Gatu v Solomon Islands Electricity Authority [1998] SBHC 72; HCSI-CC 59 of 1997 (11 May 1998)

IN THE HIGH COURT OF SOLOMON SILANDS

Civil Case No.59 of 1997

GORDON BILLY GATU

v

1. SOLOMON ISLANDS ELECTRICITY AUTHORITY

2. ATTORNEY GENERAL

3. GOLD RIDGE MINING COMPANY LTD

High Court of Solomon Islands
(Lungole-Awich, J)
Civil Case No. 59 of 1997

Hearing: 6 February 1998
Judgment: 6 February 1998, (Reasons 11. 5. 1998)

P.G. Nash and C. Ashley for the Plaintiff
A. Nori for First Defendant
W. Titiulu for Attorney General, Second Defendant
A. Radclyffe for Third Defendant

JUDGMENT

LUNGOLE-AWICH, J: Application to Strike Out: On 6.2.1998 I heard application of the Attorney General, now the second defendant, after Attorney General had been named in the suit, in place of, “David Vouza, Minister for Energy, Mines and Minerals”, for order that “the proceedings commenced”, by the plaintiff, Billy Gatu, by “originating summons be dismissed.” The originating summons referred to was dated 10.3.1997, filed the same day. The grounds that Attorney General gave were that: 1. the plaintiff’s case is frivolous, vexatious and abuse of court process, and 2. the plaintiff has no standing to litigate on the issues he raised in the originating summons in the form of questions 2 to 8. So the orders that the Attorney General applied for were in all, order to strike out the grounds for reliefs in the originating summons, and order to dismiss the summons following striking out. I gave my ruling and stated that the reasons would be filed. These are the reasons.

I begin by setting out the application in full, it states this:

SUMMONS

LET the parties appear before a Judge in Chambers at the High Court, Honiara on Monday the 2nd day of February 1998 at 9 o’clock in the fore noon on the hearing of an application by Minister for Energy, Mines and Minerals of P O Box G37, Honiara for the following Orders:

1. The proceedings commenced pursuant to the Originating Summons be dismissed pursuant to order 27 rule 4 and/or pursuant to the Honourable Courts inherent jurisdiction as being frivolous, vexatious and constituting an abuse of process.

2. That the Plaintiff has no standing to litigate questions 2 to 8 of the Originating Summons as they do not seek declarations regarding the Plaintiffs rights.

3. Such further or other orders as the court deems fit:”

Plaintiff’s Originating Summons and Notice to Hear it

The determination and declarations that the plaintiff asked for in his originating summons are 8 long ones with sub-divisions. Some of them are disguised in statements which are of facts and others are stated as if they are submissions. It is best to quote them here for understanding them and understanding this judgment, I set out below, the originating summons in full.

The originating summons:

“

ORIGINATING SUMMONS

Let:

Solomon Islands Electricity Authority of Mendana Avenue, Honiara, and David Vouza, Minister for Energy, Mines and Minerals of Lengakiki, Honiara within 8 days after service of this summons on them, inclusive of the day of such service, cause an appearance to be entered for them to this summons, which is issued upon the application of Gordon Billy Gatu of Lengakiki, Honiara who claims to be:

(a) the current chairman of the Solomon Islands Electricity Authority;

(b) aggrieved by the purported revocation of his appointment and the appointments of his fellow members of the authority;

(c) aggrieved by the improper constitution of the members of the authority in breach of the provisions of the Electricity Act and otherwise;

(d) aggrieved by the purported resolutions of the improperly constituted Authority; and

(e) affected by the actions of the Authority which are in breach of the provisions of the Electricity Act, ultra vires and of no effect.

for the determination of the following questions:

1. Whether the following persons are members of the Solomon Islands Electricity Authority (“the Authority”):

Gordon Billy Gatu

Gina Tekulu

John Gorosi

Joseph Hasiau

Charles Dausabea

Michael Maina

Daisy Betu

Kaipua Kohi

Moon Pin Kwan (“the existing members”).

2. Whether the purported appointment of the following further members of the Authority:

John J Naitoro

Waeta Ben Tabusasi

Director of Energy, Ministry of Mines and Energy

Town Clerk, Honiara Town Council

Hugh Paia and

Albert Laore

made by notice in the Solomon Islands Gazette number 4 of 1997 dated 21st January 1997 (“the second notice”) is void and of no effect.

3. Whether the purported appointment of the following further members of the Authority:

John H Naitoro

Waeta Ben Tabusasi

Francis Orodani

Town Clerk, Honiara Town Council

Hugh Paia, and

Albert Laore (“the purported new members”)

made by notice in the Solomon Islands Gazette number 6 of 1997 dated 27 January 1997 (“the third notice”) is void and of no effect.

4. Whether the Minister is able to delegate his power pursuant to sections 4 (1) and 4 (3) of the Electricity Act to appoint and remove members of the Authority to the Permanent Secretary, Minister of Energy, Mines and Minerals.

5. Whether, in breach of section 4 (1) (b) of the Electricity Act, there are more than two members of the Authority who are public officers, namely:

John H Naitoro, Permanent Secretary, Ministry of

Energy, Mines and Minerals.

Joseph Hasiau, Town Clerk, Honiara Town Council

Hugh Paia, Head of Policy Evaluation Unit, Ministry of Development Planning.

6. Whether the exercise of the discretion of the Minister for Energy, Mines and Minerals to appoint the purported new members of the Authority miscarried and/or was ultra vires, void and of no effect having regard to all or any of the following matters:

(a) the physical and mental incapacity of the Minister at the time of his appointment of the purported new members of the Authority; and/or

(b) the fact that the Minister did not sign any instrument of appointment of the purported new members and that second notice and the third notice were published or caused to be published by John Naitoro, the Permanent Secretary, Ministry of Energy, Mines and Minerals; and/or

(c) the fact that the appointment of the purported new members were made solely to enable the making of a resolution by the Authority that a licence be issued to Gold Ridge Mining Co. Ltd under section 31 of the Electricity Act (“the purported resolution”).

7. Whether the notice of the meeting of the Authority held on 29 January 1997 which was only given to the purported new members of the Authority constituted proper notice of the meeting, and accordingly, whether any resolutions of the Authority at that meeting were void and of no effect.

8. Whether the purported resolution of the Authority was void and of no effect having regard to all or any of the following matters:

(a) the failure to give proper notice of the meeting to all of the current members of the Authority; and/or

(b) the fact that the members of the Authority who attended the meeting and decided upon the resolution were invalidly appointed; and/or

(c) the fact that more than two members of the Authority at the time of the purported resolution were public officers; and/or

(d) that more than two of the members of the Authority who constituted the quorum at the meeting which decided upon the purported resolution were public officers.

DATED the 10th day of March 1997

......................................

A & A Legal Service Advocate for the Plaintiff”

The originating summons was filed together with notice to hear it, dated the same day as the originating summons. The notice did not just state notification of date and time of hearing, it also repeated the 8 questions in the originating summons and added new ones, but stated them as declarations sought, and in addition asked for 2 injunction reliefs, namely: 1. order restraining the first defendant, Solomon Islands Electricity Authority (SIEA), from carrying out any “function under the Electricity Act pursuant to any resolutions, directions........, of the new board,” and 2. order restraining the first defendant from issuing any licence to Gold Ridge Mining Company limited. The company was not even named as a party at the time, but got itself joined as the third defendant by its own application on 14.5.1997, which application the plaintiff unsuccessfully opposed.

The plaintiff would expect the defendants to respond and argue their way out of that maze of some 20 questions and reliefs, covering 3 pages, if the defendants are to succeed in their defences. I am not surprised that learned counsel Mr. Titiulu, the representative of the Attorney General, faced with those long and winding questions and their supplementaries, decided to take up the points in his two grounds, for order to strike out the originating summons all together or at least questions 2 to 8. He may have hoped that the verbous summons would, at least, be cut down to small and easy to follow size. He raised his application in court on 2.2.1998, the date of hearing, and asked for adjournment. The other parties agreed to enable him to prepare and present his application which they agreed to have the court determine before the hearing of the originating summons. Mr. Nori said he agreed although he would have thought the grounds taken by the Attorney General could simply be raised. The hearing of this application followed from that.

Notice Struck Out

Order 57 rule 6 of the High Court (Civil Procedure) Rules, states what are required in notice to hear originating summons. The rule even states that the format is form No.4, in Appendix H. All that are required are notice of the time and date of hearing the originating summons, usually served already, and warning that the court may proceed to make orders in the absence of the party not attending. There is no requirement that the questions for determination or the declarations sought be repeated or that issues be stated or repeated in the notice. Adding issues would, in fact, be effecting amendment of the originating summons simply by the notice. It is undesirable that the issues for determination or declarations sought be repeated in the notice, it invites the risk of adding new issues to the case as we have seen done here. I order that apart from the citation (court case number and parties), the time and date of hearing, the necessary dating and signature and the rest of the format, all the other matters stated in the notice to hear originating summons, dated 10.3.1997 and filed at 10:30 the same day, are struck out as irregular matters in the notice. The appointed day for hearing has now past. It was not possible to hear the originating summons on the day because interlocutory application to join Gold Ridge Mining Company Ltd was filed and had to be dealt with first; now the Attorney General has taken up a point of law and raised preliminary application which again has to be dealt with before the main hearing.

Questions for Determination Reformulated

In the originating summons itself there are statements that should not have gone in. I consider that all the questions therein for determination can be consolidated into a mere 2 for purposes of deciding whether the plaintiff has locus standi, or whether the plaintiff’s case is frivolous and vexatious and or an abuse of court process. The plaintiff did not ask for any reliefs in the originating summons. He did in the notice which I have already struck out as irregular. Once he filed his originating summons he needed leave to amend it, he has not applied for leave, he cannot be allowed to amend his originating summons by simply slipping in irregular document. I shall not include reliefs in my formulation of the questions to be determined. Of course declarations in a case where the plaintiff has sufficient interest always points to the fact that relief may be available should the plaintiff pursue it.

The statements that appear in sub-paragraphs, (a) (b) (c) (d) and (e) of the first paragraph of the originating summons are statements which should have been included in affidavit in support. They simply state the facts that the plaintiff’s appointment as Chairman of the board of SIEA was revoked together with the appointments of the members of the board, the plaintiff was aggrieved; he believes that he is still chairman. He has also been aggrieved by the new board having passed a resolution granting licence to Gold Ridge Mining Company Ltd, to generate electricity. All the questions consolidated, would simply be these:

1. Whether the revocation of the appointment of the plaintiff as chairman of SIEA Board and the revocations of the appointments of those who were members of the board at the time, were lawfully effected in terms of section 4 of the Electricity Act, and;

(a) if the revocations were not lawful, whether the plaintiff and the members are to be regarded as having retained the functions and authority of the board to date, or whether they should be regarded as having ceased to carry out the function’s and to exercise the authority of the board, or

(b) if the revocations were lawful, whether the appointments of the new Chairman and members of the board were invalid anyway in terms of section 4, because of delegation by the Minister, of his power to appoint members and chairman of the board, and because of defect in publication of the appointments in the gazette.

2. Whether the resolution of 29.1.1997, granting licence to Gold Ridge Mining Limited was valid or not.

The rest of the details stated over 3 pages are details suitable for submissions by counsel, the details should have not been stated in the originating summons.

Locus Standi

I start my determination of the application of the Attorney General with consideration of ground numbered 2, the standing of the plaintiff in the case, because the question of locus standi, the standing of the plaintiff, Mr. Gatu, in this case, is an important one; if the plaintiff has no standing, the whole case, however strong it may be against the defendants, in favour of some other person, not Mr. Gatu, the case must be struck out. It would be no business of Mr. Gatu. A person’s standing is his own legal position in the facts of the case, which links him to the remedy or liability in the case.

Mr. Titiulu submitted that the plaintiff has no sufficient connection with the matters he raised in paragraphs 2 to 8 of the originating summons; they are not matters that link the plaintiff to any relief in law. He urged the court to hold that the plaintiff has no standing in those questions, and so the court was to strike them out. Mr. Titiulu’s submission was supported by the submission of learned counsel, Mr. A. Nori, for SIEA, the first defendant, and of learned counsel, Mr. A. Radclyffe, for the third defendant. Mr. Radclyffe submitted that the plaintiff’s case concerning the licence granted by the first defendant to the third defendant to generate electricity, was an abuse of process, the plaintiff merely intended it to tie down the third defendant for a long time in litigation. Mr. Radclyffe produced a letter dated 10.3.1997 from the plaintiff’s solicitors, Slater and Gordon, in Melbourne, the letter stated that the solicitors wanted to negotiate and settle the case, but warned that they were “quite prepared to embark on lengthy and internecine litigation to advance the interests” of their clients.

The submissions of learned senior counsel, Mr. Nash, for the plaintiff was of course, different. He contended that the application of the Attorney General, grounded on locus standi, was an application seeking determination of a question of law, and should have been brought with leave of the court; Attorney General appeared to be getting the court to determine the question without leave, Mr. Nash, reasoned. On the substance, Mr. Nash, seemed to suggest that the plaintiff has sufficient interests in all the subject matters of the Electricity Act. He cited, among others, the case of Croome and Another v State of Tasmania (1997) 142 ALR 397 in which the plaintiffs who engaged in acts of sexual intercourse among males sought declaration challenging the validity of SS: 122 and 123 of the Criminal Code of Tasmania, on the grounds that the sections were inconsistent with the Australian Commonwealth Act, the Human Rights (Sexual Conduct) Act, 1994, under which sexual acts between male were permissible. At the time the DPP of Tasmania had not proposed to prosecute the plaintiffs. The High Court of Australia held that the plaintiffs had standing in seeking declaration against the Tasmanian Act although the Executive had not acted to enforce the law. Mr. Nash cited several other cases to demonstrate that the declarations sought by the plaintiff in this case were not merely seeking opinion on hypothetical point so as to be regarded as abuse of process.

Mr. Nash’s submission about leave to bring a point of law application such as lack of locus standi occurred to me on 2.2.1998 when the case was listed for trial, and Mr. Titiulu instead sought djournment so that he could bring application, which I thought was, in limine about locus standi of the plaintiff. Mr. Titiulu informed the court that he had discussed with all the other counsel in court on that day, his intended application raising the question of locus standi, and adjournment to enable him to prepare the application, and that all agreed to the adjournment to enable him to prepare and present his application. I asked each counsel in court including Mr. Ashley for the plaintiff. They all confirmed having agreed. Mr. Nash was not in court that day, a Mr. Fricke, barrister in Melbourne, Australia, was in court with Mr. Ashley although the court regarded only Mr. Ashley as counsel for the plaintiff, Mr. Fricke having been ordered to remove himself from the bar table unless and until he could produce certificate that showed he was an admitted legal practitioner in Solomon Islands.

A point of law may be raised under 0 27 r2 by any party, without leave. It is only when the party wishes the point to be decided before trial that consent of the other party or order of court is required. That is what r2 says and case law supports it; see Burstall v Beyfus (1884) 26 Ch 35. The rule is intended merely to protect the respondent party from unnecessary delay caused by such application. I set out here 027 r2 for convenience, it reads:

2. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Court at or after the trial, provided that by consent of the parties, or by order of the court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

In this case, leave was required because Attorney General wanted to take up the grounds of his application before the trial. Instead of him applying for leave, he sought and obtained consents of the other parties. Mr. Titiulu told the court on 2.2.1998 that he had informed the other counsel that he intended bringing an application before the hearing of the originating summons, on the question of locus standi of the plaintiff and on the question of the case being frivolous, vexatious and abuse of process. When the other counsel were asked in court, they confirmed that they had discussed with Mr. Titiulu and agreed. Leave was replaced by the consents of all the parties. There is a related order, 0 37, authorising special case to be stated for the opinion of the court. There is also a somewhat related procedure under 0 35 by which court may have material questions settled in the form of issues of facts or of law. Mr. Titiulu did not bring his application under 0 35 or 0 37. It is useful though, to set out the relevant rules of 0 27, 0 35 and 0 37 to bring out what I perceive as the features relating, yet differentiating orders 27, 35 and 37.

ORDER 27
PROCEEDINGS IN LIEU OF DEMURRER

1. No demurrer shall be allowed.

2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Court at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

3. If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.

4. The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

5. No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not.

ORDER 35
SETTLEMENTS OF ISSUES

1. Notwithstanding the provisions of any other Rule of Court, at any time before or at the hearing, the Court may, if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues, which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

2. The Court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be settled by the Court.

3. The issues may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present, or at the hearing. If otherwise notice shall be given to the parties to attend at the settlement of the issues.

4. At any time before the decision of the case, if it shall appear to the Court necessary for the purpose of determining the real question or controversy between the parties, the Court may amend the issues or frame additional issues on such terms as it shall seem fit.

ORDER 37
1. SPECIAL CASE

I. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn there from if proved at a trial.

2. If it appear to the Court, that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No. 21 in Appendix B, and also if any infant, or person of unsound mind not so found by inquisition be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument.

6. The parties to a special case may, if they think fit, enter into an agreement in writing (which shall not be subject to any stamp duty), that, on the judgment of the Court being given in the affirmative or negative of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court, and in such manner as the Court may direct, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the Court may be entered for the sum so agreed or ascertained with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.

There is a strong case in my view for amalgamating some of the rules in the three orders, and for rearranging them to appear in the Rules one after the other, consecutively.

Does the Plaintiff have locus standi?

The facts about the plaintiff’s position at the time he came to court was: He had been dismissed from the position of chairman of the board of SIEA. As a matter of fact, he had stopped carrying out the functions and exercising the powers of chairman. Another person was, as a matter of fact, carrying out the functions and exercising the powers of chairman. There were also new members of the board, the old ones had been relieved of their appointments. The board, as newly constituted, had passed a resolution on 29.1.1997, authorising grant of licence to Gold Ridge Mining Company Ltd, to generate electricity in its business operation. The plaintiff’s case seeks determinations as to whether the revocations of his appointment and of the appointments of the other members were lawful or not under section 4 of the Electricity Act, and whether arising from that, the appointments of the new chairman and new members were valid or not. He also seeks declarations as to whether the appointments of the new chairman and new members were invalid because of, incapacity of the minister, the appointing authority, on account of the Minister’s ill health, and delegation of the Minister’s power, and irregularity in publication in gazette. Further he seeks declaration as to whether the resolution of SIEA board passed on 29.1.1997 is valid.

Locus Standi (Revocation of Plaintiff’s Appointment)

As far as the revocation of the appointment of the plaintiff is concerned, he clearly has standing. He says in the originating summons that he was wrongly dismissed and that there was a new chairman and there were new members carrying out functions of the board, for example, that the new board passed a resolution on 29.1.1997. He contends that the manner of the revocation of his appointment did not comply with the requirements in s: 4 of the Electricity Act and further, that he has been unlawfully prevented from carrying out his functions and exercising his authority as chairman. He probably has lost some remuneration and privilege; there is clear allegation that his interest has been affected. The alleged loss of appointment would injure and link him to claim for relief. His legal position, compared with that of the plaintiff in the English case of In re S (Hospital Patient: Courts Jurisdiction) [1995] 13 WLR 78 is far stronger. In re S case, the court decided that the plaintiff had locus standi. The plaintiff was a woman who cohabited in England with S, a married man from Norway, and looked after him in hospital in England, when he suffered stroke and was unable to speak. She obtained, ex parte, interim injunction preventing the son of S from removing S from England and transferring him to Oslo. S was married to the defendant’s mother who lived in Norway. The plaintiff then applied by originating summons for declarations that it was in the best interest of S that he remained in England and received medical treatment and nursing care in England. Her standing was challenged. The court held that the plaintiff had sufficient interest in the welfare of S, because she had lived with him, looked after him and had been given power and access to some of S’s bank accounts; she had sufficient interest and therefore had locus standi in seeking the declaratory judgment. An argument regarded as very strong in the case was that, suppose the woman was a defendant, would she not be regarded as having standing in the case? I think that argument is merely attractive; it cannot be viewed as strong legal argument because a defendant does not chose to be a party. When this case, Mr. Gatu’s case, is compared to S’s case, it becomes clear that Mr. Gatu’s interest in the revocation of his own appointment is far more superior, he clearly has locus standi in a case about the revocation of his appointment.

Locus Standi (Revocation of the Appointments of the other Members of the Board)

The position of Mr. Gatu in the claim for unlawful revocation of the appointments of the other members of the board is different. The plaintiff’s chairmanship did not depend on the old members remaining in office. There is no linkage of his appointment to theirs and therefore no relinkage of his interest to retain his appointment to theirs to retain their own appointments. Their dismissals do not affect his legal position; the dismissal of the chairman and the dismissals of the members are not required by the Act to be made together. The other members may watch Mr. Gatu’s case with interest, but that does not give Mr. Gatu any standing in their cases. He has no locus standi in a case against the dismissals of the other members.

It was argued that the power of the court to make declaratory judgment in cases brought by originating summons under Order 58 is not limited to where the plaintiff’s interest is affected, or cause of action revealed. I think that argument stems from some portions of the judgment of their Lordships in the case of Guarantee Trust Company of New Yord v Hannay & Co [1915] 2KB 536. The point has since been explained in subsequent cases as based on misunderstanding the judgments in Guarantee Trust Company case - see the cases of Hanson v Radcliffe Urban District Council [1992] 2 Ch 490, the judgment of Lord Starndale MR on page 507 explaining his earlier judgment in the Guarantee Trust Company case. Also see detailed analysis of what the rule, similar to ours, means, in the judgment of Hale J in the re S (Hospital Patient: Court’s Jurisdiction) case. On page 34 Hale J said:

“I have not been referred to any authority in which a person was permitted to seek a declaration which did not in some way involve his own legal position......... All these authorities lead me to the conclusion, that, although it is not necessary to establish a cause of action, it is necessary to show that the plaintiffs’ own legal position will in some way be resolved by the granting of the declaration. “

I may add that even in the Guarantee Trust Company, Pickford LJ at page 562 said:

“It does not extend to any stranger to the transaction to go and ask the court to express its opinion in order to help him in other transactions.”

Mr. Gatu is a stranger to the revocations of the appointments of the members; he cannot seek opinion of the court on the revocations of their individual appointments. They may do it themselves.

Locus Standi (Appointment of the New Chairman)

In the question of the appointment of the new chairman, the plaintiff has interest, but only in as far as the appointment of the new chairman followed after the revocation of the plaintiff’s appointment. That should not be taken to mean that I have concluded that if Mr. Gatu succeeds in showing that the revocation of his appointment was unlawful, it will follow that the new chairman will be removed and Mr. Gatu will be reinstated. That issue remains to be decided at the hearing of the main case. It is however, an issue in which Mr. Gatu has standing.

Mr. Gatu has no standing in the question as to whether the appointment of the new chairman was invalid because of, the requirement regarding the number of public servants on the board, non-publication or defective publication in the gazette, or delegation of the Minister’s power of appointment. It is now a fact that he is not in office, as such, he is to be regarded just like any individual private person. His personal private interest is not alleged to have been affected together with the apparent allegation that public interest was affected. Alternatively the facts do not allege that he has suffered injury and damages beyond what the public may have. An important case in Solomon Islands on the point is the case of Christopher Columbus Abe v The Attorney General HC CC197 of 1994. In that case the plaintiff, a member of parliament, and opposition shadow Minister of Finance, sought declaration that the Minister of Finance, unlawfully borrowed money for government, in excess of authority granted in an Act of Parliament, the 1994 Appropriation Act. The plaintiff’s locus standi was challenged by the defendant during the trial. His Lordship, Sir John Muria, Chief Justice, held that the plaintiff had standing because as a Member of Parliament, and shadow Minister of Finance, his interest was “so closely connected”; he could not “turn a blind eye to breach of the Appropriation Act”. In this case, the plaintiff does not have any special relationship with SIEA, as the member of Parliament had with Acts of Parliament. The plaintiff’s individual interest beyond that of the public, is not “connected” with the appointment of the new chairman, except to the extend that it is subsequent to his dismissal. The appointment of the new chairman did not affect the decision to revoke the plaintiff’s appointment; rather it merely followed the event. Any question of invalidity in the new appointment, based on defect in formality and incapacity of the appointing authority, do not affect the plaintiff’s interest. Another case of interest is The Speaker v Danny Philip App Case No.5 of 1990. The court held that the plaintiff, a member of parliament, had standing in court in challenging a motion of no confidence in the Prime Minister because the plaintiff was entitled to vote in it as well as in the election of a new Prime Minister, and was a potential candidate for the post. I need not say the linkage in that case was amply apparent. An important English case on the point is Hampshire CC v Shonleigh Nominees Ltd [1970] 1 WLR 865 in which it was held that the originating summons would be struck out on the ground that it was the Attorney General who could bring the suit for declaration of the public’s right to have highway over the defendant’s land; the summons would be struck out unless Attorney General was prepared to give his fiat to the plaintiff.

Two Australian cases provide good comparison and contrast in deciding standing of plaintiffs. In the case of Australian Conservation Foundation Incorporated The Commonwealth of Australia and Others [1979-80] 146 CLR 493, the High Court of Australia held, by majority decision, that the conservation foundation did not have locus standi in a case to restrain land development in an area that the foundation thought should not be developed so as to preserve environment. In the case of Onus v Alcoa of Australia Ltd [1981] HCA 50; [1981] 149 CLR 27, the High Court held, again by majority decision only, that persons who claimed descent from an aboriginal group and claimed to be custodians of the aboriginal culture, had locus standi in a suit under statute, to restrain interference with aboriginal cultural relics.

Locus Standi (Meeting and Resolution of 29.1.1997)

The plaintiff in this case has no standing also in that part of the case that concerns the meeting of SIEA board on 29.1.1997, and the resolution passed at that meeting, authorising grant of licence to Gold Ridge Mining Company Limited, to generate electricity. That is because as at the time of filing this case, the plaintiff was, as a matter of fact, not the chairman or member of the board. He was a private member of public. To succeed to show standing, he should have alleged that: 1. the wrongful acts to the public, which wrongful acts were the meeting and resolution, were also wrongful acts to him personally in his private capacity, or 2. the injury suffered by him as an individual, because of the alleged wrongful acts, the meeting and resolution, was greater than the injury to the general public interest. So far, those two requirements have not been disclosed in the facts in the plaintiff’s originating summons. Those portions of the summons that raise issues about the meeting on 29.1.1997 and the resolution passed thereat, authorising grant of licence to Gold Ridge Mining Company Limited are also struck out.

Locus Standi (Amendment not Applied for)

The plaintiff has not, even as a response to the application to strike out his originating summons, applied for leave to amend so as to improve on the facts about his locus standi. If he did, the possibility could have been extensively explored - see Arbon v Anderson [1942] 1AII ER 264. I do not see how any amendment could improve his connection to the alleged errors in, dismissing the old members, appointing the new members, and granting licence to Gold Ridge Mining Company Limited. I repeat that portions of the plaintiff’s originating summons are struck out to the extent that they seek: 1. invalidation of the chairman’s appointment on the grounds that it was done contrary to the provisions in s: 4 of Electricity Act, 2. invalidation of the dismissal of the old members of the board, 3. invalidation of the appointment of the new members of the board. 4. injunction restraining the board from carrying out its functions and exercising its powers and 5. invalidation of the resolution of 29.1.1997 that authorised grant of licence to Gold Ridge Mining Company Limited. In the circumstances of this case, the proper course is to dismiss other than amend or stay those issues, I dismiss the plaintiff’s originating summons to the extent of those issues and award the costs attendant to all the issues to the first and second defendants. The third defendant is awarded costs relating to the issue of grant of licence only.

The Ground of Frivolous, Vexatious and Abuse of Court Process

Ground numbered 1 in the application of the Attorney General, is that the plaintiff’s case is, “frivolous, vexatious and constitutes abuse of process.” I need not go on to make determinations of all the issues by applying this ground since I have already determined that all except the issue of revocation of the appointment of the plaintiff, and of Mr. Naitoro remaining in office, be struck out on the ground of lack of locus standi. I shall, however, do so as a matter of deference to all the counsel in the case; their submissions showed that they had done thorough research about the relevant laws.

Attorney General stated that for his ground numbered 1, he relied on, 027 r4 “and or” on inherent jurisdiction of the court. 027 r4 reads:

The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

Mr. Nash’s submissions about the grounds of the case being frivolous or vexatious were these: 1. That the application to strike out should have been taken up within reasonable time, it was too late when the Attorney General did, parties had already filed memoranda of appearance and one had taken next step, by applying to be joined and has been joined as the third defendant. 2. That 027 r4 requires that the application to strike out be based on the pleading so some evidence is required. 3. That for application to strike out on the grounds of the case being frivolous and vexatious to succeed, the case must be one which is hopeless. 4. That the plaintiff’s case raised important points of law about Electricity Act, such as reasonableness of the Minister’s action, interference by the Minister, exceeding limits of powers authorised in the Act and many others, he urged the court not to strike out any of the issues, but allow opportunity for the issues to be properly argued. In addition Mr. Nash urged that, in the event that the court found irregularity or other failures in the plaintiff’s originating summons, the court was to exercise discretion and waive them under 069. He further suggested that the plaintiff’s originating summons could, by order of court, be converted to action by writ of summons if the court felt that the case was not one to be brought by originating summons.

The submission of the applicant, as urged by Mr. Titiulu, was of course, that all the issues raised in paragraphs 2 to 8 of the originating summons of the plaintiff were untenable; the points of law therein were so unsustainable. About the remaining issues, Mr. Titiulu submitted that the facts were mere assumptions on the part of the plaintiff. He urged the court to hold that the whole case of the plaintiff is frivolous, vexatious and abuse of court process. The submissions made on behalf of the other two defendants supported the submission of the Attorney General. Mr. Radclyffe urged, in particular, that the court should hold that the case about grant of licence by SIEA board to Gold Ridge Mining Company Limited was an abuse of court process because the intention of the plaintiff’s solicitors and therefore of the plaintiff, was merely to engage the third defendant in prolonged litigation so as to force the third defendant into some settlement with the plaintiff even if the plaintiff’s case is baseless.

In an application to have the court strike out the plaintiff’s case on the ground that no reasonable cause of action is disclosed (ground not raised in this case) the applicant is taken to have assumed that the facts of the case as stated by the respondent are true and the court must assume the facts to be true - See Saddington v Oliver [1993] FCA 362; (1993) 121 ALR 601. Further evidence is not permissible. If the grounds to strike out are that the case is frivolous, vexatious and abuse of court process, evidence may be allowed. In this application I shall assume the facts to be true because the Attorney General
did not apply to adduce evidence in support of his application and in any case, he proceeded on the basis that the facts as given by the plaintiff were not sufficient for the court to grant the declarations asked for by the plaintiff. That is the effect of the affidavit of Mr. Titiulu, sworn on 9.2.1998, especially at paragraphs 9 to 15. Attorney General was entitled to chose whether he would make his own evidence available or not, he chose the latter, he must stand or fall by his choice.

Delay

It is convenient to take first the point of delay in the Attorney General making the application. In as far as raising a point of law such as lack of locus standi is concerned, I have already decided that the application can be made, “at or after the trial”, without leave, so the question of delay was misconceived in that issue. The unambiguous authority for it is 027 r2. An application to strike out pleading and have the case dismissed is made by authority of 027 r4. Although rule 4 or any other rule in Order 27 does not provide for time when the application is to be made, it is desirable that it be made at the earliest opportunity. Mr. Nash is right to that extent. That expression is, however, made within the context that striking out is decided on the strength or weakness of pleadings. It is therefore rare indeed that a case will be struck out at the commencement of the case when there is nothing regarded as pleading. In fact in an action by writ of summons, the application ought not to be made before the statement of claim has been served. Moreover, the application may be made even at the close of pleading if appropriate - See Tucker v Collinson 34 WR 354 and Halliday v Shoesmith [1993] 1WLR 1. Another aspect of Mr. Nash’s submission on the point is that it showed some contradiction. On the one hand he urged the court to hold that there must be pleadings which he said would be evidence, upon which the court could consider striking out; on the other hand, he said that it was too late to make the application because the other parties had already taken steps in the case. In any case, that part of his submission that the other parties had already taken step is misconceived in an application to strike out on the grounds of the case being frivolous vexatious and abuse of process. The ground that the other party has taken the next step is a ground for consideration in an application to set aside irregular proceedings. That is stated in 069 r2 which I set out here:

2. No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.

In my view, the Attorney General has brought his application at an early opportunity, the earliest available opportunity. Since the originating summons was filed, there has been application by the third defendant to be joined. Immediately after that the Attorney General considered, whether rightly or wrongly, that the plaintiff’s case or a large part of it did not warrant the trouble for him to defend, he has made his application to know whether he will have to answer all the materials that form the plaintiff’s case. He was entitled to make the application, and that was an early opportunity to do so. I would not dismiss the application on the ground of delay.

Revocation of the Plaintiff’s Appointment

The plaintiff’s case about the revocation of his appointment cannot be regarded as frivolous, vexatious or abuse of process. Mr. Nash’s submission on the issue has merit. The plaintiff says that the revocation was wrong, because proper notice was not given to him, publication of it in the gazette was defective and that it was not the Minister, the authorised person, who revoked his appointment. He has an arguable case. Then it is only appropriate that the question of the status of the new Chairman remains an issue to be considered because it follows from the revocation of the appointment of the plaintiff. The rule to strike out because a matter is frivolous or vexatious or (does not disclose cause of action, not relied upon in this application), is that it must be a clear case that it has no possibility of succeeding. See Attorney General of the Duchy of Lancaster v London and. N.W. Railway Company, and Goodson v Grierson [1908] 1KB 761. In the former, Lopes LJ said, that the case was not one for the summary proceeding, to strike out because difficult questions of law arose in the determination of the locus standi of the Attorney General, jurisdiction and the form of proceeding to be used. In the latter, it was held that a promise not to sue on gambling debt, normally not enforceable, might form separate consideration so the statement of claim could not be struck out. In my view, that latter case was a weak case, but even so, the English Court held that it was good enough to proceed. In this jurisdiction, Sir John Muria, Chief Justice, took the view that a case cannot be struck out because it is a weak case - see Peter Ma’uana v Solomon Taiyo Limited, HCC C109 of 1997. In the case the claim of the plaintiff on behalf of his Tribe, for trespass by the defendant who fished for bait fish in reef areas claimed by the plaintiff was not struck out even if the Chief Justice found the case to be a weak one. On the question of a weak case generally, Kirby J. of the High Court of Australia {President of the Court of Appeal of Solomon Islands in 1996/97 put it this way: “Even a weak case is entitled to the time of the court” - see Lindon v The Commonwealth (No.2) (1996) 70 ALIR 541 at page 545. His Lordship Palmer J of this court, in the case of Willy Roni and Another v Ross Mining Co. Ltd. and Others, HCC C60 of 1997 was of the view that defence can only be struck out in “plain and obvious case” that cannot succeed. Mr. Gatu’s case about the revocation of his appointment is not an untenable case, it is far from a weak case, it is an arguable case. I would not strike it out.

Revocation of Appointment of Members

One may suppose that what I have said about the dismissal of the plaintiff applies to the case bout the dismissal of the members of the board. Yes, what I have said applies to a great extent. The dismissed members would have a tenable case, but it is not for the plaintiff, Mr. Gatu, to come to court on their behalf. I think it would be an abuse of the court process to allow a stranger to litigate someone’s right. I would strike out that issue together with all the attendant questions raised.

Grant of Licence

The letter written by the plaintiff’s solicitor, which letter was produced by Mr. Radclyffe, goes some way to showing that there may be a collateral purpose in the plaintiff’s case against the grant of licence to the third defendant, other than the plaintiff’s own interest to recover relief. The letter could be the founding evidence for that submission, but it falls short, in my view, of establishing the predominance of the collateral purpose - see Goldsmith v Sperring Limited [1977] 1 WLR 478 and the Australian case of Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 in which the court held that the predominant purpose was to serve a political purpose of aboriginal group and the case was therefore an abuse of process. The letter alone would not cause the court to strike out the issue of the grant of licence as being an abuse of process, some other evidence must add to the letter before I accept the submission of Mr. Radclyffe. When the letter is read together with paragraphs 4 to 19 of the affidavit of the plaintiff, sworn on 10.2.1997, filed in support of the originating summons, the conclusion is inevitable that the case of the plaintiff against the grant of licence is based on whether the economic reasons given by the plaintiff for refusing to grant licence to the third defendant is better than the opposing economic reasons for the grant of the licence, preferred by the new members of the board. It is not for the court to decide the merits of opposing economic views. That is the business of the Executive facet of state. It would be an abuse of the court process for parties to come to court for that purpose. It is not an abuse of process for the reasons given by Mr. Radclyffe. I would strike out that part of the plaintiff’s case that concerns the meeting of 29.1.1997 and the resolution passed thereat, authorising grant of licence to the third defendant, and all the related issues.

Appointment of New Members of the Board

The case about the validity or otherwise of the appointments of the new members of the board of SIEA would also be struck out on the basis that it is frivolous because the plaintiff’s originating summons does not have facts upon which the court may decide, entitle the plaintiff to relief personal to him. It would be different if the members themselves had sued. A relevant case is the English case of Thorne Rural District Council v Bunting [1972] 1 All ER 439. The Council’s case seeking declarations against the registered rights of the defendant in land failed. The court commented that the person who would claim the land against the defendant was not even a party in the case. The council’s interest about encouraging investment in the area and enhancing rateable values of properties were said to be “shadowy interest too indirect to give the plaintiff real interest in the case.”

Important Questions of Law

Mr. Nash’s submission that certain important questions of law have arisen in the interpretation of the Electricity Act, and that opportunity be given to counsel to argue them may be viewed with sympathy, especially when the older English as well as Australian cases are considered. In Attorney General of the Duchy of Lancaster v London and North Western Railway Company, two of the three judges in the unanimous judgment stated their views very strongly, that striking out under similar rule was meant to get rid of frivolous or vexatious cases which were obviously unsustainable and ought not to have been launched; not for cases in which difficult questions of law have been raised. Lindley LJ stated on pages 276 and 277 this:

“The moment we see the nature of this action, and hear the grounds for the application....... we find there are questions of very great difficulty. The first ground that the court has no jurisdiction is not an easy one to decide. Then the other grounds are that the Attorney General is not the proper plaintiff, and that the proceeding ought to be information, and not an action. .......... we understand enough to decline to put in force this method of stopping an action when there are such important questions involved.......... To what extent is the court to go on inquiring into difficult questions of fact or law in exercise of the power which is given it under Order XXV rule 4? It appears to me that the object of the rule is to stop cases which ought not to be launched, cases which are obviously frivolous or vexatious, or obviously unsustainable; and if it will take a long time, as is suggested, to satisfy the court by historical research or otherwise that the County Palatine has no jurisdiction, I am clearly of opinion that such a motion as this ought not to be made. “

About 7 years later that view was confirmed in the case of Hubbuck & Sons v Wilkinson Heywood and Clark [1999] 14 B 86. The Court of Appeal pointed out that it had been long established that no cause of action arises when one trader puffs his goods as being better than those of another trader; the Court held that the claim could be struck out. It confirmed that the procedure was only appropriate to cases which are plain and obvious. Lindley MR who delivered the judgment of the court stated at page 91, this:

“The application is made under Order XXV, r.4. Order XXV abolished demurrers and substituted a more summary process for getting rid of pleadings which shew no reasonable cause of action or defence. Two courses are open to a defendant who wishes to raise the question whether, assuming a statement of claim to be proved, it entitles the plaintiff to relief. One method is to raise the question of law as directed by Order XXV r.2; the other is to apply to strike out the statement of claim under Order XXV r.4. The first method is appropriate to cases requiring argument and careful consideration. The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases. The authorities collected in the Annual Practice shew that the Courts have always so construed rule 4, although sometimes, no doubt, a statement of claim may be so long and the facts so complicated that considerable time and attention are required to ascertain their true result, as in Republic of Peru v Peruvian Guano Co. (1) If in this case it were necessary, in order to justify us in striking out the statement of claim, to come to the conclusion that Western Counties Manure Co. v Lawes Chemical Manure Co. (2) was not law, and was in effect overruled by White v Mellin (3), we should be of opinion that the question raised was too difficult and important to justify the Court in summarily striking out the claim. But it is not necessary to consider any such question. “

In the Australian case of Dey v Victoria Railway Commissioners (1949) 78 CLR 62 at page 91 Dixon J, writing about similar rule said:

“....the power they confer is not to be used in cases of doubt or difficulty or where the pleading raises a debatable question of law......The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court...... “

There was, however, a contrary view, of Latham, CJ, who rejected the submission that striking out should be used only in cases that can be seen to have no merit, a matter involving an argument on a difficult question of law should not be terminated summarily. He said at pages 84 and 85:

“The relevant facts are indisputable, as the learned judge said. But it is argued that if a case involves any question of difficulty the summary procedure of dismissing an action as vexatious should not be applied. In the present case there is nothing frivolous about the action, but if a court is of opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile. The contention of the appellant really is that procedure under Order XIV A or Order XXV, rule 4, or under the inherent jurisdiction of the court for dismissing an action at an early stage, should be used only in easy cases. I do not agree with this view where there is opportunity for full argument and full consideration of the question raised. In the present case the argument before the learned judge was evidently a thorough argument. It is true that it has often been held that the power of the court created by the rules mentioned or existing under the inherent jurisdiction of the court should not be exercised except in clear cases: see, for example, Mayor, &c. of City of London v Horner and Hubbuck & Sons Ltd. V Wilkinson, Heywood & Clark, Ltd. It was said in Hubbuck’s case that the summary procedure under Order XXV, rule 4, was appropriate only to cases which were plain and obvious, so that any master or judge could say at once that the statement of claim was insufficient, even if proved, to entitle the plaintiff to what he asked. In Victoria applications for the dismissal of the action are not dealt with by a master, and they can be and are fully argued. If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense. “

The view is now gaining ground that striking out should not be regarded as available only in hopeless or obvious cases and in which points of law are easily ascertainable. That view seems to be more prevalent in Australia, the jurisdiction where Mr. Nash normally practises. By that view, the court would be unable to retain the plaintiff’s case as sustainable and not suitable for striking out because the court regards it as raising difficult questions of law. The difficult questions of law would have to be argued even at length and the court would have to decide the difficult questions of law at that interlocutory stage, for it to be able to say whether a case would be unsustainable so as to strike it out - see General Steel Industries Inc. v Commissioner for Railways (NSW) and Others [1964] 112 CLR 125, where after long arguments it was decided that no suit for breach of patent could be brought against the Commissioner for Railways because he had immunity by authority of statute. See also Wickstead v Browne [1992] 30 NSW LR 1. On page 5, Kirby, then, President of New South Wales Court of Appeal (also President of Solomon Islands Court of Appeal in 1996/97) said this:

“I appreciate that the approach to be adopted in a case such as this, as required by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, permits the court to consider even extensive argument before determining (relevantly) whether the clear lack of a cause of action entitles the party seeking summary termination of that part of the case: cf Commonwealth of Australia v Dixon (1988) 13 NSWLR 601 AT 611. We have certainly had extensive argument. It must be acknowledged that, in complex litigation, there are distinct advantages in cutting away hopeless causes of action. They may distract attention from viable claims proper to be litigated. They may prolong expensive litigation. They may give rise to error in the conduct of the trial.”

Kirby J. said those words in dissenting judgment, but the points of dissent were not the subject of the quote; a major reason for the dissent was that since the whole court agreed that some of the issues were not suitable for striking out, that was reason to allow all including those suitable for striking out to be proceeded with through the normal procedures of litigation. In the present case the untenable parts of the case were too extensive and would unnecessarily complicate the determination of the clear tenable issue, the untenable issues would have to go.

I think the divergent views about the approach to be adopted when considering whether a case is tenable, reflects the difficulty in defining the point at which the court, when considering the application should recognise that it has reached the dividing line. My experience is that it is much easier to recognise the divide when the facts and submissions are before court. In this case I do not think the plaintiff’s originating summons, except to the extent that it states the case about the revocation of appointment of the plaintiff, can qualify, whichever of the two views is applied.

I shall add here that in Solomon Islands the law is to be taken to be the old view which required that for cases to be struck out; it must be plain and obvious because the case is unsustainable. My reasons are these:

1 The only other two judges of the High Court of Solomon Islands have held that to be the law; (a) Sir John Muria CJ in Peter Ma’ana v Solomon Taiyo Ltd even went as far as saying: “Even if the case is weak and not likely to succeed, that is no ground to strike out the pleadings.” Palmer J in Willie Roni and Others v Ross Mining Limited said, “unless there is a plain and obvious case that the defence pleaded cannot succeed or is certain to fail, the Respondent should not be, ‘driven from the judgment seat’.” Those only other judges of the High Court of Solomon Islands have spoken in favour of simplicity in the rule about striking out. I add my voice to theirs and say that only cases that are bound to fail should be struck out. I think there is much merit in preserving consistency on the point, and of course, I had in mind the provisions of Schedule 3 at paragraph 4, of the Constitution, made under s: 76 of the Constitution; the provisions read:

4. (1) No court of Solomon Islands shall be bound by any decision of a foreign court given on or after 7th July 1978. (2) Subject to the preceding provisions of this Schedule or any provision in that regard made by Parliament, the operation in Solomon Islands of the doctrine of judicial precedent shall be regulated by practice directions given by the Chief Justice.

2. I consider that if because of intricate facts or law, arguments before court is likely to be extensive and the court is likely to take a long time to decide that the case is not tenable, it is proper not to strike out the case, but allow it to proceed through the normal course of proceedings. Every litigant’s right to have his case determined by the usual rules is an important one, if there is to be departure, the reason for departure must be clear at an early stage otherwise the advantage in the use of a summary procedure to save time, money and bother will be lost - See David v Abdul Cader [1963] 1WLR 834, a preliminary point which ended right up to Privy Council. Was time or expense saved?

3. In a case by originating summons, no real advantage is gained if intricate facts and points of law have to be examined and considered over extended time so as to decide whether the issues raised are untenable. That is because no exchange of pleadings in the usual sense takes place, and the whole originating summons case could be presented to court straight away, other than the application to strike out being presented first. After all the advantage of proceedings by originating summons is that it is supposed to be a fast procedure. Sometimes untenable cases are described as unarguable, how can that be if it takes extensive consideration of extensive submissions (arguments) of counsel to determine that the case is unarguable and therefore may be struck out? The time taken to argue this particular application could have been taken to hear the originating summons in total and finally. See for example the extensive considerations in: Hampshire County Council v Shonleigh Nominees Ltd [1970] 1WLR 865 and Christopher Columbus Abe v Attorney General.

Summary of Determinations

The final result of the application of the Attorney General, dated 10.3.1997 is that it is partially, but to a large extent successful. He has succeeded in obtaining order to strike out from the originating summons, the following:

1. In paragraph 1, the question whether all the persons named therein except the plaintiff, are still members of the board of Solomon Islands Electricity Authority.

2. In paragraph 2, the question as to whether the appointments of all the persons named therein except John Naitoro, are valid. The question as to whether the appointment of Naitoro is invalid or not in terms of s: 4 of the Electricity Act, on the grounds of delegation of power, publication in the gazette and numbers of public officers on the board is also struck out.

3. In paragraph 3, the whole question.

4. In paragraph 4, the question is struck out to the extent that it poses the question in relation to members of the board of SIEA; that part of the question that relates to the plaintiff is not struck out.

5. In paragraph 5, the whole question.

6. In paragraph 6, the whole question.

7. In paragraph 7, the whole question.

8. In paragraph 8, the whole question.

The plaintiff’s case, to the extent that it is based on the issues I have struck out is dismissed. The relevant costs are awarded to the defendants, except that the third defendant is awarded only costs relevant to the issue about grant of licence to it.

This case might have been better pursued by writ of summons, given the various letters referred to. I think it is not necessary nor convenient to convert it now. I direct that the case be listed early so that the remaining issue is dealt with early.

I must acknowledge the high level of assistance rendered to court by all counsel in the case. Their research on the points of law have been thorough. Mr. Titiulu set the tone, by citing most of the relevant cases, both local and foreign, and so Mr. Nori, Mr. Radclyffe and Mr. Nash had to keep to the high standard. When it came to Mr. Nash’s turn to submit, he appropriately remarked that parties were agreed on the law, it was only a question of emphasis. He of course, as expected, made available most of the important cases in Australia. I am most grateful to all the counsel in this case.

Pronounced on 6 February 1998
Reasons read this 11th day of May 1998
At the High Court,
Honiara, Solomon Islands

Sam Lungole-Awich
Judge