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

Civil Case No. 195 of 2003.

BETWEEN:

CYCLAMEN LIMITED
Plaintiff

AND:

THE PORT VILA MUNICIPAL COUNCIL
Defendant

JUDGMENT

The claimant has applied on an urgent basis to this Court for mandatory orders requiring the defendant to make a decision on or before Friday 12 December 2003 in respect of the claimant’s application of 21 October 2003 for the extension of its approved building permit and its application of 17 November 2003 for usage of the premises under classes two and three of the Physical Planning Act [CAP. 193]. 

The claimant claims that the delay of approximately 5 weeks since the lodging of its first application and about 3 weeks for the second application is an unreasonable delay. The Council has not exercised its powers under the Physical Planning Act in a reasonable and timely manner, and, the Court has jurisdiction to compel the defendant to carry out its functions who is by law compelled to carry out. 

The defendant submitted that the claimant has no standing to come to the Court at this time and ask the Court to intervene. Defendant submits further that the rule in judicial review is that there must first be a decision by the decision maker entitled in law to make such a decision. If the decision infringe on the rights of the claimant, then the claimant can apply to the Courts for redress. Until such time there is no urgency in the matter to warrant the Courts intervention. The defendant further submitted that the exercise of relevant powers under the Physical Planning Act are subject to consultations with certain Government Departments. That a procedure is in place to facilitate consultations and that the claimant is aware of this. 

The claim before this Court are twofold. Firstly that there is an urgency to deal with the claimant’s applications. Delays are causing harm to the claimant. Secondly, that the length of delay is unreasonable and that the defendant has not exercised its powers under the Physical Planning Act [CAP. 193] in a reasonable and timely manner. 

The defendant is the authority under the Physical Planning Act [CAP. 193] to determine applications for development within the Port Vila Physical Planning area. In the oral submissions before the Court and in the documents before the Court it is acknowledged that the defendant must consult certain Government Departments before it can finally make a decision on the claimant’s applications. The defendant needs to take into account relevant matters to reach a decision and as such must consult others. The arrangement in place may be cumbersome and slow but that does not mean that the defendant has refused to determine the claimant’s application, or just letting it lie there without dealing with it. The defendant is willing to consider and determine the applications and has commenced the process to do so. 

In the circumstances, can the Court intervene? 

The defendant's powers are discretionary powers. The purpose of a Writ of Mandamus, now called a mandatory order under the Civil Procedure Rules of 2002, is to compel a person or authority to whom it is directed to perform some act which he or it is under a legal duty to perform. However, where the person or authority is vested with a discretion, a mandatory order will not lie to compel the person or authority to exercise the discretion so as to attain any particular result. It will, however, issue to compel the discretion to be exercised. 

Mandamus however, will only issue to command the performance of a duty when the Court is in a position to see that its command has been carried out. In the present case the Court is not satisfied that if mandamus or mandatory orders are granted that the defendant can perform the duty being asked of it to be performed in the time suggested that is on or before 12 December 2003. The exercise of that duty is subject to views or decisions of other entities of which the defendant has no control or say whatsoever. This is not contested before this Court. 

The Court is not satisfied that in the circumstances it is proper, or that the matter has reached a point in time when the Court must intervene. Information in documents submitted and oral submissions made have not shown what it is that the defendant must receive and from which Government Departments to assist the Court to reach an opinion whether the length of time it is taking before the defendant can make a decision is unreasonable. Therefore the claim for a mandatory order requiring the defendant to make a decision on or before Friday 12 December 2003 in respect of the claimant’s application of 21 October 2003 for extension of its approved building permit and the claimant’s application of 17 November 2003 for usage of the Physical Planning Act [CAP. 193], and other relief, is struck out. 

Each party to pay its own costs. 

Dated at Port Vila, this 8th day of December 2003.

H. BULU
Judge.