Port-Vila Municipal Council v Attorney General [2003] VUSC 25; Civil Case 075 of 2003 (21 May 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 75 of 2003

BETWEEN:

PORT-VILA MUNICIPAL COUNCIL
Applicant

AND:

ATTORNEY-GENERAL
First Defendant

AND:

MINISTER OF INTERNAL AFFAIRS
Second Defendant

AND:

DIRECTOR GENERAL OF INTERNAL AFFAIRS
Third Defendant

Mr. Ishmael Kalsakau for the applicant
Mr. M. Edwards and Ms Viran Molisa for the defendants

JUDGMENT

This is an application for an interlocutory Order dated 13 May 2003. It seeks for the following relief:

The Port-Vila Municipal Council through its Lord Mayor applies for an Interlocutory Order restraining the Minister of Internal Affairs from suspending the said Council and from appointing a Commissioner to replace the said Council pending the determination of the applicant’s application for judicial review.

The grounds of the application are that:

1. The Ministerial decision is contrary to law.

2. There is a serious question to be tried.

3. The applicant has done no wrong.

4. The Ministerial decision of 20 February 2003 but applicant’s counsel concedes the date is 25 March 2003 referred to in the applicant’s Amended Application for judicial review are oppressive.
   

The application proceeds on the basis that there is extreme urgency given the likely interference of the Minister now that the action is before the Court and given the Minister has indicated he will suspend the Council after 20 May 2003 in his letter dated 16 May 2003 which is annexed “O” to the sworn statement of the Town Clerk for the Port-Vila Municipal Council, Madeleine Tom.

It is said that the applicant will suffer prejudice in not having their right to be heard over the matter and the Commissioner occupying control over Council premises without there being any intervention by the Court.

A sworn statement of counsel Mr. Ishmael Kalsakau of 19 May 2003 is filed in support of the urgency.

The respondents file a sworn statement of Feke Nimoho, First Political Adviser of Ministry of Internal Affairs dated and filed 20 May 2003.

On 13 May 2003, the applicant files an application for judicial review. On 19 May 2003, the applicant amended, his application and sought declaration to the following effect:

1. A declaration that the Ministerial directives of the second defendant dated 20 February 2003 are of o effect.
   

The grounds are that:

• The directives are in excess of the jurisdiction of the Minister; and
• They are unlawful; and
• It is unreasonable for the second defendant to expect the applicant to expect the applicant to comply with the said directives.
  

The applicant files two (23) sworn statements in support of this application for judicial review (as amended).

By perusing the material available before me, I am satisfied that there is urgency for the Court to entertain the interlocutory application.

The hearing of this application for an interlocutory injunction is not a trial on the merits. There is no oral evidence and no opportunity for cross-examination. The full pre-trial processes of discovery and inspection of documents have not occurred.

There is a substantive claim filed before the Court.

For the Court to grant an interlocutory injunction the Court must be satisfied of the following:

• There must be a serious question to be tried; or
• There is inadequacy of damages (to either side); or
• The balance of convenience.
  

In essence, the test is the same as that applied in the case of American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; (1975) AC 396, which is regularly applied by the Courts in Vanuatu.

However, the case before me is a special case. The challenge before the Court is against the actions/decisions of a Minister of Government. A Minister of Government should not be restrained by interlocutory injunction from exercising his statutory powers unless the applicant/plaintiff can show a real prospect that his claim will succeed at trial.

In the present case, the defendant is a Minister of the State and the Applicant is seeking to challenge the exercise of the Ministerial statutory powers under the Municipalities Act.

Therefore, an interlocutory injunction may be granted only if the Applicant’s challenge to the lawfulness of the exercise of the Ministerial powers under the law is soundly based.

The material facts before me show that there is no decision made by the Minister affecting the rights and privileges of the applicant. This fact is not disputed and counsel for the applicant concedes to this effect.

The case for the applicant is that he fears that wrong will be done to him if the interlocutory Order is not made.

As the substantive matter is now pending before the Court and to prevent the jurisdiction of the Court being stultified, an application of this kind, seeking an interlocutory Order of the Court can be made. This is a quia timet action. That is an action for interlocutory injunction to maintain the status quo between the parties and to prevent an apprehended legal wrong, though non has occurred at present.

On the facts before me, I am satisfied that there is serious question to be tried. Although, the applicant does not file an undertaking as to damages, I am of the view that the interlocutory injunction sought must be granted in this case and I so order.

The formal Orders of the Court are as follows:

1. THAT Port-Vila Municipal Council through its Lord Mayor applies for an Interlocutory Order restraining the Minister of Internal Affairs from suspending the said Council and from appointing a Commissioner to replace the said Council pending the determination of the applicant’s application for judicial review, is granted.
   
2. THAT because of the urgency, all counsels and parties must attend at a conference hearing today 21 May 2003 at 2.00PM o’clock.
   
   3. THAT the Applicant shall file an undertaking as to damages today 21 May 2003.
      
4. THAT the costs are reserved.
   

Dated at Port-Vila this 21^st day of May 2003

BY THE COURT

Vincent LUNABEK
Chief Justice