Asia Pacific Investment Development Ltd v Samlimsan (SI) Ltd [2019] SBCA 7; SICOA-CAC 46 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Asia Pacific Investment Development Ltd v Samlimsan (SI) Ltd
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Application for leave to appeal from Judgment of The High Court of Solomon Islands (Kouhota) J)
Court File Number(s):	CAC 46 of 2018
Parties:	Asia Pacific Investment Development Limited v Samlimsan (SI) Limited, Oceania Trading Company
Hearing date(s):	16 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. Harvey G Edmond (senior counsel) with Mr. G Suri for the Appellant Mr. Matthews T QC with Mr. W Rano for the first Respondent Mr. L Kwaiga for the Second Respondent Mr. D Nimepo for the Additional Party
Catchwords:
Words and phrases:
Legislation cited:	Court of Appeal Act, s11 (2) (f) [cap 6]
Cases cited:	SMM Solomon Ltd v Axiom KB Ltd [2017] SBCA 12
ExTempore/Reserved:
Allowed/Dismissed:	Leave refused
Pages:	1-7

JUDGMENT OF THE COURT

1. This is an application for leave to appeal an interlocutory order within a civil claim in the High Court. During that civil matter there has been an application for the trial judge to recuse himself. The trial judge has not agreed to recuse himself from the substantive trial on the claim but has agreed to recuse himself from related contempt proceedings.
2. Leave is required under section 11 (2) (f) of the Court of Appeal Act [Cap 6]. There was an earlier attempt by the parties to grant themselves the right to appeal by consent, which filed consent order this Court does not recognize as being the grant of leave required.
3. We heard submissions from counsel on the question of the grant of leave. We were informed by counsel and accept that the trial judge in the High Court has made orders recusing himself from contempt hearings related to the substantive civil claim and we see no reason to interfere with that part of his decision and we are not asked to do so. It is only in relation to the decision of the same judge not to recuse himself from the hearing of the substantive matter that leave to appeal is sought.
4. For the applicant for leave it is submitted that, during the course of a hearing looking into whether one or more of the parties is in contempt of interim injunctive relief, the trial judge has heard evidence from a man who may give evidence at trial and that the trial judge has made adverse findings as to credibility. Counsel helpfully referred this Court to the material within the voluminous appeal book. The relevant passage appears within the reasons for recusal beginning at page 270 especially at page 272 where it is said:-
   • “I had read and considered the evidence of William Tino regarding the events relating to the first and second defendants logging operation and noted that the events referred to in his sworn statement filed 7^th September 2018 were events which mostly took place to the order of the court of 10^th May 2018 and perfect on 17^th May 2018. The exhibits annexed to Mr. Kiew sworn statement filed on 9^th September 2018 also show that content of Mr. Tino’s evidence in paragraph 4 (a) to (e) and paragraph 9 of the his sworn statement asserting information regarding timber right hearing process in respect of Uso Henua which Mr. Tino said were not available were in fact available and annexed to sworn statement of Mr. Kew filed on 9^th September 2018. The annexed documents show that there was in fact a timber right hearing in respect of Licence No.A101334 issued to Iso Henua Forest products.
   • The documents referred to in paragraph 5 of Mr. Tino’s sworn statement filed on 7^th September 2018 and annexed to the sworn statement were made in 2017 and does not go to prove that the defendant had carried out logging activities in defiance of the court order perfected on 17^th May 2018 or that any logging operation has been carried out at all.”
5. In submissions it is suggested that in addition to an adverse finding on credibility, this amounts to a pre-determination of a live issue for trial, i.e. whether logging took place. The substantive claim is for trespass and damages relating to alleged logging activities.
6. As is clear from the quoted passage, the evidence was received from William Tino, who will, or may, be called as a witness within the substantive trial.
7. It is agreed on this matter as between counsel, and this Court does not disagree, that the most useful precedent to be found in a decision of this Court of Appeal is found at SMM Solomon Ltd & Ors v Axiom KB Ltd & Ors Civil Appeal Case No.14 of 2017 on Appeal from High Court Civil Case No. 258 of 2011.
8. Within that judgment this Court set out the applicable test at paragraph 9 and its application at paragraph 10.
   • 9.“It is accepted on this appeal, and we agree, that the general, and well established, principle is that a judge should not sit if, in all the circumstances, a fair minded lay observer might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the matter. Authority for that general statement can be found in Johnson v Johnson (2000) CLR 488, referred to in submissions but also as adopted by this court in Price Waterhouse (supra).
   • 10.It is further submitted, and we do not disagree, that application of the test may involve a two-stage process, an identification of the issues which may be said to lead the judge to decide the matter other than on its legal and factual merit and, following that identification, the logical connection between those issues and the matter to be determined. For the purposes of this judgment we propose to follow that test as submitted by counsel for the Respondent.”
9. At paragraph 14 of the same judgment, this Court said:-
   • 14.“We take the view that there is both a clear and logical connection between the identified remarks and the subject matter of this claim. In submissions from the Respondent the question is raised as to whether any judge who has made adverse findings against any litigant is therefore disqualified in hearing any case involving that same litigant again. We understand the submission and, in our view, it is not a valid submission, for a judge who in the course of a trial made adverse finding on particular points and expressed those findings with typical judicial restraint would not be so disqualified. A quick perusal of the reasons for judgment in the substantive matter, however, quickly reveals that this judgment was not so expressed.”
10. Given the nature of the remarks made by the trial judge in the reasons for his decision on recusal, it is also necessary to refer to the various standards of proof applicable to the substantive claim and the contempt proceedings within which his remarks were made. On a contempt application, given the potential punitive sanctions available, a court will no doubt be applying a standard of proof approaching the criminal standard of beyond reasonable doubt. The civil standard will be applicable for the substantive claim, that of the balance of probabilities.

Discussion

11. No findings on credit appears within the reasons during the discussion of the evidence of William Tino. There is a finding that there is not sufficient material before the judge to permit him to find to the applicable standard of proof that the contempt was made out. We can see the argument that, implicit within this decision, the Court must have made an adverse finding. We consider, though, that this falls within the description of events envisaged within paragraph 14 cited above. We would go further and note that no specific finding on credibility was even expressed by the trial judge. His decision appears to be based on lack of satisfaction of the applicable standard of proof.
12. It appears to us that, on examination, the identification of issues shows that we must turn to the part of the reasons where the trial judge was not satisfied on the material before him that the relevant standard of proof had not been met by the material before him and then seek to examine the logical matter to be determined. The findings implicit in the reason for judgment may amount to an adverse finding as to William Tino but they may just as easily not amount to that but a finding of insufficiency in the material available given the criminal standard of proof.

Decision

13. This, in our view, is not a case where leave should be granted to appeal. We so order. As to costs, after allowing the parties the opportunity to arrive at a costs order by consent we agree that the applicant pay the 1^st and 2^nd respondents costs of the application for leave to appeal agreed in the sum of $50,000 in total such sum to be paid from the security already held by the Registrar of the Court of Appeal, the balance of security to be returned to the applicant and otherwise no further order as to costs on the application for leave.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member