Attorney-General v Prime Minister [2007] SBCA 2; CA-CAC 24 of 2006 (23 March 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands.
COURT FILE NUMBER:	Civil Appeal No. 24 of 2006
DATE OF HEARING:	Friday 23rd March 2007
DATE OF JUDGMENT:	Friday 23rd March 2007
THE COURT:	Lord Slynn of Hadley P, Adams JA Salmon JA.
PARTIES:	The Attorney General (Appellant) -v- Prime Minister (Respondent)
ADVOCATES: Appellant: Respondent:	A Radclyffe K Averre
KEY WORDS:
RESERVED/DISMISSED:
Page:	1-5

JUDGMENT

On 3 August 2006 Brown J heard an application by the Attorney-General for an order for a prerogative writ to quash certain terms in a reference to a Commission of Inquiry appointed by the Prime Minister. It was made on the basis particularly that they constituted a contempt of Court in that there was a risk of prejudice to proceedings before the Courts of the land. The matter involved a lengthy argument. The learned judge decided first of all whether the Attorney-General had any standing to come to the Court to ask for these terms to be quashed. In the second place the Judge considered whether what the Attorney-General was seeking to do constituted a matter of public interest which fell within his function as Attorney-General, not least because the Attorney-General is also advisor to the government which in effect had ordered this Commission of Inquiry. There were questions about that potential conflict. It is not necessary to set out all the detailed matters which are considered in his judgment but the learned judge held that the Attorney-General did have the standing to ask for this particular order quashing part of the terms of reference. He also held that this was a matter of public interest in which the Attorney-General had a particular function to bring the matter before the Court; the Attorney-General in doing so was following a long pattern of practice in this jurisdiction as in other common law jurisdictions.

On the other hand Mr Justice Brown held that the two particular terms of the reference to the Commission were not likely to result in a prejudice to legal proceedings and were not likely to amount to contempt of Court. So, he said –

"For the reasons that I have given, the question whether the two terms of reference should be quashed is answered in the negative, there is no apparent threatened contempt. To presume to anticipate contempt by the manner of inquiry by the Commission is not open on the evidence before me."

He held that the application for certiorari was competent but he refused it and dismissed the motion.

The Attorney-General at once issued a notice of appeal against the decision that there was no threatened contempt. That appeal came before this Court, the Court of Appeal, in October. The Attorney-General was represented by counsel who notified the Court that the appeal was abandoned. It was made quite clear that that was not an application for an adjournment, it was an abandonment of the appeal. And so the appeal has gone.

There was however, before the Court, a cross appeal on behalf of the respondent to the application asking the Court to say that the learned judge was wrong in holding that the Attorney-General had standing and was wrong in saying that this was matter of public interest. When the case was called on, since the appeal had been abandoned, we decided to make no order on the cross appeal. We did not dismiss the cross appeal, we simply made no order on it.

Now, today Mr Averre, on behalf of the cross appellant, came here to ask us to say that the learned judge was wrong on both these points. The Attorney-General had no standing and there was no public interest question. We understand very well the arguments which he wanted to advance because of what he submits is the conflict between the role of the Attorney-General applying to the Court for an order of this kind and the role of the Attorney-General in advising and acting for the government.

The matter for us to consider as a preliminary question is whether there is now a live issue here on the cross appeal. It is not the practice of the Court of Appeal to decide moot academic points, moot in the sense that they do not have direct effect on or relevance for the actual issues in the case.

It is quiet plain here that the learned judge’s decision that there was no likelihood of a contempt was favourable to the Prime Minister and has not been challenged. It stands. It follows therefore, that if there was no appeal by the Attorney-General there was nothing on the substantive question for the cross appellant to challenge. It also follows that since the cross appellant had won on the appeal, the question whether there was standing and the question whether it was a public matter, were no longer going to be decisive of any issue in the case. The abandonment of the appeal meant that the position was exactly the same as it would have been if there had been no appeal. It is quiet plain therefore, that the question of standing as the case stood was no longer an issue.

Mr Averre, has understandably submitted that the decision of the learned judge on standing and on the public/private issue would be very relevant and important for future cases. That may be so although it is clear that the question, whether there was standing, is not necessarily to be answered in a way contrary to the judge’s decision and Mr Averre might have difficulty in the light of the authorities in saying that there was no standing. But that is not the question for today; it is the question for another day and we express no view on what might be the final conclusion. But we are quiet clear that this is now a moot question in this case and therefore in accordance with the practice of the Court, not only of this country but of other countries, we should not proceed further with it. Anything that we said by way of judgment would not be relevant to an outstanding issue in the case. It would truly be moot or academic. It might not be conclusive in the particular circumstances of other cases.

We therefore do not proceed with this appeal and we hold that it is not open to Mr Averre to pursue this point.

Lord Slynn of Hadley
President of the Court of Appeal

Adams JA
Member of the Court Appeal

Salmon JA
Member of the Court of Appeal