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Nalau v Mariango [2007] VUSC 55; Civil Case 106 of 2005 (29 May 2007)

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

Civil Case No.106 of 2005

BETWEEN:

THOMPSON NALAU
Claimant

AND:

ANNA MARIANGO
Defendant

Coram: Justice C. N. Tuohy

Counsel: Mr. Daniel Yawha for Claimant
Mr. Hillary Toa for Defendant

Dates of Hearing: 29 May 2007
Date of Judgment: 29 May 2007

Oral ruling

1. This case came before me for an enforcement conference today 29 May 2007 in relation to a judgment for VT 500,000 which was given against the Defendant on 29 March 2007. Mr. Toa for the Defendant has on 15 May filed a Notice of Appeal against the judgment and an application for stay of enforcement of the judgment, the latter supported by a sworn statement of the Defendant. The sworn statement indicated that the Defendant was now also making application for leave to file her appeal out of time. It is out of time because the time for appealing under the Court of Appeal Rules 1973 Rule 20 is 30 days after the decision complained of calculated from when the judgment was signed. So the appeal in this case was filed about 17 days out of time. No written application for leave to appeal out of time has actually been filed presumably by oversight. However, I permitted an oral application to be made because it is referred to in the Defendant’s sworn statement and the grounds for it are set out in that sworn statement so in effect notice of it has been given.

2. The Court’s power to grant leave for an appeal to be filed out of time is contained in Rule 9 of the Court of Appeal Rules 1973 which gives the Court of Appeal or a Judge thereof, or a Judge of the Supreme Court the power to enlarge the time prescribed by the Rules for the doing of anything to which the Rules apply. Rule 9 gives no guidelines to the Court as to how that power should be exercised. No doubt it should be exercised in the interests of justice.

3. In this case reasons have been given for the failure to file the appeal in time, mainly sickness of the Defendant and difficulties in communication between the Defendant and her lawyer because of the difficult place where she lives. Mr. Yawha opposed the application being granted on the basis that it was out of time by 47 days. He was no doubt led into that belief by the statement to that effect in the Defendant’s sworn statement which says, "given the fact that I am only late by 47 days as of today Tuesday 15 May 2007.....". However, that is wrong, the Defendant was out of time by only 17 days at the time. It was 47 days since the judgment was signed but she has the right to file an appeal without leave within 30 days. So an appeal was filed only a couple of weeks late.

4. Furthermore the appeal is an important one. The judgment was given in relation to an area of law where there is neither legislation nor authority in Vanuatu. Therefore it is inevitably open to appeal. Furthermore, it is important that guidance be provided by the Court of Appeal in an area of law in which there is at present none. So there is some general public interest in having an appeal heard. Given the fact the Defendant was only two weeks or so late, the fact that there is a public interest in having the appeal heard and the fact that there is really no prejudice to the Claimant by the delay because the case will still be heard in the first Court of Appeal session after the date of judgment, I have decided to grant leave for the appeal to be filed out of time. Time is enlarged to 15 May 2007, the date of filing.

5. The next matter to be dealt with is the application for stay of enforcement of the judgment. The position now is that an appeal has been filed, the time has been enlarged to enable that to be done. The next Court of Appeal session is almost arranged for August which is not very far away. Mr. Toa’s argument is that this appeal is against the whole of the judgment and that the Appellant has prospects of overturning the judgment entirely so that it would be unfair if she had to pay in the meantime on account of the judgment and was unable to recover it. On that basis Mr. Yawha very fairly has not opposed the stay being granted. I will grant a stay until the next session of the Court of Appeal.

6. What I am intending to convey by that is that if there is any delay on the part of the Appellant, that is the Defendant in the Supreme Court, then she should not expect the stay of proceeding to continue. It is not unknown for people to appeal a judgment, get a stay and then sit on their bottoms knowing they do not have to pay until the appeal is heard. That will not be the case here. Leave is granted to the Claimant that is the Respondent in the Court of Appeal, to apply to this Court on 3 days notice for discharge of the stay order and such an application will be justified if there is undue delay by the Defendant in prosecuting her appeal.

ADDENDUM

7. Immediately after counsel left my chambers, I noticed that the Notice of Appeal that was filed was addressed to the Supreme Court and had been filed in the Supreme Court without payment of any filing fee. An appeal must be filed in the Court of Appeal and can only be filed upon payment of the appropriate filing fee VT 25,000. I therefore amend the decision set out above in the following way:

a) the time for filing the appeal is enlarged until Friday week, 8 June 2007. At the present time no appeal has been filed.

b) the order for stay of enforcement is conditional upon filing of an appeal in the Court of Appeal by 8 June 2007. If it is not filed the order for stay will cease to have effect.

The existing ineffective notice of appeal has been returned to the Defendant’s solicitor.

Dated AT PORT VILA on 29 May 2007

BY THE COURT

C.N. TUOHY
Judge