Murphy v Attorney General [1994] SBHC 75; HCSI-CC 88 of 1994 (29 March 1994)

CC 88 - 94.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 88 of 1994

PATRICK MURPHY AND ANOTHER

-V-

ATTORNEY GENERAL

High Court of Solomon Islands
(Palmer J.)

Civil Case No. 88 of 1994

Hearing: 23 March 1994
Ruling: 29 March 1994

R. Teutao for Applicants
P. Afeau for Attorney General and Respondents

PALMER J: On the 18th of March 1994 an Originating Summons was filed by the Applicants seeking the following declarations.

(1) A declaration that the decision of the Second Respondent made on 11 February 1994 cancelling the Applicants’ investment approval and withdrawing the applicants certificate of approval is a nullity; (three reasons were given in support of that declaration).

(2) Consequential upon the grant of the declaration sought in 1 above, for a further declaration that the Applicants’ investment approval and the applicants’ certificate of approval are still legally on foot.

(3) Consequential also upon the grant of the declaration sought in 1 and 2 above for a further declaration that the cancellation of Mr. Patrick Murphy’s work permit by the Third Respondents on 3 March 1994 is a nullity and the said work permit is still legally on foot;

(4) Consequential also upon the grant of the declaration sought in 1, 2 and 3 above, for further declarations that the cancellation of Mr. Patrick Murphy’s residence permit by the Fourth Respondent on 11 March, 1994 is also a nullity and the said residence permit is still legally on foot.

The Originating Summons also sought such other orders as the Court may deem appropriate, plus costs.

On the same date, a notice of motion (ex-parte) was filed, seeking an interim injunction against the Fourth Respondent. The application was heard ex-parte and an interim injunction granted on the afternoon of the same day.

Mr. Afeau, learned Counsel for the Respondents now applies by way of a summons filed on the 22nd of March 1994 to set aside the interim injunction.

Mr. Afeau’s submission lies squarely on the provisions of section 18 of the Crown Proceedings Act, in particular subsection 18(2). That subsection reads:

“The Court shall not in any civil proceedings grant any injunction or make any orders against any officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown”

Section 18(1)(a) provides:

“In any civil proceedings by or against the Crown the Court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that -

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; .....”

Mr. Afeau submits that the interim injunction obtained purports to grant an injunction against an Officer of the Crown in his official capacity as an officer or servant of the Crown, and that accordingly, the interim injunction effectively seeks to restrain the Crown, which the Courts have no power to do, pursuant to section 18 of the Crown Proceedings Act.

Mr. Afeau has cited the works of (1) Peter W. Hogg, in his book entitled ‘LIABILITY OF THE CROWN’ Second Edition, and published by the Law Book Company Limited in 1989;

(ii) de Smith’s ‘JUDICIAL REVIEW OF ADMINISTRATIVE ACTION’ Third Edition, published in 1973;

(iii) the case of FACTORTAME LTD AND OTHERS -v- SECRETARY OF STATE FOR TRANSPORT [1989] UKHL 1; [1989] 2 All ER 692, at pp. 705 - 709.

I will first consider Peter W. Hogg’s comments on the question of interim injunctive relief against the Crown.

At page 22, under the sub-heading ‘Crown Immunity’, the learned author points out that at common law, the remedy of injunction is not available against the Crown. In support of this rule of law, he cites the works of de Smith, ‘Judicial Review of Administrative Action’, 4th Edition, 1980, 445 (also at page 397 of the Smiths ‘Judicial Review of Administrative Action, 3rd Edition 1973). He then gave two reasons for the immunity. I quote:

“the incongruity of the Queen’s courts issuing an order against the Queen, and the impossibility of punishing the Queen for contempt of court”.

At page 23, he explains that at common law however, an injunction is available against a Crown servant to restrain an unlawful act. He then cites the case of Nireaha Tamaki -v- Baker (1901 [1901] UKLawRpAC 18; [1901] A.C. 561 (P.C.) as an example, in which the Privy Council had held that an injunction was available to restrain a Crown Officer from acting outside his statutory powers in selling land to which the Plaintiff claimed title.

The learned author also cited the cases of Rattenbury -v- Land Settlement Board (1929) S.C.R. 52, and Counseil des Ports Naticonaux -v- Langelier (1969) S.C.R. 60, in which the Supreme Court· of Canada held in both cases that an injunction would lie against the Land Settlement Board in the first case, and in the second case against the National Harbours Board, although both Boards were agents of the Crown. In the first case the injunction was imposed to restrain the Board from levying an ultra vires tax on the plaintiff, and in the second case, it was to restrain the Board from committing a tort. The learned author then stated in the second paragraph of page 23:

“The principle underlying these cases is that an individual Crown servant or a corporate Crown agent whose act is unauthorised by statute or the prerogative is personally liable for that act to the same extent as a private individual would be liable when an injunction is sought against a Crown servant (or a corporate Crown agent) no issue is raised as to whether the crown itself can be enjoined, for the Crown servant is personally liable when he or she acts without legal justification. That is why, at common law, an injunction may be obtained against a Crown servant in those jurisdictions where the Crown itself is not liable to be enjoined.

The standard Crown proceedings statute not only prohibits the award of an injunction against the Crown, but also prohibits the award of an injunction “against a servant of the Crown if the effect of granting the injunction .... would be to give [injunctive] relief against the Crown.” What does it mean? There has been occasional suggestions that the provision precludes injunctions against Crown servants even when they are acting outside their powers. It has even been suggested that it is appropriate that Crown servants should be free to act unlawfully without risk of judicial restraint when compelling state interests require, for example, in an emergency. Such an exception to the rule of law has been described by Street as ‘‘particularly objectionable.” Sharpe has pointed out that such a radical interpretation should require a much clearer legislative intent than the equivocal language of the Crown proceedings statute.”

The leading case of MacLean -v- Liquor Licence Board of Ontario (1975) 9 O.R. (2d) 597 (Div. Ct), was also considered by the learned author (ibid) at page 24. That case involved an injunction against officials of the Liquor Licence Board, although the Board was a Crown agent. The injunction prohibited the Officials from cancelling or suspending liquor licences on grounds that were not authorised by the Board’s empowering legislation. The Ontario Divisional Court upheld the injunction. The learned author stated:

“The ultra vires character of the Board’s acts removed the protection of Crown immunity. The effect of MacLean is to treat the no-injunction provision of the Crown proceedings statutes as merely declaratory of the common law. This is the better view of the provision. It does not affect the power of the courts to grant an injunction against a crown servant to restrain an unauthorised act. Such an injunction is premised on the personal liability of the individual Crown servants, and its effect is to give relief against the individual and not the crown.”

At page 26 (ibid) under the sub-heading ‘interlocutory injunction’ the learned author made the following statement:

“The most unfortunate result of the Crown’s immunity from injunction is that no interlocutory relief is available against the crown.”

The learned author then went on to suggest that the crown proceedings statutes ought to be amended to make the remedy of injunction, and hence interlocutory injunctions, available against the crown.

The second works referred to, is that of de Smith’s ‘Judicial Review of Administrative Action’. In its 4th Edition, published in 1980, at page 445, the learned author made the following remarks:

“The 1947 Act left unaffected the law on proceedings against an officer of the Crown in his private capacity; it reaffirmed the rule that no injunction would lie against the Crown; and it provided that no injunction was to be granted against an officer of the Crown if the effect of granting it would be to grant relief against the Crown which could not have been obtained against the Crown directly. What is the effect of this last provision? It is not self-explanatory. In mandamus cases it is recognised that when a statutory duty is cast upon a Crown in his official capacity and this duty is one owed not to the Crown but to the public, any person having a sufficient legal interest in the performance of the duty may apply to the courts for an order of mandamus to enforce it. If, however, the remedy sought is an injunction, it is doubtful whether any such duality can be imputed to a Crown servant; it has been held that when statutory powers or duties are conferred upon him, he exercises them as an officer representing the Crown, not in the capacity of a designated officer distinct from the Crown.”

The learned author then makes the suggestion that the statutory restriction should be bought into line with the rule on mandamus.

Finally, the House of Lords case of Factortame Ltd and Others -v- Secretary of State for Transport [1989] UKHL 1; [1989] 2 All ER 692, at pages 705 to 709, per the judgment of Lord Bridge. The applicants were English companies which owned or managed 95 deep sea fishing vessels registered as British under the existing register of British fishing vessels. Most of their directors and shareholders however, were Spanish nationals. Under a new legislation enacted in 1988, the Merchant Shipping Act 1988, Part II, and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, a new register of British fishing vessels was set up. All fishing vessels under the existing register of British fishing vessels were required to re-register under the 1988 Act as from the 1st of March 1988. One of the new requirements imposed was that vessels could only qualify for entry on the new register if their owners or, in the case of companies, their shareholders were British citizens or were domiciled in Britain. This had dire consequences for the foreign owned vessels of the applicants.

The applicants then sought by way of judicial review to challenge the validity of the legislation in terms of the EEC Treaty, and inter alia sought by way of an interim relief, an interim injunction, against the Secretary of State from enforcing the provisions of the 1988 Act, pending the determination of certain preliminary questions that had been filed with the Court of Justice of the European Communities under Article 177 of the Treaty. The Divisional Court granted the injunction. The Court of Appeal reversed it. The applicants then appealed to the House of Lords.

At page 705 of the judgment, the learned law Lord identified first what the position was before the passing of the Crown Proceedings Act 1947. He states:

“...... the only means by which the Crown might be impleaded in court were by petition of right, action against the Attorney General for a declaration and action against certain ministers or government departments which had been made liable to suit by statute. None of these procedures involved claims for injunctions. Officers of the Crown, acting as such, were likewise immune from suit.”

The learned law lord then went on to distinguish the Privy Council case, of Tamaki -v-Baker [1901] UKLawRpAC 18; [1901] A C 561, which had been cited by the applicants in that case in support of their argument, that an injunction may lie against an officer of the Crown. The relevant part of the judgment of Lord Davey at page 576 read:

“Their Lordships hold that an aggrieved person may sue an officer of the Crown to restrain a threatened act purporting to be done in supposed pursuance of an Act of Parliament, but really outside the statutory authority.”

The learned law Lord, pointed out that the exception was more apparent than real, and quoted with approval, the judgment of Tomlin J. in the case Hutton -v-Secretary of State of War (1926) 43 TLR 106, in which the same argument was advanced, with reference to Tamaki’s case.

At page 107 of that case, Tomlin J stated:

“The Plaintiff’s contention really received no support from the passage referred to when it was read in context. What Lord Davey was really saying was that in a case where an official was sued as an individual for a wrongful act it was no defence to say that the wrongful act was done by him as an officer of the Crown. The argument that an action would lie against a Crown official, as such, when a wrong had been done which purported to be an exercise of a statutory authority, entirely failed.”

At page 706 of Factortame’s case (ibid), the learned judge referred to the case of Merricks -v-Heathcoat -Amory [1955] 2 All E R 453. One of the arguments mentioned in that case was that the defendant was not acting as a representative of the Crown but either in an official capacity as a person designated to perform statutory functions or in an individual capacity. Upjohn J rejected the argument. At page 456-457, the learned judge said:

“It seems to me that from start to finish he was acting in his capacity as an officer representing the Crown. That being so, it is conceded that no injunction can be obtained against him, and therefore the motion falls in limine. I am not at all satisfied that it is possible to have the three capacities which were suggested. Of course there can be an official representing the Crown and that is plainly this case. But if he were not, it was said that he was a person designated in an official capacity but not representing the Crown. The third alternative was that his capacity was purely that of an individual. I understand the conception of the first and the third categories, but I confess I find it very difficult to see how the second category can fit into any ordinary scheme. It is possible that there may be special Acts where named persons have special duties to perform which would not be duties normally fulfilled by them in their official capacity; but in the ordinary case where the relevant or appropriate Minister is directed to carry out the function or policy of some Act, it seems to me that he is either acting in his capacity as a Minister of the Crown representing the Crown, or is acting in his personal capacity, usually the former. I find it very difficult to conceive of the middle classification.”

Lord Bridge endorsed these comments of Upjohn J and said at page 707:

“It seems to me, however, that the judgment of Upjohn J accords entirely with the position in law before 1947, as explained in the judgment of Tonkin J in Hutton -v-Secretary of State for Wam (1926) 43 TLR 106, which, as I have said, the 1947 Act appears to me to be specifically intended to preserve.”

The learned law Lord then went on to consider a recommendation set out by the Law Commissioner’s Report on Remedied in Administrative Law, under the sub-heading ‘(h) Interim relief on an application for judicial review, with special reference to the Crown’. Paragraph 51 read:

“We have pointed out that, where an application is being made for certiorari or prohibition, the Court can give interim relief preserving the status quo pending a final decision under Order 53, rule 1 (5), and where an injunction is being sought such interim relief can be obtained by means of an interlocutory injunction. However, an injunction cannot be obtained against the Crown although it is possible in such a case to get a declaration. But there is at present no form of interim declaration which in effect preserves the status quo pending the final declaration. We think it desirable that there should be a form of relief which would have this interim effect where a declaration is being sought against the Crown. We therefore recommended that section 21 of the Crown Proceedings Act 1947 should be amended to provide that, in addition to the power there given to make a declaratory order in proceedings against the Crown, there is also power to declare the terms of an interim injunction which would have been granted between subjects. In spite of the judicial doubts which have been expressed as to the logical character of a provisional declaration, we see no reason to doubt that the Crown would respect a declaration of the terms of an interim injunction in the same way as it respects a final declaratory order.”

The recommendation for interim relief was proposed to be implemented by Clause 13(2) of the Draft Bill in the following terms:

“In section 21 of the Crown Proceedings Act 1947 (nature of relief in civil proceedings by or against Crown), for paragraph (d) of the proviso to subsection (1) there shall be substituted the following paragraph:- “(a) the court shall not grant an injunction, or order specific performance, against the Crown but may in lieu thereof- (i) in case of where the court is satisfied that it would have granted an interim injunction if the proceedings had been between subjects, declare the terms of the interim injunction that it would have made; or (ii) make an order declaratory of the rights of the parties.”

What is clear from the report of the Law Commissioner Report (1976) is that interim relief by way of an interim injunction against the crown or its servant is duly recognised as being not available under the U.K. Crown Proceedings Act of 1947, hence the recommendations put forward.

What is also crystal clear from Peter W Hogg’s book (ibid), and de Smith’s ‘Judicial Review of Administrative Action, 4th Edition, and the judgment of Lord Bridge in Factortame Ltd and Others -v- Secretary of State for Transport [1989] 2 All E R, is that there is no injunctive relief available against the Crown. The situations in which injunctive relief had been given have been clearly distinguished in terms of Crown servants, Officers, or agents in their personal capacity as individuals and not as representatives of the Crown.

The no-injunction provisions as against the Crown, in Canada, are modelled on the U.K. 1947 Crown Proceedings Act. Section 18 of our Crown Proceedings Act is exactly the same as section 21 of the U.K. Crown Proceedings Act 1947. The comments of the learned law lord in Factortame Limited’s case therefore, are of direct relevance to this case.

This now brings me to consider the facts pertaining to this application.

It seems to me that there is no dispute at this point of time that there are triable issues to be heard by the court. At least this is the impression I have from hearing the submissions of Mr. Afeau, on behalf of the Respondents.

The interim injunction in this case is directed specifically against the Director of Immigration.

The obvious question to ask is, is it directed against him in his personal capacity? This point has not been raised specifically by Mr. Teutao, but to some extent that is understandable because the triable issues in this case do not relate to the purported cancellation of the residence permit of the Applicant, Mr. Murphy, by the Fourth Respondent, but to the actions of the Second Respondent.

The actions of the Director of Immigration in purporting to cancel the residence permit of Mr. Murphy clearly were not done in his personal individual capacity. Mr. Teutao has submitted that the cancellation was premature, in that it was done ahead of the expiry date of the residence permit of Mr. Murphy. However, he has not sought to argue that the Fourth Respondent does not have the necessary power to effect the cancellation.

The submissions raised related to the substantive issues yet to be tried in this case; that the cancellation of the Applicants investment approval and certificate of approval were ultra vires the Foreign Investment Act 1984 and without legal justification. Accordingly, it is impossible to say at this point of time that the officials of the Foreign Investment Board had acted ultra vires and without legal justification, and therefore are deemed to be acting in their personal individual capacity, and accordingly an interim injunction would lie against them.

Mr. Afeau’ is correct in submitting that no injunction can lie against the Fourth, Third and Second Respondent in their official capacities as servants of the crown.

It has not been established, and cannot be assumed, that the Second Respondent had acted ultra vires or without legal justification.

Mr. Teutao’s concern primarily is that, in view of the way the Minister of Commerce, Employment and Trade had already expressed an opinion inrespect of the Applicant’s project, and being the same Minister responsible for Immigration matters, it seemed a foregone conclusion that should deportation proceedings be instituted against Mr. Murphy, that he would be deported come what may. To some extent, that is a valid concern, and to a certain extent goes to show the inadequacy of the way section 21 of the Crown Proceedings Act is currently worded, in dealing with such extreme situations, and perhaps some consideration, should be given in this jurisdiction along the lines of the recommendations made by the Law Commissions Report (1976), as contained in Factortame Limited’s case (ibid) at page 707.

It will be very surprising if the Minister responsible for Immigration matters should go ahead and deport the Applicant, Mr. Murphy, when it is clear to all that a case is pending in this Honourable court, and especially in his official capacity and as a repository of truth and justice, that he should act manifestly in a manner contrary to the accepted principles of justice and fairness in this jurisdiction.

Finally, I’ll address briefly, an earlier decision of this same court in civil case 323/93 between the same Applicant as in this case, Patrick Murphy and Dominic Otuana -v- Attorney General (1st Respondent) Minister of Commerce, Employment and Trade (2nd Respondent) and Foreign Investment Board (3rd Respondent) in which an interlocutory injunction was granted against the Second and Third Respondents restraining them from cancelling the Applicant’s Solomon Islands World War II Museum Project and the applicant’s Foreign Investment Board Certificate of Approval until trial of the issues.

The apparent error in that ruling with respect, is in mis-applying the exception recognised under the common law that Crown Servants sued in their personal individual capacity are not immune from injunctive relief. That is as far as this court may be prepared to go in recognising and considering injunctive relief. Apart from that, this court has no jurisdiction under section 18 of the Crown Proceedings Act to issue an interlocutory injunction against the Second and Third Respondents in their Official Capacity. On that basis, that ruling was erroneously made.

The interim injunction granted on the 18th of March 1994 accordingly is discharged.

Costs to be in the cause.

(A .R. Palmer)
JUDGE