Republic of Vanuatu v Bohn [2008] VUCA 6; Constitutional Appeal Case 03 of 2005 (30 April 2008)

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

CONSTITUTIONAL APPEAL CASE No.03 OF 2005

BETWEEN:

REPUBLIC OF VANUATU
Appellant

AND:

ROBERT M. BOHN
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice John Mansfield

Counsel: Messrs Ari Jenshel & John Stephens for the Appellant
Mr Nigel Morrison for the Respondent

Date of hearing: 28 April 2008
Date of judgment: 30 April 2008

JUDGMENT

This is an appeal from an interlocutory Ruling of Tuohy J. dated 11 April 2008 declining to strike out a Constitutional Application made by the Respondent in person.

On the 18 April 2008 Justice Tuohy granted leave to appeal against his Ruling of 11 April 2008 against the Republic of Vanuatu.

He was satisfied that although his Order had been an interlocutory one and did not finally decide any rights, as both counsel before him were of the view that it raised important issues, leave should be granted for the matter to go to the Court of Appeal.

Although the hearing before us took a full day matters really fall into a very short compass. Further the case is affected in a practical sense by issues which arose during the course of the hearing.

On 18 September 2007, Mr Bohn issued an invoice for salvage air bags which he had supplied to the Vanuatu Maritime Authority. The invoice was for 14,500,000VT.

The evidence was that an arrangement was reached whereby he would be paid in part on 6 November 2007 with the balance on the 25 January 2008.

The first payment was made in accordance with the deal between them.

During December, Mr Bohn became aware of the proposed repeal of the Vanuatu Maritime Act and therefore the abolition of the Vanuatu Maritime Authority. There was a flurry of correspondence between himself and the State Law Office.

Mr Bohn made demand for immediate payment of the balance due but nothing occurred.

The Vanuatu Maritime Act was repealed with effect from 1st January 2008.

In accordance with his contractual arrangement on 25 January Mr. Bohn presented to the National Bank of Vanuatu a bank draft countersigned by the Department of Finance and the VMA for the balance owed to him of VT7,250,000. He was advised by the Bank that the account on which it was drawn had been closed.

The Vanuatu Maritime Authority (Repeal) Act 2007 (Repeal Act No. 22 of 2007) could not have been more minimal. It provided:-

"REPUBLIC OF VANUATU

Assent: 31/12/2007

Commencement: 01/01/2008

An Act to repeal the Vanuatu Maritime Authority Act [CAP.253], and for related purposes.

Be it enacted by the President and Parliament as follows:

1. Repeal

The Vanuatu Maritime Authority Act [CAP.253] is repealed.

2. Allocation of functions, powers and responsibilities

Any functions, power or responsibility under any Act, other than the Vanuatu Maritime Authority Act [CAP.253], that was exercisable by the Vanuatu Maritime Authority or the Commissioner of Maritime Affairs immediately before the commencement of this section shall be exercisable on and after that commencement by such other person or persons as the Prime Minister may appoint in writing.

3. Appointment of liquidator

(1) The Prime Minister may in writing appoint a person as a liquidator to the assets of the Vanuatu Maritime Authority Act that were in existence immediately before the commencement of this section.

(2) A person appointed as a liquidator has such powers as a liquidator of a company has at Common Law and has such additional powers as the Prime Minister may in writing determine.

4. Commencement

This Act commences on 1 January 2008."

After a good deal of unhelpful correspondence Mr. Bohn in person filed a Constitutional Case under Articles 6(1)(d) & 53(1)(2)) of the Constitution of the Republic of Vanuatu alleging that his fundamental rights of protection under the law had been or are being or are likely to be infringed.

Mr Bohn recited a great deal of detail about the alleged acts or omissions of various people from the Head of State down. He particularly made complaints about what he claimed were contradictory pieces of advice emanating from the State Law Office.

It was in part an unhelpful document as it traversed a great deal of material which was quite irrelevant.

It is particularly important to note that at the date of the issuing of the proceeding in question no liquidator had been appointed by the Prime Minister under the Repeal Act. There was no evidence as to whether he ever would. The Repeal Act did not compel the Prime Minister to appoint a liquidator at all.

The Republic immediately made an application to strike the proceedings out. This was dealt with at a conference before Justice Tuohy on the 8th of April 2008.

His Lordship’s ruling of the 11th of April is a barebones document but as we made clear to Mr Jenshel during the course of this hearing one could not read it independently and objectively without clearly knowing the judge’s appreciation of the matters. He said:-

"Reading the Applicant’s papers, it is clear that the issue which has led him to apply to the Court is the non-payment of debts for the purchase of salvage airbags which he says were owing tho him by the Vanuatu Maritime Authority ("the VMA") at the date of the passage of the VMA (Repeal) Act No.22 of 2007. He asserts that the VMA was an arm or organ of the Government, a proposition which is certainly arguable. He blames non-payment on advice and/or actions of the Attorney General and one of his subordinates. In any event, he says he has not been paid by the VMA, the funds in its bank accounts have been removed into the control of the Government and the Government on present indications has no intention of paying his VMA debts itself. The fundamental right which he claims has been breached is that enshrined in Article 5(1)(d), protection of the law. The substantive remedy he seeks is that his VMA debts be paid by the Government.

At this stage, before full evidence or argument, it is not possible to say how strong his case is. It is clear though that it is certainly arguable on the information presently available to the Court. That shows:

(a) he is/was owed debts by the VMA, arguably an arm of the Government

(b) the VMA has ceased to exist by virtue of the passage of the VMA Repeal Act so he cannot sue it

(c) the Government has taken control of its funds

(d) the Government has refused to pay his debts itself.

If there was a legal procedure available to recover just debts owed by the VMA from the VMA assets, or failing that, from the Government, he could hardly complain that he has lost the right of protection of the law. But such a procedure is not readily apparent in the Repeal Act."

It was against that decision that the leave to appeal was granted.

Three matters stand out in respect of the appeal.

First, Mr Jenshel argued with great vigour that it was not clear that the trial Judge had restricted the nature of the petition in anyway.

That was not the view of the bench prior to the hearing. When Mr. Morrison (who began acting for Mr. Bohn at the time of the Application for leave to appeal) addressed us he made it clear that he accepted that the Petition was now restricted to the matters which had been outlined as crucial by the judge. The other matters ceased to be of relevance or interest including most of the issues about admissibility.

It may be that the judge should have expressed himself more explicitly but in as much as he ordered a further conference in fourteen days time, the matter could have been clarified at that stage without any difficulty or problem.

Although things should always be done properly and in order, lawyers need to approach cases with commonsense and realism. If you want to find issues of complexity and difficulty they can usually be dug out from somewhere. If you are looking for just and fair solutions, a simple reality check on what is occurring will be very advantageous.

If there was the potential for confusion or uncertainty it could have been addressed and resolved at the next conference. This is 2008 in Vanuatu and the rule of law is not diluted or diminished by an approach which is free of rigidity.

Secondly, the Government case emphasizes that a constitutional application should not become simply an alternative means of obtaining justice where under the general law good and sufficient processes are available.

The approach has been made clear by this Court in AG v. Timakata [1993] VUCA 2 and again in Dinh van Than v. The Minister of Finance & ors, [1997] VUCA 6. We confirm that is the legal position.

We acknowledge authorities to similar effect in other jurisdictions. This Court is dependant upon careful and comprehensive submissions which are always appreciated. Where there is an authoritative decision of this Court which is decisive on a point, there is no need to go beyond the Vanuatu Court of Appeal decision on that point. The only time that persuasive authorities from other countries could be relevant is when counsel are trying to argue that the Vanuatu precedent should be departed from.

The Constitution of this country makes clear that the right to advance a Constitutional Application is complementary to other processes. It would seriously diminish its value if it were used in a routine or frivolous way. It is better seen as the safety net or back stop where other processes are not reasonably available.

The third issue is whether the Judge was right to hold in the particular circumstances that there was an arguable basis upon which the Constitutional Application could be advanced.

Great emphasis were placed on the Section 11 of the Interpretation Act [CAP.132] indicating that there was no reason why Mr Bohn could not proceed against the VMA (although now abolished) or against the Government (although there was a forceful argument that the VMA was never an arm of the Government). Mr Jenshel frankly admitted that there would be problems about service but they were not to be seen as an impediment.

What the primary Judge did was to place considerable emphasis on the fact that although Parliament had provided the Prime Minister with the ability to appoint a liquidator he had not done so. If he did so there was a real question mark about what the powers of that person might be. The Act talked about the liquidator having the powers of a liquidator of common law. No one was able to provide any help as to what such powers would have been and the Judge could not know what powers the Prime Minister might grant a liquidator.

We are satisfied that in the peculiar circumstances of this case where there was a clear debt under a commercial arrangement which was placed in question by the Repeal Act. There was a void as to what was to happen to the assets of the VMA and a void as to how claims by creditors of this sort would be responded to. The Judge was right to conclude that there was an arguable case which could be advanced for a breach of Article 5(1)(d) of the Constitution. In the course of argument, reference was also made to Article 5(1)(j) of the Constitution.

During of the hearing before us, we were informed that there was likely to be some action by the Prime Minister that day under the provisions of the Section 3 of the Vanuatu Maritime Authority (Repeal) Act 2007. After the luncheon adjournment on the hearing day we were provided with a copy of an instrument:

"APPOINTMENT OF LIQUIDATOR

Section 3 Vanuatu Maritime Authority ("VMA")

I, Ham Lini VANUAROROA, Prime Minister, hereby appoint you, Robert Agius, to be the liquidator of the former Vanuatu Maritime Authority ("VMA").

You are instructed to:

1. Ascertain, collect and liquidate the assets of the VMA;

2. Ascertain and discharge the just liabilities of the VMA from the assets of the VMA;

3. Remit any surplus funds to the Public Fund;

4. Report to the Director-General of the Prime Minister’s Office within seven days and regularly thereafter as to your progress and the anticipated further cost of your work; and

5. Inform the Director-General immediately if it appears that the cost of your work will or is likely to exceed VT5,000,000.

You shall have the powers listed in s.246(1)(a)-(f) and (2)(a)-(e) of the Companies Act [CAP.191] and you may seek legal assistance, should any be required, from the State Law Office.

Date this day of April 2008.

_________________

Ham Lini VANUAROROA

Prime Minister "

Submissions were also made as to the meaning and effect of Rule 2.7 of the Constitutional Application Rules 2003 which say that the Court shall "enquire" into the matter. This included arguments about the difference between "enquiry" and "inquiry". We found the approach unhelpful.

The Government submissions were predicated on the basis that there are two separate and stand alone approaches to the resolution of court cases. First the traditional common law adversarial approach and secondly the civil law or continental approach which is inquisitorial.

In the twenty first century we do not accept these are separate categories. There is a continuum. It is of the very nature of case management that judges are involved in the control and advancement of litigation. Focussing and fashioning the matter which requires resolution is a vital part of all case management. We are left with no doubt that particularly when there is an unrepresented litigant in a constitutional application (as in this case) a Judge has a clear obligation to assist in getting the matter into an order in which it can fairly and sensibly be litigated. This is not an adjucative role, it is an ancillary role which is an essential part of modern day docket management.

Implicit in the ruling are indications by the Judge as to how he saw the case proceeding. If there was any uncertainty as to what he was directing or requiring then questions should have been asked. It is of course true that once a Judge makes an order which is clear and unambiguous, a litigant either follows it or appeals. That does not have to mean that parties cannot seek legitimate clarification where there is a degree of uncertainty.

The appeal is accordingly dismissed. The Respondent is entitled to costs of VT75,000. The Constitutional Application is to be listed before the primary Judge at 8.00AM on Friday the 9th day of May 2008 for considering any relevant changed circumstances, ordering and clarifying the extent of the proceedings and directing how it will move forward the resolution of the substantive claim.

DATED at Port-Vila this 30th day of April 2008

BY THE COURT

Hon. Vincent LUNABEK CJ
Hon. Bruce ROBERTSON J
Hon. Oliver A. SAKSAK J
Hon. Hamlison Bulu J
Hon. John MANSFIELD J