5. the Fourth Defendant’s
application to the National Bank of Vanuatu for an overdraft facility;
and that the Defendants do not
pay to the Plaintiff the costs of and oand occasioned by this application to be
taxed.
class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
The following reasons are
orally provided in Court on the 27th May 1998.
The persuasive authority
ferred to this Court during the course of arguments is the case of
Societe Nationationale Industrielle Aerospatiale (Appellants) v. Lee Kui Jack and
Another (Respondents) [(1987) 1AC 871 (P.C.)].
<
In coming to the decision in
this I have to relate some of the arguments in respect of the cthe case of
Arospatiale referred
to the Court this morning. In that case the Privy
Counsel held that it was not right to treat the principles applicable in
injunction cases as equivalent to those in forum non convenience cases as
developed in Spiliada Maritime Corp v. Consulex Ltd [1986] UKHL 10; (1987) A.C. 460.
The Privy Counsel goes on to
say that if the principles between cases where injunction can be granted and
cases of forum
non convenience were the same it would mean that party could
be retrained from proceeding in a foreign court on the sole ground
that
England was the Natural forum. That could not be right because it would lead
to the conclusion that in a case where
there was simply a difference of view
between the English court and the foreign court as to which was the natural
forum
the English court could arrogate to itself by the grant of an
injunction the power to resolve the dispute. Such a conclusion
would be
inconsistent with Comity and disregard the fundamental requirement that an
injunction will only be granted where
the ends of justice so require. And
the cases where injunctions can be granted or may be granted are exceptional
only.
The Privy Counsel in the case
of Aerospatiale held further that where a remedy weailable both in
EnglaEngland as the natural
forum and in foreign court the English court would in
general only restraint the plaintiff from pursuing proceedings in the
foreign court if the pursuit would be vexatious or oppressive. And the
English court must be the natural forum for the
action and it must take
account of the injustice to the defendant if the plaintiff is allowed to
pursue the foreign proceedings
and also the injustice to the plaintiff if he
is allowed to do so.
In the case of Aerospatiale the
concept of vexatious and frivolous conduct was in fact given a wide
interpretation so
as to encompass the conduct of foreign proceedings which
would cause injustice or serious injustice if the need for caution
is to be
given its proper weight.
Thus an injunction may be
granted to a plaintiff to prevent ther party from asserting a cg a claim
abroad to which the
plaintiff has a defence. Further the defendant could be
restrained from instituting or continuing proceedings in a foreign
court if
a proper case of injustice were made out without any declaration of right.
This is because injunction of this
kind can be sought by defendants who are
not seeking to assert any independent cause of action but simply right not
to
be sued in a foreign court. This is the critical point for these present
proceedings.
I went through the Court papers
this morning just to understand how those proceedings ed. The intended
Plai Plaintiff
initiated an action against the Defendants by filing the Writ of
Summons in this jurisdiction against the Defendants. The defendants
filed
their appearance and no defence were filed and in the interim a Notice of
Motion was filed. I consider also that
the transactions upon which the
action was filed in this jurisdiction were the same transactions out of
which the First
and Second Defendants filed an action in the Queensland
Jurisdiction and they appear, thus, as plaintiffs in Queensland. I
consider
as well that one of the points mentioned this morning by the defence Counsel
is that because of the delays in
the hearing of the Notice of Motion the
defendants filed actions on the basis of same transactions upon which an
action
was already before this court. I have also consider some persuasive
authorities on the point of exception where cases of injunctions
can be
granted. The cases of British Airways Board v. Laker Airways Limited [1984] UKHL 7; (1985)
A. C. 58 and the case of Midland Bank Plc v. Airways Limited (1986) QB 689
are the authority for the proposition that cases where an injunction may be
granted to restrain foreign proceedings are
exceptional cases.
The case before this Court is
also an exceptional case. There are proceedings pending before the Supreme
Court of Vanuatu.
The action was brought before this Court on the basis of
transactions occurring in Vanuatu, involving the laws of Vanuatu between
the
abovenamed parties. Before this Court, the Plaintiff filed the Writ of
Summons with his statement of claim against
the Defendant. Each of the
Defendants filed their appearance before this Court but no defence was filed
on behalf of
the Defendants. I take into consideration that the Defence
Counsel filed a Notice of Motion which is a pre-requisite to the
filing of a
defence and, yet, I am also informed that the abovenamed First and Second
Defendants issued legal actions
before the Supreme Court of Queensland, as
Plaintiffs, against the intended Plaintiff in Civil Case No.46 of 1997
pending
before this Court, on the basis of the same transactions upon which
legal actions were brought against them before this Court.
The transactions
were occurring in Vanuatu, involving the laws of Vanuatu and between the
same abovenamed First and Second
Defendants. The intended Plaintiff in Civil
Case No.46 of 1997 pending before this Court, who became the Defendant in
the Queensland proceedings, on the basis of the same transactions occurring
in Vanuatu involving Vanuatu laws did not file
an appearance and default
judgment were obtained against him. The default judgment was then set aside
and he was required
to file his appearance and defence.
It is on that basis that t morning I was urged upon to consider the urgency of hearing the Summons
which isch is the subject
of this hearing.
is case is really a
difficult case and I must confess that it is really a headache inhe in respect of
any type of considerations
to be made by the Court since one of the parties,
and in this case, the intended Plaintiff was put on unconscionable and
unjust position and at great expenses (see Affidavit of Julian Ronald Moti,
filed on 22nd May 1998 in support thereof).
In this case, the Plaintiff
filed an action against the Defendants in Civil Case No.46 of 1997. Each of
the Defendants
filed their appearance. Pending the hearing before this Court
of that motion, the Defendants filed legal actions in Queensland
jurisdiction against the Plaintiff on the same transactions occurring in
Vanuatu, involving Vanuatu laws and between
the same parties.
On the basis of these
considerations, I come to the conclusion that this Cour entertain the
applicpplication. In my view,
an injunction may be granted to the intended
Plaintiff in Civil Case No.46 of 1997 pending before this Court to prevent
the Defendants from asserting a claim abroad to which the Plaintiff may have
a defence. Further the Defendants could be
restrained from instituting or
continuing proceedings in a foreign Court if a proper case of injustice were
made out
without any declaration of right. I find that there is a case of
injustice against the intended Plaintiff in Civil case No.46
of 1997 and
that Vanuatu is also the National forum [see Societe Nationale
Industrielle Aerospatiale v. Lee Kui Jack & Others (1987) 1AC 871 (PC)].
On the basis of th considerations, I am of the view that the Orders sought should be granted in
the the terms sought in
the Summons and with a specific direction that the
Notice of Motion filed by the Respondent’s Counsel be given an urgent
consideration and as such it is directed as an addition to this Order that
the Notice of Motion will be heard by this Court
on 22nd of June 1998 at
9.00am o’clock.
DATED AT PORT-VILA, this
......... DAY of MAY 1998
lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0">
BY THE COURT
p class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0">
Vincenabek, J.
Acting Chief Justice
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1998/11.html
