Oceania Trading Co Ltd v Stephen [2018] SBCA 5; SICOA-CAC 08 of 2017 (11 May 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Brown J )
COURT FILE NUMBER:	Civil Appeal Case No. 08of 2017 (On Appeal from High Court Civil Case No. 246 of 2011)
DATE OF HEARING:	9 May 2018
DATE OF JUDGMENT:	11 May 2018
THE COURT:	Goldsbrough P Hansen JA Young JA
PARTIES: FIRST APPELLANT: SECOND APPELLANT: THIRD APPELLANT: RESPONDENT:	OCEANIA TRADING COMPANY LIMITED REKO ENTERPRISES MIDOBATU CHRISSANTO -V- VAKAPA STEPHEN
ADVOCATES: APPELLANT: RESPONDENT:	J.K. Zama L. Ramo
KEY WORDS:
EXTEMPORE/RESERVED:
ALLOWED/DISMISSED
PAGES	1-6

1. This appeal is brought by Oceania Trading Company Limited (the Appellant) against the decision where final judgment in the sum of $5,682,425 was ordered following an assessment of damages hearing. That hearing followed the entry of summary judgment against the first defendant in the High Court and default judgment against the Appellant and one other named defendant. Neither of those two defendants appear on this appeal, only the second named defendant in the High Court, the Appellant on this appeal.

2. The default judgment against the Appellant and the other defendant was entered 17 February 2015 in respect of a claim filed 8 July 2011 for damages for trespass and unlawful logging. That judgment on liability has not been the subject of any appeal.

3. The assessment hearing was allocated several hearing dates prior to reaching the ultimately effective date of 28 February 2017. On that date counsel for the Appellant was unable to attend due to a family bereavement. Notice of this fact was given to the Registrar of the High Court ahead of the fixture but only by one day. The notice was given by another legal practitioner from the same firm as missing counsel. The firm comprises but two legal practitioners and the practitioner giving notice was to be occupied elsewhere on 28 February 2017.

4. The judge was given the reason and, whilst he expressed sympathy for counsel, he did not consider that the only alternative was to further adjourn the assessment hearing. It therefore proceeded in the absence of representation of the Appellant and without any active participation of any officers of the Appellant Company.

5. The reason for the adjournment request and the subsequent decision to proceed with the hearing is set out in the judgment. In his reasons that judge said that alternative representation should have been arranged for the Appellant given that no material had been filed in answer to the statements or other material filed, in short that in the absence of material in opposition the hearing would be confined to simple submissions on quantum.

6. There are seven grounds of appeal which can be shortly summarised. The first and fifth deal with the issue of counsel and the hearing. From the judgment in the High Court it is apparent that the judge felt alternative arrangements should have been made for the Appellant Company to be represented.

7. To determine whether the decision to proceed was correct, in our view it is necessary not only to take a view on the request from counsel who could not attend, but also at the circumstances leading up to that hearing. In that regard we note there was no notice given to cross examine on filed sworn statement under Rule 14.35 Solomon Islands Courts (Civil Procedure) Rules 2008 (the Rules) nor do we find notice given requiring the attendance of persons whose material was included as exhibits to sworn statements or applications for witness summons to such authors.

8. In the absence of such preparatory steps we conclude that little would properly have been achieved by agreeing to further adjourn the hearing as, at any adjourned hearing counsel for the Appellant would not, without leave, be entitled to seek to do more than he had prepared for at the aborted hearing, which was limited, it appears to us, to making oral submissions on otherwise unchallenged material.

9. Grounds 2, 3 and 4 concern the reports submitted by the Respondent. There were four reports written respectively by the National Museum division of the Ministry of Culture and Tourism, the Department of Environment and Conservation, the Ministry of Agriculture and the Ministry of Forestry. The first two reports were not relied upon and therefore any comment about them made at this hearing by the Appellant is not relevant to the decision appealed.

10. Of the two remaining reports, one discussed the damage to food gardens and the second the logs taken by this Appellant. The report from the Ministry of Forestry appears at page 152 of the appeal book. It comprises one page. It says:-

“Provided below is the estimate value of timber felled and removed from Malaengari land by OTC under Reko Enterprise felling license A10223.”

11. The USD $634,100 is elsewhere converted into SB$5,054,425.80. That amount was included in the award for damages. Given that the report only refers to timber felled and removed by OTC (the Appellant company) and was not sought to be challenged in the ways we have identified above, it is not open to the Appellant now to disagree by raising the notion that others also felled in this area of land.

12. The remaining amount of damages of $478,000 was identified in the Ministry of Agriculture & Livestock report on garden damage. It is dated 20 March 2014 and was addressed to the Appellant Company. Again, no notice was given for the report author to be called to give evidence or be cross examined, nor was any evidence filed in response to it, even though it had been in the possession of the Appellant Company for at least two years and eleven months.

13. The question of other logging entities trespassing on this land is sought to be raised on this appeal. Whilst the garden damage report does not identify the time at which the damage was caused nor indicate responsibility other than towards logging activities undertaken, again the time to challenge was not at this appeal but in the lead up to the assessment hearing, whether that be the effective hearing in February 2017 or at one of the earlier scheduled hearings beginning 25^th February 2016. The same comments about advance preparation set out above at paragraph 6 equally apply.

14. Without submissions the judge at first instance nevertheless did not award damages as sought for environmental damage nor damage to sites of cultural significance. There is no cross appeal relating to that decision and therefore no challenge to that part of the decision. Most, if not all, of the present complaints that damage was caused by others and not this Appellant appear, at least to us, to be most relevant to these claims, but given that no amounts were awarded in respect of them, no further examination is required. Given the extent and nature of the environmental degradation we can only conclude that the Appellant escaped lightly in the circumstances.

15. It appears to this Court that the use of terms on this appeal suggesting that the Appellant was denied the right to challenge the assessment evidence is, frankly, misleading. These proceedings began in 2011 and throughout the many hearings there is a history of failure on the part of the Appellant. It was unable to comply with the order made during interlocutory steps to account for logs felled within the time given, it failed to file any defence in time (or at all) resulting in the default judgment and it failed to take any steps prior to the assessment hearing to require those who had compiled the filed material to attend court to be examined on those reports.
16. Choices were made by the Appellant resulting in that situation. That cannot and should not be described as amounting to a denial of the right to challenge, as it is sought to establish here. The Appellant was not successful in an application to adjourn the scheduled hearing on 28 February 2017. That is a matter of record. That decision not to adjourn was not the cause of the loss of opportunity to challenge the material filed for the assessment hearing for that opportunity had long before then been lost.

17. In confirming the orders of the court below, we note the interlocutory order restraining proceeds of logging. That order, we confirm, is discharged and we direct the funds are to be paid to the respondents. When made, different counsel were on record and the order required the proceeds to be deposited into a joint trust account in their names. Counsel before us on this appeal could not tell us where or how much the money restrained is. We have seen correspondences between counsel and the Registrar of the Court of Appeal in that regards. We order that counsel on the record at the time the order was made account to the Registrar of the Court of Appeal with the details of the initial deposit and bank account in accordance with the order and any subsequent transactions thereon. That account should be provided to the Registrar within 14 days of service of this judgment on the legal practitioners who were then on record. The Registrar is required to forward that account to counsel on this appeal and to the Court. Liberty is given to the Respondent to apply to a single judge of the Court of Appeal on the papers in the event of any failure to comply.

18. The appeal is dismissed. The order of the court below is confirmed. Indemnity costs of and incidental to this appeal to be paid by the Appellant.

.....................................

Goldsbrough P

......................................

Hansen JA

......................................

Young JA