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Toara v Erakor Island Resort Ltd [2008] VUCA 14; Civil Appeal Case 14 of 2008 (25 July 2008)

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

CIVIL APPEAL CASE No.14 OF 2008

BETWEEN:

ALEX TOARA
Applicant

AND:

ERAKOR ISLAND RESORT LIMITED
First Respondent

AND:

TROY NEEL

Second Respondent

Coram: Hon Chief Justice Vincent Lunabek
Hon. Justice John William von Doussa
Hon. Justice Oliver A. Saksak
Hon. Justice Christopher Tuohy
Hon. Justice Mark O’Regan

Counsel: Mr. Hillary Toa for the Applicant
Mr. John Malcolm for the Respondents

Date of Hearing: 23 July 2008
Date of Decision: 25 July 2008

JUDGMENT

1. The applicant filed in this Court what purported to be a notice of appeal against a decision of the Supreme Court dismissing an appeal from a decision of the Magistrates Court. The notice of appeal recited what were said to be multiple errors of fact and law on the part of the Supreme Court Judge.
   
2. Section 30 (4) of the Judicial Services and Courts Act 2000 [CAP 270] provides that the Supreme Court is the final court of appeal for the determination of questions of fact in relation to appeals from the Magistrates Court. It does, however, provide for an appeal to this Court on a question of law if this Court grants leave.
   
3. When the purported appeal came on for hearing, the Court informed Mr Toa of this difficulty in the way of the proposed appeal. We invited him to seek leave to appeal orally, which he did. However, despite prompting from the bench as to the need to identify a question of law for which leave was sought, he was unable to do so.
   
4. Even if a question of law had been identified, the Court would normally grant leave to appeal only if the proposed appeal raised a question of law that was capable of serious argument and that involved a public or private interest of sufficient importance to outweigh the cost and delay of a further appeal. The present application comes nowhere near meeting that standard.
   
5. In essence the complaint which the applicant wishes to pursue is that the Magistrate unfairly exercised his discretion to dismiss the applicant’s claim in the Magistrates Court after neither the applicant nor Mr Toa attended Court when the proposed trial of the applicant’s claim was due to take place. That was an option open to the Magistrate under rule 12.9 (2) of the Civil Procedure Rules.
   
6. The applicant’s appeal against the Magistrate’s decision was dismissed after full consideration of the arguments on the merits of the Magistrate’s decision. The applicant has had the appeal to which section 30 of the Judicial Services and Courts Act entitles him. A second appeal on the merits is not available to him under that provision.
   
7. As no question of law for which leave to appeal can be granted has been identified, we dismiss the application for leave to appeal.
   
8. The applicant must pay costs of VT25,000 to the respondents.
   

DATED at Port Vila, this 25th day of July, 2008.

BY THE COURT

Hon. Vincent Lunabeck CJ.
Hon. John William von Doussa J.
Hon. Oliver A. Saksak J.
Hon. Christopher Tuohy J.
Hon. Mark O’Regan J.