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Kere v Kere [2004] VUSC 88; Civil Case 153 of 2002 (19 March 2004)

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

Civil Case No. 153 of 2002.

BETWEEN:

FRANKLYN KERE
Claimant

AND:

JUDITH KERE
First Defendant

AND:

ROY MATARIKI
Second Defendant

Coram: Justice P. I. Treston

Mr. Toa for the Claimant
Mr. Boar for the Defendants

Date of Hearing: 18 March 2004.

REASONS FOR STRIKING OUT A PROCEEDING

The claimant in this matter filed a Writ of Summons on 3 September 2002, seeking damages in conversion, detinue and unjust enrichment against his wife, the first defendant and Roy Matariki, the second defendant who, it was alleged, was in an adulterous relationship with the first defendant. The damages were for motor vehicles purchased by the claimant for the first defendant, for personal effects and belongings of the claimant retained by the first defendant, both for the value of the property and for loss of use of it, and for monies paid by the claimant to the first defendant when she was studying at UPNG.

A statement of defence and counterclaim was filed on behalf of the defendants on 16 October 2002.

A conference was fixed by the Court for 25 November 2002 but neither party nor their counsel attended. A fresh conference was allocated for 10 March 2003 at which an order was made requiring the claimant to file and serve a defence to the counterclaim and any reply by 3 p.m. on 7 March 2003. Another conference was set for 24 April 2003. As no defence to the counterclaim nor reply had been filed, a further order was made by Coventry J. requiring the claimant to file and serve a defence to the counterclaim and any reply by 2 May 2003. Another conference was set for 12 May 2003 and the parties endeavour to refine the issues with the judge.

A further conference was set for 9 December 2003, when again an order was made requiring the claimant to file and serve a defence to the defendants' counterclaim by 3 p.m. on 23 December 2003 and requiring the claimant to file and serve sworn statements by 3 p.m. on 31 December 2003. A further trial preparation conference was set for 8 a.m. on 2 February 2004. No documentation was filed by the claimant and neither party nor their counsel attended the conference on 2 February 2004. A further conference was set for 19th March 2004 and it was at that conference that the proceeding was struck out.

It was clear that for over twelve months, the claimant had not complied with orders of the Court made during the proceeding to file and serve a defence to the defendants' counterclaim and a reply. In addition the claimant had failed to file and serve sworn statements by 31 December 2003 as ordered on 9 December 2003. In addition the claimant and his counsel had failed to attend allocated conferences from time to time as set out above.

At the conference on 19 March 2004 the Court, in fairness to the claimant, endeavour to elicit reasons as to why the Orders had not been complied with. Counsel for the complainant first advised that, that was because of the claimant's medical condition. It was obvious that he had suffered a stroke and even had difficulty in accessing the conference in chambers on 19 March 2004. Of course the Court sympathises with the Claimant and his physical condition. Counsel for the Claimant then advised that the Public Solicitor's office has attended Mr. Kere's home on one occasion but he had not been at home and that failing to comply with Orders of the Court or attendances at conferences was oversight on behalf of the claimant's counsel and was not a deliberate intention to bypass the orders.

It was clear that the claimant had repeatedly failed to comply with orders of the Court made during the proceeding for over twelve months since the first order was made. I was not of the view that the claimant’s infirmity was such that the orders could not have been complied with within that period. I was not satisfied that there was proper cause given by the claimant as to why the proceeding should not be struck out. Ample opportunity and consideration had been given to the claimant for longer than twelve months and the Court must consider not only the claimant but also the defendants' situation. Although the defendants and their counsel had not attended at least two conferences, they had filed a statement of defence and counterclaim expeditiously in October 2002 and had not failed to comply with any other Court Order bearing in mind that the filing of sworn statements by the defendants was ordered to be completed after sworn statements on behalf of the claimant had been filed and served.

The case is one of blatant disregard of repeated Court Orders and because of the delays involved I was of the view that the defendants should no longer be called upon to answer the claim and the proceeding was struck out pursuant to Rule 9.10 (1) and (2) of the Civil Procedure Rules No. 49 of 2002.

Costs were ordered against the claimant, which in the absence of agreement, will be determined at a later date as specified in the Orders of the Court.

Dated at Port Vila, this 19th day of March 2004.

P. I. TRESTON
Judge.