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Pierre v Toa [2014] VUSC 67; Civil Case 148.2012 (12 June 2014)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Civil Case No.148 of 2012
(Civil Jurisdiction)

BETWEEN:

JEAN MARC PIERRE
Claimant

AND:

EVELYN TOA
Defendant

Coram: Mr. Justice Oliver A. Saksak

Counsel: No appearance by Claimant
Mr Nigel Morrison for Defendant

Date: 12th June 2014.

RULING

1. The Claimant filed his claim on 28th August 2012 and service was done on 19th September 2012. A sworn statement as to service was filed on 17th September 2013 only after the Registrar had issued a notice to Counsel Mr Stephen Joel on 24th January 2013. That was more than seven months later.
   
2. The Defendants filed a defence on 4th October 2013, denying malice, intent and damage to reputation by Claimant to give rise to any claim for damages
   
3. The file was allocated to my docket by the Registrar on 22nd April 2014. On the same date I instructed that a Notice of Conference be issued returnable on 2nd May 2014 at 0830 hours. That notice was issued to Mr Stephen Joel for the Claimant and Mr Nigel Morrison for the Defendants.
   
4. On 2nd May 2014 neither Mr Joel nor Mr Morrison were present. The Court simply issued a Minute adjourning the matter to 23rd May 2014 at 0900 hours.
   
5. On 23rd May 2014 only Mr Morrison appeared for the Defendants. Mr Joel did not appear and there was no explanation given or provided for his non-attendance at Court that day.
   
6. The Court then adjourned the matter for a final period of 14 days and issued very clear Orders that "Counsel file a memorandum with the Court explaining why this matter should be given a further listing failing which the matter would be struck out". The Order also clearly indicated the matter was returnable at 0830 hours today.
   
7. Today neither Mr Joel nor his client are present in Court and Mr Morrison urges the Court to enforce its Orders of 23rd May 2014. I accept Mr Morrison's submissions.
   
8. Rule 9.10 (1) (a) and (2) (a),(b) and (d) provide the basis on which the Court can strick out this proceeding. From the time of the Defendant's defence filed on 4th October 2013 until 22nd April 2014 when the Court issued a Notice for conference, it was a little more than 12 months. The Claimant could have filed evidence in support of his claims after he received the Defendant's defence or after the notice of 22nd April 2014 but there is no such evidence by sworn statement.
   
9. When the Court issued a requirement on 23rd May 2014 to Counsel to file a memorandum, the Court was in effect inviting the Claimant to take necessary steps to ensure his proceeding continues. When Counsel failed to do so, that failure or omission shows a lack of want of prosecution by Claimant of his claim.
   
10. Accordingly the Claims of the Claimants and the proceeding are struck out. There is no Order as to costs.
    

DATED at Port Vila this 12th day of June 2014.
BY THE COURT.

OLIVER.A.SAKSAK
Judge