Ross Mining (SI) Ltd v Roni [1999] SBHC 5; HC-CC 294 of 1997 (5 February 1999)

HIGH COURT OFMON ISLANDS

Civil Case No. 294 of 1997

ROSS MINING (SI) LIMITED &

GOLD RIDGE MINING LIMITED

v

WILLIE RONI & DAVID THUGUVODA

ass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In the High Court of Solomon Islands

Before: Frank Kubui, J

Civil Case No. 294 of 1997

th January 1999

Judgement: 5^th February 1999

Andrew Radclyffe for th Plaintiffs

Akuila Talasasa for Defendants

JUDGEMENT

J) The First and Second Plaintiffs (the Plaintiffs) are two compacompanies currently involved in the mining industry in Solomon Islands. They filed a Writ of Summons against Messrs Roni and Thuguvoda, the First and Second Defendants, (the Defendants), of the Guadalcanal Plains on the Island of Guadalcanal. The Writ was dated 9^th December, 1997. The Writ bears the following indorsement:-

INDORSEMENT

“1. & Damagesmages (including exemplary and/or aggravated damages) for libels contained in documents purporting to be affidavits sworn by each of the Defendants on 2

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3. Damages for b ch ea conf contract, namely a Deed of Release dated 2^nd October 1997.

4.  p;&nssp; Damages ages ages for breach of the duties of confidence owed by the Defendants to each of the Plaintiffs.

5. &nnbsp;; An injuncnjunction to restrain the Defendants and each of them, whether by themselves, their servants, agen othe hows, from divulging or communicating in any way to any othy other peer person rson any oany of the contents of terms of the said contract.

6. ;&nbssp; &nsp;&nbnterenterest on such damagdamages

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7. ;&nbssp; &nsp;&nbosts.osts.”

The Defendants entered appearance to the Writ on 17^th December, 1997. The Plaintiffs filed their Statement of Claim on 5^th January, 1998. The Defendants filed their Defence on 15^th January, 1998. The Plaintiffs joined issue in their reply on 9^th February, 1998. They also filed a request for further and better particulars that same day. The Defendants also filed a request for further and better particulars of the Statement of Claim on 17^th February, 1998. The Plaintiffs’ response to the Defendants’ request for further and better particulars was later filed on 26^th March, 1998. There does not however seem to be any response by the Defendants to the Plaintiffs request for further and better particulars of the Defence filed by the Defendants. The Defendants later filed an amended Defence on 9^th June, 1998. Apparently, the Defendants had changed lawyers during the course of pleading. As a result of the Defendants’ amended Defence, the Plaintiffs filed a Notice of Motion dated 18^th June, 1998 seeking the following orders:-

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2. Such further or other order as this Honourable Court shall deem appropriate.”

As I understand the position, the Plaintiffs’ other action for libel against the Defendants is not the subject of this Notice of Motion. It is still on foot.

This Notice of Motion was filed under Order 14 of the High Courtil Procedure) Rules, 1964 (964 (the High Court Rules). It was set down for hearing on 25^th June, 1998 at 9 am by the High Court. That hearing did not take place due to third party proceeding’s first taking place under Order 18 of the High Court Rules. The Motion was therefore relisted for hearing on 25^th January, 1999. At the hearing this morning before me, the Defendants were not present nor their counsel, Mr. Talasasa. However, I was told by Mr. Radclyffe, the Plaintiffs’ counsel, that Mr. Talasasa had been aware of the date and time of the hearing and it should proceed in the absence of the Defendants and their counsel, Mr. Talasasa. I agreed and Mr. Radclyffe presented Plaintiffs’ case.

The Facts

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The relevant facts are these. The Plaintiffs are two Companies associatth the discovery of and d extraction of gold at Gold Ridge on the Island of Guadalcanal. They undertook to negotiate with the land holding groups of the Gold Ridge Area for setting up of a major gold mining venture. On the 2^nd October, 1997, the First Defendant Mr. Roni, entered into a written Deed of Release Agreement (“the Roni Deed”) with the Plaintiffs. The Roni Deed was in relation to the settlement of disputes then existing between the First Defendant and the Plaintiffs. It also included the dispute maintained and commenced by Writ No. 60 of 1997. Clause 3 of the Roni Deed prohibits the First Defendant from disclosing any information in respect of that Deed including the existence of it. Such information can only be disclosed with prior written consent of the First Plaintiff or for the purpose of enforcing the Deed or as required by law. Clause 3 of the Roni Deed is necessary because the Deed’s existence and its terms are confidential to the Plaintiffs and such were known to the First Defendant. The Second Defendant, Mr. Thuguvoda, also entered into another Deed of Release Agreement (“the Thuguvoda Deed”) with the Plaintiffs on the same day. Clause 3 of the Thuguvoda Deed is exactly in the same terms as the Roni Deed and was made for the same reason as in the case of the Roni Deed. That is to say, it is identical to clause 3 in the Roni Deed.

The Statement of Claim

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> For the purpose of this application, it is necessary to set out the relevant paragraphs of the statement of claim. These paragraphs are as follows:-

“15. n style="font-size: 12.0pt".0pt"> Further, on 2 October 1997, the First Defendant entered into a written Deed of Release with, inter alia, the Plaintiffs (“the Roni Deed”)an> p classclass="Mso="MsoNormaNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> /p>

16.  p;&nbhe Rone Roni Deed Deed was entered into in settlement of disputes then existing between the Plaintiffs and the First Defendant, including the de thentained in proceedings commenced by Writ Noit No. 60 . 60 of 1997.

lass=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 17. &nby clause 3 of the Roni Deed, the First Defe Defendant covenanted as &nbssp;&nnsp;&&nsp; &nsp; follows:

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“Roni must not, without the prior written consent of Ross Mining, disclose any information in respect of this deed (including the existence of this deed), other than for the purpose of enforcing this deed or as required by law”.

PARTIS

(a) The fact of the existof the Roni Deed and the tehe terms of the Roni Deed were matters of information which.

(i) were not known publicly; and

(ii) were highly confidential to the Plaintiffs.

ass=lass="MsoNormal" style="text-indent: -20.15pt; margin-left: 92.15pt; margin-top: 1; margin-bottom: 1"> (b) At the time of entering nto the Roni Deed, the Firs First Defendant well knew that the said information was highly confidential to the plaintiffs.

19. In ) eachrof cla of t of the Roni Deed; and/or

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(b) In breach of the said duty of confidence, the First Defendant did in about early December 1997, and without the prior written consent of the Plaintiffs, publish or cause to be published the terms of the Roni Deed, including by publishing the fact of the existence of the Roni Deed and its terms to international media organisations in Australia.

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pan lang="EN-GB" style="font-size: 12.0pt">20. &nbssp; Frrthe 2 on 2 on 2 on 2 October 1997, the Second Defendant entered into a written Deed of Release with, inter alia, the Plaintiffs (“the Thuguvoda Deed”).

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21. &nnbsp; The Thue Thuguvoda eed w was entered into in settlement of disputes then existing between the Plaintiffs and the Second Defendant, including the dispute then maint proces commecommenced by Writ No. 60 of 1997.

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22. &nby clause 3 of thef the the Thuguvoda Deed, the Second Defendant covenanted as follows:

“Thuguvoda must not, without the prior written consent of Ross Mining, disclose any information in respect of this deed (including the existence of this deed) other than for the purpose of enforcing this deed or as required by law.”

23sp; Further, at all t mal rial rial times after executing the Thuguvoda Deed, the Second Defendant owed the Plaintiffs a duty to keep the terms of the Thuguvoda Deed confidential.

(a) The fact of the xistence of the Thuguvoda Doda Deed and the terms’ of the Thuguvoda Deed were matters of information which:

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(i)were not known publicly; and

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(ii) were highly confidential to the Plaintiffs

(b) At the of entering into theo the Thuguvoda Deed, the Second Defendant well knew that the said information was highly confidential to the Plaintiffs.

24. n breach of clause 3 se 3 of the Thuguvoda Deed; and/or

(b) In breach of the said duty of confidence, the Sthe Second Defendant did in about early December 1997, and without the prior written consent of the Plaintiffs, publish or cause to be published the terms of the Thuguvoda Deed, including by publishing the fact of the existence of the Thuguvoda Deed and its terms to international media organisations in Australia.

25. &nbnless restrained b by this Honourable Court, the Defendants and each of them respectively will again divulge the contents of the Roni Deed and thguvodd to persther than those entitled to r to receiveceive suce such infh information.

26 &nnbsp; By reason oson of t of the First Defendant's breach of the Roni Deed and/or breach of the aforesaid duty of confidence, the Plaintiffs have suffered loss and damage.

27. &nBy reason of the the e Second Defendant’s breach of the Thuguvoda Deed and/or breach of the aforesaid duty of confidence, the Plaintiffs have suffered loss and damage.”

The Defence

b> The ce was filed on 15^th January, 1997 by Mr. Ashley of A & A Legal Servicervices then the Advocate for the Defendants. The relevant parts of the Defence are paragraphs 19 - 24. They are as follows:-

“19. &nnbsp; (a) The First Defendant admits that hhat he executed a document which purported to be all agreement to settle Civil Case 60 of 1997 in the High Court Solomon Islands and was purportedly entered into between the Plaintiffs and the First Defendant but otherwise denies the allegations in paragraph 15 thereof. Further, the First Defendant did not at the time of the execution of the purported agreement receive a copy of the purported agreement.

(b) Further, the First Defendant denies the purported agreement was or took effect as a Deed of Release.

(c) Further, the purported agreement is vnd/or voidable (and has bees been avoided by the First Defendant) on the grounds of unconscionability, duress and equitable fraud, and accordingly does not amount to a Deed of Release and/or is not binding on the First Defendant.

20. &nbssp;&nThe Fire First t Defendant refers to and repeats paragraph 19 hereof and otherwise denies the allegations in paragraph 16 thereof. 21.  p; The Fir t Def Defendant refers to and repeats paragraph 19 hereof and otherwise denies the allegations in paragraph 17 thereof.

22. The First Deftndaniedenies the allegations in paragraph 18 thereof. Further, he says that the material facts pleaded do not in law give rise to the dutyged. classNormal" style="marg"margin-lein-left: 3ft: 36.0pt6.0pt; mar; margin-top: 1; margin-bottom: 1">

23. &nbbsp; The Fire First Defe dant denies the allegations in paragraph 19 &nbbsp; &nsp; &nbbp;&n&nsp; pan>0pt">thereof.

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24. &nnbsp;; (a)Seco Second cond cond Defendant admits that he executed a document which purported to be an agreement to settlel Casof 1997 in the High Court Solomon Islands and was purportedly entered into into betwebetween the Plaintiffs and the Second Defendant but otherwise denies the allegations in paragraph 20 thereof. Further, the Second Defendant did not at the time of the execution of the purported agreement receive a copy of the purported agreement.

(b) Further, the Second Defendant denies that the purported agreement wast was or took effect as a Deed of Release.

p class=lass="MsoNormal" style="margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (c) Further, the purported agreement is voidor avoidable (and has been been avoided by the Second Defendant) on the grounds of unconscionability, duress, and equitable fraud, and accordingly does not amount to a Deed of Release and/or is not binding on the Second Defendant.”

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The Amended Defence

The Amended Defence was filed on 9^th J1998 by Mr. Talasasa of Talise Haus, the new Advocateocate for the Defendants. I must say I find the Amended Defence most confusing and badly drafted. It does not seem to have been sanctioned by the Court under Order 30 of the High Court Rules. That is to say, either party may amend pleadings with the leave of the Court.

However, whatever the posit is, one thing seems to be very clear from the Amended Defence. The Defendants hats have clearly changed their position to the point of making certain admissions of facts alleged in the Statement of Claim. Such admissions of facts may entitle the Plaintiffs to apply for summary order or judgement under Order 34 of the High Court Rules. Rule 6 of Order 34 states

“Any party may at any stage of a cause or matter, where admissions of facts have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as the Court may think just.”

As I understand it, the Amended Defence seeks to amend paragraphs 3, 5, 6, 7, 8, 9, 18, 19, 20, 22, 23, 30 and 32 of the Defence filed on 15^th January, 1998 by Mr. Ashley of A & A Legal,. Services. I will take each amendment one by one and examine it to see the extent of each amendment.

The Amendments

Paragraph 19(a) of the Defence is amended by paragraph R of the Amended Defence to the extent that the First Defendant, Mr. Roni, admits the particulars set out in paragraph 15 of the Statement of Claim. He also admits the allegations set out in paragraph 16 of the Statement of Claim. However, the matter of significance here is that paragraph 19(b) and (c) in the Defence remain intact as part of the Defence. Both (b) and (c) above are a denial of the validity or lawfulness of the Roni Deed. In my view, this is a good defence.

Paragraph 20 of the Defence is amended bygraph T of the Amended Defence to the extent that the FirstFirst Defendant admits the allegations in paragraph 19 of the Statement of Claim.

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Paragraph 21 of the Defence is amended by paragraph U of the Amended Defence to the extent that the First Defendant admits the allegations in paragraphs 17 and 19 of the Statement of Claim.

Paragraphf the Defence is amended by paragraph V of the Amended Defence to the extent that thet the First Defendant admits the allegations in paragraph 18 of the Statement of Claim.

Paragraph 23 of the Defence is amended by paragraph W o Amended Defence to the exte extent that the First Defendant admits the allegations in 18 above. However, paragraph 23 of the Defence refers to paragraph 19 and not 18 of the Statement of Claim.

Paragraph 30 of the Defence is am by paragraph DD of the Amended Defence to the extent that that the First Defendant admits the Plaintiffs may have suffered loss and damage.

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Paragraph 32 of the Defence is amended by paragraph FF of the Amended Defence to the extent that the First Defendant repeats paragraph 32 of the Defence.

However, it is obvious that paragraph 3 of thnded Defence omits paragraphs 24, 25, 26, 27, 28 and 29 of the Defence. These paragraphs are relevant to the Second Defendant, Mr. Thuguvoda, and the Thuguvoda Deed. They are however included in the Amended Defence at pages 5 - 6 thereof.

Paragraph 24(a) of the Defence is amended by paragraph X of the Amended Defence to the extent that the Second Defendant admits the allegations in paragraphs 21, 22 and 23 of the Statement of claim. Again, the, matter of significance here is that paragraph 24(b) and (c) remain intact as part of the Defence. Again, both (b) and (c) above are a denial of the validity or lawfulness of the Thuguvoda Deed. Again, in my view, it is a good defence.

Parag25 of the Defence is amended by paragraph Y of the Amended Defence to the extent that that the Second Defendant admits the allegations in paragraph 24 of the Statement of Claim.

Paragraph 26 of the Defence is amended by paragrapf the Amended Defence to the extent that the Second D Defendant admits the allegations in paragraph 24. This amendment is confusing as to its intent.

Paragraph 27 of the Defence is amended by paragraph AA of the Amended Defen the extent that the Secondecond Defendant admits the allegations in paragraph 23 of the Statement of Claim.

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Parh 28 of the Defence is amended by paragraph BB of the Amended Defence to the extent tent that the Second Defendant admits the allegations in paragraph 24 of the Statement of Claim.

Paragraph 29 of the Defence is amended by paragCC of the Amended Defence to the extent that the Second d Defendant admits the allegations in paragraph 25 of the Statement of Claim.

The Plaintiffs’ Case

The Plaintiffs’ case is that the Defendants do not have a de for breach of contract anct and of duty of confidence. Mr. Radclyffe argues that the Plaintiffs are entitled for leave to enter final judgement under order 14, rule 1 of the High Court Rules having satisfied all the requirements of Order 14, rule I above. I do not dispute the practice that the Plaintiffs are entitled to apply the short-cut procedure under Order 14 or Order 34 of the High Court rules whenever necessary. That is to say, summary order or judgement may be entered in favour of the Plaintiffs, if appropriate. As is stated by Bernard C. Cairns in his work Australian Civil Procedure, Third Edition, 1992, at 309-310:

“If a defendant, makes admissionficient to support the plai plaintiff’s claim, the plaintiff may apply for judgment based on the admissions. This application may be made at any stage of the proceedings, and it may be based on either formal admissions in the pleadings, or on informal admissions. Like the other rules giving summary remedies, it is designed to prevent delay and avoid expense where the defence is clearly not maintainable.

For a jud to be entered under this rule the defendant’s admissdmission must be strong and unambiguous. As in the case of summary judgement where the defendant has entered an appearance, or in the case of an application to strike out a claim or defence because for lack of substance, judgement is not entered on admissions where a serious question of fact or law requires consideration.”

In this case, I find that the Defendants do have a good defence against the claim foach of contract and dand duty of confidence alleged by the Plaintiffs in their Statement of Claim. The defence is that the Roni Deed and the Thuguvoda Deed are unenforceable for reasons set out in paragraphs 19(b) and (c) and paragraph 24(b) and (c) of the Defence as amended. That is to say, on the grounds of unconscionability, duress and equitable fraud. The Roni Deed and Thuguvoda Deed do not therefore amount to Deeds of Release or are binding on the Defendants. In other words, whilst the Defendants are not disputing the facts admitted, they are nevertheless saying the Deeds are unenforceable in law for the reasons stated in paragraphs 19(b) and (c) and 24(b) and (c) of the Defence. There is a serious question of law for consideration. This being the case, I refuse leave to enter final judgement against the Defendants. The application is dismissed with costs.

Dated this 5^th day of February 1999

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F. O. Kabui
Judge