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Kere v Ifira Wharf and Stevedoring [2005] VUSC 120; CC 123 2004 (24 October 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 123 of 2004

BETWEEN:

JUDITH KASPER KERE
Claimant

AND:

IFIRA WHARF AND STEVEDORING
Defendant

Coram: Justice Treston

Mr. Yawha for Claimant
No appearance of or for Defendant

Dates of Hearing: 24 October 2005
Date of Decision: 24 October 2005

JUDGMENT

CLAIM

In a Supreme Court claim filed on 17 June 2004, the Claimant sought damages for breach of an employment agreement dated 1 April 2001 in the sum of VT5,829,000 together with interest, and damages for breach of the Employment Act [CAP 160] of VT800, 515 together with interest of 12 % per annum together with costs.

In a defence filed on 30 August 2004, the defendant denied that the dismissal of the claimant was unlawful and said that consideration was always given for protection of a medical certificate and proper notice was given and an adequate opportunity was given to but the claimant either failed or refused to take advantage of the opportunity given. It denied any breach of the legislation and denied any loss or damage or liability for payment of interest.

An initial defence that the claim was statute barred was raised but was withdrawn at a conference when defence conceded that the Act had been amended in 1995.

FACTS

The Claimant was employed as Financial Controller by the Defendant on 1 April 2001 under an employment agreement dated 1 April 2001 for a remuneration of VT2,040,000 per annum payable fortnightly in arrears for a period of 3 years. (see exhibit A to Claimant's sworn statement of 20 September 2004).

Exhibit B was a letter from the Defendant to the Claimant concerning her employment at VT170,000 per month together with medical insurance covered and a travel allowance of VT4,000 per month.

By letter dated 25 July 2001, the Defendant terminated the Claimant's employment (see exhibit B).

EVIDENCE

The Claimant filed two sworn statements from herself dated 20 September 2004 together with a sworn statement of Leipakoa Peter dated 20 September 2004 and a sworn statement of Amy Binihi also dated 20 September 2004.

The Defendant filed two sworn statements of Pakoa Kaltonga dated 8 March 2005 and 20 June 2005.

The Claimant filed a further sworn statement in response sworn on 28 April 2005.

HEARING

A trial preparation conference took place on 22 June 2005. Mr. Boar appeared for Mr. Yawha at the conference and Mr. Timakata appeared for the Defendant. On that day trial dates were set for 24 and 25 October 2005. The parties were reminded to pay the trial fees within 7 days of the date of the order or be subject to a 50% increase. Trial fees were paid by Indigene Advocates on behalf of the Defendant and a receipt was issued on 29 June 2005. The Claimant was late in paying her trial fee and had to pay the penalty as well.

On the morning of the hearing after 9am, counsel for the parties saw me in chambers. Mr. Yawha appeared for the Claimant. Mr. Tari purported to appear for the Defendant and advised that he was now acting for Ifira Trustees generally rather than Indigene Avocates and he sought an adjournment of the trial. Initially Mr. Yawha indicated that he was prepared to agree to an adjournment on the payment of costs of VT10,000 by the Defendant but when the Court advised that no new dates could be obtained before the new year, he advised that he would not consent to any adjournment.

Mr. Tari advised that he had not specifically spoken to the Defendant about this case or the trial.

I indicated that the application for adjournment would be declined but I gave Mr. Tari until 10am to obtain instructions and reminded him that the matter had be set down for hearing for 4 months.

The Court reconvened at 10am, Mr. Yawha appeared with his client and witnesses. Mr. Tari did not deign to return to the Court. Mr. Yawha advised that he had provided Mr. Tari with the copies of the pleadings and the evidence but that Mr. Tari had told Mr. Yawha that he would not be returning up to the Court again.

Also at the hearing was Mr. Timakata from Indigene Avocates. He advised that his client had filed a notice of ceasing to act but I had earlier had my clerk check the file and no such notice had ever been filed. Mr. Yawha advised that he had never been served with a copy. Mr. Timakata then filed a notice of ceasing to act.

Mr. Yawha advised that he had given notice of cross-examination of the defence witness on 22 June 2005. Mr. Pakoa Kaltonga was not at Court to be cross-examined.

JUDGMENT

In the absence of the Defendant or its legal representative, I heard submissions from the counsel for the Claimant. Clearly this was an uncontested breach of the employment agreement. The claim for 3 months salary in lieu of notice and for travelling allowance was abandoned. I placed no reliance on the Defendant's sworn statements because it was not represented and its witness was not available for cross-examination.

I entered judgment for the Claimant against the Defendant as follows:-

I also awarded costs to the Claimant against the Defendant on a standard basis as agreed or as determined by the Court.

An enforcement conference is set for 2pm on 28 November 2005.

A responsible officer of the Defendant must attend the enforcement conference and must bring with him/her sufficient documents to enable him/her to give a fair and accurate picture of the financial circumstances of the Defendant.

Dated AT PORT VILA, this 24th day of October 2005

BY THE COURT

P. I. TRESTON
Judge