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Malwersets v Republic of Vanuatu [2020] VUSC 145; Civil Case 578 of 2018 (26 June 2020)

ORAL JUDGMENT

1. I hear both counsel in respect to the Defendant’s application to strike out the claim filed 2 June 2020.
   

Background:

2. The nature of claim is for:-
   
   • - Severance;
   • - Underpay from 2000 – 2006;
   • - Underpay from 2006 – 2014;
   • - Acting allowances;
   • - On-Call duties;
   • - Salary increase;
   • - Outstanding annual leave;
   • - Common law damage.
     

The total damage claimed is of VT6,747,765.

3. The Claimant was a nurse at Norsup Hospital. He was permanently appointed as a nurse in 2001. He resigned from his appointment on 14 August 2014 after employed as a nurse for a period of 14 years.
   
4. He filed a claim on 28 February 2018 claiming for his unpaid on-call allowances and severance and other entitlements. He claimed, among others, for an order for damages against the Defendant for breach of agreement in the amount of VT6,747,705; 5% interest and costs.
   
5. There was no response filed but an application to strike out the claim with a sworn statement was filed by Mr Tom Loughman dated 2 June 2020;
   
6. The application to strike out the claim is made on the grounds that:-
   
   • (i) The Claimant failed to take steps to progress with the proceeding as required under Rule 9.10(1) to ensure that the proceeding continues after the claim was filed on 28 February 2018;
     
   • (ii) The claim is misconceived on the basis that the entitlements sought (severance and acting allowances) have already been paid out by the Defendant;
     
   • (iii) The proceedings pleaded in the claim is vague on the basis that it is not clear as to what period exactly that the Claimant is claiming for acting allowances and what are the basis that supports the claim;
     
   • (iv) That the claim is statute barred by either the Limitation Act [CAP. 212] or the Employment Act [CAP. 160].
     
7. I consider the application to strike out the claim. I heard submissions of both counsel. The claim pleaded matters of remunerations and entitlements. Some aspects can be considered under Section 20 of the Employment Act and other parts of the pleadings under Section 3 or Section 6 of the Limitation Act [CAP. 212]. Matters of remuneration has to be claimed within the time requirements set under Section 20 of the Employment Act. Other matters of contractual nature of 3 years has to be claimed within three (3) years the actions accrued. Severance entitlements and others have to be claimed within the 6 years of action accruing (Section 6 of the Limitation Act).
   
8. Severance claim is an entitlement of an employee and for the claimant, his entitlement as a public servant of 10 years continuous service and paid at the end of service either on retirement or after resignation. Here, the Claimant’s resignation took effect on 14 October 2014. The claim for severance was filed on 28 February 2018. It is an entitlement consequent upon the employment or contractual appointment as a public servant since 2001 pursuant to Public Service Act or the Employment Act. This is more than 10 years continuous service at the public hospital of Norsup, Malekula.
   
9. Some aspects of the claim may be statute barred. The claim cannot be struck out because of these aspects as some other aspects of the claim are subject to the 6 years period limitation if the Claimant proves them to be so since 28 February 2018.
   
10. The ground that some aspect of the pleadings are vague do not automatically render the claim strikable. The best remedy to cure the vagueness is amending the claim with costs against the Claimant if the circumstances justify.
    
11. The claim was filed on 28 February 2018. It was served on the Defendant on the same date of 28 February 2018. A proof of service was filed on 2 March 2018 in support.
    
12. No defence is ever filed. The fact the claimant did not pursue his case pursuant to Rule 9.10(1) is a matter for the Claimant. It is not a matter open to the Defendant to apply to strike it out once served on the Defendant and waiting for a defence to be filed and none was ever filed. The Claimant decides to pursue the claim in any event some time after.
    
13. The claim cannot be pursued in its current state and has to be amended. The defendant agreed subject to the claimant to pay the costs for the delay in doing so.
    
14. In summary, there were matters pleaded that could no longer be pursued as they are statute barred. There were also matters that were vague and need to be particularized. There were further matters that required determination after proper trial. I convey the position to both Counsel. I sense they both understand the position. I treat the application as withdrawn. The new position is now that the Claimant has to amend the claim and the Defendant will be entitled to the costs of the delay of the amendment.
    
15. The Court makes the following Orders:
    

ORDERS

1. The Claimant has 14 days to file and serve an amended claim with sworn statements in support by 10 July 2020;
   
2. The Defendant shall file and serve a defence with sworn statements in support by 27 July 2020;
   
3. A short pre-trial conference is set on 28 July 2020 at 8:30am;
   
4. The Defendant is entitled to wasted costs of VT5,000 to be paid by the Claimant before the next conference of 28 July 2020;
   

DATED at Port Vila, this 26^th day of June, 2020

BY THE COURT

Vincent LUNABEK
Chief Justice.