Australian Competition & Consumer Commission v Golden Sphere International Inc [1998] VUSC 24; Civil Case 069 of 1998 (29 June 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Jurisdiction

Civil Case No. 69 of 1998

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BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Plaintiff

AND:

GOLDEGOLDEN SPHERE INTERNATIONAL INC.
First Defendant

AND:

PAMELA JOY REYNOLDS
Second Defendant

Coram: Mr. Justice Oliver A. SAKSAK sitting in Chambers.

Counsel: Messrs. John Ridgway and Garry Blake for the First Defendant;
Mr. Mark Hurley for the Second Defendant;
Miss. Marisan Masengnalo for the Financial Services Commission;
Mr. John Malcolm for the Plaintiff.

JUDGMENT AS TO REASONS FOR ORDERS

Background

The Plaintiff applied Ex-parte on Wednesday 24^th June 1998 for the following orders:-

1) The Defendants, their agents or assigns be prohibited from destroying, removing tampering with or in any way interfering with documents which may or might be relevant to the Plaintiffs prosecution of their claims.

2) The Plaintiffs, their agents or assigns be and hereby authorised to enter the premises occupied by the Defendants in the normal course of their business in Port Vila and remove all or any records, documents, bank accounts, agreements, computer disks, computers, diaries books, books of account, insurance policy and/or review the same, take copies, films or xeroxes and maintain the same in safe custody pending further hearing or order.

3) The Plaintiff be and hereby are authorised to enter any premises owned or occupied by the Defendants in their private capacity and from such premise remove any document record bank account agreement insurance policy computer or computer disk record ledger or such other document whatsoever, copy the same, review such document disk or computer and hold the same in safe keeping pending further order of this Court.

4) The Defendants, their agents or assigns are hereby prohibited operating any bank account, cheque account, savings account or entering into any other financial transaction whatsoever pending further hearing or order.

5) The Defendants forthwith and fully disclose the names, address and telephone numbers of all parties with whom he has had dealings, the amount of funds paid to them by such parties and details of all amount paid to the Plaintiff together with details as to loans issued using any such funds so obtained together with a full list of all assets and liabilities of the business and of himself.

6) That the Defendants and each of them do forthwith disclose the full value of her and its assets (including beneficially owned) within and without the jurisdiction of this Court identifying with full particulars the nature of all such assets and their whereabouts and the name such assets or funds be held in.

7) That pursuant to the provisions of the International Companies Act the Financial Services Commission, PITCO, Global Management Services, European Bank ANZ, Westpac, National Bank and Banque d’Hawaii Limited be and hereby are authorised and required to provide such records of the Second Plaintiff. (sic)

8) That all parties referred and annexed to in paragraph 7 hereof are hereby retrained distributing or disbursing any or all funds held beneficially, in trust or otherwise for the Defendants.

9) Costs reserved.

10) Liberty to apply on 24 hours notice.

11) The matter to be served and returned before the Court on the day of 1998 at o’clock in the noon.

The Plaintiff’s application was made in reliance upon Order 61, Rule 2 of the High Court (Civil Procedure), Rules 1964, Section 13 of the Immigration Act [CAP.108], Section 3 of the Passport Act [CAP.108] and the Courts inherent jurisdiction.

The Plaintiff’s application was supported by the affidavits of Mr. John Malcolm in respect to the urgency of the matter and his further affidavit annexing that of Mr. Terence James Guthrie in respect of the Judgment against the Defendants and the prosecution of the Second Defendant for a crime under the Pyramid Selling Schemes (Elimination) Act 1973. Further the Plaintiff relied on the pleadings contained in a Writ of Summons issued against the Defendants in respect of the sum of $550,000.00, the subject-matter of the outstanding judgment. Further the Plaintiff filed an Undertaking as to Damages on 24^th June and finally the Plaintiff filed submissions in support of the Ex-parte Application.

Based on the above materials the Court granted the Orders sought by the Plaintiff and allocated a return date being Monday 29^th June 1998 at 0900 hours in the morning for an inter partes hearing.

Defendant’s Application To Set Aside Orders

The First Defendant applied by way of a Notice of Motion for Orders that the Orders of this Court made on 24^th June 1998 be set aside or alternatively that they be stayed until a further order of the Court. I heard this application in Chambers at 3.30 o’clock Thursday 25^th June 1998. From the arguments and submissions made by Counsels, I decided that the application be allowed and that the Orders of the Court dated 24^th June 1998 be set aside without costs.

The Reasons For Decision

The following are the reasons for the decision arrived at and the orders made dated 25^th June 1998.

1. Premature Application by Plaintiff

The Plaintiff obtained an Order against the First, Second and Third Respondents in the Federal Court of Australia on 1^st June 1998 for payment of the sum of $550,000.

A Copy of the Orders of the Court was annexed to the affidavit of Mr. Terrence James Guthrie of 24^th June 1998 as "A" which is attached to the affidavit of Mr. Malcolm of even date. Paragraph 13 reads –

"Subject always to the provisions of paragraph 14 hereof, the First, Second and Third Respondents shall jointly and severally pay or cause to be paid to the trustee for payment into the fund, the sum of $550,000 within 90 days of the date hereof." (Emphasis added)

From this, the period allowed for payment is 90 days. The Order of the Court was effective from 1^st June 1998. 90 days would expire on 29^th August 1998.

The Plaintiff applied for Anton Piller Orders and Mareva injunction Ex-parte on 24^th June, 1998 24 days early. The Respondents have a right to 90 days within which to pay. There is nothing stopping them from paying $550,000. on Day 1 or Day 30 etc. They are entitled to wait even until Day 90 but if they do not pay at anytime between Day 1 and Day 90, it is not for this Court to force them by granting such draconian orders that this Court has granted to the Plaintiff ex-parte. The grant of those Orders was made pursuant therefore to a premature application by the Plaintiff and the Court so rules.

2. Plaintiff’s Application Is Without Foundation.

The Plaintiff’s application was purportedly made under the following Rules and legislations–

a) Order 61 Rule 2 – High Court (Civil Procedure) Rules 1964;

b) Section 13 – Immigration Act [CAP.66];

c) Section 3 – Passports Act [CAP.108]; and

d) The Court’s Inherent jurisdiction.

As regards the Court’s inherent jurisdiction to hear an application for Anton Piller Order and Mareva Injunction, it is not in doubt.

As regards Order 61 Rule 2 I have difficulty in accepting that it affords the Plaintiff a legal base to apply for the Orders as granted. Order 61 Rule 2(1) reads –

"No application for an order of Mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule." (Emphasis added)

The Court confirms that there was no application for leave and it follows from that therefore that no leave was granted by this Court.

As regards Section 13 of the Immigration Act [CAP. 66] it provides for permits to enter and reside in Vanuatu and the procedure for getting one. I see no relevance whatsoever in that provision to the present case and conclude that it gives the Plaintiff no basis to make the application they have made.

And finally as regards Section 3 of the Passports Act [CAP. 108] again I see no relevance of this provision to the present case and therefore conclude that it is no legal basis on which the Plaintiff should have based their application.

3. No Full Disclosure

The Plaintiff through Counsel did not make full and frank disclosure of all material and relevant facts and/or authorities before the Court on making the ex-parte application on 24^th June 1998.

This case came before this Court in 1996 as Civil Case No. 145 of 1996. The Parties are the same Parties to the present case. In November 1996 the same Plaintiff applied for an Order for registration of a foreign judgment. Although the Court in Chambers granted the Order sought, the Order was set aside on 15^th January 1997 on two grounds as I understand it –

a) That the document that the Plaintiff wanted the Court to confirm was not a Judgment properly defined, but it was an Order.

b) That there is no reciprocal agreement in existence between Vanuatu and Australia.

Here, we have an Order of the Federal Court of Australia. To recognize that Order as having effect in Vanuatu an application has to be made to the Court to that effect. Here no such application was made. Therefore to come before the Court to seek the Courts indulgence without first persuading the Court to recognize the Order or Judgment as having effect in the jurisdiction is an abuse of process.

Counsel for the Plaintiff told the Court that he was not aware of the previous application made by the Plaintiff who was then represented by another firm of solicitors. I find that hard to accept or believe because the Plaintiff in 1996 is the same Plaintiff here in 1998. What is more, the case is still the same case that started in 1996. The Plaintiff failed in 1996 in getting or persuading the Court to recognize the Order of the Australian Federal Court of 1^st October 1996 before another Judge. In June 1998 the Plaintiff has come up with another Order although they are fully aware of the Judgment of the Court dated 15^th January 1997, before a newly-appointed Judge and failed either deliberately or out of ignorance, to bring the case to the Judge’s attention. That, I conclude is a serious failure or omission. At best I conclude that this Court was misled during the ex-parte hearing on 24^th June 1998.

It bears to remind all legal practitioners that as Counsels they are officers of the Court with a duty to assist the Court as best they can. Counsel must never come to Court on the presumption that Judges know all the law either as statutes, or as case law. Here I find that at the ex-parte hearing on 24^th June 1998 there was no full disclosure of material and relevant facts made by the Plaintiff through Counsel and I so rule.

There were some other issues which the Court sees as not relevant and therefore has not considered them in this Judgment.

As regards costs no application therefor was made by either of the Defendants but in any event the Court thought no Orders as to costs should be made.

Published at Port Vila, this 29^th June 1998.

BY THE COURT

Oliver A. SAKSAK
Judge of the Supreme Court