Voccor v Garae
Judgment on Indemnity Cost
A. Introduction
1. This is an application for costs on indemnity basis by the claimant. The Judgment in this case was delivered on 19 July 2025 in favour of the claimant. An appeal against the said judgment of the Supreme Court was dismissed by the Court of Appeal on 14 November 2025.
2. The Claimant in the Supreme Court sought costs on the indemnity basis. The Court decided to hear proper submissions from the parties and Counsel. The Submissions on the costs were filed after the Court of Appeal judgment of 14 November 2025.
3. The Claimant filed her submissions on indemnity costs on 21 November 2025. The Respondents filed their submissions on 4 March 2026.
B. Claimant’s submissions
4. The Claimant makes the following submissions: -
5. The Claimant relies on the authority for the ordering of indemnity costs; Colgate Palmolive and Amor -Cussons Pty Ltd (1993) 46 FCR 225 that was applied in the Courts of Vanuatu. The Colgate decision considers the circumstance in which a Court may depart from the normal practice of ordering party/party costs.
6. Specific to the determinations of indemnity costs are appropriate where “the First respondent properly advised should have known that he had no chance of success”. That being the case in this proceeding is evident from the Supreme Court decision and the now available decision of the Court of Appeal.
7. It was further relevantly stated in Colgate as follows:
“The circumstance of the case must be such as to warrant the Court in departing from the usual course”.
8. The wilfully disregard of known facts or clearly established how will give rise to indemnity costs. Also, relevantly, the undue prolongation of a case by groundless contentions.
9. It is the Claimant’s submission that a review of the trial Judge’s decision of 29 July
2025 supports these principles and an indemnity costs award.
10. The trial Judge variously stated:
a) Paragraph 23:
“The Claimant’s (letter of termination) has always been significantly misconstrued or misunderstood by the First Defendant (WV2/TGL5). They have always referred to it as a dismissal for serious misconduct:”
b) Paragraph 24:
“It is also a fact that this misconception or misunderstanding was 1 of 3 “finding” the First Defendant made against the Claimant, Ms. Vocor, that they sought response to. This is of great concern in respect to fairness to the Claimant, Ms. Vocor, when she had even with goodwill had her solicitors meet with them in September 2024 to clarify the issues she had when employed at Wanfuteng Bank”
c) Paragraph 33:
“So, the picture becomes clear. The First Defendant maintained a wrong view that the Claimant, Ms Vocor, was dismissed for serious misconduct. The Simple basic fact is that after Mr. Sugden’s Response letter to the allegations in respect of any alleged serious misconduct were not pursued and effectively withdrawn when she was terminated without cause under section 49 of the Employment Act”.
d) Paragraph 34:
“These very allegations, together with the misconceived notion of dismissal for serious misconduct, were referred to as “finding” by the First Defendant. Findings that determined the Claimant, Ms. Vocor, not fit and proper person. I agree and accept the submissions of Mr. Morrison on behalf of the Claimant that it was seriously unlawful, verging of ignorant process”.
e) Paragraph 39:
“The submissions of the First and Second Respondent in this case are based on misconstruing or misunderstanding of the basic facts and processes by the First Defendant and so, the submissions made cannot assist the Court in this case”.
f) Paragraph 40:
“This case shows that the First Defendant has not listened, not inquired and relied on unproven, untested and mistaken information to remove the Claimant, Ms. Vocor, from career employment. “incorrigible” can be added to the list of the FIU’s unreasonable behaviour given in IFTC Limited v Teddy Garae [2025] VUSC; Judicial Review 3492 of 2024 (4 April 2025)”.
11. The messages to the Defedants in the judgement of the Supreme Court were clear, concise and blunt. With a little thought and attention to fact and law this case should never have occurred or, thereafter, been defended.
12. This decision is an ongoing tale of the Defendant’s misunderstanding and misapplication of their own legislation. Lawyers do no simply act upon instruction. They give advice. The defence in this case was symptomatic of Defence Counsel having given no coherent advice and having acted upon incoherent instructions. This prolonged the litigation unnecessarily and exacerbated a wrong Ms. Vocor had already suffered.
13. The Claimant is entitled to indemnity costs.
C. Respondents’ submission
14. The Respondents submit to this effect.
15. Costs are dealt with in part 15 of the Civil Procedure Rules No. 49 of 2002 (CPR). Rule 15.1 of the CPR outlines the general provision that the Court has the discretion in deciding whether and how to awards costs, and that, as a general rule, the costs of a proceeding are payable by the party who is not successful in the proceeding.
16. The Respondents acknowledge that, in principle, they should pay the costs of the winning parties, but not on indemnity basis.
17. Rule 15.5 provides for costs to be ordered on a standard basis unless there is reason to award costs on an indemnity basis. Rule 15.5 (4) and (5) outline the circumstances under which indemnity costs may be ordered.
18. The Respondents submit that for an indemnity cost to be awarded, the claimant must satisfy any of the grounds as prescribed under Rule 15. (5). Rule 15(5) provides: -
“(5) The court may also order a party's costs be paid on an indemnity basis if:
(a) the other party deliberately or without good cause prolonged the proceeding; or
(b) the other party brought the proceeding in circumstances or at a time that amounted to a misuse of the litigation process; or
c) the other party otherwise deliberately or without good cause engaged in conduct that resulted in increased costs; or
d) in other circumstances (including an offer to settle made and rejected) if the court thinks it appropriate.”
19. The Respondents submit that it is not proper to put to the Respondents, as the Claimant alleged in its submissions, that the Respondents, without good cause, prolonged the proceeding or deliberately engaged in conduct that resulted in the increase of costs. The reason being that this matter proceeded in accordance with the CPR and to ensure that the substantial merits of the case are fully and fairly determined, so that rules of natural justice be applied to all parties and for that to occur, time is required. The Respondents rely on a citation from the Court of Judgement in Wass -v- Knox [2010] VUCA 24, Civil Appeal case 13 of 2010 when the Court of Appeal stated: -
“The Rules carefully prescribe processes to ensure that the rules of natural justice are observed, in particular that parties to a dispute are given notice of contentious issue requiring determination, and an adequate opportunity to answer claims against them. In Vanuatu the rules and procedures are contained in Civil Procedure Rules No.49 of 2002. The Court expects the Civil Procedure Rules to be followed and will strictly insist on due observance when a failure to follow them could frustrate the requirements of natural justice.”
20. The Respondents say that whilst the claimant alleged that the judgement issued on 29 July 2025 supports an indemnity costs award, the Respondents contend that this submission is vague because the First Respondent in his handling of the case of the Claimant observed the nature justice processes as required by the CPR and by doing that, it is not a ground to be relied upon for an indemnity cost.
21. The Respondents responded to the submissions made by the Claimant referring to the circumstances which the Respondents have a duty to the Court, such as to apply the law to facts and for acting on instructions of the clients without properly advising the client. They submit that there have been communications with their clients, and it was strongly argued by their clients that based on their findings the claimant was not a fit and proper person for the position of the Country Director of the CIC.
22. The Respondents argued that for the Claimant to allege that the indemnity costs be awarded on the non-advice from Counsel to the First Respondent and that is not the basis for awarding an indemnity cost as required under the CPR. The Respondents also argued that they have a defence, and by the judgement of the Supreme Court date 29 July 2025 at that of the Court of Appeal dated 14 November 2025, the Court made judgement in favour of the Claimant after justice was served on both parties being heard.
23. The claimant submissions must satisfy any of the grounds as prescribed under Rule 15.5 (5) before an award of indemnity costs be granted.
24. The case of ITCT Limited -v- Teddy Garae [2026] VUSC; JRC 3492 OF 2024 (4 April 2025) was used by the Court to calculate the unreasonable behaviour. The Respondents submit that the case of Teddy Garae is one of the Defendants’ cases; the indemnity costs should not be awarded as these cases set precedents to be followed when dealing with the “fit and proper” issues by the Respondents.
25. The respondents submit that the claimant’s cost be awarded on standard basis but not on indemnity basis.
D. Consideration
26. I have considered the claimant’s submissions in favour of the indemnity cost and the basis for such a claim in the circumstances of this case. I have also considered the submissions of the defendants against the claim for indemnity costs. I reject the submissions of the Respondents.
27. The conduct of the defence in this case involved significant unreasonable behaviour that went beyond the norm, from the outset and from time to time throughout.
28. The unreasonable conduct involved:
- The wilful disregard of known facts which leads to undue prolongation of a case by groundless contentions.
- The unreasonable conduct of the defence was reflected in the comments by the Supreme Court judge in the judgment of 29 July 2025:
a) Paragraph 23: “the claimant’s (letter of termination) has always been significantly misconstrued or misunderstood by the First Defendant…They have always referred to it as a dismissal for serious misconduct”.
b) Paragraph 24: “It is also a fact that this misconception or misunderstanding was 1 of 3 “finding” the First Defendant made against the claimant that they sought response to…This is of great concern in respect to fairness to the claimant… when she had even with goodwill had her solicitors meet with them in September 2024 to clarify the issues she had when employed at Wanfuteng Bank”.
c) Paragraph 33: “So, the picture becomes clear. The First Defendant maintained a wrong view that the claimant was dismissed for serious misconduct. The simple basic fact is that after Mr. Sugden’s Response letter to the allegations in respect of any alleged serious misconduct were not pursued and effectively withdrawn when she was terminated without cause under section 49 of the Employment Act”.
d) Paragraph 34: “these very allegations, together with the misconceived notion of dismissal for serious misconduct, were referred to as “finding” by the First Defendant. Findings that determined the Claimant, Ms. Voccor, not fit and proper person. I agree and accepts the submissions of Mr. Morrison on behalf of the Claimant that it was seriously unlawful, verging of ignorant process”.
f) Paragraph 40: “this case shows that the First Defendant has not listened, not inquired and relied on unproven, untested and mistaken information to remove the Claimant, Ms. Voccor, from career employment “incorrigible” can be added to the list of the FIU’s unreasonable behaviour given in IFTC Limited v Teddy Garae [2025] VUSC; Judicial Review 3492 of 2024 (4 April 2025)”.
29. It is a just consequence that defendants who paid little through and attention to fact and law as in this case that indemnity costs should be ordered against them (See Palmolive and Anor v Cusson Foy (1993) 46 Fcr 225 and Pisante and Anor -v- Logothetics [2022] EWHC 161 (comm).
E. Conclusion
30. I make an order that the claimant is entitled to costs which shall be assessed on indemnity basis in the circumstances of this case.
F. ORDERS
31. The claimant is entitled to costs on indemnity basis against the Defendants.
DATED at Port Vila, this 15 June 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek