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Naripo v Vanair Internal Air Services (Vanair) Ltd [2000] VUSC 77; Civil Case 078 of 1998 (14 December 2000)

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

Civil Case No. 78 of 1998

BETWEEN:

WILLIE WILSON NARIPO
Plaintiff

AND:

VANUATU INTERNAL AIR SERVICES (VANAIR) LIMITED
Defendant

Mr. Robert Sugden for the Plaintiff;
Mr. Mark Hurley for the Defendant.

JUDGMENT ON LEAVE TO APPEAL

Leave to appeal is a discretionary power vested in the Court whether to allow or not an applicant leave to appeal on an Interlocutory Judgment. This was an application by the Applicant for leave to appeal the decision made of the 20th October 2000 in extending the Unless Order for another 14 days for the Defendant to comply with the 20th of March 2000 Unless Order. In allowing extension, the applicant in this leave to appeal was granted costs. Upon that order the defendant filed and serve in compliance with the 20th October 2000 Order. The matter was further adjourned for conference pending the compliance of that order by the Defendant which he did, but instead the applicant/plaintiff filed this motion for leave to appeal.

Two authorities submitted by the respondent.

1. Noall –v- Atkinson & Ors., Civil Case No. 3 of 1999 which their relevant applicable rule of law decided on interlocutory decision which I state from that judgment as submitted which I quote:

“The other issue concern that undesirability of the court entertaining appeals against interlocutory decisions or ruling given in the course of the trial process, such appeals add greatly to the costs both of the litigants and of the public purse, and often only to delay the final resolution of the case. This is specially so when there is no Court of Appeal in permanent session, and the Court of Appeal is periodically and then with a very busy calendar which may not immediately accommodate the appeal.

Leave to appeal against interlocutory decision and rulings in the cause of the trial process should be exceptional. The preferred cause is to allow the trial to run to final judgment. Often when final judgment is delivered, rulings about which a party has dissatisfied at that time often persist to have any continuing importance. If that is not the case, an earlier ruling for decision continue to play a part in the final judgment, the dissatisfied party can then appeal on that and other points of dissatisfaction. The court of appeal can determine all the issues at the same time.”

The other case is Hudson & Co. –v- Greater Pacific Computers ltd. Civil case No. 7 of 1997 at p. 3 which I quote:

“Where an applicant seeks leave to appeal against an interlocutory order which relates to a matter of practice or procedure, the application will not be granted lightly. Leave will only be granted where it is clear that the substantive right of a party are likely to have been prejudice by the order of the court in a way that is not likely to be remedied in the subsequent trial process.”

In this case the Defendant will be prejudice in presenting his defence if the Court does not give him the opportunity to do so and the compliance of the Order of the 20th October 2000 shows it.

In this case the court maintain in that judgment that the Court has no jurisdiction to revisit the Unless order, but has the discretion to extend an Unless Order of which the court granted 14 days for the defendant to comply. In that order if the defendant was not to comply within 14 days of the order surely the unless order will be effective on him and judgment to be entered against the defendant.

The defendant in this case the claim against him by the plaintiff runs up to about VT 14.634,338 and this is a substantial amount and the compliance of the order of the 20th 0f October 2000 shows that the defendant still want to be heard by the court before the court makes it final judgment in the case.

The issue of unless order applied for in this matter can be address by the court of appeal if the dissatisfied party appeals the final judgment and the issue of the unless order can be decided together with the substantive matter on final judgment. To allow it now, and than to appeal the substantive matter will greatly put a double cost to the parties and will further delay the completion of the case. For these reasons, I will not grant leave to appeal and adjourn the matter for trial of which the real dispute between the parties will be decided once and for all. However, if at the end of the trial and a dissatisfied party wants to appeal then the Court of Appeal can decide any interlocutory decision together with the substantive matter once and for all for the same cost. Costs of this judgment is reserved.

Dated at Port Vila, this 14th day of December 2000.

R. MARUM MBE
JUDGE.