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Benard v Citizenship Commission [2007] VUSC 71; Civil Case 230 of 2006 (10 August 2007)

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

Civil Case No. 230 of 2006

BETWEEN:

GUY BENARD
Claimant

AND:

THE CITIZENSHIP COMMISSION
Defendant

Coram: Justice Tuohy

Counsels: Applicant in person
Ms. Harders for Respondent

Date of Conference: 10 August 2007
Date of Ruling: 10 August 2007

RULING

1. Following a conference on 26 July 2007 at which a trial date was fixed for 11 October 2007, the defendant applied under section 31 (5) of the Judicial Services and Courts Act 2000 for the Court to state a question of law for consideration by the Court of Appeal before trial. The question of law was as follows;

"Whether, in a claim for a mandatory order, the alleged refusal or failure to perform a duty must precede the initiation of the judicial review proceeding to which it relates".

2. The application arose out of a discussion at the conference on 26 July 2007. The application for judicial review essentially claims that there has been a failure by the Defendant to make a decision on his application for citizenship filed on 26 April 2006. He filed a judicial review proceeding on 8 December 2006. The position of the Citizenship Commission in the proceeding is essentially that it is still diligently investigating and considering the Claimant’s application for citizenship and that has always been the case. The essential issue in the judicial review proceeding is whether the extent of the delay amounts in substance to a failure to make a decision.

3. "Decision" includes a failure to act in relation to exercising a public function pursuant to the definition in Part 17 of the Civil Procedure Rules No. 49 of 2002.

4. At the conference on 26 July, the Court pointed out that the essence of the Claimant’s complaint is that the Defendant is unnecessarily delaying a decision on his citizenship application. Obviously therefore the continuing passage of time without a decision amounts to a continuing delay. The Court pointed out that the period which the Court will need to consider at trial is important. Is it the period up to the date that the proceeding was issued or is it the period up to the trial which will be some 10 months later? The Court expressed the preliminary view that fairness and common sense might require the Court to look at the period right up to the date of trial. For that purpose, the Court directed that sworn statements may be filed by either party up until a week before the trial and that those statements might cover events during the period up to that date. The Court however made it clear that it was not deciding the point at that stage, and that the point remained open for argument at trial and would need to be considered fully at that time.

5. The Defendant’s present application to state a question for the Court of Appeal was plainly prompted by the discussion on 26 July 2007 and the orders made then. The submission made in support of the present application is that the relevant time frame is of critical importance and will likely determine the outcome and is also of importance to the balance of interlocutory steps, the scope of the evidence, number of witnesses, length of trial, continuing obligation of disclosure, costs to the parties, (especially of any appeal) etc. The application is obviously made in anticipation that the question of law could be considered by the Court of Appeal in the session starting on Monday 13 August. That may well be practicable.

6. At the conference on 10 August, I refused the application and expressed orally brief reasons. I now give written reasons for the refusal of the application.

7. My reasons are these:

a) It is as yet by no means certain that a trial of this proceeding will be necessary. The position of the Citizenship Commission remains that it is continuing to actively investigate and consider the Claimant’s application for citizenship diligently. In those circumstances it is quite possible that it will make a decision on this application prior to 11 October 2007 which is still three months away and the whole proceeding will be rendered academic.

b) This Court has not heard full submissions on the merits or otherwise of the respective time frames and has made no decision about it. It may well be that after argument the Court accepts the position argued for by the Defendant. In general terms, it is premature to seek a ruling from the Court of Appeal on a question which has not been the subject of argument or decision in the Supreme Court. Although plainly s. 31 (5) permits this course of action, it should be reserved for special cases in which some real advantage can be shown.

c) In any event the choice of the relevant time frame may not necessarily determine the outcome of the proceeding. It is possible that the Court could find that there has been an effective failure to act prior to the initiation of proceedings, whatever time frame is legally applicable; alternatively the Court might find that there has been no failure to act regardless of which of the two possible time frames is chosen.

8. My view is that referring a matter which is not necessarily of crucial importance to the proceeding, which has not yet had the benefit of argument or a considered decision in the Supreme Court and where a trial might never take place at all is not effective case management and a potential waste of judicial and other resources. I accept that if the question stated was decided beforehand in the Court of Appeal in favor of the Defendant, the amount of work required by the Defendant for trial would be less than it otherwise would be. However, I do not think that the advantage gained in that respect would be great and in my view is outweighed by the risk of unnecessary expenditure of resources in a premature application to the Court of Appeal.

Dated at Port Vila, this 10th day of August, 2007

BY THE COURT

C.N. TUOHY

Judge