Harry v Attorney General [2017] SBCA 13; SICOA-CAC 28 of 2016 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Faukona J)
COURT FILE NUMBER:	Civil Appeal Case No. 28 of 2016 (On Appeal from High Court Civil Case No. 44 of 2015)
DATE OF HEARING:	1 May 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Wilson JA
PARTIES:	KEVIS HARRY - V – ATTORNEY GENERAL
ADVOCATES: APPELLANT: RESPONDENT:	Mr. M. Pitakaka Mr. M. Tagini
KEY WORDS:	EXTENSION OF TIME UNDER RULE 15.3
EXTEMPORE/RESERVED:
ALLOWED/DISMISSED	DISMISSED
PAGES	1-6

JUDGMENT OF THE COURT

1. This dispute is concerned with logging rights and has a long history. It involves disputes over Sabere-Vuvure and Bokere customary land in Rendova in the Western Province and the right to control the logging of that land. It is not necessary to go through the detailed history but the principal antagonists are the appellant, Kevis Harry (Kevis) and the fourth respondent, Tamana Asery (Tamana), both members of the same clan, and the third respondent, Bulacan Integrated Woods Industries (Bulacan) a logging company.
   
2. In October 2004, Bulacan applied for a felling licence over the land with the support of Tamana. Kevis and one Julie Poa were listed as consenters but, in November the same year, they both withdrew their consent.
   
3. A timber rights hearing was held by the Western Provincial Executive and, on 21 July 2005, it published a Form II certificate which included Kevis and Julie Poa as the rightful grantors of timber rights over the land. It was not appealed.
   
4. On 28 December 2005 the Western Provincial Executive published a Form III Certificate endorsing the agreement but listing four other persons none of whom was in fact a grantor. Another Form III certificate exists also dated 28 December 2005 but which names Tamana and three others. Of those, only Tamana and one of the other three are grantors.
   
5. On 26 March 2007 Kevis raised a complaint with the Commissioner of Forests (the first respondent) about apparent irregularities with Bulacan’s application and pointing out that the land was still under a licence held by Kalena Timber, a company against which Kevis had been involved in litigation. This complaint resulted in the Commissioner of Forests sending a memorandum to the Minister advising him that the land was still under Kalena’s licence. However, the next day the Minister directed that a licence should immediately be issued to Bulacan and so, on 13 April 2007, Kevis instructed his, then, lawyer, Mrs Bird, to instigate an action against Bulacan and Tamana, the Commissioner and the Minister. He sought declarations that the Minister, in issuing the licence to Bulacan, had acted ultra vires his powers and a consequential order in respect of the new licence issued to Bulacan.
   
6. That claim, number CC 136/07, was filed in the High Court but Mrs Bird did not serve the claim on her opponents, as required in Rule 15.3.10, or take any further steps to advance the claim. On 31 March 2010, the case was struck out by the Registrar for want of prosecution. Bulacan started logging on the land from 2011 through to early 2014 when internal disputes stopped the logging. Kevis was not aware of the Registrar’s order until 2014.
   
7. Mrs Bird had not taken any steps to pursue the claim because she was beset by personal and family health problems and so, when Kevis discovered the fate of CC 136/07, he instructed different lawyers to apply to have it reinstated. It was listed before Faukona J and was heard on 16 October 2014. The application included a statement from Mrs Bird explaining how her health and family reasons had become an overwhelming problem to her practice during that period.
   
8. In a written judgment delivered on 24 November 2014, Faukona J refused the application for reinstatement. He stated that he had accepted the gravity of Mrs Bird’s problems but, notwithstanding, refused to reinstate because of the long failure to serve the other parties within and after the permitted period.
   
9. The present appeal is not from that decision but the Court was asked to consider the circumstances of CC 136/2007 and the judge’s comments on them in his reasons. The principal passages in the judge’s ruling of 24 November 2014, to which counsel referred us, were as follows:
   

“... the claimant did not deny that he fails to progress his case forward and not prosecuting it for almost four years.

8. The reason for his failure to prosecute the case is blamed upon his Counsel, Mrs Bird. That she failed to take or return telephone calls, failed to appear and fix appointments, absent from her office and failed to apply for an injunction. Therefore want of prosecution resulting in striking out was not his fault but his previous counsel’s, hence, must not suffer the consequences for inaction by the previous counsel.’’

10. In paragraph 9 he set out the details of Mrs Bird’s personal and family issues as stated in her sworn statement and continued:
    

“10. I have taken judicial notice of Mrs Bird’s predicaments through ill health and pressure from her family due to health problems. The Court was made aware previously on a number of occasions where many cases she involved in were adjourned and vacated because of her illness and family pressure due to ill health. ...

13. It is not a matter subject to argument that the proceeding was struck out on the ground of being no step taken to prosecute and ensure it continues. The claimant’s reason was the failure of [sic] inaction by his former counsel. There is no dispute as to the predicaments of Mrs Bird throughout the period and I sympathise with her that her illness and pressure from her parent’s health had impacted her performance in providing legal services to her clients. I am inclining to accept the reasons for non-prosecution of the case for about three years is excusable. ...

18. In the absence of any claim filed it would be difficult to set aside the striking out order that struck out the proceeding. There is no proceeding in existence. If there was one, then there was no proof of service within three months, hence, ceased to be of any effect. There is no evidence the claimant had applied to renew the claim within one month after the expiry date. In the entire circumstances of this case I shall refuse to grant orders to set aside the striking out order.

19. On the issue of delay I would accept the reason given by the claimant but not sufficient enough to change the circumstances. The problem encountered by the claimant is lack of filing of a claim which commenced the proceeding and which had been struck out. “

11. The judge concluded his ruling:

“ 25. Perhaps the way forward is for the claimant, if so wish, to file a new proceeding with a new claim.”

12. On 16 February 2015 the appellant tried again by filing, this time through his present lawyer, a fresh Category C claim applying for an interim injunction and supported by a sworn statement by the appellant. The new claim was CC 44/15 and, on 12 November 2015, a different judge granted an interim injunction.

13. On 24 November 2015 Tamana filed an urgent application to set aside the interim order and to dismiss the claim. In a ruling delivered on 9 September 2016, Faukona J allowed the application, dismissed the claim on the ground that no application to extend time had been made and set the interim order aside:

“In this case there was no application for extension of time. The decision to be reviewed was made about ten years ago. In fact leave to extend time was never applied for and never granted. The claim must be dismissed on this point and the interim order on 12 November 2015 to be set aside as well.”

14. Notice of appeal was filed on 7 October 2016 with five grounds:

“1. The learned judge erred in finding at paragraph 16 of the ruling that he had refused to reinstate High Court Civil case 136 of 2007 because the appellant did not provide good reasons for his failure to prosecute that claim when the actual reasons for refusing reinstatement in that case was lack of renewal of the claim, the appellant’s reasons for delay having been accepted in that case;

2. The learned judge had miscarried his discretion under Rule 9.75 in striking out the claim on the basis that the appellant had failed to apply for leave to file a claim out of time when, in the circumstances of this dispute, the same judge, had earlier invited the appellant to file a fresh claim and already knew and had accepted the appellant’s reasons for the delay in progressing his claims against the Respondents since 2007; and

3. The learned judge had miscarried his discretion in striking out the claim by entertaining an application to strike out in August 2016 in relation to the claim filed in February 2015 (in which a number of interlocutory hearings had been held) which application did not plead late filing of the claim as a ground for strike;

4. The learned judge erred in treating the appellant’s fresh claim as if it was a grievance based on causes of action which arose in 2007 but brought for the first time in 2015 when, in the circumstances of this dispute, the appellant had acted promptly and did put in his claim in 2007 through CC 136/2007, which claim the appellant continued pursuing under Civil Case 44 of 2015 on the High Court’s invitation; and

5.The learned judge had miscarried his discretion in striking out the claim despite strong evidence of fraud of the fourth respondent adduced by the appellant which alleged fraud ought to have been allowed to go to trial for determination notwithstanding any procedural discrepancy.”

15. Paragraph 16 of the ruling, referred to in the first ground, had been addressed to the respondents’ claim of res judicata and stated:
    

“ 16. I agree with Mr Taupongi the earlier Civil Case no 136 of 2007 was not determined on its merits. The substantive cause of action was not determined. The Registrar of the High Court did strike out the claim for want of prosecution. And I refuse to grant application for reinstatement because the reasons for not prosecuting the case were not satisfactory. Technically the case was not determined on merit and that was the reason for me allowing the second chance my[sic] filing of a new claim.”

16. It is not apparent how that supports the first ground of appeal. The passages set out above from the previous case show there is no substance to counsel’s assertion that the judge had misstated the grounds for his decision in the earlier case.
    
17. The fundamental issues in this appeal are, first, whether or not the judge gave reasons which were inconsistent in the two actions and, if so, how they were relevant to the present appeal and, second, whether his comment in paragraph 25 of the earlier ruling was, in effect, giving the appellant leave to file the fresh action out of time.
    
18. We do not accept either of those contentions. The learned judge had, as is clear in the passages from 136/07 set out above, accepted the evidence of the serious problems of the previous counsel but his reason for refusing to reinstate that claim had been the failure to serve; a failure which prevented the claim being pursued further. To suggest that any judge would or should use the facts of an earlier case to decide a new case before him is manifestly incorrect. It is only necessary to ask what would have been the position if the applicant was relying on that but the new action had been listed for hearing by a different judge.
    
19. Neither can we accept counsel’s assertion that the comments of the judge in paragraph 25 amounted to an invitation to file a fresh action or could be read as a grant of leave. Action 44/15 was an entirely fresh claim relying on proof of facts which had occurred many years before. All counsel know the importance of conforming to the Civil Procedure Rules. The claim in the fresh action was for a quashing order for which, as we have no doubt all counsel are aware, strict time limits are imposed by Rule 5.3.8.
    
20. The application before the judge in 44/15 was a new action. We cannot accept that experienced counsel could fail to realise it required a fresh consideration of the matters to be determined in such a claim. It was clearly well out of time and there should have been an application to allow it to be filed out of time. The strictness of the time limits in such cases emphasises the importance of bringing such claims promptly.
    
21. However, Rule 15.3.9 gives the court power to extend the time within or outside the period prescribed in Rule 15.3.8 if satisfied that substantial justice requires it. Mr Pitakaka raises a number of suggested reasons why the judge should have found such a requirement. With respect, they disregard the fundamental reason why an application to extend time is a prerequisite to the hearing of an action which is being brought in breach of the time limits imposed by the Rules.
    
22. 22. The time limit in Rule 15.3.8 is mandatory. The power to extend that time depends on the court’s decision on the requirements of substantial justice; an issue which can only be determined by a hearing of the reasons for the failure to have made the claim in compliance with 15.3.8. If there has been no extension of that time, the court cannot hear the claim because it is no longer admissible for hearing and will not be unless and until the court decides substantial justice requires its renewal. To do that, the court must, inter alia, decide whether there are sufficient acceptable grounds to extend the time for bringing the claim and that will require a separate application by the potential claimant. At the hearing of that application, the reasons will be heard and all relevant parties will have an opportunity to oppose it. If successful, the applicant will then be required to comply with all other relevant rules under Chapter 15.3.
    
23. There was no basis for counsel’s claim that the previous action in some way changed the date of the matters giving rise to the fresh claim. The judge correctly rejected the suggestion that, as they had been the subject of the first action, that was sufficient to satisfy the requirements of Rule 15.3.8 in respect to the later separate action. Counsel should have sought an extension under 15.3.9. The additional submission that the judge’s reference to “perhaps” filing a new proceeding with a new claim amounted to a grant of an extension under rule 15.3.9 is, with respect, fanciful.
    
24. The judge considered that application under 15.3.9 was an essential initial step and the failure to apply was fatal to the claim before him as was clearly stated in his conclusion.:
    

“The significant point is that the counsel for the claimant ought to have known that the claimant’s claim is for quashing order which is a judicial review case. Furthermore, the counsel ought to have been well versed with the rules that a claim for judicial review must be filed within six months, see Rule 15.3.8, if not then an application for extension of time be made pursuant to rule 15.3.9.

Whether it was what I propose or an obiter in passing, that a new claim can be filed, does not mean the rules can be over-looked. They ought to be complied with.

In this case there was no application for extension of time. The decision to be reviewed was made over ten years ago. In fact leave to extend time was never applied for and never granted. The claim must be dismissed on the point and the interim order on 12th November 2015 ought to be set aside as well”

That was correct and we see no reason to interfere with the judge’s decision.

25. The appeal is dismissed with costs to be assessed if not agreed.

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Goldsbrough P

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Ward JA

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Wilson JA