Reef Pacific Trading Ltd v Price Waterhouse [1999] SBHC 18; HC-CC 164 of 1994 (8 March 1999)

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HIGH COURT OF SOLF SOLOMON ISLANDS

Civil Case No. 164 of 1994

REEF PACIFIC TRADING LIMITED (The Company)
AND JOANN MARIE MEINERS

v

PRICE WATERHOUSE (The Firm),
> RICHARD ANTHONY BARBER (Partner)

& WILLIAM DOUGLAS

McCLUSKY (Partner)

High Court of Solomon Islands (KABUI, J)
Ci Civil Case No. 164 of 1994

Hearing: 8^th March 1999
Ruling: 8^tsup>th March 1999

G. Suri for the 1^st & 2^nd Plaintiffs Ms O'Rielly S.C. with Mr D. A. Kelly for the 1^st, 2^nd & 3^rd Defendants

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(F. O. Kabui, J): The Plaintiffs have asked me after 7 days into the trial of this action to decide four points of law stated under Order 37, rule 2 of the High Court Rules. That is to say, there is a question of law which is convenient to decide before evidence is given in this trial and that I should make an order directing that the points of law raised be stated as a special case for the opinion of the Court Order 37, rule 2 of the High Court Rules is the equivalent of Order 34, rule 2 of the RSC, 1883 as at 1961 in the United Kingdom. The commentaries on Order 34, rule 2 in the United Kingdom would seem to suggest that Order 37 cannot be invoked unless the determination of the point of law raised will have the effect of disposing of the action. The facts would normally be agreed. At pages 477 - 478, Bernard C. Cairns in Australian Civil Procedure Second Edition, 1985, says this;

"If the patties can agree on what matt matters are to be decided they may avoid the expense of calling evidence by concurring in stating a special case for the opinion of the court. The special case must state the facts and refer to the documents necessary for the court to decide the questions submitted to it. In reaching its decision the court may draw the same inferences from the facts and documents as if they had been; proved at the trial. If the statement of facts is complete, the court is in a position to fy disposispose of the matter without the need to call evidence.

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ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> A well drawn special case provides for ther the entry of judgement in the light of the decision on the questions. The court may then enter whatever judgement is justified and the proceeding are then concluded.

This is a relatively summary method of procedure, and the parties must take care to ensure that sufficient is stated to permit the court to reach a just conclusion, but the court will not consider hypothetical questions. If the questions put in a special case have not actually arisen the court will not entertain the case. Nor will it answer the case, if no facts are admitted. Should the facts situation be different from that assured in answering the case, the opinion expressed by the court could turn out to be erroneous.

Apart from the provision for the parties to concur in the statement of a special case, the court may order a question of law to be decided before any evidence is given. The court may direct the question to be raised as a special case or in any other manner specified for the purpose.

class=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> This pron differs from the settingtting down of a preliminary issue on the pleadings in that a question is set down by the court here when the answer will dispose of the proceedings. A preliminary question on the pleadings need not be such as to conclude the action. Once a preliminary question of law is decided, then the evidence is directed to the factual issues shown to be relevant by the court's decision on the law. Normally it is inconvenient for a preliminary question of law to be ordered where the issues of fact and law cannot he separated.

In my view, I cannot make an Order under Order 37, rule 2 at this stis stage of the trial. It is too late to do so. The trial of this action is already underway and it serves no useful purpose to make the order requested by the Plaintiffs. It is also not clear from the Plaintiffs' stated facts and from the Plaintiffs’ counsel's submission that the determination of the points of law raised would dispose of the action in this case. The allegations in this action are negligence, fraud, breach of statutory duties and wrongful possession etc. not forgetting that there is also a counter-claim based upon the Deed of Indemnity.

Joses Wawari Sanga and others v Public Service Commission, (PSC) Haikiu Baiabe and Attorney General (Civil Case No. 01899) in which, at pages 1-2, I said,

"This is an application by n by the 2nd Respondents to strike out the Applicant's Originating Summons filed in the High Court on 19th January, 1999 seeking a number of declarations and relief....

In this case, there are causes of action that must be determined by the court on evidence to be adduced by the parties.They can only be terminated by the withdrawal of the action by the Plaintiffs under the appropriate rules of the High Court Rules. The Plaintiffs however have reiterated through counsel that Civil Case No. 58 of 1991, Akeela Pty Ltd. v Reef Pacific Trading Ltd. & Others should not have been instituted in the High Court of Solomon Islands. (Exhibit 383). That is, clauses 11 and 12 of the Agreement (Exhibit 385) prevent that. Clause 11 is the arbitration clause which says that any question, difference or dispute in relation to the sale of the Company shall be referred to arbitration in Brisbane. Clause 12 is the choice of law clause which says that the Agreement shall be construed and interpreted and be governed by the law of the State of Queensland. Further, it says, any claim made under this Agreement involving legal proceedings is not restricted to the Courts of the State of Queensland. Those are important points for consideration.

Hr, in my view, points of law 1-4 in the special case statedtated can only be authoritatively determined by the Court after the consideration of all the evidence from both sides in this action. The Court has a complete discretion to decide one way or the other depending on the facts of each case. In this case, my ruling is that the Plaintiffs application for a case stated is refused.

Dated this 9^th

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F. O. Kabui
Judge