Palmer v North New Georgia Timber Corporation [1991] SBHC 54; HC-CC 209 of 1990 (7 November 1991)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 209 of 1990

PALMER

-v-

NORTH NEW GEORGIA TIMBER CORPORATION
AND JOHN TALASASA

High Court of Solomon Islands
(Registrar, Chetwynd)

Hearing: 7 November 1991
Judgment: 1991

A. Radclyffe for Plaintiff
T. Kama for the First Defendant
F. Waleilia for the Second Defendant

REGISTRAR CHETWYND: This is an application in proceedings between Mr Norman Palmer and The North Georgia Timber Company and Mr. John Talasasa. It is an application for declarations made by the Second Defendant. He seeks orders that the Plaintiff be made to disclose the nett income of all those represented by the Plaintiff, that the Public Solicitor be restrained from representing the Plaintiff and a declaration as to whether the Public Solicitor has properly exercised his discretion in representing the Plaintiff.

One preliminary matter must be disposed of. The Second Defendant objects to my hearing the application because I was present when the acting Public Solicitor made certain remarks about the application. The remarks are set out in the letter from Mr Waleilia dated 30/10/91.

The Judiciary in Solomon Islands is made up from professional lawyers most of whom, myself included, have many years experience. I have to say that in those many years comments have been made to me, outside of the court room, about cases I am hearing or about to hear. Some of those remarks are made in all innocence some are intended to persuade me to one view or another. I have to say that none of the remarks I have heard have ever affected my decision.

As I have said on an earlier occasion, the courts will act quickly and decisively if bias is shown. The fact that the adjudicator has heard ill-timed or innocent comments does not mean there is evidence of bias. The courts will decide on evidence it hears and arguments put to it. If it is shown that that is not the case then, as I say the court will act to negate any bias which is apparent.

If the Second Defendant's arguments were true litigation would be difficult, if not impossible, in Solomons. As an example, I only have to mention events in recent the news. It was said that the former Leader of Opposition was going to launch proceedings in the High Court. This generated tremendous interest in the media. As a result there were radio interviews, news comments and newspaper reports from both sides of the political field. If Mr Nori had made the application to the High Court then from the Second Defendant's point of view no Judge in Solomon Islands could have heard the case because of these comments outside the court room. Such an argument is nonsense.

I turn now to the application itself. As a preliminary matter Mr Radclyffe says that the Second Defendant does not have the locus standi to make it. He cites the case of Kenilorea -v- Attorney General reported at page 61 [1983] SILR 61. I do not find that case particularly helpful in this matter. In fact there is little helpful case law on the question of locus standi because of what has been called by one learned commentator "the erratic course steered by the courts". If any thing can be discerned from case law it is that in recent times there is a trend towards a less restrictive view of who has locus in such cases. The courts seem to accept that those who are "aggrieved" by a decision have the right to litigate about it. That of course begs the question of what exactly is an aggrieved person.

In the present case the Second Defendant no doubt has an interest in who represents the Plaintiff. Any party in any litigation is naturally concerned as to who will be acting for the opposition. Every litigant has a view (whether it is right or wrong) as to the capabilities or effectiveness of the lawyer acting for the opposition.

There is little doubt that the Second Defendant is aggrieved at the decision of the Public Solicitor to act for the Plaintiff. If for no other reason than the fact that he himself was refused assistance from the Public Solicitor.

However such an approach is simplistic and too literal. The legal concept of who might be an aggrieved party is more technical. There must be some adverse effect on the party who makes the complaints.

In this case I feel that the effect on the Second Defendant of the Public Solicitor accepting instructions from the Plaintiff will have sufficient adverse effect on the Second Defendant so as to give him sufficient locus standi to make the application. Although the question of costs has yet to be decided by the courts there is the point that a private lawyer instructed by a private client will want payments on account. The private clients will always be conscious of costs. Every time his lawyer takes some action on his behalf a private client has to pay. This is not the case with a litigant instructing the Public Solicitor. Even though a private client may be awarded costs it is unlikely that he will recover the full costs. This is especially so in Solomons given that the scale of costs on taxation is hopelessly out of date. For these reasons it has long been recognised by the courts that a person in receipt of Legal Aid has an advantage over someone instructing a private lawyer. This was the basis of the decision in R -v- Manchester Legal Aid Committee ex. p. Brand & Co. [1952] 2 QB 413. In that case a prospective defendant in proceedings to be brought by a party to whom a civil legal aid had been granted was held to be entitled to bring proceedings against the Legal Aid Committee so granting the certificate.

Mr Radclyffe also points to Section 92(7) of the Constitution. That subsection directs that the Public Solicitor shall not be subject to the direction or control of any other person or authority. Against that I must bear in mind Section 138 of the Constitution which reserves the right of the Court to exercise jurisdiction in relation to any question whether a person has performed his (or its) functions in accordance with the Constitution. I also bear in mind the provisions of Section 83 of the Constitution and in particular subsection 2.

There is no doubt in my mind that I have sufficient jurisdiction to be able to entertain the application by the Second Defendant. For the reasons stated earlier, the Second Defendant is a person whose interests are likely to be affected by the grant of legal aid to the Plaintiff.

In dealing with that application Mr Waleilia refers to the Legal Aid (Income Limit) Order 1989. This is an order made by the Minister of Police and Justice pursuant to Section 4(b) of the Public Solicitors Act 1987. By that order the Minister set a limit of $6000 nett income per year for those entitled to receive legal aid.

Both section 4(b) and the 1989 order are envisaged in the Constitution by Section 92(4).

I must admit to feeling a slight degree of apprehension at the apparent conflict between subsections 92(4) and 92(7) of the Constitution. As referred to earlier, subsection 92(7) directs that the Public Solicitor shall not be subject to the control or direction of any other person or authority. Subsection 92(4) says that the functions of the Public Solicitor "are to provide legal aid ......... in such circumstances and subject to such conditions as may be prescribed by Parliament". The section then goes to particularise certain circumstances not relevant here.

It seems to me that by allowing Parliament to prescribe "conditions" and "circumstances" when legal aid should be granted the Public Solicitor is subject to the "direction and control" of another authority.

On reflection, reading subsection 7 with subsection 4, these provisions must mean that the Public Solicitor shall not be under the direction or control of any other authority in the exercise of the functions conferred on him but that the Constitution reserves the right of Parliament to define what those functions are. That, to me, does not seem a very satisfactory way to guarantee the independence of the Public Solicitor but any other interpretation would seem to be a nonsense. If I am wrong then it will be for another tribunal to decide how to resolve the conflict.

Having reached this conclusion then it is clear Parliament can make regulations to govern who can receive legal aid. This they have done with the Legal Aid (Income Limits) Order of 1989.

Mr Waleilia says that because of that order I can make the declarations set out in the application. His affidavit evidence shows that the Plaintiff, and others in his tribe, may very well have substantial income.

However, I have to accept that as Mr Radclyffe says, the Plaintiff is not acting for himself but acting as a Representative of the Nuatali tribe. It is clear that both the Constitution and the Public Solicitors Act allow Legal Aid to be granted to a person in a representative capacity. Unfortunately neither the Act nor the Order made in 1989 help in calculating how the income of such a representative party is to be calculated. Indeed the Legal Aid (Income Limit) Order of 1989 is very little help in calculating how to arrive at the nett income figure it mentions in any circumstances. It is true that the Legal Aid (Application Form) Regulations 1989 prescribe a form for use by Legal Aid Applicants but that form seems to be designed to arrive at a figure for disposable income. This is the term used by Section 11 of the Act. It must be said that disposable income is not the same as nett income. Perhaps this mater will be rectified by Parliament but until it is the Public Solicitor has to decide how to exercise his functions "subject to the conditions" prescribed by Parliament. If Parliament does not set out detailed regulations to be followed in such circumstances then the Public Solicitor must use his own discretion and judgement. This is envisaged to some extent by the 1987 Act in section 6. The court can only intervene if it can be shown that the Public Solicitor exercised that discretion in a manifestly unfair manner.

That cannot be said in this case. It is accepted that the Plaintiff and some others who may benefit from the litigation earn in excess of $6000 per year but the Defendant is unable to say anything about the number of others in the tribe who will likewise benefit. It is for the Second Defendant to show that the Public Solicitor has not exercised his functions fairly and that he has failed to do so. That being so this Court will not interfere and I decline to make the declarations sought.

Given the nature of the application I will order that costs be in the cause.

As for the hearing for directions, I order that to be adjourned until 16th January 1992 at 1.30 p.m. to give the parties time to agree any directions necessary in this case. If directions can be agreed, or it is agreed that no further directions are necessary then the hearing can be vacated and the matter set down for trial as soon as possible. Again I will make no order for costs save that they be in the cause.

(R.D. Chetwynd)
REGISTRAR