(1) his action duplicates, but only in part, an action already begun in
Massachussetts (USA) by the Plaintiff against the Defendant.
(2) This action is vexatious and/or oppressive.
The Defendant, Mr. Chris Kilham, a Businessman of Lincoln
Massachussetts and citizen of the United States of America filed an
Affidavit in support
of the Summons. Mr. Sugden, counsel for the Defendant, filed also an Affidavit in support
to the same.
The Plaintiff, Roxanne Naylor of Port Vila, a business woman, filed an
Affidavit on 11th December, 1998 opposing the Defendant’s application to
stay the proceedings.
BRIEF FACTS (to the context of their relevancy).
On or about 12th March, 1998, the abovenamed Plaintiff began
an action against the Defendant in the United States District Court for the District
of
Massachussetts (the "US case").
In the "US case", the Plaintiff is seeking damages for libel
in respect to 3 separate alleged publications one of which
is the same alleged publication
that forms the basis of this action for damages for libel which the Plaintiff began in
June 1998, that is, three (3) months later than the "Vanuatu Case".
THE ISSUE
The main issue for the determination of this Court is the test to be
used in applications by defendant for a stay of proceedings
on a forum non conveniens
grounds.
Counsel for the Defendant noted that it is regarded as prima facie
vexatious and oppressive to bring two separate actions over
the same matter in England
(i.e.- in different places) and one of them will be stayed [see Earl Poulet -v-
Viscount Hill (1893) Ch. 272 at 281].
It is then submitted for the Defendant that it is prima facie even more
vexatious and oppressive to bring one action in a foreign
country and then a duplicating
action in the country of origin.
This submission is not relevant to Vanuatu local context and is thus
rejected. There is no reciprocity in the enforcement of
foreign judgments between Vanuatu
and any of the Commonwealth or other countries.
It must also be understood that there is a difference in the
application of the principles of Comity between litigants of the
same nation and litigants
of different nations. A nation has an interest in ensuring that its citizens and residents
have
access to the nation’s Courts in order to obtain relief.
A foreign Plaintiff is not necessarily entitled to the same Court
access as a resident or a citizen. Where a plaintiff citizen
or resident sues in his own
jurisdiction (local forum) that choice is always subject to the general rule that the
application
of the doctrine is to be flexible, attending to the particular considerations
of the case and subject to the discretion of the
Court.
The Defendant also submitted by counsel that the criteria applicable
where a foreign element is involved are those applied by
the House of Lords in Spiliada
Maritime Corporation -v- Cansulex Ltd. [1986] UKHL 10; (1987) AC. 460 (at p. 478) and which is
generally described as "forum non conveniens". By this approach the Court looks
at the
circumstances as revealed by the evidence before it and looks for the "more
appropriate forum" for the action to be
tried in. If it is not UK, the Court will
stay the action.
Counsel for the Plaintiff urges upon the Court that the Australian
position as set out by the High Court of Australia in Voth -v- Manildra Flour Mills
P/L [1990] HCA 55; (1990) 65 ALJR 83 in which the test is that the Court will stay the action only
upon the basis that it is "clearly an inappropriate forum"
is preferable and be
applied in Vanuatu.
I have had opportunity to consider the issue by comparing the two tests
and adjust them within the local circumstances of Vanuatu,
and bearing in mind that the
nature of the application to stay is of interlocutory nature, I am of the view that a
Vanuatu
Court is to exercise its traditional power to stay proceedings when the defendant
convinces the Court that it is a "clearly
inappropriate forum".
The process by which it is to be decided whether a forum is clearly
inappropriate can be divided into two stages.
In the first stage, the defendant will have to put forward reasons why
the local forum is clearly inappropriate. This can be
done by getting valuable assistance
from the discussions by Lord Goff in Spiliada Case.
According to Lord Goff, the connecting factors include
"factors affecting convenience or expense …, factors such
as the law governing the relevant transaction …, and the
places where the parties
respectively reside or carry on business." (Spiliada, at p. 478).
In the second stage, the Plaintiff can point to legitimate personal or
juridical advantages available if proceedings continue
in the local forum. Again, valuable
assistance can be taken from the Judgment of Lord Goff in Spiliada case.
Generally speaking, an investigation of juridical advantages can be subdivided into two
parts. In the first part,
one takes the law in competing forum on matters such as damages,
costs .... and then consider any advantages the plaintiff may
possess in continuing in the
local forum.
The second part goes beyond the law of the foreign forum as such and
requires, "the formation of subjective views about either the merits of …
(the foreign) forum’s legal system or the standard and
impartiality of those who
administer it". (Voth at p. 90).
Vanuatu judiciary (like Australia) is not going to sit in "judgment
upon the ability or willingness of the Courts of another country to allow justice to the
Plaintiff in the particular
case". (Voth at p. 90).
In Vanuatu, therefore, (like Australia), this second part of the
investigation will not be made but only the first part of it.
Application of the above principles to the facts in this case. The
Defendant lives and resides in the USA and involves himself
in the kava industry. It
transpires from the Defendant’s affidavit that it is more advantageous for the
Plaintiff
to litigate the claim that is the subject of this action ("Vanuatu
case") in the ("US case") for the following
reasons (see paragraph 7 of the
said affidavit):
(i) The US case will dispose of all claims in one action whereas this
action will not;
(ii) The US case is likely to be heard first;
(iii) The Plaintiff will be entitled to a jury trial in the US case
whereas that is not available in this action;
(iv) The level of damages is likely to be higher in the US case if the
Plaintiff is successful;
(v) Any judgment that the Plaintiff obtains in the US case will be more
easily executed upon than a judgment in this case
("Vanuatu case") as he has
assets in USA but none in Vanuatu.
(vi) Substantial costs have already been incurred by the Plaintiff in
the ("US case") and she is unnecessarily
incurring further costs in covering the
same ground in this case ("Vanuatu case").
By reply, the Plaintiff says in her Affidavit of 9th
December 1998 that the matters raised above by the Defendant, are matters for herself and
have no bearing on the Defendant.
At paragraph 8 of his Affidavit, the Defendant pointed to disadvantages
for him to defend this action in Vanuatu, as follows:
(i) He travel infrequently to Vanuatu but he will be in Vanuatu in
April 1999.
(ii) Because of the time difference and the great distance of Vanuatu
from where he resides and work it is difficult for
him to instruct and assist lawyers in
Vanuatu and to appreciate the procedure in Vanuatu.
(iii) He has being and will be put to great expense because of the
difficulty that he has instructing lawyers in Vanuatu
and in carrying out any support work
for the case.
(iv) He is also suffering great expense in having to fight the later
action in Vanuatu as well as the US case that the later
action duplicate only in part so
that he will still have the expense of the US case after this action is concluded.
At paragraph 6 of her Affidavit, the Plaintiff says:
(a) She does not believe that there is any disadvantage in respect to
briefing lawyers given modern fax, phone and email
facilities.
(b) Mr. Kilham is well acquainted with Vanuatu having traveled here on
numerous occasions and previously held himself out
as an Honorary Counsel.
(c) She notes his statement that he will be here in April 1999. She
doubt that the matter would be heard before that time.
In the present case the plaintiff began the action before Vanuatu Court
in June 1998. The action has a substantial connection
with the law of Vanuatu. The alleged
defamatory letter, if defamatory, was published, as it is said, to the government of
Vanuatu by its delivery to the Hon. Barak Sope, Minister of Trade and other government
ministries. Therefore, the relevant
acts complained of took place in Vanuatu. The
Plaintiff is a resident and a businesswoman trading in Port Vila in the Republic
of
Vanuatu as the "kava Kampani". The Plaintiff’s witnesses are in Vanuatu.
THE DECISION
1. I have examined the material in evidence and having taken account of
the competing written and oral submissions, I am of the
view that the proceedings should
not be stayed on forum non conveniens (i.e. "clearly inappropriate forum")
ground.
2. The Defendant will pay the costs of the Plaintiff in respect to the
hearing of this summons and the costs be taxed failing
agreement.
3. Both parties will be advised by the Chief Registrar about a date for
a conference to be held for the purpose of directions
in respect to this case.
Dated at Port Vila, this 12th day of March, 1999.
Vincent LUNABEK
ting Chief Justice.
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