the Courts Act requires that the Supreme Court shall be constituted for the purpose of s.11(1) by a single judge sitting alone. This Court therefore has no jurisdiction to answer the reserved question. However we think it is appropriate that we comment upon the terms of the question that has been reserved for the consideration of the Supreme Court.

The purpose of s.11 of the Courts Act is to enable a pure point of law that is capable of being answered in the abstract and on agreed facts to be considered by the Supreme Court. In the present case, the reserved question is one that can only be answered against findings of fact about the events that happened, and why those events occurred. A theoretical failure to strictly follow standing banking procedures, the terms of an instruction manual, or the terms of a service agreement may or may not constitute misconduct, depending on all circumstances. In a situation that falls outside the events contemplated by standing banking procedures, or the contractual terms and conditions, the standard terms may be quite inappropriate, and to disregard them might be in the best interest of the bank. In circumstances which are not normal the conduct of the employee may not be misconduct, even if the bank thinks that another course of conduct may have been preferable.

In the present case the reserved question goes even further than raising a question of misconduct. It asks whether the alleged misconduct was “serious misconduct”. Whether misconduct is “serious” involves matters of fact and degree to be evaluated having regard to all circumstances. The question reserved for the consideration of the Supreme Court is simply incapable of answer at this stage. Whether there has been “serious misconduct” by the appellant can only be judged at the end of a trial at which relevant witnesses give their evidence. Accordingly, the only opinion which a judge of the Supreme Court could give on the question reserved for its consideration is that the question is incapable of answer at this stage and that the Magistrate’s Court should proceed with the trial of the action before it.

To enable this to occur the Order of Coventry J must be set aside, and the reserved question of law must be re-listed for hearing by a single judge. Hopefully the parties will be able to avoid a full hearing before a single judge by agreeing that the judge should make an order expressing the opinion of the Supreme Court that the reserved question is incapable of answer at this stage, and that the trial of the proceedings in the Magistrate’s Court should proceed to judgment.

The formal order of the Court is that the decision of Coventry J made on 28 May 2002 is set aside, and that there be a direction that the referred question of law be re-listed for determination by a single judge of the Supreme Court as soon as convenient to the Court and to the parties.

We consider that there should be an order that the respondent pay the appellant’s costs of this appeal.

DATED at PORT-VILA, this 01st DAY of NOVEMBER 2002

BY THE COURT
Vincent LUNABEK CJ
J. Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI
J Oliver A. SAKSAK J