COLLIN NAVIGATION CO. S.A. v. PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA (PERTAMINA)

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 7th February of this year a Division of this Court comprising my Lord the Vice-President, Barker J.A. and myself gave judgment in the instant appeal in favour of the respondents by applying the principle that it is vexatious to commence a second action asking for relief which might have been sought or obtained in an earlier action.

2. Today we have heard submissions on a Notice of Motion seeking, among other relief, leave for the appellants to put before this Court argument in relation to the principle based on vexatiousness.

3. The grounds of the application are that the appellants were not afforded notice at the hearing that this principle existed or might influence the Court; let alone be decisive as to the outcome of the appeal. It is neither here nor there that the members of the Court were under the impression, for a number of reasons which have been canvassed between Bench and Bar, that all parties were alive to the possibility that such principle might be invoked. Mr. Newman, who has represented the appellants throughout, tells us that our decision in this context took him completely by surprise. We accept what he says without hesitation.

4. In the circumstances it is apparent that the appellants have been deprived of the opportunity, which they should have had, to address us on the material principle and its application and accordingly suffered an injustice.  Injustice, we trust, constitutes a most exceptional circumstance and as such warrants the grant of the principal relief sought.

5. Leave will be granted to the appellants to put before the Court of Appeal argument in relation to the finding of vexatiousness. As it may be academic we presently make no decision as to the further relief comprised in the Notice of Motion. A question immediately arises as to the date and time when such argument should be addressed to us and in that regard we seek the further assistance of counsel.

6. I am reminded by my Lord the Vice-President that an issue arises as to whether or not, having given our decision, we are functus officio. The relevant time-table demonstrates that the draft order giving effect to the judgment of 7th February was submitted to the Court by the respondents, who had carriage of the matter, on 18th and that the Notice of Motion was issued on 20th; before it had been perfected Accordingly we are satisfied that we would have jurisdiction subject, of course, to further argument to recall and set aside that order and are entitled to hear further argument before deciding whether or not to do so. We are sure Mr. Li will not oppose an order - or may give an undertaking - staying any proceeding on the judgment meanwhile.