Success Co Ltd v Commissioner of Forest [2018] SBCA 18; SICOA-CAC 19 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Success Company Limited v Commissioner of Forest
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court Of Solomon Islands(Brown J)
Court File Number(s):	CA 19 of 2018
Parties:	Success Company Limited v Commissioner of Forest, Attorney General, Augusto Taraha, Michael Sarapidina, Siriako Usa, Leonard Mare, New Ocean(SI) Limited
Hearing date(s):	11 October 2018
Place of delivery:	High Court of Solomon Islands –Court Room Six (6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	G. Suri for the Appellant D. Damilea for the 1st and 2nd Respondent T Mathews QC and M. Bird for the 3rd and 4th Respondent
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule
Cases cited:	CC 269 of 2017 Success Company Ltd v Mas Pacific International Ltd
ExTempore/Reserved:
Allowed/Dismissed:	The appeal is allowed.
Pages:	1-5

JUDGEMENT OF THE COURT

1. At the conclusion of the hearing on this appeal on 11 October 2018 we gave our decision to allow the appeal and reserved the right to publish reasons at a later date. We now publish, on 12 October 2018, our reasons.
2. This appeal is against an order made in the High Court on 15 June 2018. That order followed a hearing of an application for early termination under Chapter 9 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (the Rules).
3. The claim for judicial review began with the filing of the claim on 29 January 2018. It sought both declaratory and quashing orders over a Timber Licence first issued in December 2010. This case is all about different parties and different Timber Licences for the same or similar areas of land, no more than that.
4. Defences have been filed together, in the re-amended defence, with a counter claim from the 3^rd and 4^th Respondents. That counterclaim seeks the quashing of the other Timber Licence. That request for a quashing order is similarly disguised as seeking declaratory orders, the effect of which nevertheless is to quash.
5. No defence to the counter claim had been filed by the time the 3^rd and 4^th Respondents filed the application for early termination under Chapter 9. In addition to seeking termination of the claim, it made the point that no defence to the counterclaim had been filed and sought judgment in default of that.
6. The summons issued on the early termination application was filed and returned to counsel who effected service of it on 11 June 2018. The return date was 15 June 2018. At least three clear days is required, and that amounted to four days. That was not a lot of notice, but the length of notice did not breach the letter of the rules.
7. The hearing on 15 June 2018 began with an application for adjournment of the application. That application and how it was determined forms the first ground of appeal and will be dealt with first. But there are four grounds of appeal.
8. The second ground of appeal suggests the application of an incorrect principle. The third ground of appeal concerns the application of a decision in Civil Case 269 of 2017 wherein a decision was made about the licence the subject of the counter claim, i.e. the Timber Licence held by the Appellant. The fourth ground of appeal questions why the trial judge did not look at what was wrong with the 3^rd Respondent’s licence.
9. Counsel for the Appellant, on being served with the application to be heard on 15 June 2018, had and was about to depart on pre-arranged overseas travel. He could not attend the hearing on 15 June 2018 because of that travel. The application was made on his behalf by a lawyer employed by him to make that application. In the papers it is suggested that the lawyer had no instruction other than to apply for the adjournment.
10. We make no substantial comment on this ground of appeal for reasons which will become apparent later. Whilst in different circumstances it could have affected the disposal of the appeal in this instance it is overtaken by other issues. Because of that counsel did not press the written submissions on the point and correspondingly we make no more than a passing remark on it. We have, in other judgments published during this sitting, more fully discussed the applicable principles.
11. There is always a risk when seeking an adjournment in absentia. Such an application may be granted but it may also be refused. Counsel must take whatever step they can to mitigate that risk. Advance preparation must be considered and as much material as can be filed in advance should be filed in advance. Then the unexpected causes less risk. It is wrong, on appeal, to say that material not previously filed in advance of a hearing missed by counsel should be nevertheless admitted on the appeal. But nothing turns on this here and, whilst a lot more could be said to assist counsel faced with such circumstances, this is not the appropriate place.
12. Ground two concerns applicable principles and appears to suggest that the trial judge did not confine himself to determining the application but strayed beyond it. From the record of the hearing it is clear that counsel for the 3^rd and 4^th Respondents made a further application for the judge to consider. As counsel for the Appellants was not present and has no record of that application it may explain why this ground appears.
13. Ground three concerns the principal reason for terminating the claim early and ordering in accordance with the counter claim. In another case heard by the same trial judge, a finding was made that the Timber Licence held by the Appellants was null and void. The judge rapidly concluded that as he had made an order declaring the same in those other proceedings, nothing could be said to sustain these proceedings based on the same Timber Licence.
14. In those other proceedings, also brought on appeal, this Court has overturned that finding and the Timber licence is now, therefore, still subject to continued scrutiny in the High Court once more. Given that the only consideration taken into account by the trial judge was this fact, his decision in this case cannot stand.
15. Had the proper consideration been given to all the circumstances, the determination may have been different. But it was not, and as the matter must be returned to the High Court to continue, we make no further comment on the substantive issues which will once again fall to be determined in the High Court.
16. Ground four falls away as the proper forum for consideration of the question is now in the High Court once again.
17. The appeal is allowed, and the matter returned to the High Court to be heard in its normal course. Pending the appeal interim orders, were in force. Those order cease on our determination of the appeal but are replaced with similar orders to preserve the position and the parties whilst they await a further determination in the High Court. We required counsel to submit a draft consent order to that effect or in the alternative, where consent was lacking, submission on the appropriate terms of the orders. Costs of and incidental to this appeal are costs in the cause.

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Goldsbrough P
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Ward JA
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Lunabek JA