Iririki Island Holdings Ltd v Ascension Ltd [2007] VUSC 57; Civil Case 70 of 2007 (30 May 2007)

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

Civil Case No. 70 of 2007

BETWEEN:

IRIRIKI ISLAND HOLDINGS LIMITED
Claimant

AND:

ASCENSION LIMITED
Defendant

Coram: Justice C.N. Tuohy

Counsels: Mr. Ozols for Claimant
Mr. Sugden for Defendant

Date of Ruling: 30 May 2007
Date of Decision: 30 May 2007

RULING

1. At the commencement of the hearing of the Claimant’s application for an interim order, Mr. Sugden for the Defendant indicated that he wished to cross-examine three of the persons who have provided sworn statements on behalf of the Claimant, Francois Debon, Pamela Reynolds and Adrian Sinclair. The reasons for which he wishes to cross-examine them relate first of all to issues related to the balance of convenience, namely whether in fact there is sufficient commonality between the owners of the Claimant company and the owners of the Sebel Hotel so that access is in fact available through the Sebel Hotel for the Claimant’s guests; and secondly in relation to the useability or otherwise of the main wharf. In addition he wishes to question those witnesses or some of them in relation to the series of negotiations between the parties in the months leading up to now, relating to access over the Mainland Title. The purpose of that proposed cross-examination is to establish that there has been a failure to make full and frank disclosure in this application or at worst a deliberate attempt to deceive the Court so that interim relief should not be granted. Mr. Ozols opposes the application to cross-examine on the basis that there are no valid reasons for doing so, that these issues are the subject of sworn statements on both sides and that there is no particular specific issue of disagreement between them which would justify cross-examination.

2. The rules in relation to the hearing of applications for interlocutory orders are set out in Part 7 of the Civil Procedure Rules, in particular Rules 7.1, 7.2 and 7.4 are relevant to the present application. Those rules provide that an application may be made at any stage of a proceeding, that the application is to be made, if not at a conference, by filing a written application with a sworn statement setting out the reasons why an order should be made, which in context means the facts which are being relied upon.

3. There seems to be no specific provision in the Rules for filing a notice of opposition or even sworn statements by the opposing party, but it seems to me that it must be taken as read that there is a right to oppose and a right to file evidence in opposition to the application. As far as the hearing of the application is concerned, the only relevant Rule is Rule 7.4 which provides that "it is not to be dealt with in open Court unless it is in the public interest to do so or the Judge is of the opinion for another reasons that the matter should be dealt with in an open Court".

4. There is no specific Rule relating to the right to cross-examine on sworn statements in an application for an interlocutory order. It is common in countries operating a common law system that cross-examination on interlocutory applications is rare and normally to be allowed only in exceptional situations. There are very good practical reasons for this. Interlocutory applications by their nature have to be dealt with quickly and by their very nature result in orders which are temporary.

5. In my view the general approach of the common law countries should continue under the Civil Procedure Rules of Vanuatu, namely that there need to be good reasons in the interest of justice before cross-examination on interlocutory applications should be allowed. I think this approach is also supported by Rule 7.4 where there is a presumption that the hearing will not be in open Court.

6. In this case I see nothing exceptional which would justify cross-examination. The Defendant has had the opportunity of disputing matters of fact raised in the sworn statements of the Claimant and has availed itself of that opportunity in full. It may be that the sworn statements present different pictures as to issues relating to the possibility of other access, in other words issues relating to the balance of convenience, and also in relation to the course of negotiations in the last few months, which is also most relevant to the balance of convenience.

7. That is commonly the case and the Court is accustomed to having to make a decision on those issues on the material before it on an interim application. Insofar as it is intended to establish that there has been a failure to make full and frank disclosure or a deliberate attempt to deceive the Court, such allegation if correct, ought to be able to be established on the Defendant’s own sworn statements without any necessity for any cross-examination of the Claimant’s witnesses.

8. Therefore, there will be no cross-examination. That also resolves the consequential issue of whether this hearing will be in open Court or not. Under Rule 7.4 the presumption is that it shall not be and there is nothing which in my view rebuts that presumption in this case. There will no oral evidence given.

Dated AT PORT VILA on 30 May 2007

BY THE COURT

C. N. TUOHY
Judge