Allardyce Lumber Company Ltd v Premier of the Western Province [1996] SBHC 68; HC-CC 161 of 1996 (18 November 1996)

HIGH COURTS OF SOLOMON ISLANDS
Civil Case No: 161 of 1996

ALLARDYCE LUMBER COMPANY LIMITED, KALENA TIMBER
COMPANY LIMITED AND SILVANIA PRODUCTS (SI) LIMITED
- v--
THE PREMIER OF THE WESTERN PROVINCE (representing the Western

Provincial Executive and the Western Provincial Assembly)

High Court of Solomon Islands
(AWICH, J)

Hearing: 29th August 1996
Judgment: 18th November 1996

J Sullivan for the plaintiffs
G Samuel for the defendant

The Plaintiffs' Case and Procedure.

JUDGMENT

(AWICH, J): The three plaintiffs in this case, Allardyce Lumber Company Limited, Kalena
Timber Company Limited and Silvania Products (SI) Limited, the first second and third
plaintiffs in the order of stating, conduct businesses in the Western Province of Solomon
Islands. Their businesses include harvesting and exporting round logs. They filed a joint
writ of summons on 416196 at the instigation of the first plaintiff, asking the court to declare
that the business licence fees imposed by the province in 1995 for round log exporting,
were ultra vires and of no effect. They also asked for any other relief the Court sees fit,
and for costs.

The Plaintiffs cited the Premier of Western Province as the defendant, and had the writ served on the Attorney General representing the province. The writ was endorsed with these particulars of claim..

Page 2

"STATEMENT OF CLAIM

The plaintiffs' claim is for:

A declaration that the business licence fees imposed by the Western Province pursuant to the Western Province Business Licence Ordinance 1995 and the Western Province Regulations 1995 in.respect of round log exporting are ultra vires the Western Provincial Assembly and the Western Provincial Executive and that the same are void and of no effect.

2. Further or other relief as the Honourable Court sees fit.

3. Costs."

Although the plaintiffs' declaration claimed referred to licences in the plural, the case was about one particular licence fee, namely licence fee for the business of exporting round logs in the year commencing 3113195.

The Attorney General filed memorandum of appearance on 1816196. From there the procedure took completely unexpected course. On 3.7.96, the plaintiffs filed a notice of motion in which they sought 2 declarations and 2 orders. The declaration at paragraph 1 and the order at paragraph 3 were the same as the reliefs 1 and 2 sought in the claims endorsed on the writ of summons and set out above. The declaration at paragraph 2 was a completely new relief that the plaintiffs sought for the first time, by the notice of motion. The order at paragraph 4 sought wider costs, for the action and for the notice of motion. 1 set out here the new declaration at paragraph 2, and the wider costs at paragraph 4 of the notice of motion, for ease of reference..

"TAKE NOTICE THAT the Honourable Court will be moved on Friday the 16th day of August 1996 at 9,00 o'clock in the forenoon, or so soon thereafter as counsel may be heard for the following orders:

HGM61-96 Page 3

1 .

2. A declaration that there is no regulation of the Western Province presently in force, validly imposing a licence fee in respect of round log exporting.
   

3.

4. The defendant may pay the plaintiff's cost of and incidental to the action including this application, to be taxed."
   

The notice of motion was listed for hearing on 1618196. It appeared to me that the proceedings had taken a course not contemplated by the High Court (Civil Procedure) Rules, in proceedings commenced by writ of summons, so at the hearing 1 asked for explanation from learned counsel, Mr Sullivan who represented all the three plaintiffs. His reply was that parties agreed to proceed by motion because the whole case depended on determination of points of law. That would be under 027 rl and 2. Until that explanation by counsel, nothing in the pleading had suggested that that was the way parties would like to proceed.

It was obvious to me that the claim was in fact being amended by addition of a completely new claim, numbered 2. Learned counsel Mr Samuel for the defendant did not object. He agreed to proceed on the notice of motion and to argue the points of law. 1 took it that the defendant envisaged no prejudice to arise. 1 allowed parties to proceed to present the points of law which they said if decided would resolve the dispute in the case.

The notice of motion application was accompanied by supporting affidavit of Mr John Henry Howden Beverly, said to be the Managing Director in the first plaintiff company. That affidavit had attached to it several documentary exhibits, up to 11 (eleven). Yet at the hearing, once granted leave to present points of law for determination, Mr Sullivan sought another leave to lead evidence viva voce from Mr Beverly in addition to the affidavit. So despite the short cut taken, counsel must have thought that no sufficient evidence was before court for the court to determine the point or points of law. Again Mr Samuel did not object to viva voce evidence to be led. I granted leave to have viva voce evidence received from Mr Beverly. His testimony upped

Page 4

the number of exhibits to 13, but did not present contentious facts, otherwise 1 would have stopped proceedings along that line and asked parties to revert to normal pleadings that follow writ of summons actions. 1 think the court has found itself dealing with originating summons proceedings really though not so described. It is useful to let court know what proceedings is being presented before it, well in time.

In support of the declaration originally sought in the writ of summons at paragraph 1 of the statement of claim, and shall 1 now say point of law at paragraph 1 in the notice of motion, Mr Sullivan submitted that the fee of $150,000 per annum, imposed by the Western Province by the Western Province Business Licence Ordinance 1995, and the Western Province Business Licence Regulations, 1995, was in fact tax and not fee. His submission went further, that as tax; it was ultra vires the legislative power of the province, and should have not been imposed by the Province Executive because the Constitution of Solomon Islands in section 106 limits power to tax, to be only by an Act of Parliament. There was no such authorisation by Parliament for the province to impose such a tax.

Mr Samuel opposed the plaintiffs' case. He agreed that there are bounds within which provinces may make law, but contended that the sum of $150,000 imposed under the 1995 Ordinance of the Western Provincial Assembly and the 1995 Regulations of the Provincial Executive was not tax, but fee. It was valid.

Background

It is necessary to know the background of the case so as to appreciate the wider implication of it. 1 state it briefly: In 1993 the Western Province Executive promulgated the Western Province Business Licence Regulations, 1993, to come into force on 31.3.1994. The Regulations were made by the Provincial Executive under S:16 of the Western Province Business Licence Ordinance, 1993. It imposed licence fee of $10 per cubic metre of logs exported in the preceding year, and if that was the first year of business, the fee would be a fixed sum of $50,000 for the year. That fixed fee of $50,000 was the fee in the previous year up to 3013194. The first two plaintiffs in this case and two

Page 5
other logging companies challenged the $10 per cubic metre fee as being tax and therefore unconstitutional because, they said, the province had no power to impose such tax. The High Court gave judgment in favour of the plaintiffs. The Province then passed the Western Province Business Licence Ordinance, 1995, in which it stated in s:2 that the 1993 Ordinance was revoked.

The 1995 Ordinance, like previous ones, empowered the Provincial Executive to promulgate Regulations in which business licence fees are set. The executive promulgated the Western Province Business Licence Regulations, 1995, in which it revoked earlier Regulations. In Schedule H to the Regulations at the 83rd item, it set fee for exporting round logs at $150,000 per annum. The plaintiffs have again challenged the fee of $150,000 as being tax and therefore unconstitutional. The first plaintiff has refused to pay until a decision of the court is known. The other three have paid, but joined the first in bringing this action.

The Law Authorising Tax and Fee

reads..

The provision in the Constitution which the plaintiffs rely on is in section 106; it

106. No taxation shall be imposed or altered except by or under an Act of

Parliament.

So as to comply with the requirement of s:106 of the Constitution, in as far as giving authority to provinces to raise and collect revenue, parliament has enacted the Provincial Government Act, 1981. In it section 33 (5), relayed the Constitutional requirement about tax. Section 33 (5) provides that taxes in provinces can be imposed, altered or abolished only by authority of the Act. The section reads:

33.(1)

(2) (3)

(4)

Page 6

(5) A Provincial Assembly has no power to make laws imposing, altering or abolishing tax, except where power to do so is expressly conferred on the Provincial Assembly by or under this Act.

In the same Act s:28 provides for devolution of power to provincial assemblies. Western Province Devolution Order, No. 1 of 1983, (Legal Notice No. 55 of 1984) was made. Section 4 of the Order brought within the competence of the Western Provincial Assembly, certain taxing powers and power to impose licence fee, as stated in schedule 4 to the Act as follows:

SCHEDULE4
LEGISLATIVE MATTERS

1. 2. 3.

Finance
4. Raising revenue by

(a) head tax

(b) property tax

(c) fees for services performed or licences issued by or on behalf of the Provincial Executive (other than services performed or licences issued by them as agent of another); and

(d) such other means as may be approved for the purposes of this paragraph by the Minister by order.

The Issue

Page 7

From what I have outlined, it is clear that it is not in issue in this case that the Western Province, through its assembly and executive, has the power to impose some taxes or that it did have the power to impose fees for licences that the province issues. The plaintiffs' case was that when the Western Province Executive, by the Western Province Business Regulations, 1995, set licence fee for exportation of round logs at $150,000, it in fact was setting a tax not a licence fee. 1 took it that they meant to extend the argument and to say that the tax in the sum of $150,000 is not the kinds of taxes authorised and within the competence of the province. Mr Sullivan's submissions were that; 1. the sum of $150,000 was in fact tax because it bore no relationship to the services provided by the province in the business licenced, namely, logging and exporting of round logs; 2. the sum of $150,000 was unreasonably high for licencing the business of exporting round logs and therefore should not be taken as licence fee, but as tax. Although he sought declaration that the Ordinance was ultra vires as well, Mr Sullivan did not explain how that conclusion is to be arrived at. I assume that his submission that the ordinance was also ultra vires is merely an interpolation from the submission that the Regulations were ultra vires.

Mr Samuel's submission was that the province had power under sections 28, 32 and 33 of the Provincial Government Act, to legislate about taxes and licence fees as stated in schedule 4. He contended that the Act did not set a limit figure for licence fee so there was nothing to stop the province setting the sum of $150,000 as licence fee. The sum in any case was not unreasonably high, taking into account that the province has to pay for the various means by which it ensures that its policies about logging are followed. Those means included administrative actions required under the Western Province Business Ordinance and the task of maintaining records. He submitted further that element of tax cannot be excluded from business fees. He cited for that proposition, judgment of Sir John Muria, Chief Justice in Civil Case No. 234194, Allardyce Lumber Company Limited, Kalena Timber Company Limited, Golden Springs International (SI) Company Limited for Hyundai Timber Company Limited -v- The Premier of Western Province.

Page 8

The Law, the Constitutional Point

Arising from, consideration of s:106 of the Constitution and ss: 28 and 33 of the Provincial Government Act, any province is empowered to impose tax, but only taxes of the two categories mentioned in schedule 4, namely, head tax and property tax. Any tax outside the two categories, imposed by a province would be in contravention of s:33 (5) of the Provincial Government Act and accordingly would have been. imposed outside the authority of the Provincial Government Act, the only Act of Parliament covering fees and taxes that are within the legislative competence of provinces. And as there would be no authority of an Act of Parliament, it would be contrary to s:106 of the Constitution and therefore unconstitutional.

In this case the charge of $150,000 has been challenged as being tax, not because the Regulations name it as tax and not of the nature of head tax or property tax. The plaintiffs' say that although the sum of $150,000 has been named fee, its nature shows it is a tax. The principles of law applicable in Solomon Islands in determining whether a charge is a tax or fee and whether a tax is legal or not have recently been enunciated by the Court of Appeal in Civil Appeal Case No. 11 of 1994, Solomon Motors Limited -v- Honiara Town Council, the only appeal case so far on the issues. Mr Sullivan addressed the Court on that appeal case at length - for too long in my view. The Court of Appeal laid down two principles. Firstly, for a charge to be regarded as licence fee and not tax, there must be relationship between the charge for licensing the particular business and the activities performed by the licencing authority in relation to such licence, such as conducting investigations, inspections and inquiries, to such extent that bear some arguable relationship between the charge and services. The precise arithmetic ratio is not part of the test. In this case if the charge of $150,000 is found not to bear any relationship to the activities performed or expected to be performed then the charge is a tax. Such a tax, not being head tax or property tax that are provided for in the Provincial Government Act, would be unconstitutional, because it would not have been imposed, "by or under an Act of Parliament." Secondly, Solomon Motors case laid down the principle of reasonableness or otherwise, to determine whether a by-law is ultra vires and therefore illegal. That is a principle at Common Law. In Solomon Islands that rule has been

Page 9

adopted by statute in section 61 (3) of the Interpretation and General Provisions Act by amendment in 1987. The section reads:

(3) Where any fees or charges referred to in subsection (1), is in respect of any services provided by any public body, such fees or charges shall as far as practicable be within a range properly chargeable in respect of the services provided, and shall not be excessive or unreasonable.

The determination of reasonableness is the same as the determination applied in identifying the nature of a charge as being fee or tax. There must be relationship between the charge and the activities performed. Kirby, President of the Court of Appeal simplified the two tests in the Solomon Motors case, stating them jointly in no more than a paragraph which I quote here:

"The common issue of proportionality of fees and services

It can be seen that, both for the arguments addressed to constitutional validity and those concerning the reasonableness of the fees charged by the respondent for the licensing of businesses, an important, even crucial, question may be the establishment of the relationship (if any) between the fees actually charged by the respondent to license particular businesses and the activities performed by the respondent in relation to such licensing. If all that the respondent were to do was to provide a piece of paper, called a "license", to any business applicant, conducting no investigations, inspections or enquiries and providing no services at all, clearly the "license" fees would be revealed as nothing more than the raising of revenue for the respondent. This would then raise the three objections tendered by the appellant in the appeal. If, however, there were services provided, which bore some arguable relationship between the fees charged and the services provided, the court would not involve itself in the precise ratio between charges and services. It would be enough for the court to note that an arguable relationship was established. This would meet the contention that the purported license fees were actually illicit taxation, beyond power or otherwise not reasonable in the relevant sense."

A very useful discussion on the question of whether a sum charged is fee or tax is

found in the American cases of Conrad -v- State of Delaware 16 Ad Rep (2nd) 121 and

Page 10

State of Wisconsin -v- Jackman (Wilsconsin in Reports, Second Series 480) and in the Canadian case of Attorney General of Quebec -v- Williams (1944) 4 DLR 488. If the charge is imposed, (1) solely or mainly to ensure revenue and not for the costs properly chargeable for the purpose of conducting a proper system of business licensing, and (2) to secure funds to a public authority by way of contribution to the revenue for public services, then the charge is a tax.

When applying the principles in the Court of Appeal case, Solomon Motors case, to this case, consideration must be given to the following: There are duties that are provided for in the Forest and Timber Utilisation Act, that provinces are expected to perform. There are also duties regarding logging, in the Western Province Business Licence Ordinance, 1995. The contents of minutes of meetings and letters between the province and the plaintiffs, also disclose policies and duties of the province, about logging. Those items of evidence and statutory and policy duties do justify charging when licensing the business of exporting round logs. They justify charging for licence because those duties need to be performed by investigation, visits to sites, keeping of records, convening meeting with licencees and landowners if necessary, maintaining of records, and generally observing and monitoring. Relationship has been established. In evidence, Mr Beverly catalogued what he considered to be necessary inspection duties. He suggested there would be up to 18 visits by government officials in a year, given the level of his operation. He said that those duties were mainly performed by the Timber Control Unit of the Central Government. It appears to me that if the province is to live up to its duties I have referred to, it would make similar visits. The total cost of 18 visits was estimated at about $25,000. Onto that, one would add the costs of the other duties that Mr Beverly has not mentioned, some of which I have referred to above. It may be said that the fee of $50,000 or a sum thereabout, imposed for the year ending March 1993 bore arguable relationship to service provided in monitoring the business of exporting logs. The sum of $50,000 is not too far away from the estimate of $25,000 given by Mr Beverly, taking into account that he did not enumerate all the duties expected of the authorities. Moreover it is not for the court to calculate the precise arithmetic ratio of the relationship. I am, on the other hand, sure that there is no way that a figure as high as $150,000 would be within range. It is my decision that the charge of $150,000 per year for licence for exporting round logs from Western Province, bears no arguable

Page 11

relationship whatsoever, to duties expected of officials of the Province, in relation to the business. A province properly addressing its mind to licensing and licence fee, and not to taxing, would not charge the sum of $150,000, given the facts in this case. Letters written by the province to the plaintiffs show that the province's main consideration was raising of revenue. That is a consideration mainly in taxing. If the province wishes to tax in the logging business, the proper course of action is first to obtain that authority in an Act of Parliament. That requires the province to approach the Central Government. The province cannot impose tax under the guise of licence fee thereby avoiding taking up the matter with Central Government or with parliamentarians.

The Law, Reasonableness

The principle of reasonableness to determine whether a by-law, be it about licence fee or other matter, is ultra vires and therefore invalid is more difficult to apply. Courts have approached it with great caution, but have applied the principle when it was found appropriate to do so. Notable cautionary words of Lord Russell C.J. in his judgment on pages 99 to 100 in the English case of Kruse -v- Johnson (1898) 2QB91 are good reminders. Lord Russell C.J. said:

"But further looking to the character of the body legislating under the delegated authority of Parliament, to the subject matter of such legislation, and to the nature and extend of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness. Notwithstanding what Cockburn C.J. said in Bailey -vWilliamson (1), an analogous case, I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, "Parliament never intended to give authority to make such. rules; they are unreasonable and ultra vires." But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness

Page 12

can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the country, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of the validity of by-laws were to be determined by the opinion of judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide; for they reveal, as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be tested."

Lord Russell was deciding the reasonableness or otherwise of a by-law which prohibited singing or playing instrument in a road within 50 metres of dwelling house. It would be an offence if one sang or played instrument after a constable required him to stop. It was argued that the by-law was unreasonable because the offence did not depend on whether the singing caused annoyance and because a constable could unilaterally set the offence 'in motion. Lord Russell refused to declare the by-law unreasonable. Conviction of appellant who sang hymn was upheld.

The province chose not to file affidavit evidence or to adduce viva voce evidence to show what they took into account, apart from the aspect of raising revenue. On the other hand, the plaintiffs have made available extensive evidence on the issues. From the evidence available 1 do find that the province acted unreasonably when it set the licence fee at $150,000, especially when the rest of its business licensing fees and those of the Central Government in relation to procedures leading to granting of timber right and milling licences are noted. Applying the principle of reasonableness, 1 must conclude that the fee of $150,000 for exporting round logs, stated as the 83rd item in Schedule H to the 1995 Regulations, is unreasonable and ultra vires. The Western Province Business Licence Regulations, 1995 is, to that extend, ultra vires and invalid.

Licence Fee for 199411995

Page 13

Mr Sullivan sought supplementary declaration, asking the court to declare, "that there is no Regulation of the Western Province, presently in force validly imposing a licence fee in respect of round logs exporting." Both counsel did not assist court with research material as they most ably did in regard to the nature of tax. The question calls for consideration of two related questions as to.,

whether the entire Western Province Business Licence Regulations, 1995 is invalidated by the court invalidating the 83rd item in Schedule H to the Regulations;

2. whether when court has declared that the 83rd item in Schedule H

to the Western Province Business Regulations, 1995 and when the

previous Regulations including items therein about fee for round log

exporting have been revoked by the 1995 Regulations, a vacuum

exists in as far as the fees are concerned.

1 understand Mr Sullivan's submission to be that if the fee of $150,000 imposed by the 1995 Regulations is declared ultra vires then that fee falls away. In its place there can be no replacement because the 1995 Regulations had repealed the Regulations for the previous years, including the Western Province Business Licence Regulations, 1993 which came into force on 3113193. Further, the High Court, in Civil Case No. 234.94 Allardyce, Lumber Company Limited -v- The Premier of Western Province, had already declared that the fee of $10 per cubic metre imposed by the 1994 Regulations was ultra vires and, "of no effect." Mr Sullivan's submission assumes two things, 1. that the court has declared the entire Western Province Business Licence Regulations, 1995, to be ultra vires and, 2. That the court has declared the Western Province Business Licence Ordinance, 1995, under which the 1995 Regulations was made to be ultra vires. The Court has not done so. Rather it has found and may declare that the 83rd item in Schedule H is ultra vires when it imposed upto $150,000 as business fee for exporting round logs.

Page 14

Mr Sullivan relied for his submission, on S:23 (1) (a) which states:

23 (1) The repeal of an Act does not -

(a) revive anything (including an Act) that was not in force or existing immediately before the repeal took place.

1 doubt whether similar provisions elsewhere have always been strictly interpreted in revenue cases, especially where there has been a mistake in the statute. In any case, what the court has before it in this case is not a case of repealing an enactment, it is a case of an enactment being invalidated by court decision.

First 1 must explain here that the court has now declared the 83rd item in Schedule H of the 1995 Regulations, ultra vires. That has no effect whatsoever on the ordinance, namely the Western Province Business Licence Ordinance 1995, under which the Western Province Executive was authorised by the Western Province Assembly, to promulgate the Regulations. The relevant sections in the Ordinance are ss: 10 and 16 which 1 set out here:

10. Fees - (1) The fees for any business licence shall be determined by the Executive by way of subsidiary legislation PROVIDED HOWEVER that when an application for a business licence is made for a category of business not specified in this Ordinance Regulations made under it or any amendments, then the Executive shall determine an interim fee for that business to be paid by the applicant to enable the licence to issue, such fee to remain in force and to be included by amendment to Regulations made under this Ordinance as soon as possible.

16. Subsidiary Legislation - (1) Subject only to Section 10 hereof the Executive may make such Orders and Regulations as appear to them to be necessary or expedient for carrying out the objectives and provisions of this Ordinance and in particular (without prejudice to the foregoing) such Orders and Regulations may:

Page 15

(a) prescribe the forms and contents of any application, certificate, licence or authority required by this Ordinance;

(b) prescribe and define new categories of business;

(C) prescribe fees and matters relating to fees;

Nothing in those two sections can be attacked for being ultra vires either because of unreasonableness or because of being in excess of authority of s:28 of the Provincial Government Act. It follows that if the Province's executive acted ultra vires in one Regulations they have promulgated, they may abandon that and promulgate another because the authority to do so remains valid. If one or some of the Regulations or subregulations or only one or some items in a schedule to the Regulations is ultra vires, it may be possible to simply drop that or those ones. I shall revert to the point.

The position is more complicated as regards the effect on the Regulations as a whole, of the court invalidating one item, namely the 83rd item in Schedule H. From my reading of the case law in other jurisdictions, I note that there are divergent judicial views as to whether enactment which had been repealed is revived by the subsequent invalidation of the repealing one. It is my view that it is an area of Law still very much in the making or undergoing change. I shall mention a few of the cases I have read.

In the Australian case of Australian Silk Bros Proprietary Limited -v- State Electricity Commission of Victoria (1943) 67 CLR1 Latham C.J. decided that invalidating an amending regulation 7 which regulation had amended regulation 15, did not render the whole Landlord and Tenant Regulations invalid, and that amendments to the other regulations 3,4,5,9 and 13 were completely effective. However, his view about reviving repealed enactment was unequivocal that where the repealing words were unequivocal, courts must give effect to them notwithstanding the condition of the law after such repeal. In Commission of Taxation -v- Clyne [1958] HCA 10; (1958) 100 CLR 246, Dixon C.J. preferred the approach that the invalidated amendment be treated as "invalid ab initio," as a measure which it was never within competence to enact. The Act is to be read as if the

Page 16

amendment had never been made - see page 267. In the same case, although Webb, J. said it was not necessary for him to decide the question of severance of the invalid section he stated in no uncertain terms that it was the proper thing to do. On page 270 Webb, J. said:

111 see no reason why the remaining section should not be sustained as valid. 1 am unable to see such inter dependence between the one group of sections and the other that the excision of the one would destroy any scheme of income taxation embodied in this legislation; or any reason why the invalidating of a concession should result in no tax being payable by the tax payers intended to be benefited. That would be an absurb result not lightly to be attributed to Parliament in the fact of s:151. No re-writing of the legislation would be involved; plastic surgery would not be required; mere excision would suffice."

Some judges have approached the question of the effect of invalidating a repealing enactment, by determining whether the repealing enactment is of the nature of an amending as opposed to repealing enactment. If the invalidated repealer is of amending nature other than of repealing nature then the repealer is treated as if it had never taken place and the original legislation is regarded to exist as it was prior to the purported amendment - see judgment of Stephen J. This approach in my view is too theoretical and tends to add to the difficulty by introducing into the already difficulty issue, determination of features that are to qualify enactment as amending only as opposed to repealing.

An approach which I favour is that of looking at the whole Act or subsidiary legislation as fulfilling a purpose or purposes therein. If from doing so it becomes plain that the repealed or amended enactment was dropped so that the repealer may take its place, then should the repealer be invalidated subsequently, the repealed enactment is revived. That approach is justifiable under the golden rule. I for one would justify it by the cannon of intention of the legislature. In this case can it be said that it was the intention of the legislator, the Western Province Executive and to some extent, the Provincial Assembly, to collect no business fee at all for exporting round logs in the event that the replacement enactment, the fee of $150,000 is invalided? I do not think so. It appears to me that in revenue cases, where the legislator replaces a charge with one which is subsequently invalidated, the intention would be to stop collecting the old charge

Page 18

Costs

The Western Province Business Licence (Amendment) Regulations, 1992, at the first item in sub-regulation 2 (b) (iii) is revived to the extent, but only to the extent that the licence fee of $50,000 per annum for the business of exporting round logs is revived. That fee remains payable for the years affected by the court having invalidated fees which would have applied, but for invalidation, and until replaced by valid fee.

I have not decided costs because I consider that I require submission on it; counsel did not address court on costs during hearing. I suggest that when counsel make submission about costs, consideration be given to the fact that this case raised complicated question of law; the implication go beyond the interests of parties in this case, and to the fact that parties actually agreed on taking this case to court before their rights or authority is enforced. Parties may apply to the Registrar for a date. Should they agree on costs, it is requested that they file a copy of the agreement at Court.

Delivered this 18th day of November 1996
At the High Court
Honiara

Sam Lundgole-Awich
Judge