Saki v Ross Mining (Solomon Islands) Ltd [1999] SBHC 61; HC-CC 169 of 1997 (1 June 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 169 of 1997

SAMUEL SAKI (AND OTHERS)

p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> ROSS MINING (SOLOMON ISLANDS) LIMITED AND ANOTHER

High Court of Solomon Islands

Before: Palmer J.

Civil Case No: 169 of 1997

Hearing: 2^nd March 1999

Ruling: 1^st June 1999

G. Nash, Foley and C. Ashley for the Plaintiffs

J.Griffith and A. Radclyffe for the Defendants

PALMER J.: INTRODUCTION. There aere are two summons for determination by this Court. The first summons filed by the First and Second Defendants (hereinafter referred to as “the Defendants”) on 15^th February 1999 seeks orders inter alia, for the separate determination of a number of questions of law which the Defendants view will dispose of the whole case if answered in the affirmative. The second summons filed by the Plaintiffs on 25^th February 1999, seeks orders inter alia, for leave to file and serve the Amended Statement of Claim “Exhibit A” annexed to the summons.

1. SUMMONS OF THE FIRST AND SECOND DEFENDANT - DETERMINATION OF A PRELIMINARY POINT OF LAW

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This Court has jurisdiction both inherently and under Order 27 Rules 2 and 3 of the High Court (Civil Procedure) Rules 1964, to set down for hearing at any time before trial, any points of law raised by the pleadings which in the opinion of this Court would either dispose of the whole action substantially or dispose of any distinct cause of action raised. I quote Rules 2 and 3:

“2. &&nbspAny >arty arty shall hall be entitled to raise by pleading any point of law, and any points so raised shall be disposed of by the Court at or after the trial, provided that byent o partor by o by order rder of thof 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.

class=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Two questione been submitted for consideration by this court whether they fall within the above ove category. The first question reads:

lass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Given that at all material times:

lang="EN-GB" style="font-size: 12.0pt">(a) & The First irs DefenDefendant was the holder of the Gold Ridge Special Prospecting Licence issued under Part IV of the Mines and Minerals Act, 1990 as amended; and

(b) The Second Defendan has held and has continued to hold the Gold Ridge Mining Lease issued under Part VI of the Mines and Minerals Act, 1990 as amen/span

whether on their proper construction the provisions rts IV and V of the Mines anes and Minerals Act, 1990 as amended and Part V of the Mines and Minerals Regulations, 1996 provide the First and Second Defendants with a complete defence of statutory authority to the claims made by the Plaintiffs and represented persons in the Amended Statement of Claim in respect of the causes of action pleaded in:

(c) ;&nbssp; nsp; nuisancisance and trespass (paragraphs 14 and 21 inclusively); and

(d) & strict liat liability (paragraphs 28 to 29 inclusively).

The Defendants submit the separate determination of that question will have the clear potential of reducing subg substantially, if not entirely, the field of controversy between the parties and thereby either substantially shorten or entirely obviate, the need for a trial and saving the parties and the Court substantial resources. They rely as support on a similar fact situation contained in the case Allen v. Gulf Oil Refining Ltd [1980] UKHL 9; [1981] AC 1001.

p class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintobject the application essentially on two grounds. First, the question will depend onnd on facts to be determined at trial after discovery, interrogatories and evidence, and secondly, the question was not raised on the pleadings.

(i)  p; whether the diterminermination of this question will “obviate the necessity of litigation altogether or substantially narrow the field of controversy” (see CBS Productions Pty Ltd -v- O’Neill (1985) 1 NSWLR 601 at 606 paras. C-D); and

(ii) ;&nbsetheh the q q question depends on facts to be determined at trial after discovery, interrogatories and evidencpan>

Bosues however are directly related to each other and therefore will be addressed togettogether. It is relevant to identify at the outset what in essence is the claim of the Plaintiffs.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs claim they are landowne the area of Land (referred to in the Amended Statement ment of Claim as “the said Land”) marked on the map annexed to the Amended Statement of Claim as Schedule A, and that they live adjacent to the Matepona River (paragraph 7 of the Amended Statement of Claim).

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In paragraphs 14 to 21 inclusively, they raise claims of nuisance and trs. They state they li live on the banks of the Matepono River adjacent to, or in the vicinity of, the said Land downstream of the Gold Ridge Mine. By virtue of their location and use of the said Land, they allege the actions of the Defendants as spelled out in paragraphs 14 to 21, and the inherently dangerous and harmful nature of the materials that will be used as spelled out in paragraphs 28-29, will constitute nuisance and trespass and strict liability.

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Thee this Court has to consider is whether the questions proposed in the summons filed oled on 15 February 1999, will address substantively the issues of nuisance and trespass, and strict liability, raised in the Amended Statement of Claim. That is, are they relevant, and will they dispose of the issues of nuisance, trespass and strict liability wholly, or “substantially narrow the field of controversy”.

The Defendants rely on the case of Allen -v- Gulf Oiining Ltd [1981] AC 100C 1000 (House of Lords decision) in support of their application for the preliminary points of law to be addressed before trial. That case involved the construction and operation of an oil refinery and related works at Waterston, Milford Haven in the county of Dyfed by operation of an Act of Parliament, the Gulf Oil Refining Act 1965. Some of the inhabitants of the small village of Waterston brought actions against the oil refinery alleging inter alia, that the Appellants (Gulf Oil Refining Ltd) were committing nuisance in the construction and operation of the oil refinery. The Respondent commenced this action as a test case alleging nuisance by noxious odours emanating from the refinery, vibrations and offensive noise levels. The respondent alleged she and members of her family had sustained personal injury, suffered damage and expense, and lived in fear of explosion from the refinery. The Appellants relied on the defence of statutory authority.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The House of Lords held that the legislation (section 5(1)) gave the Cy authority to construct anct and operate on the land a refinery commensurate with facilities for unloading, and that statutory authority conferred immunity on the appellants from proceedings for any nuisance which might be the inevitable result of such construction and operation, however careful the Company was in construction and operation. The learned Law Lords however recognised that issue in law alone would not have addressed the issues raised fully as there were complex issues of fact which were yet to be addressed. Lord Wilberforce put the case in this manner:

“The respondent alleges a nuisance, by smell, noise, vibration, etc. The fThe facts regarding these matters are for her to prove. It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site, conforming with Parliament’s intention, without creating the nuisance alleged, or at least a nuisance.”

Lord Diplock also identified the issue as follows:

“At thterlocutory stage it is exceedingly difficult and, ind, indeed, impossible to give a categorical and final answer to that question. For an effective plea of “statutory authority” presupposes the absence of any relevant negligence by the defendant company. As yet there has been no trial to determine whether the working of the refinery, which began operation in 1967, does constitute any nuisance (inevitable or avoidable), or whether Gulf has been guilty of negligence. Those issues are in themselves capable of having considerable legal and factual complexity. The burden will be upon the plaintiff to prove nuisance or negligence, arising from the construction or operation of the refinery. On the other hand, it would be for the defendant to establish that any proved nuisance was wholly unavoidable, and this quite regardless of the expense which might necessarily be involved in its avoidance, whereas he will clear himself of negligence if at the end of the day it emerges that any discomfort suffered by the plaintiff arose despite his exercise of reasonable care. It follows that an affirmative answer to the prescribed question of law could only be tentative, for it might emerge from the facts that the only possible conclusion was that the plea of “statutory authority” was not, after all, available to the defendant. But, despite the ultimate uncertainty, this House is nevertheless called upon to consider and answer the question as best it can.”

What was noted by the learned Law Lords in Allens’ Case ) equally apply in this cass case. The question whether the relevant provisions of the Mines and Minerals Act 1990 and the Mines and Minerals Regulations 1996, provide the Defendants with a complete defence of statutory authority cannot be isolated from the facts of the case. Mr. Nash is correct in pointing out that the provisions which apply to this case, are general mining provisions which apply to any mine established in the country. On their own, they are incomplete; like standing on one feet. The facts need to be ascertained and established before the question of statutory immunity could be meaningfully determined. The reason being that even if it is determined that those provisions could provide the Defendants with the defence of statutory immunity, the facts of the case will still have to be ascertained, to determine whether the construction and operations of the mine do in fact comply with the requirements of the Act and Regulations. That essentially is a question of fact.

For instance, if we are to consider paragraph 44(1)(c) which r

“A mining company shall –

(b)…

(c) carry out the mining plan specified in the mining lease, using the appropriate technology and effective equipment, machinery, methods and materials, with due diligence, efficiency and economy, in accordance with sound conservation, technical and engineering practices generally used in the mining industry;…”

The only way that paragraph can be meaningfully addressed and determined, is e mining plan specified in d in the lease is examined at trial and determined, whether “the appropriate technology and effective equipment, machinery, methods and materials” have been used and are being used “with due diligence, efficiency and economy, in accordance with sound conservation, technical and engineering practices generally used in the mining industry”. That with respect, can only be done as correctly submitted by learned Counsel Mr. Nash, at trial after discovery, interrogatories and evidence.

Or take for instance, Regulation 18, which reads:

“In the exercise of mineral rights, holders shall carry out oput operations with due diligence, efficiency and economy and in accordance with good technical and engineering practises generally used in the mining industry so as to –

(a) conserve and avoid the waste of theral deposits of Solomon Isln Islands;

(b) result in minimum cological damage or destruction;

(c) control the flow an prevent the escape of contaminants, tailings and other mher matters produced in the course of such operations;

(d) prevent avoidable damage to trees, crops, buildings and other structures;

(e) avoid any action which could endange health or safety of personersons; and

(f) avoid harm to hwater, marine and animal life.”

The matters spelled out in Regulation 18 above st in plain terms what a holder of inter alia, a mininmining lease is required to do. Those matters however are general requirements which apply across the board to any mining operation set up under the Act. They do not stand alone. They have to be applied to the facts and circumstances of each mine. The question whether compliance has been made in accordance with the requirements of the Regulations are questions of fact. And where questions of fact are involved, the determination of a preliminary point of law would prove futile (see cases referred to by Counsel for the Plaintiffs Allen v. Gulf Oil Refining Ltd [1981] AC 1000; Allen v. Gulf Oil Refining Ltd [1980] 1 QB 156; Manchester Corporation v. Farnworth [1930] AC 171; and Jacobsen v. Ross [1955] 1 VR at 342-345, 359-361).

The second argumented by the Plaintiffs that the question of law on statutory immunity had not been raised in the pleadings is not correct. Whilst it is correct paragraphs 11 to 21 of the Defence filed on 29^th January 1999 do not make specific reference to the defence of statutory authority, it doesn’t take much to work out that indirectly, that was what was being pleaded. It is simply like two sides of the same coin.

The first question proposed accordingly wave to be answered in the negative.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> 2. WHETHER THE PLAINTIFFS AND REPRESENTATIVE PERSONS MUST FAIL IN THLAIM FOR QUIA TIMET I INJUNCTIVE RELIEF IN RELATION TO THEIR CLAIMS IN NEGLIGENCE (PARAGRAPHS 22 TO 27 INCLUSIVELY OF THE AMENDED STATEMENT OF CLAM).

The second question proposed in the summons filed by the Defendaelates directly to the reli relief sought in this action; that of permanent injunctions sought against the First and Second Defendants.

Whilst I appreciate on the surface, the question proposed appears to be one based solely on law, on closer analysis it will entail mixed questions of fact and the law. In the circumstances it would not be appropriate to have that question heard separately.

Secondly, in view of how this Court had ruled with regardthe first question, it will will only protract proceedings if this question is to be set down for separate hearing. It too should be answered in the negative.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> RETAINER

The second part to the summons filed on 15 February 1999 pertains to the issue of retainer. Itr. It appears there had been some confusion as to whether the Plaintiffs’ Solicitor should be required to produce his authority and retainer to act on behalf of the Plaintiffs only or inclusive of the persons represented and listed in Schedule “B” to the Amended Statement of Claim. The summons of the Defendants filed 15^th February 1999 included the names of the persons represented and listed in Schedule “B” as persons from whom retainers should also be obtained. Unfortunately no authority had been cited in support of this proposition. The cases relied on by the Defendants pertain only to clients or the plaintiffs.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintif the other hand rely on the cases of De Hart v. Stevenson [1876] 1 OBD 313; Market & Co. Ltd. v. Knight Steamship Co. Ltd [1910] UKLawRpKQB 126; [1910] 2 KB 1021; Irish Shipping Ltd. v. Commercial Union Insurance Co. PLC [1991] 2 QB 206; and Prudential Assurance Co. Ltd v. Newman Industries Ltd [1981] Ch 229 in support of their proposition that if any retainer is to be made, it should be confined only to the plaintiffs in this representative action. I am satisfied that is the correct position in law that retainers need only be produced in respect of the six Plaintiffs. I make an order to that effect to be filed and served on the Defendants within 14 days.

REPRESENTATIVE PROCEED/span>.

An alternative order sought in paragraph 4 of the dant’s Summons relate to the representative proceedineedings taken out by the Plaintiffs. The Defendants argue the Court should make directions in the representative proceedings as there are individuals within some of the tribes who are strongly opposed to such alleged representation. The Defendants submit this Court should direct that copies of a Notice marked Annexure "B" and copies of an Opt-Out Notice marked Annexure "C", attached to the Summons should be delivered to all represented persons giving them an opportunity to opt out if they so wish. Unfortunately, I consider this to be unnecessary and irrelevant in the circumstances of this case. There is no requirement under Order 17 Rules 8 and 9 of the High Court (Civil Procedure) Rules, 1964 for an opt out notice to be issued. The represented groups, by tribe, community, line and even by name have been identified. That is sufficient. If there are any groups, or persons who do not wish to be part of the actions instituted by the Plaintiffs there is no impediment for them to opt out as some have done. Even if any decision should be given which would have a binding effect in law, there is no impediment in them instituting any action to show why they should not be so bound. The purpose of representative action to be taken under Rule 8 is unique to Solomon Islands in that it enables a person by virtue of his/her membership of a tribe, community, line or group to take up legal action as has been done here on behalf of his tribe, community, line or group. As is usual in such cases, there will always be a dissenting group or sometimes referred to as the "group of objectors or the opposition group" within the community, tribe, line or group. That is normal. There is nothing wrong with that. If the plaintiffs win their case, the objecting group will either have to join in or take out a suit against the plaintiffs if they so wish. The dissenting group also may if they wish join up with the Defendants in this case, as Co-Defendants. That is always open to them to do.

The case of Carnie v. Esanda Finance Corporation/i> (1996) 38 NSWLR 465, relied on by the Defendants can be easily distinguished from this case. That case involved a representative action in which the plaintiffs sought to represent themselves and all other persons (‘the represented debtors’) who had:

(a)  p; oa or 2ter 28 FebruFebruary 1985 entered into loan or credit sale contracts with the defendant which were regulated contracts within the mg of term e Cre Act 1984;

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(b) &nbbsp;&&nbsph oach of whof whof which contracts has been varied by an agreement (‘variation agreement’) which did not dischthe oal contract and ….”

Schedule “B” to the Writ of Summons and/or the Amended Statement of Claim is alleg belong.

The Summons filed 15^th February 1999 accordingly must be dismissed save the matters identified above.

THE SUMMONS OF THE PLAINTIFFS FILED 25TH FEBRUARY 1999.

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Two orders ought, (1) that the Plaintiffs be granted leave to file and serve the Amended Statemeatement of Claim Exhibit “A” to the Summons; (2) that the Defendants file and serve Answers to the Further and Better Particulars filed 24 February 1999 by 12 March 1999.

1. That the Plaintiffs be granted leave to file and serve the Amended Statement of Claim Exhibit “A” to the Summons.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs rely on the affidavit of Nicholas John Styant-Browne fi^st March 1999. I99. In paragraph 7 of the written submissions of the Plaintiffs, the reason given for the amendment was that it was necessary for the purpose of determining the real questions in controversy between the parties.

Respectfully I disagree. The Plaintiffs have had all the opportunity to make the necessary amendments and to get the real questions in controversy identified. That has already been done. It is now time to get this case on to the next stage of proceedings. This court simply cannot allow them to keep coming back for amendments merely because they have not been able to make up their minds or are uncertain about their claim. They were given opportunity to make all the necessary amendments when a Summons was filed on 4 November 1998 seeking leave to file and serve an Amended Statement of Claim (see paragraph 2 of the affidavit of Nicholas John Styant-Browne). The Court of Appeal had just ruled in their favour in respect of their appeal in Civil Appeal Case No. 1 of 1998 on 7^th October 1998. That should have settled their minds and enabled them to focus on their claim. In my respectful view they have done that.

The matters deposed to in paragraphs 3 and 4 of the said affidavit of Nicholas John Styant-Browne do not raise any new grounds or matters that would better identify the claim of the Plaintiffs and therefore justify a further leave for amendment. They relate to isolated incidents which occurred well after this claim had been filed. If they are of any relevance to this case, they can be raised at trial and the deponent be made available for cross-examination. For purposes of justifying whether leave should be granted for further amendment, I find them with respect to be insufficient. On the question of objection raised therefore as to their admissibility, with respect I find that unnecessary to answer at this stage.

Further those matters also occurred prior to the said Summons for leave to file an Ad Statement of Claim laim was made. If they were necessary for the purpose of determining the real questions in controversy between the parties why were they not raised before the Registrar of High Court on 16 December 1998. No satisfactory explanation has been given for the delay. It took the Plaintiffs a further two months to make up their mind about what further amendments should be made. This cannot be allowed to go on. The case was commenced twenty two months ago in July of 1997. Learned Counsel for the Plaintiffs had submitted that the Court take a firm line in this case as little progress had been made and there had been much delay. I think that can start right here with the application for leave for yet another amendment of the statement of claim in circumstances I find to be unjustified, unnecessary and tantamount to an abuse of process. That application must be denied.

2. That the Defendants file and serve Ansto the Further and Better Particulars filed 24 February 199y 1999 by 12 March 1999.

The second order sought t yet complied with must be complied within fourteen days. A reply is to be fil filed fourteen days thereafter and the Plaintiff to take out a summons for directions as required by Order 32 Rule 1 of the High Court (Civil Procedure) Rules, 1964, within fourteen days thereafter.

Costs.

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ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The issue of costs should be split as fo. The Defendants should be responsible for the costs of thef the Plaintiffs in the Summons filed 15^th February 1999 whilst the Plaintiffs the costs of the Defendants in the Summons filed 25^th February 1999.

1. &nbssp;&nnbsp;&nsp; esp; e paragraph 1 of thef the the Summons of the Defendants filed 15 & p;&nbbsp;  p&nbssp; Febr Febr February 1999.

classNormayle="n-left: 36.0pt; margin-top: 1; margin-bottom: 1">

2. &nbssp; Order tder that the Solicitor on the record for the Plaintiffs produce to the Court and for inspection by the Defendants his authority to act and any retainer in the prongs ipect of each of t of the Sihe Six Plax Plaintiffs named in this action within fourteen days.

3. &nnbsp; Refuse order sought in paragrapagraph 3 of the said Summons.

4. & p;&nssp; Rsp; Refuse fuse order sought in p in paragraph 4.

5. &nnsp;& Osp;r tdet that witt within fourteen days here from the Plaintiffs file and serve a document which identifies the particular community, line or group which the Plaintiffs aim tresenwhich each of thef the pers persons lons listed in Schedule "B" to the Writ of Summons and/or the Amended Statement of Claim is alleged to belong.

6. &nnbsp;; Refuse orse order sought ght by the Plaintiffs in paragraph 1 of the Summons filed 25 February 1999.

an lang="EN-GB" style="font-size: 12.0pt">7. ; Dir; D tect thet the Defendants file and serve Answers to the Further and Better Particulars filed 24 February 1999 within fourteen days.

9. & p; &nsp; Tsp; The Plaintiff to t t take out a summons for directions after close of pleadings within thirty five days.

10. & p; Cof thef the the the Plaintiffs in the Summons filed 15^th February 1999 are to be borne by the Defen.

11. &nbbsp; ostshe the Defendants in the Summons filed 25^th February 1999 to be borne by the Plaintiffs.