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

CIVIL APPEAL CASE No. 16 of 2005

BETWEEN:

COCONUT OIL PRODUCTION (VANUATU) LIMITED (COPV)
Appellant

AND:

ANDREW TAVOA
First Respondent

AND:

PETER TERRY
Second Respondent

Coram: Chief Justice Vincent Lunabek
Mr Justice Bruce Robertson
Mr Justice Daniel Fatiaki
Mr Justice Patrick Treston
Mr Justice Hamlison Bulu

Counsel: Messrs Wade Roper & Collin Leo for the Appellant
Mr Daniel Yawha for the Respondents

Date of hearing: 7 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal against a decision of Justice Saksak delivered in the Supreme Court sitting in Luganville on the 18 July 2005.

An Order was made that the Appellant pay to the Respondents a sum of 3,826,989 Vatu and ancillary orders as to costs and interest for damage caused to the Respondent’s taxi in a road accident together with consequent losses.

There were two matters raised on the appeal.

First, that the Appellant was not present at the hearing at which these Orders were made against it and was denied an opportunity to be heard. Secondly, that in any event, there could be no findings against it in the circumstances.

On the first ground the Appellant sought an Order that the decision be set aside and that the matter be remitted for rehearing in the Supreme Court. On the second that the proceedings be struck out altogether.

There is no argument about the chronology of this case. On 14 June 2005, Justice Saksak made a variety of Orders in the case including that the matter be set down for hearing on the 18 July at 9.00AM.

On 5 July 2005, a letter was sent to the Court advising that Mr Roper who was counsel in the matter, was required to appear in the Supreme Court in Port-Vila at exactly the same time on another round of the long-standing litigation involving the Grand Hotel & Casino in which a sum of Vatu 800,000,000.00 was at stake.

The total circumstances were clearly set out in a letter to the Registrar copied to the Solicitors on the other side. A variety of additional dates were suggested as to when the matter might be re-scheduled.

With commendable insistence, various lawyers from George Vasaris & Co. rang the Court in Luganville on a regular basis seeking advice as to whether the requested adjournment was to be granted. They were unable to get a definitive answer. It was only after a week had elapsed that counsel was advised that the Judge had directed that the hearing was going on as there were no more dates available in the Court’s calendar until December.

There were then negotiations between Mr Leo on behalf of Mr Roper for the Appellant and Mr Kapalu for the Respondents which was copied to the Court in which, it was agreed, that the Appellant accepted that it was obliged to pay wasted costs but there would be no opposition to an adjournment.

Notwithstanding the parties agreement, on the 18th July the Judge insisted that the matter go on. The problems resulting were raised again in a letter of 19 July to the Registrar at Luganville but the position remained unchanged and the appeal was filed.

By the time the appeal came on for hearing Mr Kapalu very responsibly accepted that, in all the circumstances, the Judgment could not stand and that, by consent, the appeal could be allowed. Mr Roper was then bold enough to suggest there ought to be an Order for costs in his favour. With that we do not agree.

It needs hardly to be stated that, once a firm date had been given for any hearing it is imperative that it be maintained and not overlooked or ignored except with the agreement of the Judge. Counsel do so at their peril.

The Court system nationally should endeavour to ensure that fixture problems of this sort do not arise. Courts must cooperate in any way they can to avoid the sort of difficulties that arose in this case. But counsel must be aware that they can never take for granted the way in which a Judge will exercise his discretion. Unless counsel have been given clear and unequivocal advice that the Judge agrees to an adjournment (even if the parties are in agreement) then counsel who cannot appear must always ensure that there is alternative representation at a set hearing date.

In the present case, in all the circumstances we are of the view that costs should lie where they fall.

The second argument advanced by Mr Roper was that the Respondents could never succeed because in fact a vehicle had driven into the back of another vehicle.

Although the law does suggest that a person who drives into a car in front of him will have some explanation to give, we do not accept that there is any irrebuttable rule that there can never be liability on the part of the driver of the car which is driven into.

The circumstances of this case are unusual. There is some suggestion of a driver talking on a mobile phone and stopping suddenly without any warning, of a car not having brake lights and even of a car jumping backwards into another car behind it. All of that makes it abundantly clear that there are triable questions of fact which can only be determined by a Judge after hearing and assessing all the witnesses. Accordingly we decline to dispose of the case on the papers.

Although the case is formally remitted for rehearing the amounts involved are not large.

The parties would be well advised to consider their positions and the cost/benefit analysis of further litigation. Just because the case is remitted does not mean that the parties cannot choose to settle it between themselves. A course which we would commend.

The appeal is allowed. The case is remitted for further steps to be taken in the Supreme Court at Luganville. There will be no Order as to costs.

DATED at Port-Vila this 18th Day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
PATRICK I. TRESTON J
HAMLISON BULU J