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Judicial Services and Courts (Amendment) Act 2008

Commencement: 30 June 2008

REPUBLIC OF VANUATU

JUDICIAL SERVICES AND COURTS (AMENDMENT)
ACT NO. 26 OF 2008

Arrangement of Sections

1. Amendment
2. Commencement

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REPUBLIC OF VANUATU

Assent: 12/06/2008
Commencement: 30/06/2008

JUDICIAL SERVICES AND COURTS (AMENDMENT)
ACT NO. 26 OF 2008

An Act to amend the Judicial Services and Courts Act [CAP 270].

Be it enacted by the President and Parliament as follows:

1 Amendment

The Judicial Services and Courts Act [CAP 270] is amended as set out in the Schedule.

2 Commencement

This Act commences on the date on which it is published in the Gazette.

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SCHEDULE

AMENDMENTS OF THE JUDICIAL SERVICES AND COURTS
ACT [CAP 270]

1 Subsection 36(1

Delete "60", substitute "65"

2 After subsection 36(1)

Insert

"(1A) Notwithstanding subsection (1), a person who is not a citizen of Vanuatu and is over the age of 65 years may be appointed as a judge of the Supreme Court for a specified term and will only cease to hold office:

(a) at the expiration of that term; or

(b) in accordance with article 47 (3) (a) or (b) of the Constitution.

(1B) Nothing done by a judge of the Supreme Court is invalid by the only reason that he or she has attained the age at which he or she is required by this section to vacate his or her office."

3 After section 41

Insert

"42. Master and deputy masters

(1) The Commission must appoint on merit a master and such deputy masters of the Supreme Court.

(2) A person must not be appointed as the master or a deputy master unless the person:

(a) is admitted as a barrister or solicitor of the Supreme Court or a similar court in another jurisdiction or is sitting as a Senior Magistrate for a period of 3 years; and

(b) has sufficient experience and ability to fulfil the duties of the master or a deputy master.

(3) The master or a deputy master:

(a) may hear and determine all or any of the following matters:

(i) application for directions relating to matters of procedure;

(ii) taxation of bills of costs;

(iii) applications for probate;

(iv) preliminary matters in relation to applications for adoption;

(b) may exercise such of the powers, functions and jurisdiction of the Supreme Court as may be prescribed by the Rules of Court.

(4) A person may appeal to a judge of the Supreme Court against a decision of the master or a deputy master made under paragraphs (3)(a) and (b). The appeal is to proceed by way of a hearing de novo and the judge’s decision on appeal is final.

(5) The Commission may appoint a person who satisfies paragraphs 42(2)(a) and (b) to be an acting master, if:

(a) there is a vacancy in the office of the master; or

(b) the master is absent from Vanuatu or is for any reason unable to perform his or her duties.

(6) A person appointed as an acting master, has the jurisdiction, functions and powers of the master.

(7) A person holding the office of master or acting master is entitled to the salary and allowances applicable to that office as set out in the table in Part 1 of the Schedule and the benefits as are described in detail in Part 3 of the Schedule.

(8) The Commission is to determine the salary and allowances applicable to the office of deputy master.

(9) A person appointed to be an acting master must continue to act in that office until the end of the period for which he or she is appointed, unless the person:

(a) resigns from his or her acting appointment; or

(b) is suspended or removed from the acting position.

(10) Section 21 and subsections 23(2) to (5) apply to the master or a deputy master as if a reference in that section and those subsections to a magistrate were a reference to the master or a deputy master.

(11) The master or a deputy master has, in exercising his or her functions under section 42, the same protection and immunity as a judge has under section 55 of this Act, in performing the functions of a judge.

42A. Mediation

(1) Subject to the Rules of Court, the Supreme Court may by order refer the proceedings in that Court, or any part of them or any matter arising out of them, to the master or a deputy master or a mediator for mediation in accordance with the Rules of Court.

(2) Referrals under subsection (1) to the master, a deputy master or a mediator may be made with or without the consent of the parties to the proceedings.

(3) In seeking such resolution under subsection (1):

(a) the master, deputy master or a mediator may require the attendance of the parties before him or her; and

(b) the parties may make suggestions and concessions without prejudice to their claims and position in the proceedings; and

(c) the master, deputy master or a mediator may make suggestions for the resolution of disputes without prejudice to any hearing before the Supreme Court; and

(d) if a settlement is reached, it must then be signed and dated by the master, deputy master or mediator; and

(e) any settlement recorded under paragraph (d) is enforceable as an order of the Supreme Court; and

(f) evidence of anything said, or of any admission made, at a conference conducted by the master, a deputy master or a mediator in the course of mediating anything referred to under this section is not admissible in any Court.

(4) A mediator has, in mediating anything referred to under this section, the same protection and immunity as a judge has under section 55 of this Act, in performing the functions of a judge.

(5) In this section, mediator means a person who is appointed as a mediator under the Rules of Court.

42B. Arbitration

(1) Subject to the Rules of Court, the Supreme Court may by order refer the proceedings in that Court, or any part of them or any matter arising out of them, to an arbitrator for arbitration in accordance with the Rules of Court.

(2) Referrals under subsection (1) to an arbitrator may be made only with the consent of the parties.

(3) The Rules of Court may make provision for the registration of awards made in an arbitration carried out pursuant to an order made under subsection (1).

42C. Power of arbitrator to refer question of law to the Supreme Court

(1) If:

(a) any proceedings in the Supreme Court, or any part of them or any matter arising out of them, has been referred under subsection 42B(1) to an arbitrator for arbitration; and

(b) the arbitrator has not made an award in respect of the arbitration; and

(c) a party to the arbitration has requested the arbitrator to apply to the Supreme Court for leave to refer that Court to a question of law arising in the arbitration,

the arbitrator may apply to the Supreme Court for leave to refer the question to that Court.

(2) The Supreme Court must not grant leave unless it is satisfied that the determination of the question of law by that Court might result in substantial savings in costs to the parties to the arbitration.

42D. Application to the Supreme Court for review of award on a question of law or for costs to be taxed

(1) Subsections (2) to (5) apply if:

(a) any proceedings in the Supreme Court, or any part of them or any matter arising out of them, has been referred under subsection 42B(1) to an arbitrator for arbitration; and

(b) the arbitrator has made an award in respect of the arbitration; and

(c) the award has been registered with the Supreme Court under the Rules of Court.

(2) A party to the award may apply to the Supreme Court for a review, on a question of law, of the award.

(3) On a review of an award on a question of law, the Supreme Court may:

(a) determine the question of law; and

(b) make such orders as it thinks appropriate, including:

(i) an order affirming the award; or

(ii) an order varying the award; or

(iii) an order setting aside the award and remitting the award to the arbitrator for reconsideration in accordance with the directions of the Supreme Court; or

(iv) an order setting aside the award and determining the matter to which the award related.

(4) A party to the award may apply to the Supreme Court for an order that the costs payable by the party in respect of the arbitration be taxed in accordance with the Rules of Court.

(5) The person who has made an application under subsection (4) is not liable to pay in respect of the costs of the arbitration an amount that is more than the amount of the costs as taxed under an order made pursuant to subsection (4).

42E. Protection of arbitrators

An arbitrator has, in arbitrating anything referred under section 42A, the same protection and immunity as a judge has under section 55 of this Act, in performing the functions of a judge.

42F. Arbitration awards

(1) The Supreme Court may, upon application by a party to an award made in arbitration (whether carried out under an order made under section 42B(1) or otherwise) in relation to a matter, in which that Court has original jurisdiction, make an order in accordance with the terms of the award.

(2) Subsection (1) does not apply to an award made in an arbitration carried out under an order made under subsection 42B (1) unless the award has been registered with the Supreme Court under the Rules of Court.

(3) Subject to subsection (4), an order made under subsection (1), is enforceable in the same manner as if it has been made in an action in the Supreme Court.

(4) A writ of attachment must not be issued to enforce payment of moneys under an order made in accordance with this section."

4 Schedule –PART 2

After item 4, insert