Saki v Ross Mining (Solomon Islands) Ltd [1997] SBHC 97; HC-CC 169 of 1997 (19 December 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 169/97

SAMUEL SAKI & OTRS

-V-

ROSS MINING (SOLOMON ISLANDS) LIMITED AND OTRS

(Palmer J.)

Hearing: 7th October, 1997
Ruling: 19th December, 1997

R.V. Gyles QC and J. Griffiths and A. Radclyffe for the Applicant/First and Second Defendants
C. Ashley for the Respondents/Plaintiffs

PALMER J.: There are two applications in this case which seek a number of orders. The first summons seeks orders for the present proceedings to be dismissed pursuant to Order 27 Rule 4 of the High Court Civil Procedure Rules. The grounds relied on were that the pleadings disclose no reasonable cause of action or, alternatively, that the proceedings are vexatious and an abuse of process. Alternatively, the First and Second Defendants seek that those parts of the Statement of Claim which purport to be a representative proceeding be struck out.

The second seeks orders inter alia, for the solicitor on the record for the Plaintiffs to produce to the Court and for inspection by the Defendants his authority to act and any retainer in the proceedings for persons listed in paragraph 1 of the summons. If the Plaintiff’s solicitor fails to do so that the person’s name be deleted from the Writ.

The Applicants rely on three primary grounds for their contention that the pleadings in full or in part disclose no reasonable cause of action or otherwise relate to an action which is vexatious and an abuse of process.

The first ground relied on is that the allegations of threat to discharge material from the mining operations into the Matepono River are based upon pure speculation or surmise.

On the question whether this supports the submission that no reasonable cause of action is disclosed, if I am to confine myself to the pleadings, it is my respectful view that it cannot be said that the alleged cause of action is certain to fail. If it could be proven, then definitely there would be a cause to be argued on the case. If this were the only ground submitted, then it would have been dismissed.

However, the Applicants also seek to submit that the claim is vexatious and an abuse of process. When this is considered the submission of pure speculation and surmise does take on a different light. Here I find the affidavit material of Mr Radclyffe on environmental issues filed on 30th September, 1997, directly relevant. At paragraph 6 of his affidavit, he deposes to the following:

"All tailings will be deposited in tailings dams and will be contained on site. Two tailings dams (and a water return dam) are being built, with a third tailings dam to become operational around year 3 of the Gold Ridge Mine Project. Construction of the tailings dams will be completed in advance of the commencement of mining operations at the Gold Ridge Mining Project, which is scheduled to occur in or around June 1998. None of the tailings or any other material related to the conduct of mining operations at the Gold Ridge Mine site will be discharged into the Matepono River."

Paragraph (7) of the same affidavit describes the design, construction and operation of the tailings dams. In paragraph (8) he deposes what will be done with waste rocks. Paragraph (10) simply reiterates the stance of the Applicants as to the question of discharge of materials into the Matepono River.

" . . . Neither Ross Mining, nor the First and Second Defendants threaten to discharge and pass or cause to be discharged and passed into the Matepono River any ore, refuse, effluent, tailings, waste products and/or poisonous substances in connection with its preliminary or other mining operations at the Gold Ridge Mine."

The affidavit material as to the discharge of the waste materials from the mining operations couldn’t be clearer. They all emphasise the point that contrary to the claim of the Plaintiff, they do not threaten in any way to discharge and pass or cause to be passed into the Matepono River, any ore, refuse, effluent, tailings, waste products and/or poisonous substances emanating from or used in connection with the mining operation.

In contrast, no document, evidence or material has been produced by the Plaintiffs in support of its alleged claim, when challenged by the Applicants. All that the Plaintiffs could refer to was some unidentified environmental investigations conducted on their part (see paragraph 16 of his Answers to Request for Further and Better Particulars of Statement of Claim). No evidence and particulars of those "environmental investigations" have been produced to support their claim and to respond to the very clear and direct affidavit material on the point by Mr Radclyffe. That with respect does not advance the Plaintiff’s case any further. I also note that at paragraph 16 of their Statement of Claim they acknowledged that they were unable to supply further details until discovery had been obtained from the Defendants. With respect, this can only amount to a clear admission that the Plaintiffs do not have any material on which to base their allegation on. What do they hope to discover which would assist their case, when the affidavit material which the Applicant seeks to rely on clearly contradicts their allegations? The answer must clearly be "nothing".

On the affidavit material before me, I am satisfied the claim of the Plaintiffs is devoid of all merit and cannot possibly succeed. It is correctly described by Mr Gyles as hopeless and bound to fail. To that extent, it can be rightly described as disclosing no reasonable cause of action. At the end of the day, not only do I find that the claim is vexatious and an abuse of process but that it also discloses no reasonable cause of action on the affidavit material before me and therefore ought to have been dismissed.

I am satisfied this Court has authority to dismiss a claim based on speculation and surmise (see Pearce v. Ove Arup Ltd. (Ch. D.) 2 W.L.R. 779 at page 791 per judgment of Lloyd J.). Also in Steamship Mutual Underwriting Association v. Trollope & Colls (1986) BLR 77, 86-87; May LJ made the following pertinent comments:

"Those who make charges must state at the beginning what they are and the facts upon which it is sought to base them. If they do not, they must not be surprised if defendants - named in the proceedings, but against whom no action is taken - when they wake up, take appropriate steps to put an end to what I have described as the "inanimate litigation"."

Also see the case of Upjohn Co v. T Kerfoot & Co Ltd [1988] FSR 1, where the claim was dismissed based on the finding of the learned Judge on the affidavit evidence before him that the pleadings did not disclose any reasonable cause of action. I too come to the same conclusion reached by the learned Judge above when the pleadings in this case are considered in the light of the affidavit evidence filed in this case.

In A-Z Couriers Ltd v. Comspec Computer Software Ltd, unreported decision of Aldous J. 9 November, 1988 at page 7, the learned Judge held that it was an abuse of process to commence an action based on suspicion and speculation in the hope that something may turn up on discovery.

The Plaintiff’s case to a certain extent is very similar. It is all based on suspicion and speculation that the Respondents will discharge materials into the Matepono River when the mining operation gets underway, without any proper factual basis and a mere hope that something advantageous may turn up on discovery. I am satisfied that is also an abuse of process.

The ground that the claim is vexatious and an abuse of the courts’ process most certainly must succeed. But also I am satisfied, that when the pleadings are considered in the light of the evidence before me, I find that the pleadings do not disclose any reasonable cause of action and that accordingly the action can be dismissed on either ground.

That effectively deals with the Applicant’s application but for completeness sake, I will address the other grounds raised.

The second ground raised relates to the relief sought; that of a quia timet injunction. In Attorney-General for Dominion of Canada v. Ritchie Contracting and Supply Co. Ltd. [1919] A.C 999 at 1005, per judgment of Lord Dunedin, his Lordship states:

"But no one can obtain a quia timet order by merely saying "Timeo"; he must aver and prove that what is going on is calculated to infringe his rights."

In other words, a quia timet injunction will be granted only to restrain an apprehended or threatened injury where the injury is certain or very imminent. A mere fear of threatened harm or damage without more is not sufficient. In the facts of this case, there is little material before this Court to support the allegations of the Plaintiffs that the injury perceived is certain or very imminent. Rather, the affidavit evidence shows the opposite.

In "Snell’s Equity", 29th Edition page 651, quoted by Mr Gyles, the learned Authors point out that the Plaintiff must:

". . . establish a strong case; "no one can obtain a quia timet order by merely saying ‘Timeo’." He must prove that there is an imminent danger of very substantial damage, or further damage, eg by showing that the threatened act is "attended with extreme Probability of irreparable Injury to the Property of the Plaintiffs, including also Danger to their existence".

The emphasis it will be noted is on the imminence and certainty of the damage or harm alleged. That with respect has not been shown in this case. Whilst there is no doubt or uncertainty about the mining operations going ahead, it has not been shown to my satisfaction that there is a real possibility (not even a faint possibility) that material from the mine will be discharged into the Matepono River, and that even if that were the case it will cause damage as alleged. The Applicant’s position is that not even any discharge will be made into the said River.

In Equity and Trusts in Australia and New Zealand by G E Dal Pont and D R C Chalmers at page 594, the learned Authors made the following pertinent comments:

"In a quia timet application, the plaintiff must show a strong probability that what the defendant proposes to do will cause imminent and substantial damage to the plaintiff’s property or business. The greater this apprehended damage, the more readily will the Court intervene despite uncertainties and deficiencies of proof. The plaintiff must demonstrate a causative connection between the allegedly wrongful behaviour of the defendant and the inevitability of the loss to the plaintiff if such action is not restrained forthwith. This onus will not be discharged where the fear existing in the plaintiff’s mind arises, not from anything done or threatened by the defendant, but from the plaintiff’s own view of her or his rights and disabilities."

With respect, there is little that can be said in support of the allegation that waste materials from the mining operation will be discharged into the Matepono River. The Plaintiffs have failed to show a strong probability that the mining operations will cause imminent and substantial damage to the Plaintiffs property, business or livelihood. Whilst a fear might exist in the mind of the Plaintiffs, this has not been backed up with the necessary causative link between the alleged wrongful behaviour of the defendant and the harm or damage to the Plaintiffs. (See also Fletcher v. Bealey [1885] UKLawRpCh 24; (1885) 28 Ch D 688, 698; Attorney-General v. Manchester Corporation [1893] UKLawRpCh 40; [1893] 2 Ch 87, 92; The Commonwealth and the Postmaster-General v. The Progressive Advertising and Press Agency Company Pty Ltd [1909] HCA 88; (1910) 10 CLR 456, 461 per Griffith CJ; Royal Insurance Co Ltd v. Midland Insurance Co Ltd (1908) 26 RPC 95, 97 and Bendigo and Country Districts Trustees and Executors Co Ltd v. Sandhurst and Northern Districts Trustees Executors and Agency Co Ltd [1909] HCA 63; (1909) 9 CLR 474; cases cited by Mr Gyles in support of his submission against the granting of a quia timet injunction).

When the principles enunciated in those cases are applied, I am satisfied the Plaintiffs have pointed to no material to support their allegations and that accordingly there is no way this court would consider granting the orders sought in any event. At least, some material should have been adduced by the Plaintiffs in support of their allegations but with respect, none has been produced.

The third ground relied on by the Applicants, stated simply is that the Plaintiffs are not privy to the Mining Agreement relied on and therefore cannot have standing to seek to enforce the terms of that Agreement as set out in paragraphs 32 to 38 of their Statement of Claim. In paragraph 36 of the Statement of Claim, the Plaintiffs claim that:

". . . the benefit of the Agreement and covenants given by the First and Second Defendants to the Government of Solomon Islands ("the State") and contained therein would be held in trust by the State for, and on behalf of, inter alia, the Plaintiffs and the represented persons and each of them."

The Applicants argue that there is no basis in law for this claim. With respect, I agree. The State does not stand in any fiduciary or confidential relationship to the Plaintiffs in this case. To try and bring in the Plaintiffs within such a relationship in my respectful view is like clutching at thin air. The rightful persons entitled to claim the benefits of those Agreements are the parties to those Agreements. But even if it could be argued that the State was a trustee for the Plaintiffs under those Agreements, any action to be taken would have to be against the State and not directly against the Applicants. The action of the Plaintiffs with respect is misconceived, and cannot be sustained. I am satisfied it amounts to an abuse of process and should be struck out.

This brings me to consider paragraph (2) of the Amended Summons filed on 20th August, 1997. The Applicants submit that the representative capacity of the Plaintiffs in this case is inappropriate and therefore an abuse of the Courts process.

The answer to this is quite simple. The Plaintiffs are entitled to sue and be sued on behalf of or as representing such community, line or group which they claim have authorised them to act on their behalf (see Order 17 Rule 8 of the High Court (Civil Procedure) Rules 1964). The Plaintiffs however have gone further and allege that they have been authorised to represent the persons listed in Schedule B to the Statement of Claim.

It would appear that Rule 9 of Order 17 is being relied on here by the Plaintiffs. The Applicants take objection to this approach in that they allege that the class of represented persons is not sufficiently defined or certain. With respect I must disagree. Paragraph 9 of the Statement of Claim makes clear that each of:

". . .the represented persons holds the position and has the characteristics, rights and privileges alleged in paragraph 7 hereof, and has the same interest in this proceeding as each other represented person and each of the Plaintiffs in this proceeding."

Paragraph 7 of the Statement of Claim reads:

"Each of the Plaintiffs is:

(a) a possessor and occupier, together with other members of the Ghaobata, Thogo, Lathi, Thimbo and Nekama tribes, of certain land adjacent to the Matepono River in north eastern Guadalcanal ("the said Land");

(b) the owner, together with other members of the Ghaobata, Thogo, Lathi, Thimbo and Nekama tribes, of the said Land;

(c) a riparian proprietor by custom of, and/or entitled to the customary right, together with other members of the Ghaobata, Thogo, Lathi, Thimbo and Nekama tribes of the beneficial use of water in its ordinary state from

(i) the Matepono River; and

(ii) the Floodplains of the Matepono River ("the Floodplains");

adjacent to or in the vicinity of the said Land."

As far as the question of representation in custom by community, line or group is concerned, the class of representation is adequately identified.

As to the question of whether those persons have the same interest or cause, again I am satisfied the particulars do make clear what their interest and cause is.

The area of uncertainty in my respectful view lies with the list of persons in Schedule B to the Statement of Claim. It is not clear whether the persons listed in that Schedule are members of the same community, line or group which the Plaintiffs claim to represent. To that extent I agree with the submission of Mr Gyles that it is unclear whether those persons do have the same interest in the cause or matter before this court. The proper course of action to take would be to require the Plaintiffs to clarify the class to which those persons in the list in Schedule B belong to for purposes of identifying what rights or interest they have in the cause or matter. That however is not necessary in view of the ruling of this court in accepting the submissions of the Applicants as to abuse of process.

This brings me finally to consider the submission of retainer in the second summons filed also on the same date. There is evidence which shows that some individual members of some of the tribes are opposed to the alleged representation (see Affidavit of Stephen Panga sworn on 10 September 1997 and Affidavit of Ben Tom Gagavo sworn on 10 September 1997). In the circumstances, the Plaintiffs’ Solicitor would have been obliged to produce his authority and retainer to commence and continue with the said proceedings on behalf of the Plaintiffs. And where this had not been done, then the proper course would have been to require him to do that by order of the court, failing which the names of those persons from the Writ of Summons should be deleted. I see no reason however to require Counsel on the record for the Plaintiffs to produce his authority and retainer in view of the ruling of this court that the proceedings be struck out as vexatious and an abuse of the courts process and also as disclosing no reasonable cause of action.

ORDERS OF THE COURT:

1. Strike out pleadings as vexatious and an abuse of process, and also as disclosing no reasonable cause of action.
   

2. Consequently order that the action be dismissed with costs.

THE COURT.