Murphy v Attorney General [1994] SBHC 78; HCSI-CC 88 of 1994 (9 June 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: 6 June 1994
Judgment: 9 June 1994

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

PALMER J: This case follows on from this Court’s judgment in the previous case of Patrick Murphy and Another -v- Attorney General and Two Others CC415/93, judgment delivered on the 30th December 1993. As a result of the way the Court ruled in favour of the Applicants, the Foreign Investment Board fixed a meeting for the 11th of February 1994, in which the two Applicants were to be given the opportunity of being heard before the fate of their World War II Museum Project was to be decided upon. It is the events leading up to that meeting which are the subject of this application.

The Applicants seek orders for a declaration that the decision of the 2nd Respondent made on the 11th February 1994 cancelling the Applicants’ investment approval and withdrawing the Applicants’ certificate of approval was a nullity, on three grounds. These were:

(a) that the said decision was made without the Applicants first being given the right to be heard before the 2nd Respondent made the said decision;

(b) that the said decision was made by the 2nd Respondent in circumstances which were unfair to the Applicants and their Solicitor as to reasonable notice of the meeting;

(c) that the said decision was made by the 2nd Respondent without the Applicants’ Solicitor being given the opportunity to make representations on behalf of the Applicants.

It is not in dispute that at the meeting of the Foreign Investment Board on the 11th of February 1994, the Applicants were not present. The crucial question is were they given the right to be heard? In answering that question, it would be necessary to ask whether notice was given, and whether it was reasonable, or adequate notice, of the hearing. The Applicants take the view that because there were two partners in the business project that they should be each personally served with the notice of the meeting. It is not in dispute that Mr. Dominic Otuana was never served with the same copies of the letters marked as ‘PM1’ and ‘PM2’, in the affidavit of Patrick Murphy, filed on the 18th of March 1994. It is not in dispute however, that at the latest, Mr. Patrick Murphy was verbally informed by the serving officer, on Thursday the 10th February 1994, that the meeting had been scheduled for hearing on the following day, the 11th February 1994, at 9.00 am. Chris Naqu was attempting to serve the letter which contained the details of the meeting but was refused service by Mr. Murphy, instead directing him to effect service on his solicitor, Mr. Teutao.

The first submission of Mr. Teutao is that, as service of the notice of the meeting had not been affected on Mr. Dominic Otuana, that accordingly, he had been denied his fundamental right to be heard, before cancellation of the World War II Museum Project (W II Project), of which he was one of the partners or directors.

Mr. Afeau for the Respondents contends that it is immaterial that Mr. Otuana was not served, as the letter had been directed to the Directors. He argues that service on Mr. Murphy would be deemed service on Mr. Otuana as well.

The important point to note about this submission is that service is being done on the directors of the WW II Project. There are however, two directors involved. I am satisfied that notice of the meeting was communicated to Mr. Murphy on the 10th of February 1994. However, it is my view that the same cannot be said for Mr. Otuana. There is no evidence that Mr. Otuana was informed of the date of the meeting. It would have been different if Mr. Murphy had accepted service of the letter, or the letter had been posted and received in the course of post. Had the letter been received in the mail prior to the date of the meeting, then that would have been sufficient notice in my view, of the date of the meeting on both directors. The learned Solicitor General’s submission as to the way the letter had been addressed generally to the directors would then have force.

This then raises the question as to whether Mr. Murphy had acted reasonably, and therefore fairly, to the Foreign Investment Board (FIB), by refusing to accept service of the letter on him on the 10th of February 1994. In answering this question the events preceding the 10th February must be considered. In the affidavit evidence of Patrick Murphy, filed on the 18th of March 1994, at paragraph (2), he sets out in detail the argument he had with the Secretary of the Foreign Investment Board as to who service of the letter that the Secretary had in his hand on the 3rd or 4th of February should be made to. It was made quite clear to the Secretary that all correspondences to the Directors should be addressed or communicated to the Solicitor of the Directors, Mr. Teutao. In the affidavit of Francis Ramoifuila, filed on the 18th April 1994, he confirmed at paragraph 4, that Mr. Murphy told him that the letter should be delivered to his Solicitor. I appreciate that there may have been some confusion as to the whereabouts of the Office of Mr. Teutao. However, there does in fact exist an office of the learned Solicitor on which service of documents can be made. I am satisfied that the directions given by Mr. Murphy as to the office of Mr. Teutao being located at Trish’s Saloon at the NPF Plaza were correct. The Secretary to the Foreign Investment Board did correctly leave the documents with an employee at that office on or about the 3rd of February 1994. The same thing should have been done with the letter of the 10th February 1994. I am satisfied that the actions of Mr. Murphy have been consistent all along as to the manner of service of documents and accordingly was not acting unfairly in respect of the service of the letter of the 10th February 1994.

It has been submitted by the learned Solicitor General that the Foreign Investment Board could not assume that Mr. Teutao was still the Solicitor of the Applicants as the case in which Mr. Teutao appeared for the Applicants had been completed. However, that would be over simplifying matters. One of the major concerns raised by the Applicants in civil case 415/93 was the fact that they were not given the opportunity to be represented in the hearing before the Board. Now that they were being given that opportunity it would only be reasonable to expect them to require that service of documents or notice of any meetings should be communicated to their Counsel. That is all that Mr. Murphy required, and although that may have been regarded to be inconvenient and unnecessary by the Foreign Investment Board, he was perfectly entitled to insist on that. This simply means that where documents are to be served personally, then they should be delivered to the Solicitor or his place of business.

I am satisfied that although service of the letter had not been effected on Mr. Teutao, Mr. Murphy did have notice of the meeting for the 11th February 1994, but did not attend. Mr. Otuana did not attend the meeting as he was not informed. As one of the directors of the company accordingly, he had not been given the right to be heard. It needs to be clearly understood, that the ownership of the Company is divided roughly on a 85% : 15% basis between the directors. Accordingly, it would not be correct to assume that by informing Mr. Murphy and giving him the opportunity to be heard, that that would be sufficient discharge of the FIB’s duty to give Mr. Otuana a hearing as well. There is no evidence to say that at any time it had been made known to the FIB that Mr. Murphy was the spokesman or the representative of both directors. Rather, what had been made known is that Mr. Teutao was the Solicitor of both directors, and therefore could speak on behalf of both. Further, the directors are two separate legal entities. Service on the directors as opposed to service on the Company needs to be distinguished. Service on the company can be effected on anyone of the directors. Service on the directors however will have to be effected either personally or in such a manner that it can be safely assumed that service had been made on both. On this procedural defect alone, I am satisfied that the decision of the FIB dated the 11th February 1994 should be declared a nullity. There are however few other matters which have been raised which I feel obliged to comment on.

First, I am prepared to accept that notification of the date of the meeting on Mr. Murphy was valid and that by refusing to attend, he was acting unreasonably, and in certain cases that would be to his detriment. Further, after having been informed of the meeting date, he failed to communicate that knowledge to his Solicitor, whom he relied on to a large extent for representation before the FIB. To argue therefore that his Solicitor had not been given the opportunity to be heard is not entirely correct. He knew when the hearing was, and yet did not make the effort to get in touch with his Solicitor to attend that meeting and make whatever submissions needed to be made. If he felt that the notice given was insufficient, then either himself or his Solicitor should have made that application at the meeting before the FIB. The issue therefore was not so much denying the Applicant’s Solicitor from making representations before the Board as being not informed by the Applicant, Mr. Murphy. Ground l(c) therefore of the Originating Summons is dismissed. I have noted the comments of Lord Goff in the case of Hone v. Maze Prison Board [1987] UKHL 9; [1988] 1 All E.R. 321, concerning the question whether there is a common law right to have a lawyer before the board of visitors. Lord Goff noted that though there may be a requirement that the rules of natural justice would require that there be legal representation, it is not by right. The circumstances of this case I am satisfied is slightly different, as already pointed out, and therefore the comments of Lord Goff are not entirely on the point.

The next point raised by Mr. Teutao relates to the question of reasonable notice.
I accept and it is not in dispute, that notice must not only be given of the meeting, but that it must be reasonable notice. The rationale for this is that, it enables the person affected to prepare his case before the appearance at the meeting, and to call such witnesses as he may wish to call in support of his case.

The learned Solicitor General submits that there was sufficient notice because at least on the 3rd February 1994, the Solicitor of the Applicants was informed that there was to be a meeting in the following week. With respect, I am unable to accept that such a letter as contained in exhibit ‘PM1’, to amount to sufficient notice of the meeting. The words ‘next week’ can mean anytime from a Monday to a Friday. That is too general and vague. For a notice to be effective, it must be specific enough so as not to require any further clarifications or queries. What is quite surprising is that the date of the meeting could not be finalised until only one or two days prior to the date of the meeting. That is not proper notice, and I am prepared to accept to some extent that it was not being fair on the Applicant. Mr. Murphy was informed of the meeting only one day before it actually took place. Even if he had consulted his Solicitor or appeared personally before the FIB on the next day, I am not satisfied that Mr. Murphy would be in a position to present his case before the FIB. I accept that the Applicants have been aware that there would be a meeting as far back as the beginning of this year and therefore ought to be ready at a moments notice to present their submissions before the FIB. However, I am not prepared to accept that one days notice is sufficient and especially in the circumstances surrounding the service of the notice to Mr. Murphy.

Grounds 1 (b) accordingly too is allowed. This means that the decision of the FIB dated the 11 February 1994 is a nullity, and I so declare. The consequential declarations sought in paragraphs 2,3, and 4 are also allowed and made.

It is quite unnecessary for the Court to have to make specific directions as to how parties ought to conduct themselves and how notices are to be served etc. However, in this case, since this is the second time that a similar application has been brought before this Court, I will go beyond making the declarations that are being sought and to make the following additional directions:

(i) That service of notice of the meeting shall be made on the Solicitor of the Applicants, Mr. Teutao. Service will be deemed to have been effectively done once the notice is delivered to the office of Mr. Teutao, at Trish’s Saloon at the NPF Plaza. It need not be hand delivered to Mr. Teutao personally. If he is not in the office then it would be sufficient if it is left with any employee in that office with the instruction that it is for Mr. Teutao.

(ii) That there shall be a clear seven days notice of the meeting.

Finally, it needs to be understood very clearly, that the merits of the Applicants case before the FIB is not the subject of this application. Therefore the order of this Court to declare the decision of the FIB on the 11th of February 1994 a nullity, has nothing to do with the merits or the substantive issues of the Applicant’s Project before the FIB. The decision of the FIB of the 11th February 1994 has been declared a nullity on procedural defects alone.

Each party is to bear their own costs.

(A. R. Palmer)

JUDGE