Cyclamen Ltd v Port Vila Municipal Council [2006] VUCA 20; CAC 20-06 (6 October 2006)

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IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

BETWEEN:	CYCLAMEN LIMITED
	Appellant

AND:	THE PORT VILA MUNICIPAL COUNCIL
	First Respondent

AND:	THE MINISTER OF LANDS
	Second Respondent

AND;	THE ATTORNEY GENERAL
	Third Respondent

Coram: Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Oliver A. Saksak
Hon. Justice Christopher N. Tuohy

Counsel: Mr. Willie Daniel for Appellant
Mr. Silas Hakwa for First Respondent
Mr. John Stevens for Second and Third Respondents

This is an appeal brought by leave against an interlocutory decision of a judge of the Supreme Court made on 26 March 2006 which refused an application under Rule 8.25 (1) (a) of the Civil Procedure Rules No. 49 of 2002 for an order directing answers, or rather further and better answers to written questions served on the respondents by the appellant (Cyclamen).

Pursuant to leave given by the judge on 7 October 2005 Cyclamen had served 67 questions for answers by the first respondent (the Council) and 77 questions for answer by the second and third respondents (the Minister and the Attorney General respectively). The respondents filed responses to these questions which raised objection to answering almost all of them on one or more of the grounds for objection provided in Rule 8.24 (2).

In the principal proceeding Cyclamen is the claimant in a Claim for Judicial Review concerning the failure or the refusal of the Council to exercise public functions under the Physical Planning Act [CAP 93] and decisions of the Minister made in exercise of public functions under the Land Leases Act [CAP163] in relation to certain leases held or sought by Cyclamen.

By way of essential background, on 31st October 2000, the Minister consented to the surrender of a residential lease under which Cyclamen is the lessee entitled to possession of a property in Port Vila (the property), and to the issue of a new commercial/tourism lease in respect of the property.

On 8 February 2001 Full Planning Permission and Building Permit (the permit) was approved by the Council for a development for commercial/tourism purposes consisting of one 3 storey administrative building plus one 3 storey building of accommodation units. Delay in construction of the approved building occurred and the date specified by the permit expired before the building and associated development works were completed. However, sufficient work had been carried out to enable Cyclamen to open a restaurant and bar on 28 August 2003.

In September 2003, Cyclamen lodged various documents to enable the surrender of the existing residential lease and for the issue and registration of a new commercial lease in its place. However, neither the surrender nor the issue of the new lease occurred.

On 14 October 2003, the Council required Cyclamen to cease all further commercial development as the time period specified in the original permit had expired, and to apply for a formal extension of the earlier approved building permit. Cyclamen by letter dated 21st October 2003 applied to the Council to have the permit extended.

On 28 October 2003, the Minister issued a s.45 notice under the Land Leases Act demanding that Cyclamen cease using the property for commercial/tourism purposes as the property was still the subject of a residential lease. Cyclamen thereupon stopped all construction, closed the restaurant and bar and put off 20 local Ni Vanuatu staff.

Then followed meetings between representatives of Cyclamen, the Council and the Minister which unsuccessfully pursued ways of resolving the issues between them. There was also litigation between Cyclamen and the Council which did not advance a resolution. On 2nd February 2004 the Minister offered to grant a commercial lease but subject to a number of conditions that were unacceptable to Cyclamen.

On 14 March 2004, Cyclamen brought the claim for judicial review which made an "urgent claim" for the following:

"(a) The First Defendant make a decision on or before 28, 21, 14, or 7 days before the date of this order, which ever the Court shall deem most appropriate, 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 premises under clauses two and three of the Physical Panning Act [CAP. 93];

(b) An order that the First Defendant deliver up to the Claimant a complete copy of any and all Engineers’ Reports held by the First Defendant in relation to the development on the Claimant’s property, within 7 days of the date of these orders;

(c) A declaration that the Second Defendant’s decision of 28 October 2003, embodied in a letter from the Second Defendant to the Claimant of the same date ("the First Decision") was:-

(d) A declaration that the only matters constituting relevant considerations for the purposes of any decision by the Second Defendant to grant or withhold a commercial lease in favour of the claimant, are:-

(e) A declaration that all questions concerning whether the development upon the Property complies with Bye-Law No. 9/79 are matters strictly for the consideration of the First Defendant and are irrelevant considerations insofar as the Second Defendant’s decision to grant or withhold a commercial lease is concerned.

(g) An order that the Second Defendant make a decision within 28, 21, 14, or 7 days of the date of these orders, whichever the Court shall determine most appropriate, with respect to the granting of a commercial lease to the Claimant over the land currently to residential lease 11/OB31/048.

The Claim went on to plead grounds for the relief sought, and to give better particulars of the impugned conduct of the Council and the alleged legal errors that were said to invalidate the decisions of the Minister.

Many pre-trial conferences and interlocutory applications by Cyclamen followed. Regrettably they seem to have achieved little beyond delay. At a conference on 7th October 2005 Cyclamen made oral application for permission to ask written questions.

8.20 (1) A Party may make an oral application for permission at a conference, telling the judge
the matters the questions will cover.

Whilst Rule 8.20 (1) requires that the party making an oral application tell the judge "the matters the questions will cover", it is common ground that the judge was not so informed in this instance. Nevertheless, permission to ask questions was granted.

The voluminous questions thereafter served on the respondents seek to explore in detail factual matters which might go to the merits of steps taken by the Council and the Minister, and which might be relevant to the making of the ultimate approvals sought by Cyclamen. However, it is difficult to see how answers to the questions could be relevant to determining the issues of law posed by the claims for relief in the judicial review proceedings.

The overriding ground on which the respondent objected to answering the questions was that they were irrelevant to the issues posed by the claims for relief. In dismissing Cyclamen’s application for substantive answers to the questions, the primary judge agreed that the questions were irrelevant. His Lordship observed that the main objective of interrogatories is to enable the parties to litigation to obtain discovery of material facts in order either to support or establish proof of their own case or to find out what case, but not the evidence that has to be met, and to destroy or damage the case brought about by their opposition. His Lordship said:

"Considering the purpose of interrogatories and what a person is claiming or challenging under a claim for judicial review, the issues are very narrow. Basically, there is one issue only in relation to a decision that has been made. And that is the lawfulness of that decision. Was the exercise of the power by the decision maker within the ambit of the statutory powers vested in the decision maker? That is all. The facts are obvious as in this case, and there are no disputes to it. The Minister has made three decisions. One to revoke consent to grant a commercial lease. Another to stop the commercial activities and the other decision to impose further conditions before granting a new lease

His Lordship dismissed the application seeking further and better answers. Consequential orders were made requiring the parties to prepare for the hearing. A trial date on 5 May 2006 was set. The present appeal has meant that the trial date has been abandoned.

In this appeal Cyclamen contends that the primary judge failed to take into account that the Civil Procedure Rules permit written questions to be asked in all civil proceedings and that on 7 October 2005 he had already given permission to ask questions. Cyclamen contends that His Lordship erred in holding that written question are not useful in judicial review proceedings, and were not necessary in the present case.

Undoubtedly the new provisions in the Civil Procedure Rules regarding the issue of written questions apply generally to proceedings governed by the Rules. However, it does not follow that the use of written question will be permitted whenever a party seeks to ask them. In every case the need for written questions will be considered by the judge managing the proceedings, and questions will only be allowed where a judge is satisfied that they are necessary and appropriate. The Rules contemplate that in considering whether to give permission regard will be had to the grounds set out in Rule 8.24 (2) on which objection to answering written question may be raised. By its terms, Rule 8.24 applies when a party is responding to questions, but common sense requires that those grounds also dictate when it is not appropriate to permit questions to be asked in the first place.

"A person may object to answering a written question only on the following grounds:

Rule 8.20, in requiring permission to ask a written question recognises the need for judicial control of the process. Experience, especially in other jurisdictions where rules of court once permitted parties at their election to deliver interrogatories for the pre-trial examination of other parties, has shown that unsupervised use of the process is prone to abuse and overuse.

In the present case the control mechanism intended by the Rules was by-passed when permission was given on the oral application of Cyclamen without the judge being told the matters the questions would cover. In our view it is inconceivable that his Lordship would have allowed the questions had he known the nature and the extent of what was proposed.

The fact that the permission is given under Rule 8.20 to ask questions does not foreclose the right of a party to object to answering all or some of the written questions once they are served. Nor does it foreclose the power of the Court on an application by a party dissatisfied with a response, to rule that objection to answering questions has properly been taken.

In the present case, it was within the power of the primary judge to refuse to order substantive answers to the questions, and the submission that he erred in refusing further answers because he had granted permission on 7 October 2005 to ask questions is misconceived.

Whether the issues raised in a particular case make it appropriate to administer written questions before trial will vary from case to case, and depend on the nature of the proceedings, the issues of fact and law identified in the pleadings, and the extent to which facts necessary for determination of the claim have been admitted or denied.

In our opinion the primary judge was correct in holding that in a claim for judicial review, the issues of facts will be narrow as the proceedings by their very nature, will be concerned only with the lawfulness of administrative action and not with the factual merits of what has occurred.

Here, the claim against the Council concerns the lawfulness of its failure to make decisions on two applications by Cyclamen, and its failure to produce an engineer’s report. The pleadings identify and admit the applications and the circumstances said to be relevant to the Council’s failure to act in the manner contended for by Cyclamen. The claim against the Minister for judicial review concerns the lawfulness of decisions regarding the grant of a commercial lease. The Minister’s decisions are identified by reference to documents admitted by the Minister. In so far as the defences of the Council and the Minister contained denials, these denials are directed to legal conclusions for which Cyclamen contends. We are not persuaded that there are disputed questions of fact outstanding that require resolution before the lawfulness of the conduct of the Council and the Minister can be decided.

If there are outstanding factual issues, they will only be of peripheral importance. They would have been identified and addressed by the parties when they complied with the consequential orders which his Lordship made when dismissing the application for further and better answers. Those orders require:

"a. The claimant to file its legal submission on the issue of the lawfulness of the first defendant refusing to grant an extension of its building permit, the lawfulness of the second and third defendants, decision to revoke the consent to grant a commercial/tourism lease to claimant, and the lawfulness of the decision of the second and third defendant to stop all activities on the property and impose new conditions on the lease by 7 April 2006. Include any relevant sworn statement.

It is unfortunate that the present appeal has meant that the timeframe anticipated by these orders has not been met.

We draw attention to Rule 17.4 (3) and emphasis its importance. That Rule requires that a claim for judicial review must have a sworn statement in support when that claim is filed. That sworn statement is intended to identify each of the decisions under challenge and the facts necessary to enable a determination of the lawfulness of the decisions. That important procedural requirement was not followed in the present case. Had the Rule been complied with, it is likely that many of the interlocutory issues that have greatly delayed the determination of the claim for judicial review, including the contest over the issue of written questions, would not have arisen.

In our opinion Cyclamen has not demonstrated error in the decision under appeal.

The appeal must be dismissed with costs. The matter will now return to the primary judge. The parties should anticipate that the consequential orders referred to above will be reinstated, and they should be prepared for a trial at the earliest available date.

Hon. J. Bruce Robertson J.

Hon. John. W. Von Doussa J.	Hon. Daniel Fatiaki J.

Hon. Oliver A. Saksak J.	Hon. Christopher N. Tuohy J.

Court of Appeal of Vanuatu

Cyclamen Ltd v Port Vila Municipal Council [2006] VUCA 20; CAC 20-06 (6 October 2006)