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Cyclamen Ltd v Port Vila Municipal Council [2006] VUSC 50; Civil Case 043 of 2004 & 119 of 2005 (11 July 2006)

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

Civil Case No.43 of 2004 and Civil Case No.119 of 2005

BETWEEN:

CYCLAMEN LIMITED
Claimant

AND:

THE PORT VILA MUNICIPAL COUNCIL
First Defendant

AND:

MINISTER OF LANDS
Second Defendant

AND:

THE ATTORNEY GENERAL
Third Defendant

Coram: Justice H. Bulu

Counsels: Mr. Willie Daniel for the Applicant
Mr. Silas Hakwa for the First Defendant
Mr. John Stephens for the 2nd and 3rd Defendants

Date of Hearing: 10 July 2006
Date of Decision: 11 July 2006

DECISION ON APPLICATION FOR DISQUALIFICATION

On 27th April 2006 the Applicant (Cyclamen Ltd.) filed two separate applications to have the Judge disqualify himself from continuing to preside in Civil Case No. 43 of 2004 and Civil Case No. 119 of 2005. The Court is dealing with both applications at the same time as they deal with the same issue i.e., disqualification, and the circumstances from which springs the application is the same (same factual background).

The background is as follows:

In 2001 Juris & Rebekah Ozols commenced proceedings against Cyclamen Ltd, and others. The Attorney General was named as the Fifth Defendant. The case was known as Civil Case No. 68 of 2001.

The Attorney General at that time was Hamlison Bulu.

Another Civil Case No. 195 of 2003 again concerned Cyclamen Ltd. and Port Vila Municipal Council Ltd. Civil Case No. 195 of 2003 was a claim for Judicial Review for a writ of mandamus arising out of alleged delays, by the Council in making administrative decisions in respect of the building permit of the Retreat – Seaside Resort by Cyclamen. Justice Bulu struck out the claim on the basis of lack of undue delay in the part of the council.

The Applicant continued that the Attorney General in Civil Case No. 68 of 2001 has had direct personal and/or professional involvement in protecting the interests of the Government of Vanuatu.

Civil Case No. 43 of 2004 commenced about 12 March 2004. Some of the issues before the Court involve and touch upon matters raised in Civil Case No. 195 of 2003. Justice Bulu’s decision in Civil Case 195 of 2003 went against the Claimant. Given the basis of that decision, the delays in getting Civil Case No. 43 of 2004 to trial, it is argued on behalf of the Claimant, can and does give rise to a perception of bias.

The issues in Civil Case No. 68 of 2001 involves and touch upon issues before this Court in Civil Case No. 43 of 2004.

I have considered the application and the responses by the First, Second and Third Defendants.

The Counsel on behalf of the First Defendant oppose the application for disqualification. The only ground advanced for opposing the application is that it is made so late in the day. It is now over 24 months since Civil Case No. 43 of 2004 commenced about 12 March 2004.

Counsel for the Second and Third Defendants also oppose the application on the same ground. That the Claimant has waited for such a long time before deciding that they would like another judge to hear the matter.

The Claimant has applied for my disqualification under section 38 (1) and (2) of the Judicial Services and Courts Act.

When an application is made for a Judge to disqualify himself to continue to preside over a matter, it is irrelevant whether bias is real. It is essential that the circumstances giving rise to the application for disqualification is considered very carefully. If the judge arrives at a conclusion that a reasonable, impartial observer is likely to reach a conclusion that a decision made by the Judge will be or could be influenced by his Honours involvement in Civil Case No. 68 of 2001 and Civil Case No. 195 of 2003, then there is no option but to withdraw or disqualify himself from continuing to preside over the matter.

In Civil Case No. 68 of 2001, I was then, the Attorney General of Vanuatu. The Attorney General was the 5th Defendant in that matter and was also counsel for the Third and Fourth Defendant. The Attorney General is the authority that represents the Government of Vanuatu in all legal suits before the Courts and advises the Government on legal issues and proceedings taken out against the Government.

I have considered the application carefully, and I have reached the conclusion that a reasonable impartial observer is likely to reach a conclusion that my decisions in Civil Case No. 43 of 2004 and Civil Case No. 195 of 2003 could be influenced by my involvement in Civil Case No. 68 of 2001 and therefore biased. I therefore withdraw or disqualify myself from continuing to preside over Civil Case No. 43 of 2004 and Civil Case No. 119 of 2005. The Acting Chief Registrar is to allocate both matters to another Judge.

DATED at Port Vila this 11th day of July, 2006.

BY THE COURT

H. BULU
Judge.