Vanuatu Maritime Authority v Athy, Director General of Finance [2006] VUCA 12; CAC 27-06 (27 September 2006)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 27 of 2006.

BETWEEN:	THE VANUATU MARITIME AUTHORITY
	Appellant
AND:	SIMEON ATHY AS DIRECTOR-GENERAL OF FINANCE FOR VANUATU
	First Respondent
AND:	THE ATTORNEY GENERAL OF VANUATU
	Second Respondent

Coram: Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Oliver A. Saksak
Hon. Justice Hamlison Bulu
Hon. Justice Christopher N. Tuohy

Counsel: Mr. Sugden for Appellant
Mr. Gilu for Respondents

Date of Hearing: 27 September 2006
Date of Decision: 27 September 2006

ORAL JUDGMENT

This matter has come before the Court by way of a notice of appeal seeking to challenge the decision of Justice Treston given on the 14th of July 2006. The appeal has been brought as if it were an appeal as of right. As a result of discussion with counsel it has become evident to the Court that the decision under challenge is an interlocutory order from which leave to appeal is required.

The principal proceedings involve a claim for judicial review brought under Rule 17 of the Civil Procedure Rules No. 49 of 2002. Rule 17.8 requires that as soon as practical after the defence has been filed and served the judge must call a conference. The judge at that first conference is required to consider the matters set out in Rule 17.8 (3). Sub rule 3 provides that the judge will not hear the claim unless he or she is satisfied as to a number of matters. The first of those matters is that the claimant has an arguable case.

By the time the matter was considered under Rule 17.8(3) by Justice Treston there had been a number of attempts to amend the claim for judicial review. The claim before the learned judge on 14 July 2006 was the third attempt to encapsulate the issues which the claimant wished to raise.

The learned judge was not satisfied that there was an arguable case and he terminated the proceedings. He delivered reasons for the decision.

In our opinion an appeal does not lie as of right from that decision. We consider it was an interlocutory decision because the decision did not in any sense determine finally any rights of the parties to the claim. The decision does not preclude the claimant from repleading a case and endeavouring in subsequent proceedings, to satisfy a judge that there is an arguable case.

As the decision is an interlocutory one it requires leave. We are of the opinion that leave to appeal should be refused. It is clear from the lengthy discussion which has occurred today that there are a number of very contentious and important issues raised by the pleadings. It is not possible on the state of information before this Court for definite views to be reached on these issues and it would be unwise for the Court to pursue them further in the absence of a much better pleaded case and in the absence of a detailed review of the statutory provisions which are relevant to the issues which the claimant wishes to pursue.

Moreover if this Court were to embark upon a consideration of the issues that persuaded Justice Treston to strike out the claim, the Court’s power would be limited to deciding whether the judge should have reached the view that there was an arguable case.

This Court could not enter into the merits of the administrative decisions which the claim seeks to review. The Court would be limited to referring the matter back to a single judge to proceed with the hearing of the claim for judicial review. Part of the function of the judge would be to give directions to cure many of the short comings which presently exist.

It seems to us that the better course is to refuse leave to appeal. If the claimant wishes to address the shortcomings and to start again it may do so, and the matter will then proceed in the ordinary way before the judge appointed to hear the new proceedings.

For these reason the matter will be disposed of by refusing leave to appeal.

The respondent has made an application for costs of the hearing today. In the Court below no order for costs was made. Today the matter has been disposed of on a ground that was not raised by the respondent. In our opinion the appropriate order is that there be no order for costs.

Dated at PORT VILA on 27 September 2006

BY THE COURT

Hon. J. Bruce Robertson J.	Hon. John. W. Von Doussa J.
Hon. Daniel Fatiaki J.	Hon. Oliver A. Saksak J.
Hon. Hamlison Bulu J.	Hon. Christopher N. Tuohy J.