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Kalpokas v Natapei [2004] VUSC 55; Civil Case 086 of 2004 (10 June 2004)

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

Civil Case No. 86 of 2004.

BETWEEN:

DONALD KALPOKAS MASIKEVANUA,
SELA MOLISA,
JOHN PATH and
TELE HARRY
Claimants

AND:

NIKAKE EDWARD NATAPEI,
JOHN MORSEN WILLIE,
GEORGE WELLS and
JIMMY NICKLAM
Defendants

Coram: Mr. Justice P. I. Treston

Counsel: Mr. Bani for the claimants
Mr. Kalsakau for the defendants

Date of Hearing: Friday 4 June 2004.
Date of Decision: Thursday 10 June 2004.

RESERVED JUDGMENT

Proceedings

In a claim for Judicial Review and a claim at common law the claimants claim as follows:-

“1. A declaration that the election of the Executive Council of the 33rd Congress of the Vanua-aku Pati held at Lingarak, Malekula, on 22 October 2003 [“33rd Congress, Lingarak”], referred to as the “de facto Executive Council” and of the Congress whose members are referred to in paragraph 31 of the Grounds hereof [“Lingarak Executive Council Election”], is invalid for all or any of the reasons pleaded in paragraph 34 and 37 of the Grounds.

2. An order quashing the Lingarak Executive Council election.

3. A mandatory order that the Claimants be authorized by the Court to reconvene the 33rd Congress of the Vanua-aku Pati on such terms as the Court deems appropriate in order that the election of the Executive Council can be conducted again at a place and time as soon as reasonably possible.

4. Such other declarations and orders as just.

5. Costs and disbursements.”

The application was filed on 20 April 2004 and followed an earlier application under Civil Case No. 39 of 2004, which was a similar claim for judicial review where the applicants were Mr. Nakat Willie, Mr. Joe Natuman and Mr. Jackleen Titek with the defendants Mr. Nicklam, Mr. Wells and Mr. Willie, seeking the following relief:-

1. A Declaration that the election results for the election of the Vanua-aku Party Executive Council conducted by the 33rd Annual Vanua-aku Party Congress on 22nd October, 2003 at Lingarak, Malekula are null and void and of no effect.

2. A quashing order (Writ of Certiorari) quashing the election results for the Vanua-aku Party Executive Council Elections conducted by the 33rd Annual Vanua-aku Party Congress on 22nd October 2003 at Lingarak, Malekula.

3. A Mandatory Order (Writ of Mandamus) ordering that the Vanua-aku Party shall re-convene another Party Congress as soon as possible and in line with the requirements of the Vanua-aku Party Constitution and established rules and precedents to conduct fresh elections for a new Vanua-aku Party Executive Council.

4. An urgent interim prohibition order (Writ of Prohibition) restraining both the Claimants and the Defendants, by themselves or their agents or representatives from calling any meetings, conducting any meetings, or making or issuing any public announcements, statements, messages or information in the name of or purporting to act on behalf of the Vanua-aku Party or the Executive Council of the Vanua-aku Party, whether through the media or any other means, pending the final determination of this action by the Court.

5. An urgent interim Mandatory Order (Writ of Mandamus) ordering that pending the final determination of this action by the Court and pending the election of the new Executive Council, both the outgoing President, Honourable Edward Natapei and the Honourary President, Honourable Donald Masike Vanua shall both jointly administer the Vanua-aku Party affairs.

6. Any other orders/declarations as deemed proper by the Court.

7. Costs.

In an oral decision under Civil Case No. 39 of 2004 this Court as presently constituted declined to grant the applications for interlocutory relief and in a conference under Rule 17.8 of the Civil Procedure Rules No. 49 of 2002 the then claimants conceded through their counsel that they had no arguable case against the defendants and consequently the Court declined to hear the claim and struck it out under Rule 17.8 (5). Costs of VT250,000 were awarded against the claimants. As at 3 p.m. on 4 June 2004 those costs had not been paid. It seems they were paid after 4 p.m. on 4 June.

FACTS

As I have said this present claim, Civil Case No. 86 of 2004, was filed on 20 April 2004 and made available to me on 13 May 2004. A conference date was allocated for 14 June 2004.

In subsequent correspondence to the Court, received sometime after the proceeding had been filed, counsel for the applicants sought an early date for conference and on 24 May 2004 counsel filed a Sworn Statement of Urgency. As soon as I became aware of this I allocated a conference for 8 a.m. on 4 June 2004.

Although the defendants had filed no documents in response to the application, they having being served with the proceedings late in April and early in May 2004, at all times the documents had been intituled acknowledging that Mr. Kalsakau was counsel for the defendants.

At the conference on 4 June 2004 at 8 a.m. counsel for the claimants and for the defendants attended. Mr. Kalsakau sought some little time to file documentation and I stood the matter down until 2.30 p.m. on 4 June to consider whether or not I was satisfied with the claimants’ case under Rule 17.8.

At 2.30 p.m. counsel for the defendants appeared having earlier filed and served an application to strike out the proceeding the application being supported by Sworn Statements from the defendants. Counsel for the applicants failed to appear at 2.30. I waited until 2.45 and then heard submissions from counsel for the defendants and reserved my decision until 9 a.m. on 10 June 2004. Counsel for the applicants had made no communication with the Court to explain his absence at the conference but later in the day, at 4.26 p.m., filed an application that I should disqualify myself or withdraw myself from presiding over Civil Case No. 86 of 2004 as I had presided over Civil Case No. 39 of 2004 and had delivered an oral judgment in relation to the interlocutory application and had dismissed that claim without hearing arguments on the merits, on the basis that counsel conceded that there was no arguable case. It was submitted that there would be an element of bias if the same judge were to preside over Civil Case No. 86 of 2004. No reference had earlier been made to that either in response to the notice of the conference sent out on 14 May 2004 or at the actual conference at 8 a.m. on 4 June 2004.

SUBMISSIONS

Counsel for the defendants submitted that, in support of the application to strike out the proceeding, that the claimants did not have any locus to bring the action, that the issues raised were res judicata, that the claimants were attempting to re-run Civil Case No. 39 of 2004 which was tautamount to an abuse of process and that in fact the outgoing office bearers of the party Mr. Sela Molisa and Mr. Jackleen Titek had officiated over the agenda of the election themselves and thus that the applicants were estopped from disputing the election at the Lingarak Congress.

The claimants submitted that there had been undue delay in bringing the application to the Court and that the claimants Mr. Molisa and Mr. Kalpokas were not present at the elections and that much of their evidence was hearsay and that the claimants Mr. Path and Mr. Harry did not take part in the elections because they were not representatives of sub-committees. In addition it was submitted that the named defendants had done no wrong to be sued as defendants in the action on their own behalf nor as members of the de facto executive council following congress as neither they themselves nor the “de facto executive council” had anything to do with the election complained of.

FINDINGS

When counsel for the claimants failed to attend Court at 2.30 p.m. on Friday 4 June 2004 without any communication, contact or explanation the Court was entitled to assume that the claimants did not intend to pursue their action and that of itself, in my view, gave sufficient grounds to strike out the proceeding.

However, as a conference had been called, the Court would have needed to consider the provisions of Rule 17.8. That rule provides as follows:-

“(1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in sub rule (3).

(3) The judge will not hear the claim unless he or she is satisfied that:-

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the enactment or decision; and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

(4) To be satisfied, the judge may at the conference;

(a) consider the papers filed in the proceeding; and

(b) hear argument from the parties.

(5) If the judge is not satisfied about the matters in sub rule (3), the judge must decline to hear the claim and strike it out.”

The Rule requires the judge to be satisfied:-

(a) That the claimant has an arguable case. I am of the view that the claimants in this proceeding do not have an arguable case. The complaint is that the election of the executive council at the 33rd Congress of Vanua-aku Party held at Lingarak, Malekula on 22 October 2003 was invalid. It is clear from the sworn statements that none of the four defendants had anything to do with that election. None of them were present at or were involved in the election itself and after all a judicial review under rule 17.4 relates to a claim for an order about a decision involving a person who made or should have made the decision.

Rule 17.4 provides:-

“(1) A person claiming judicial review may file a claim claiming:-

(a) a declaration about an enactment; or

(b) a mandatory order, a prohibiting order or a quashing order about a decision.

(2) The claim must name as defendant:-

(a) for a declaration, the Attorney General; and

(b) for an order about a decision, the person who made or should have made the decision.

(3) The claim must:-

(a) set out the grounds for making the claim; and

(b) have with it a sworn statement in support of the claim; and

(c) be in Form 34.”

None of these defendants were involved in the election or in any decision concerning a moving and seconding any motion for the re-election and the same applies to what is called “the de facto Executive Council of the Vanua-aku Party” because that executive council was formed after the elections complained of were completed and as a result of those elections.

(b) In addition, on the papers which I am required to consider under Rule 17.8 (4), there is nothing that can satisfy me that any of the claimants are directly affected by the decision. I have carefully perused the sworn statements of Mr. Kalpokas Masikevanua, Mr. Molisa, Mr. Path and Mr. Harry and none of them have satisfied me that they are directly affected by the decision concerning the election. To the contrary, in accordance with the sworn statements of the defendants, Mr. Sela Molisa and Mr. Donald Kalpokas Masikevanua are in fact being sponsored to contest the upcoming elections of 6 July 2004 as Vanua-aku Party backed candidates. There is certainly no direct adverse effect on them by what they called “the de facto Executive Council of Vanua-aku Party”.

(c) Furthermore, while under Rule 17.5 the claim must be made within 6 months of the decision, this proceeding was in fact filed two days before the expiration of the time limit and in all the circumstances although it is technically within time I am not satisfied that there has been no undue delay in making the claim.

The matters that the Court must be satisfied about in Rule 17.8 (3) are conjunctive and not disjunctive and, for the above reasons, as I am not satisfied about at least three of the matters in Sub-rule (3), I must decline to hear the claim and strike it out.

This is not a case of res judicata because although the named defendants, with the addition of Mr. Natapei are the same, the claimants are different. They do claim the same relief as the earlier action which has elements of abuse of process but that is not determinative.

Significantly the claimants sought urgency and then failed to turn up.

DISQUALIFICATION

I turn to consider the claimants’ application that I should disqualify myself or withdraw myself from presiding over this case.

My decision on that is really answered by the grounds of application itself. In Civil Case No. 39 of 2004 the oral judgment which I delivered declined interlocutory relief and the order that I made dismissing the substantive claim was not an order on the merits but was made when counsel for the then applicants conceded that there was no arguable case. That circumstance was clearly set out in the orders that I made on 12 March 2004. Those orders stated:

“ORDERS

(1) It being conceded by the Claimants that they have no arguable case against the Defendants the Court declines to hear the claim and it is struck out.

(2) The Claimants must pay the Defendants costs of VT250,000.”

In view of the concession no reasons were required from the Court, and, as the claimants have said, as I have not heard the matters involved in this application on the merits, in my view there can be no element of bias. While I heard arguments from the parties in accordance with Rule 17.8 (4) (b) on 12 March 2004 at a conference, that case involved different claimants to the present ones and in this particular case, although I heard argument from the defendants, the claimants and their counsel, for whatever reason, elected not to attend the adjourned conference at 2.30 p.m. on Friday 4 June 2004.

It is also significant that the application for me to disqualify myself or withdraw from the case was made some hours after the conference had been convened and completed in the absence of the claimants and their counsel and as I have said the fact of my potential bias was never raised by counsel for applicants early on the morning of 4 June 2004 when the conference was first convened.

For those reasons I decline to disqualify myself or withdraw myself from presiding in this case.

CONCLUSIONS

I am of the view that the proceeding must be struck out and I decline to hear it for the following reasons:-

1. Non-appearance, without explanation at the adjourned conference;

2. Failure by the claimants to satisfy me that:-

(a) They have an arguable case;

(b) They are directly affected by the decision;

(c) There has been no undue delay on the making of the claim.

I award costs against the claimants in favour of the defendants on the standard basis as agreed or as determined by the Court.

DATED at Port Vila, this 10th day of June 2004.

P. I. Treston
Judge.