Maesimae v Trade Disputes Panel [1998] SBHC 68; HC-CC 281 of 1997 (29 June 1998)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 281 of 1997

MARK MAESIMAE

-v-

TRADE DISPUTE PANEL

(Awich J.)

Hearing: 24th June 1998
Judgment: 29th June 1998

Mr. Leslie Kwaiga for Applicant
Mrs. N.A. Tongarutu Chairperson of Trade Dispute Panel for herself

JUDGMENT

LUNGOLE-AWICH J.: The case that was before Court last Wednesday, 24.6.1998 was an application of Mr. Mark Maesimae, by summons dated 8.6.1998 filed on the same day. In the application Mr. Maesimae asked the Court to commit to prison, the Chairperson of Trade Dispute Panel (The Panel). The Chairperson is Angelina Nuatali Tongarutu. The reason given by Maesimae was that Tongarutu had failed to comply with the order of this Court made on 27.3.1998, in that she had not pronounced the decision of the Panel and 21 days had elapsed.

This Court heard the substantive case of Maesimae on 17.3.1998 for order of mandamus to issue compelling the Panel to pronounce its decision in a trade dispute case referred to the Panel, which the Panel heard on 11.12.1996 (Tongarutu gave the date as 11.11.1996). The Court gave judgment dated 27.3.1998; it made order that mandamus was to issue requiring the Panel to pronounce its decision within 21 days of the date of the judgment (27.3.1998), and that in the event of failure to comply, the chairperson of the Panel would be personally liable for contempt of court.

When this present case, the application for committal, was presented, a lot of irrelevant submissions were made. The submissions would have been relevant during the hearing of 17.3.1998 in the case for mandamus. In this application all that was relevant and in issue was whether the respondent, Tongarutu, faced with application for her imprisonment, could show that she had complied with the order of this Court made on 27.3.1998, and if not, whether she had any explanation acceptable to Court why the order had not been complied with. Proof that there was no contumacy or mens rea is not always defence - see the English cases of Re H’s Settlement [1909] UKLawRpCh 86; [1909] 2 Ch 260 and The Milage Conference Group of Tyre Manufacturers Conference Ltd. Agreement [1966] 1 WLR 1137.

Tongarutu filed two affidavits; one sworn on 18.6.1998 and filed the same day, the other, sworn on 24.6.1998, the day of the hearing of the application and filed the same day. In the affidavit of 18.6.1998 Tongarutu gave two explanations for non compliance. The first was that she had not been served with a copy of the judgment and the second was that the Panel had right of appeal. The grounds were stated in several paragraphs among them paragraph 4 which I quote here:

"4. I have not released the Panel’s Decision to the Applicant party after the said Judgment was delivered for the obvious reason that I have not received a copy of the Judgement and that the Panel has a right to an appeal if it considers it proper to do so."

The first reason may be sustainable because in a matter, the result of which is penal, there must be service, of the court order disobeyed and preferably personal service. If there is difficulty in effecting personal service, Court order for substituted service may be obtained. The second reason is baseless and I would not hesitate to send Tongarutu to prison simply because she says she has right of appeal. Assuming that there is right of appeal against order for contempt made by the Superior Court, the High Court, in a civil matter, she will have to note that court order takes effect immediately unless an application giving good reason is made for staying the order.

In this case Order 45 rule 7 of the High Court (Civil Procedure) Rules authorises the Court to enforce its order in a case like this one, "by writ of attachment or committal", which simply means by imprisonment until the contemnor complies or until such time as the Court considers the imprisonment has been adequate punishment. Tongarutu must take careful note of that. Judges or magistrates do not derive pleasure in imprisoning, rather they do it at their great displeasure as a matter of duty required by the law, and they carry out the duty without fear, favour or ill-will.

I have decided not to issue order for imprisoning Tongarutu in this case. The main reason is because she finally came to her senses and attached to her second affidavit, a copy of the decision of the Panel in Maesimae’s case, the decision required. Surprisingly it is dated 6.5.1997. It is not necessary to decide whether that date has been falsely stated. The important thing is that the decision is now available. I do not believe it was sent to Mr. Suri who was solicitor for Maesimae at the time. Affidavits show that much was done to get the decision, if it was available with Mr. Suri or somewhere as a decision already pronounced, it would have been obtained in the course of the much effort. Moreover, a copy would have been sent to the Minister as a requirement under the Trade Dispute Panel Act. It would also have been formally pronounced and Maesimae would most likely have attended during the pronouncing. The other reason why I have decided not to imprison Tongarutu is that service of the order in the judgment of 27.3.1998 should have been personal or otherwise only by order of court. The application for imprisonment of Tongarutu is refused and dismissed.

Costs must, however, be granted to Maesimae, against the Trade Dispute Panel although he has not been successful. He has been put through all this trouble by the Panel’s inaction over a long time. It is something that a conscientious chairperson should be embarrassed about.

This is a second case in which people have come to the High Court asking that the Trade Dispute Panel be compelled to do its work. What the Court should be expecting are appeals against decisions of the Panel not cases about inaction. The Registrar is to send a copy of this judgment to the Attorney-General and the authority responsible for ensuring that there is a Trade Dispute Panel which does its work. The judgment is sent for information of the authority, it is not to be understood that the Court recommends any particular action. How the authority uses the information is an administrative matter, the function of the Executive facet of the State.

Delivered this Monday 29th day of June, 1998.
At the High Court.
Honiara, Solomon Islands.

Sam Lungole-Awich
JUDGE
High Court of Solomon Islands.

COURT: It is noted that Tongarutu, the Respondent was not in Court. Mr. Kwaiga was also not in Court. Mr. Maesimae who was in Court did not get any message from Mr. Kwaiga.

Sam Lungole-Awich

JUDGE

High Court of Solomon Islands.