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

Civil Case No. 23 of 2005

BETWEEN:

GEORGE WONG KAM
Claimant

AND:

WEN ZONG MIAO
Defendant

Coram: Justice Treston

Ms. La'au for Claimant
Mr. We Zong Miao in person (assisted by Mrs. Merilyn Temakon as Mckenzie friend)

Date of Hearing: 24th February 2005
Date of Decision: 24th February 2005

ORAL JUDGMENT

This is a matter that has come before the Supreme Court on an urgent basis being an application by the Defendant in the Magistrates' Court headed "Urgent Interlocutory Applications for Security for Costs".

The original claim by the Claimant against the Defendant is for VT374, 487 in relation to an agreement for the operation of a shop in Anamburu, Port Vila.

The matter has something of a chequered history and the present application by the Defendant, and I call him the Defendant for the sake of clarity during this ruling, was for an order to exempt him from paying a bond as ordered by the Magistrate in the Magistrates' Court on 23 February 2005. That application is in fact misconstrued because on a perusal of the judgment of 23 February 2005 in the Magistrates' Court it is clear that the learned Magistrate made no order either for bond or for security for costs but said that any application for such must be made to the Supreme Court. That is clear from the wording of Rule 5.17 of the Civil Procedure Rules No. 49 of 2002 where it is provided that an order requesting security for the costs of a proceeding may not be made in a proceeding in the Magistrates' Court unless, inter alia, the Claimant is ordinarily resident outside Vanuatu and in this case the Claimant is ordinarily resident in Vanuatu and were an application for security of costs to be made, this Court would be the place to do it.

The urgent interlocutory application also applies for this Court, effectively I suppose by way of appeal although it is not stated as such, to lift the restraining order imposed on the Defendant on 11 January 2005 to enable him to travel to China and for an order that the Principal Immigration Officer release the Defendant's passport and travel documents to the Defendant as quickly as possible and that the Defendant travel back to Vanuatu for a Court hearing on 17 March 2005 in relation to the substantive matter.

As I say the matter has some history because the proceedings in the Magistrates' Court, according to the statement of claim, were filed in the Magistrates' Court on 16 February 2004 with a date of first hearing of 25 March 2004 at 8.30am. It seems that, although the Defendant instructed a lawyer to act for him, he in fact left the country without telling his lawyer and did not return until August 2004 and after that his lawyer, not unexpectedly, required it seems some money to be paid in advance for fees and the Defendant was unable or unwilling to do that and other orders as detailed in the Magistrates' Court decision of 23 February 2005 had been made. In particular on 16 December 2004 the Court ordered the Claimant to file a sworn statement within 21 days and for the Defendant to file a response to the sworn statement within 2 weeks. A return date was made for 17 March 2005 and it seems that there is time available on that date for the hearing to take place. Inquiries have now been made and it seems that an earlier date of hearing on 3 March 2005 at 8.30am can be accommodated by the Magistrates' Court.

Although the Claimant filed sworn statements in accordance with the orders the Defendant has not responded to those sworn statements as at today's date. In addition, because of the difficulties of the Defendant being from overseas, on 11 January 2005 a Magistrate issued an order restraining him from leaving Vanuatu until the matter was disposed off. That order included an order for surrender of passport and an order for a copy of it to be served on the Immigration Officer at the airport.

The Defendant is anxious to return to China because it seems, from a sworn statement filed by him, that his wife has been suffering ill-health and that he wishes to attend to her as a matter of urgency in her infirmity. However a further sworn statement has been filed by the Claimant who has indicated that his wife spoke to the Defendant's wife on 15 February 2005 and that she was ill but not critically ill and is at home and not admitted to the hospital as claimed by the Applicant as one of the grounds of his application.

So, effectively this Court is being asked in the urgent application to set aside the orders of the Magistrate restricting the Defendant from leaving the country to enable him to travel to China to be with his wife and further he now says to raise some money to instruct a lawyer to act on his behalf. Further information made available to the Court as to the financial situation of the Defendant relates to, it seems, his application for investment status in this country which was approved in December 2004 and it was submitted that a consideration of that was that he must satisfy the Vanuatu Investment Promotion Authority that he has a bank reference for VT5 million. His friend Ms. Temakon indicated that in fact that was not the amount that is required to satisfy the authority but that the Defendant has no money at all and has been relying on the good will of friends including Mr. Hendon Kalsakau for his existence in this country.

Other than his investment status, the Defendant has no ties to this country. He has no money property, or assets here and his wife is in China. Should he leave before the hearing he has every reason never to return. In those circumstances it would be unwise for this Court to lift the restrictions.

I am advised by counsel for the Claimant in the Magistrates' Court that no order for security for costs would be sought unless the Court suspended the orders of the Magistrates' Court where it ordered that the Defendant be restrained from leaving the jurisdiction so the issue of security for costs is really an academic one depending on the ruling of the Court makes in relation to the other applications before it. An added difficulty is that the Defendant says he his impecunious.

As I have said regardless of the Defendant's financial situation, he has failed to comply with the Court order of 16 December 2004 that he file a response to the sworn statements of the Claimant and he now indicates through his Mackenzie friend that he also wishes to make a counterclaim.

Time has passed by, the Court can accommodate the hearing of the substantive claim as a matter of urgency and through his interpreter, the Defendant has indicated that he would prefer an earlier date rather than a later date to have the matter disposed of. As I have indicated, an earlier date is available on 3 March 2005. An early date of course could create difficulties as to the Defendant filing any sworn statements and in making a counterclaim but I think that can overcome by orders made by this Court to apply to the Magistrates' Court. The hearing on 3 March 2005 is about a week away and I am of the view that the Defendant if he does not have the assistance of a lawyer can call upon the assistance of his friend to assist him in the Court and to file the necessary papers. It is an available option of course for him to instruct a lawyer but that is not a matter for the Court. He has the assistance of an interpreter here in Court today for which the Court is greatful and at the substantive hearing in the Magistrates' Court I am of the view that if an interpreter can be available to assist the Defendant it would be of great assistance both to the Defendant and to the Court.

Having considered the matter carefully and noting that there are always difficulties consequent upon a litigant being from overseas and not from this country and that Claimants are entitled to the protection of the Court in ensuring that they can obtain the fruits of their judgment should the case be decided in that way, I am of the view that the appropriate course is to direct the Magistrates' Court to hear the matter urgently and not delay any further.

The Defendant has had the opportunity over some months to regularized his situation as to the filing of Court documents, he has neglected to do so but must now do so under the orders that I will shortly make.

I am of the view that the orders made by the Magistrates' Court as to his being restrained from leaving the jurisdiction and for him to surrender his passport were proper orders in the circumstances. The Defendant demonstrated after the proceedings were filed that he was what would be called a flight risk because he left the jurisdiction without telling his then lawyer and it is perhaps only a matter of good luck that he is back here to deal with the claim. While I am sympathetic to the Defendant in his plight of being from a foreign country with a wife who is ill, having considered the evidence I do not consider that the illness is of such seriousness that a delay of another week or so until the hearing is going to be crucial. Clearly from the sworn statement evidence that the Court has available to it, the situation is not as dire for the Defendant's wife as may have been pointed out in his sworn statement.

With that indication, it is unnecessary for this Court to consider any question of security for costs because it is my view that the Defendant must remain within this jurisdiction until the substantive hearing of the civil claim is determined and that can be done as I say only a week away. 

I need make no order in relation to the first matter in the interlocutory application to make an order exempting the Defendant from paying a bond because no such security for costs is sought by the Plaintiff. 

I decline in all the circumstances to lift the restraining order or to order that the Defendant's passport be released so he could travel to China and then back to Vanuatu for the hearing. The time frame would have been very tight anyway had the hearing been on 17 March 2005 but now that I have heard from the Defendant himself, he would prefer an earlier date to have the matter resolved. 

I then make these orders which will apply in the Magistrates' Court.

The Defendant must file in the Magistrates' Court and serve a sworn statement in reply to the sworn statement of the Claimant by 3pm on 1 March 2005 that is next Tuesday so time is of the essence for the Defendant. Whether he instruct a lawyer or has his friends in Court assist him is a matter for him.

I also make an order that any counterclaim made by the Defendant must be filed in the Magistrates' Court and served by 3pm on 1 March 2005.

I direct that the substantive hearing of the claim against the Defendant take place in the Magistrates' Court at 8.30am on 3 March 2005. In all the circumstances I make no order for costs in relation to these applications which must lie where they fall.

Dated AT PORT VILA, this 24th day of February 2005

BY THE COURT

P. I. TRESTON
Judge