Colmar v Vanuatu Commodities Marketing Board [2006] VUCA 13; CAC 31-06 (28 September 2006)

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

Civil Appeal Case No. 31 of 2006.

BETWEEN:	PETER COLMAR
	Appellant
AND:	VANUATU COMMODITIES MARKETING BOARD
	First Respondent
AND:	THE CHAIRMAN OF VCMB
	Second Respondent
AND:	VANUATU COPRA AND COCOA EXPORTERS LTD
	Third Respondent
AND:	LEON MANSAN
	Fourth Respondent
AND:	LUGANVILLE KAVA EXPORT ASSOCIATION
	Fifth Respondent
AND:	GINETTE DOUSSERON
	Sixth Respondent
AND:	PACIFIC AUTRONICS
	Seventh Respondent

Coram: Hon Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Christopher. N. Tuohy

Counsel: Mr. Morrison for Appellant
Mr. Timakata for 1st Respondent
Mr. Yawha for 3rd Respondent
Mr. Stephens for 4th, 5th & 7th Respondent
No appearance of 2nd & 6th Respondent

Date of Hearing: 28 September 2006
Date of Decision: 28 September 2006

ORAL JUDGMENT

This appeal was commenced on the basis that an appeal to the Court of Appeal lay as of right from the decision of the single judge made on 31st August 2006.

The appellant in the principal proceeding alleges that pursuant to an agreement dated 3rd March 2006 between the appellant and the Vanuatu Commodities Marketing Board, it has an exclusive right to export dried kava from the Republic of Vanuatu.

The Vanuatu Commodities Marketing Board is a statutory board established under an Act of Parliament which has authority to regulate the export marketing of kava, and to that end it has the power to grant or revoke export licences.

On 28 July 2006 the appellant applied to the Supreme Court in proceeding CC23 of 2006 for injunctive relief to protect the monopoly that it claimed to have under the agreement of the 3rd March 2006. It brought those proceedings on the basis that it had evidence to suggest that other export licences had been or were about to be issued by the Vanuatu Commodities Marketing Board or by its agents, and that parties to the new licences were about to export kava.

The other parties that were asserting that they could export kava included the third to the seventh respondents who are now before this Court. Some of those parties had already commenced proceedings themselves seeking to confirm the validity of the licences which they had received. There were many proceedings heard by the same judge during early August. Some orders were made giving injunctive relief, and others were made setting injunctions aside. There is no need to go through all that has happened.

It is sufficient to say that on 4th August 2006 the learned judge consolidated the various actions then on foot, to ensure that all the parties that could be affected by orders that were being made were before the Court.

On 24th August 2006 an application was made by Mr. Clement Leo, the acting general manager of the Vanuatu Commodities Marketing Board, seeking to have all previous orders made by the Court dismissed. That application was brought on the basis that the Vanuatu Commodities Marketing Board had on 22nd August 2006 passed a resolution in exercise of its statutory functions which would, according to its terms, have the effect of cancelling all previous authorities that had been given for the export of Kava. The application assumed that the resolution would nonetheless leave in place the appellant’s monopoly right to export Kava to Fiji.

On 31st August 2006 the learned judge made orders refusing the application, and he published reasons for those orders on 6th September 2006.

His Lordship considered that there were many questions that needed clarification at a trial, including the validity and effect of the Board’s resolution on 22nd August 2006. In the matters requiring clarification he included the validity of the exclusive licence agreement made on 3rd March 2006 and the validity of the separate export permits which had purportedly been given to other respondents. His Lordship’s orders set 12th September 2006 as a trial date to determine those matters that he thought were unclear.

The present appeal which has been brought as of right contends that the learned judge was in error in failing to accept as conclusive evidence, the resolution of the Vanuatu Commodities Marketing Board passed on 22nd August 2006, and in failing to give effect to it.

As we understand the appellant’s submissions, this Court is urged to allow the appeal and make an order which has the effect of confirming the existence of a monopoly to the appellant to export Kava to Fiji.

The learned judge identified a number of matters which caused him to have concerns about the validity of the resolution of 22nd August 2006. As argument today has indicated, members of this Court have additional concerns which include the ability of the Vanuatu Commodities Marketing Board simply to pass a resolution which effectively cancels existing licences when no notice had been given to those licence holders, no opportunity to be heard had been given, and no reasons have been given which would justify the cancellation.

If there is validity in any of those concerns or in those mentioned by the trial judge then it would be quite improper for the Court simply to rubber stamp the terms of the resolution of 22nd August 2006.

This Court is not persuaded that the learned judge was in error in raising issues about the validity of the resolution of 22nd August 2006. Indeed we see force in his view that it is necessary to have a trial of the many issues that arise in the consolidated proceedings before such an order could be made.

As indicated at the outset, this appeal has been brought as if it was an appeal as of right. In our view it is an appeal from an interlocutory order and so much was conceded by counsel for the appellant of the outset.

In our opinion this is not a case where it would be appropriate to give leave to appeal because without a trial which has dealt with the above matters of concern, this Court could not make the final order which is sought. It is necessary that there be a trial, which is the very thing which the primary judge had in mind in making the orders.

On the ground that we are not satisfied that the primary judge fell into error, and on the further ground that we think an appeal could not result in the substantive order sought by the appellant, leave to appeal is refused. The matter will be returned as an urgent matter to the trial judge to consider the future conduct of the consolidated proceedings.

The appellant must pay the costs of the third, fourth, fifth and seven respondents of incidental to the hearing before this Court.

Dated at PORT VILA on 28 September 2006

BY THE COURT

Hon. Chief Justice Vincent Lunabek	Hon. J. Bruce Robertson J.
Hon. John. W. Von Doussa J.	Hon. Daniel Fatiaki J.
Hon. Christopher N. Tuohy J.