Earthmover Solomon Islands Ltd v Solomon Islands Union of Workers [1998] SBHC 147; HCSI-CAC 01 of 1998 (1 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Palmer J.)

Civil Appeal Case No. 1 of 1998

EARTHMOVER SOLOMON ISLANDS LIMITED & OTRS

-V-

SOLOMON ISLANDS UNION OF WORKERS

Hearing: 1st May, 1998
Ruling: 1st May, 1998

J. Moti for the Applicant/Appellant
C. Ashley for the Respondent

PALMER J.: The Applicants apply by summons filed 1st April, 1998 for an order that all proceedings for the enforcement and execution of the Award of the Trade Disputes Panel dated 4th February, 1998 be stayed pending an appeal from the decision of the Trade Disputes Panel to this Court.

The Applicants rely on Order 60 Rule 7 of the High Court (Civil Procedure) Rules, 1964 and on the inherent jurisdiction of this Court in the exercise of its appellate jurisdiction.

Rule 7 of Order 60 reads as follows:

"An appeal shall not operate as a stay of execution or of proceedings under the judgement or decision appealed from except so far as the Magistrate's Court or the Court may order; and no intermediate act or proceeding shall be invalidated, except so far as the Magistrate's Court may direct."

Clearly, it cannot be said that rule 7 of Order 60 does not give jurisdiction to this court to decide when an application is made for the stay of a judgment or decision in the Magistrate's Court. The crucial words are "except so far as the Magistrate's Court or the Court (meaning the High Court) may order". This Court therefore may order that the proceedings in the Magistrate's Court be stayed pending an appeal.

As to the inherent jurisdiction of this court to order a stay pending appeal that is trite law.

The situation regarding appeals from the Trade Disputes Panel however is governed by the Trade Disputes Act, 1981. Section 13 of the Trade Disputes Act states:

"An appeal shall lie to the High Court on any question of law arising from any decision of, or arising in any inquiry before, the Trade Disputes Panel under this Act."

Section 13 however does not mention anything about powers of this Court to order any stay of an order or decision of the Panel. In those circumstances, assistance must be sought from the High Court Civil Procedure Rules and the inherent jurisdiction of this court. I am satisfied this Court has jurisdiction in the exercise of its appellate jurisdiction to grant a stay or not where that has been sought. The issue however before me is whether the discretion of the court should be exercised in favour of the application.

In order to understand the full impact of this application and the reasons for it, regard must be had to the award of the Panel. That award read inter alia:

". . . (ii) That the dismissed workers to be re-instated with effect from the date of termination.

(iii) The employer party to pay to all the employees represented by the union an increase of 10% across the board on wages, allowances and incentives with effect from 1st January, 1997."

The effect of this award with respect to section 9(3) of the Trade Disputes Act imposes a duty on the Applicant to comply with the award. Subsection 9(4) in turn permits the Respondent in this case to make application to this court to for an order that the Applicant/ Appellant had breached its duty pursuant to subsection (3). It would seem to be for the avoidance of breaching these particular provisions that the application is made so that the Appellant is seen not to be in breach of statute law. It does give the impression that the Applicant is not trying to defy or is refusing to comply with the award of the Panel, but is simply seeking to exercise its legal and constitutional right to have the litigation taken to its full course by way of appeal. That must be respected.

On the other hand, the point raised by Mr Ashley that this being essentially an industrial matter and that it is vital that the parties must be allowed or given room to communicate and negotiate right up to the hearing of the appeal, a valid point. In normal circumstances, an order for a stay would have been granted. In the particular circumstances of this case, bearing in mind the industrial nature of this case, the fact that the appeal is only about 19 days away, and the fact that even if the Respondent were to seek to have the award enforced that it would have to make application to this court first, and that no prejudice would be incurred by the Respondents as well as the Applicants, this court will refuse to exercise its discretion in favour of the application for a stay.

On the issue of costs, in my respectful view, the proper order would be costs in the cause.

ORDERS OF THE COURT:

1. Refuse application for stay.

2. Costs in the cause.

ALBERT R. PALMER
THE COURT.