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Duffy v Joli [2007] VUSC 52; Civil Case 08 of 2007 (23 May 2007)

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

Civil Case No. 08 of 2007

BETWEEN:

LEANNE DUFFY
Appellant

AND:

PATRICIA JOLI
Defendant

Coram: Justice Tuohy

Counsels: Mr. Nalyal for Appellant
Mrs. Patterson for Defendant

Date of Hearing: 18 May 2007
Date of Decision: 23 May 2007

ORAL JUDGMENT OF JUDGE C.N.TUOHY

1. The appeal by Leanne Duffy against the judgment of the Magistrate’s Court in favour of Patricia Joli was called for hearing today 18 May 2007.

2. Mrs. Patterson representing Ms. Joli had a number of applications before the Court in relation to the appeal. The first was an application to strike out the appeal which was filed on or about 30 April 2007 and was based on the fact that the appellant had failed to file the appeal book which she was ordered to file by 20 March 2007. At the time the application to strike out was filed that appeal book had not been filed it has subsequently been filed on 9 May 2007. My view is that it would be draconian to strike out an appeal for filing an appeal book late. Striking out the appeal altogether on that ground would not be justifiable and Mrs. Patterson did not really pursue that application.

3. However she then applied for an adjournment of the appeal hearing on the basis that she had not had sufficient time to prepare, first, because the appeal book was late and second, because until the appeal book was actually filed, she could not be sure that the appellant who lives in Australia was serious about the proceeding. She, Mrs. Patterson, did not wish to waste her client’s money in preparation for an appeal which might never happen.

4. The orders that I made on 6 March 2007 in preparation for this appeal hearing were not only for the appeal book be filed by 20 March 2007 but also that written submissions be filed and served by both parties by 3 May 2007. The appellant’s submissions are contained in the appeal book but as a result of its late filing, obviously Mrs. Patterson could not comply with the order of 6 March 2007 and advises the Court that she has not had a proper chance of preparing submissions for her client. That is the reason why she requests the adjournment. Mr. Nalyal did not seriously oppose the application for an adjournment and acknowledged that it would also result in an order for wasted costs for today’s hearing against his client.

5. I have decided to grant the application for an adjournment requested by Mrs. Patterson. It is fair that she should be given proper time to prepare for the appeal. She has not had that time as a result of the delay of the appellant and the failure of the appellant to comply within time with the orders that I made on 6 March 2007. It also follows that there should be an order for wasted costs made in favour of the Respondent for today’s hearing which I fixed at VT 10,000.

6. Mrs. Patterson also made an oral application for security for costs. She previously made such an application on 6 March 2007 and I refused that with reasons which I did not record. I do not think that she is precluded from making another application for security for costs, because there are now new circumstances. The new circumstances being the continued residence of the appellant in Australia; the failure to comply in time with the Court’s order which has meant a further hearing an order for wasted costs against her and further delay.

7. Mr. Nalyal did not with any vigour oppose the principle of an order for security of costs being made against his client, but he certainly disputed the amount which was sought. The rules relating to security for costs are set out in Rule 15.17 to 15.24 inclusive of the Civil Procedure Rules No. 49 of 2002. Those rules provide that the Court may order a claimant to give security for defendant’s costs. I think that giving the rules proper purposive interpretation, claimant can include an appellant and defendant can include a respondent, which is strictly what the parties are in this case.

8. So there is jurisdiction for the Court to make the order sought. Rule 15.19 provides that the Court can order an appellant or claimant to give security of costs only if the court is satisfied that one of the circumstances set out in 15.19 (a) to (f) inclusive apply. I am satisfied that 2 of them apply in this case that is:

d) the appellant is ordinary resident outside Vanuatu and)
f) the justice of the case requires the making of the order

9. The appellant has shown her good faith in one way. She has paid the amount of the judgment in the Magistrate Court into the Court’s trust Account pending the hearing of this appeal. However, the fact is that she is resident in Australia and apart from the money in the Court’s Trust Account, there is no knowledge of any assets owned by her in Vanuatu. The result is that the respondent is entirely dependent on the appellant’s good faith for payment of the costs in the Magistrate’s Court which has not been made and more importantly payment of any costs on this appeal, assuming that the respondent is successful and obtains an order for costs.

10. I do think that the respondent cannot be asked to rely solely on the appellant’s good faith for her costs if she should be successful in defending this appeal. She has got no practical way of recovering any costs against the appellant. Costs are mounting up because of the delay. There is already an order now for wasted costs made today. The appellant has been responsible for the delay and the further costs. So I do think that the justice of the case requires an order for security for costs to be made.

11. I turn to the amount. Mrs. Patterson seeks VT 400,000 which is greater than the amount of the judgment of the Magistrate’s Court. It also is contended for on the basis that 7 hours have already been spent in relation to this appeal and she anticipates spending another 24 hours of time. That, 24 hours includes 4 hours of trial, 13 hours of pre-trial matters other than trial preparation and 6 hours of preparation. This is a relatively simple case and those amounts of time are wildly out of proportion and cannot be justified. I do not think the appeal will take 4 hours, it certainly does not require 6 hours to prepare plus another 13 hours or preparatory matters altogether. Mr. Nalyal suggests that VT 100.000 is more like it and my view is that his figure is much closer to the mark.

12. Security for costs should not be made for an amount which in the words of Rule 15.20 (e) would be oppressive or would stultify the proceeding. An order which was for an amount greater than the judgment sum itself would be oppressive and would stultify the proceeding. In my view an order for VT 120,000 is enough security for costs. I make an order in that amount.

13. The Court will give the appellant a very reasonable time to pay that amount, 42 days.

14. If the security for costs is not given within that time, the appeal will be struck out and the monies deposited by the appellants and held by the Court on account of the Magistrate’s Court’s judgment (VT 354,000) shall be released in favour of the Respondent. The sum of VT 120,000 is inclusive of the VT 10,000 order for wasted costs that I have made today.

15. There will also be orders that in the event security for costs is given by the required date, the appeal is to be set down for hearing and will proceed on Tuesday 24 July 2007 at 9am. The respondent is to file written submissions in reply by 17 July 2007. By the same date any supplementary appeal book containing the notes of evidence in the Magistrate’s Court is to be filed by the appellant.

16. I shall record that Mr. Nalyal has formally withdrawn the ground of appeal based upon an allegation of bias.

Dated AT PORT VILA on 23 May 2007

BY THE COURT

C. N. TUOHY
Judge