Beckenburg Lim Boon Kee trading as SPI Sandalwood Vanuatu v Director of Forests [2007] VUSC 80; Civil Case 36 of 2006 (6 August 2007)

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

Civil Case No. 36 of 2006

BETWEEN:

BECKENBURG LIM BOON KEE
T/A SPI SANDALWOOD VANUATU
Claimant

AND:

THE DIRECTOR OF FORESTS
First Defendant

AND:

MINISTER OF AGRICULTURE,
QUARANTINE, FORESTRY and FISHERIES DEPARTMENT
Second Defendant

Coram: Justice H. Bulu

Counsels: Mr. Ronald Warsal and Mr. George Boar for the Claimant
Mr. Tom J. Botleng for the Defendants

Date of Hearing: 6 August 2007
Date of Decision: 6 August 2007

DECISION ON INTERLOCUTORY APPLICATION BY DEFENDANTS TO ADJOURN PROCEEDINGS

On 2 August, Mr. Botleng on behalf of the Defendant made a verbal application to the Court to adjourn the proceedings to a date after 10 August 2007. The reason for the application is that the Director of Forestry, who is to testify in this proceedings, has been invited to attend the Asia Pacific Tropical Forest Investment Forum in Thailand, during the same period the proceeding is before this Court.

I refused to hear the application and advised Mr. Botleng that the Court would prefer:-

1. to have the application in writing setting out the reasons why the Court should adjourn to allow the Director to attend the meeting.
   
2. prefer to have the Defendant inform the Court, whether there is nobody else in the Department of Forestry who could attend in the place of the Director.
   

On Friday noon 3 August 2007, this Court received a letter from the Minister of Agriculture requesting the Court to adjourn the proceedings to allow Mr. Mele to attend that meeting in Thailand.

The Court via the Court clerk advised the Attorney General as Mr. Botleng was away in Luganville attending another court proceeding, that it is proper to make an application that same day pursuant to the intention appearing in the letter. The Court could be organized to sit that day to hear the Application. Such an application would allow the Claimants the opportunity to be heard also before the Court could make a decision whether to grant the Defendant’s Application. However, no application was made that day.

This morning Mr. Botleng on behalf of the Defendant made that application for the Court to adjourn the proceedings in relation to the cross-examination of Mr. Mele until after 13 August when he returns to Vanuatu.

Mr. Boar on behalf of his client strongly opposed the Application on the grounds that further delay would prejudice his clients, not Mr. Mele or the Second Defendant.

In considering the Application and the submissions, it is obvious:-

(a) that Mr. Mele, the Director of Forestry has already left the jurisdiction to attend the meeting in Thailand.

(b) that Mr. Mele has left the jurisdiction without the authority of this Court.

The advise to the Attorney General on 3 August was that the Application could be heard on that day. That should determine whether the Court would grant the Application.

(c) that the Defendant has not addressed the key issue the Court had posed on 2 August 2007. That is whether only Mr. Livo can attend that meeting.

That is a crucial test to assist the Court to determine the Application.

The letter from the Minister states:-

“Mr. Mele was requested to attend the Asia Pacific Tropical Forest Investment Forum: Issues and Opportunities for Investment in Natural Tropical Forests. The meeting will be held in Thailand on the 6^th to the 8^th of August 20007. This international meeting will discuss opportunities in Forests Investment that are available globally.

All the Heads of Forestry from the Asia and the Pacific are invited to attend this very important meeting to familiarize themselves with the new initiatives in the market place. This meeting will enable the Heads of Forestry to develop policies that will promote further foreign and domestic investment in the forestry sector. They will also get to know the available mechanism that are already in place and make use of the opportunities.

The Ministry strongly recommends Mr. Mele to attend this meeting as investment in the forestry sector is sometimes difficult because the return on investment is often a long term one and investors are reluctant to invest in forestry.”

The letter however stops short of saying why the Head of Forestry only can attend, and not another senior officer within that Department. The purpose of the meeting is to “familiarize themselves with the new initiatives in the market place”. An important offshoot of the meeting is that it “will enable heads of Forestry to develop policies that will promote further foreign and domestic involvement in the forestry sector”.

The message springing from that letter is familiarization and collection of information to enable heads of forestry to develop new policies at a later stage.

When a matter is in progress before the Supreme Court, those required to attend as witnesses attend Court until they are excused by the Court or are given permission by the Court to go away temporarily. No one simply decides to go away, for however a short time, without the approval of the Court.

I am greatly disappointed that the head of Forestry has decided to leave the jurisdiction without obtaining the permission of the Court during the current proceedings before the Supreme Court of Vanuatu.

Mr. Botleng’s Application today on behalf of the Defendant is simply to adjourn the proceeding till a date after 13 August 2007 when Mr. Mele can be cross-examined. This is basically an application after the fact. It is done in the hope that the Court will grant the Application and at the same time formalize Mr. Mele’s departure from the jurisdiction without the permission of the Court. I cannot accept that. This, in my view, is a clear disrespect for the procedures before this Court and the Court itself.

Mr. Boar on behalf of the Claimant in response strongly objected to Mr. Mele’s Sworn Statement being admitted into evidence as:-

- It states matters which are obvious;
- it contains no evidence in relation to the issue in this proceedings, ie, quantum of damages;
- it contains matters of law which is for the Court to take judicial notice of;
- it contains matters relating to liability. Proceedings has gone past that stage already. The proceedings now is to determine the amount of damages, if any payable.

In conclusion, Mr. Boar submitted that the sworn statement of Mr. Mele should not be admitted as it contains no evidence to help the Court with the issue at hand and is therefore irrelevant to this proceedings. The proper place to raise such matters is in submissions on behalf of the Defendants at the end of the proceedings.

I have listened to both counsels, and read the Application and the sworn statement in support and make the following orders:-

(a) The Application to adjourn the proceedings to allow Mr. Mele to be cross-examined after 13 August 2007 on his sworn statement is refused. I am not satisfied on the information before this Court that nobody else but Mr. Mele, from the Defendants can and must attend that meeting in Thailand.

(b) Proceedings will continue with the other witnesses. The proceedings has been estimated to be completed by 7 August 2007. The time will be strictly adhered to.

(c) If Mr. Livo is not here within that period, his sworn statement will not be admitted.

On the other hand if Mr. Livo is back here within time, the sworn statement will be admitted but the Court will take note of the submissions on specific paragraphs Mr. Boar has objected to.

(d) Costs of this Application to be met by the Defendants.

(e) Mr. Mele must appear before this Court on 16^th August 2007 at 8.00 a.m to show cause why he should not be punished for contempt of Court.

DATED at Port Vila, this 6^th day of August, 2007.

H. BULU
Judge.