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Solomons Mutual Insurance Ltd v Controller of Insurance [1999] SBHC 75; HC-CC 114 of 1999 (4 August 1999)

HIGH COURT OF SOLOMON IS

HC-CC NO: 114 of 1999

SOLOMONS MUTUAL INSU LIMITED

-V-

class="MsoNormal" align="cen="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> /p>

CONTROLLER OF INSURANCE AND

DIRECTOR OF PUBLIC PROSECUTIONS

HIGH COURT OF SOLOMON ISLANDS

(PALMER J.)

CIVIL CASE NO: 114 OF 1999

HEA 5th July 1999

RULING: 4th August 1999

MOTIS PACIFIC LAWYERS FOR THE APPLICANT

NO APPEARANCE BY FIRST RESPONDENT

A. RADCLYFFE FOR THE SECOND RESPONDENT

class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> PALMER J.: Tplicant is a private limiteimited liability company incorporated under the Companies Act, [Cap. 175] and duly registered under the Insurance Act to transact and carry on insurance business in Solomon Islands. Towards end of 1998, an investigation was ordered by the Second Respondent into the set-up and establishment of the Applicant (hereinafter referred to as "SMI"). On December 11 1998, an article was carried on the front page of Solomons Voice newspaper (Volume 6, Issue 338) headlined in bold "DPP orders criminal investigation of SMI" (see exhibit "JT10"). That article contained the following quote:

class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> "In the letter, the DPP says that the documled him to the conclusion tion that a criminal investigation was called for. Also in the letter, the DPP directed the Insurance Controller to withhold his approval for the transfer r of funds (Reinsurance Premium) to Swiss Underwriting Services Limited in Singapore until the criminal investigation is completed."

As a result of the direc from the Second Respondent to the First Respondent, the Applicant alleges it ha has suffered prejudice and damages to its reputation and business, and hence seeks to come to this Court for relief.

SMI filed an (ex-parte) for lea 30th March 1999, together with a Statement Accompanying thng the Application for leave, and affidavit in support of John Tomun, to apply for redress under section 18(1) of the Constitution. The application came before me on same date and orders made inter alia, as follows:

"1. & &nbsat lsat leave be granted tted to the Applicant to apply to the Court for redress under Section 18 of the Constitution."<

On 12 Apri9, the Second Respondent filed Memorandum of Conditional Appearance and Summons interinter alia, to strike out the proceeding before the Court. That Summons sought orders as follows:

"sp; that the c prongedingsdings be struck out under Order 27 Rule 4 or the Court's inherent power on the grounds that (a) they are frivolous and vexatious or (b) that they may prejudice, embarrass or delay a fair trial or (c) that they are an abuse of process in that they are intended to interfere with the lawful exercise of the Second Respondent's powers under Section 91 of the Constitution.

2. ;&nbssp; &nsp; Tsp; The Court has no powers to make the orders sought against the Second Respondent, in his capacity as an officer of the Crown by virtue of section 18(2) Crown Proceedings Act (Cap 8)hat tlief sought couldcould not not be obtained against Crown and the Second Respondent prosecutes cases on behalf of the Crown.

3. & p;&nbbsp;&bsp;&nbp;&nbp; That the grg of leav leave be set aside on the grounds that the Applicant could have used altere remedies, namely sue for malicious prosecution and/or trespass to goods oods or forr for the malicious procurement of the issue and execution of a search warrant.

4. & p;&nssp; Tsp; That that the proceedings be s be stayed pending the completion of the preliminary inquiry at the Magistrates Court and the High Court trial, if any."

On 10th May 1999, the Applicant filSummons to have the Summons of the Second Respondent strucktruck out under Order 21 Rule 29 and Order 27 Rule 4 of the High Court (Civil Procedure) Rules 1964 and or the constitutional and or the inherent jurisdiction of the Court on the grounds that:

ass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> (1) it is unneces ary o can scandalous;

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(2)  p; isp; it is an abuse of the process of the Court;

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(4) &nbbsp; it is frivolous s and vexatious.

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Both Summons were heard on 5th July 1999.

The gist of the Applicant's Summons seeks to challenge the rif any, of the Second Responespondent to rush to Court and to apply inter alia, to have the grant of leave set aside. Mr Moti for the Applicant submits that the matters raised in the Summons of the Second Respondent should be more appropriately raised during the hearing of the Notice of Motion itself than at this juncture.

RIGHT TO APPLY TO HAVE LEAVE ET ASIDE.

The issue this raises is whether there is a right to apply to have leave set aside in this instance and whether this Court has jurisdiction to entertain such application. If this Court should uphold Mr Moti's submissions then this Court would not need to deal with the Second Respondent's application. That will have to wait and be dealt with together in the hearing of the Notice of Motion.

SECTION 18 OF THE CONSTITUTION.

The action against the Sec Respondent had been brought under subsection 18(1) of the Constitution. That sub subsection states as follows:

"18. &nbsbjecthto t provisions of subsection (6) of this section, if any person alleges that any of the provisions of section 3 to 16 (inclusive) of this Constitution has is bor isly to b to be cone contravetravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress."

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As correctly submitted by Mr Moti, subsection 18(l) is the foundation for a person's right to apply to the High Court for redress of alleged contraventions (whether past, present or future) of the provisions of sections 3 to 16 of the Constitution. It empowers the complainant to approach the High Court for redress.

ass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> The first hurdleefore which a complainant has to overcome is that he/she has an allegation that any of the provisions of sections 3 to 16 ". . . has been, is being or is likely to be contravened in relation to him . . .". In this particular instance, the Applicant alleges that the actions of the Second Respondent, in advising the First Respondent to withhold approval for the transfer of funds (Reinsurance Premium) to Swiss Underwriting Services Limited in Singapore, amounted to a breach of its rights as provided for under sections 3, 10 and 15 of the Constitution (see Paragraph 4(e) of the Statement Accompanying the Application for Leave filed 30th March 1999).

I was satisfied on 30th March 1999 when the application for leave was brought before me that the Applicant fulfilulfilled this basic requirement and thereby had right to come to court for redress. No submissions of the Second Respondent have convinced me that the Applicant did not have right to come to Court for redress.

The jurisdiction of this Court to hear and determine any such aation brought by any personerson pursuant to subsection 18(1) is contained in subsection 18(2). The question of jurisdiction is not in issue here.

THE APPLICATION FOR LEAVE.

The right of an applicant to commence an action for rs under section 18(1) of the Constitution is governederned by Order 61A of the High Court (Civil Procedure) Rules, 1964. Order 61A sets out the guidelines by which such an application can be commenced.

Rule 1(1) requires that no applicacan be made without leave. That simply means if an applicanlicant wishes to commence an action for redress under section 18(1) he has to first obtain leave. Rule 1(2) in turn sets out how the application for leave is to be made. I quote:

"An application for leave shall be made ex parte to the Court and shall be accompanied:-

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[a] ;&nspp; bs a statement setting out the name and description of the applicant, the redress sought and the grounds upon which it is sought specifthe sn or ons of thstitution alleged tged to havo have beee been conn contravetravened (hereinafter called "the statement accompanying the application for leave"); and

class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> nbsp; avfida t ver yirifying ying the facts relied upon."

These requirements have been complied with byApplicant to the letter. The Applicant's application for leave was listed before me for hearing on 30th March 1999.

Rule 1(4) sets out some of the matters the Court should observe when considering such application These include the following considerations:

  • whether the the application is frivolous or vexatious [Rule 1(4)(b)];

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  • whether adequate means of redress for the contravention alleged are or have been available to the person concerned in the application under any other law [Rule 1(4)(c)];

  • whether the application has been made outside the time limits specified in Rule 3 without reasonable cause [Rule 1(4)(d)].

Rule 3 then provides that when leave had been granted, the application was tcommenced by notice of motion with at least eight clear days between service of notice of motion and the date of hearing. Before the application however could be made by notice of motion, the Second Respondent applied to have leave set aside, relying on the inherent jurisdiction of this court and or the Civil Procedure Rules.

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It is my considered view, that the Applicant is ct in its submissions, that that in relation to the question of leave, it would be improper for this court to entertain such application. The duty of the Court in such circumstances in my respectful view is to proceed to hear the notice of motion. In the case of Mitchell v. A-G (1986) 3 O.F.C.S. Law Reports 246 at 254, where an identical provision was cited, Liverpool JA in the Grenada Court of Appeal made this position clear:

"It seems to me that the clear intention of this section is that where suce such an allegation is made and on an application the High Court, it must hear and determine the application; but there is a discretion to decline to exercise its powers to make declaration or orders, issue writs, and give directions, if it is satisfied that adequate means of redress are or have been otherwise available to the applicant. So that where it is claimed that fundamental rights have been infringed the Court must, subject of course to the exercise of its statutory discretion in the proviso, give such remedy as it considers appropriate. But in every case, there must be the exercise of a judicial discretion in the granting or refusal to grant that remedy. This discretion can only be properly exercised after a hearing on the merits."

Where orders however, have also been made in conjunction with the grant of leave against a prospective respondent, it may be necessary at times to apply to Court to have those orders varied or discharged prior to the commencement of the notice of motion. That however should not affect the grant of leave made by the Court. As correctly pointed out by Mr Moti in his submissions to this Court, the sole function of the leave procedure is to filter out those applications which are "frivolous and vexatious" or where it is felt adequate means of redress … are available ... under any other law". Having gone through that filtering process, the Applicant is then given the authority or permission to commence an action proper for redress under section 18(1) of the Constitution. The granting of leave is nothing more than saying yes to the Applicant to institute action for redress under section 18(1) of the Constitution.

p class=lass="MsoNormal" style="margin-top: 0; margin-bottom: 0"> As correctly submitted by Mr Moti, the Summons of the Second Resnt is fundamentally misconcsconceived. It misconceives the purpose for which leave had been granted; viz., to obtain permission or authority from the Court to institute an action for redress under section 18(1). The Summons of the Second Respondent in essence seeks to abort that right, and thereby indirectly to deny the Applicant of his right to commence action for redress under section 18(1) of the Constitution. In my respectful view that is a wrong use of the right to apply to have the proceedings for leave struck out whether under the High Court Rules or the inherent jurisdiction of this Court and with respect cannot be permitted by this Court. The right of the Second Respondent is still preserved and can be addressed at the hearing of the notice of motion proper.

ORDER 27 RULE 4:/p>

class=lass="MsoNormal" style="margin-top: 0; margin-bottom: 0"> The Second Respondent relies on Order 27 Rule 4 to support his application to have the proceedings for leave struck out but in my respectful view, that reliance is misplaced. It is not open to the Second Respondent to rely on Order 27 Rule 4 to have leave set aside in this particular instant for the following reasons. Order 27 Rule 4 can only be invoked in the circumstances of this after the notice of motion had been filed and served. Until that is done, the Second Respondent has no right to come to Court and try and prevent the Applicant from instituting an action for redress duly sanctioned by the Court. The right of an applicant to come to court and to commence an action for redress is expressly provided for under Order 61A of the High Court (Civil Procedure) Rules, 1964. Once that has been complied with, an applicant has right to come to Court for redress. It is nonsensical for the Court to give leave on one hand, then immediately thereafter to allow that leave to be attacked even before an action had been commenced. If for any reason the presiding judge considers it proper that leave be dealt with by way of an inter partes hearing, then that would have been made known from the beginning. But even if this Court should have inherent jurisdiction to have the proceedings where leave had been obtained struck out, I would not be prepared to grant such order, on the grounds that not only do I consider it to be unnecessary but an abuse of the process of the Court in the circumstances of this case.

p class=lass="MsoNormal" style="margin-top: 0; margin-bottom: 0"> It is my respectful view the proper procedure anticipated by Order 61A, in particular Rule 6, was for the Second Respondent to wait until the notice of motion had been filed and served together with all other papers filed, before his right to apply and have that leave set aside should be invoked.

ass=lass="MsoNormal" style="margin-top: 0; margin-bottom: 0"> In any evey application to have the proceedings struck out can only be effectively invoked at t at the hearing of notice of motion unless there is particular reason why that should not be so. Obtaining leave is simply a procedural first step, undertaken by an applicant, normally without the involvement of the respondent, unless of-course the Court so directs. In that instance, it is not anticipated that any application should be made to have leave set wide immediately after it is obtained and before the notice of motion is filed. Strictly speaking, the action against the Second Respondent is yet to be commenced; only leave had been obtained from the Court and that is a matter for the Court to decide at the ex-parte hearing. Once leave is obtained that paves the way for the action to be commenced.

Whilst the pleadings referred to in Order 27 Rule 4 include the Statemenompanying the Application fion for Leave and documents filed together with the notice of motion, it is my respectful view Order 27 Rule 4 can only be invoked at the point of time the notice of motion is duly filed. Only at that point of time can it be said the proceedings are on foot and thereby open to attack under Order 27 Rule 4.

I am not satisfied the proceedings sought to be brought against the Second Respondepondent are frivolous and vexatious or that they may prejudice, embarrass or delay a fair trial. There is virtually no evidence to support any such submission.

I am also not satisfied, the said proceedings amount to any abuse of process in any way. It should also be pointed out that the issues raised in paragraph 1 all link up to the question whether the notice of motion filed for redress by the Applicant amounts to an interference with the lawful exercise of the Second Respondent's powers under section 91 of the Constitution. That issue however is closely related to the issue raised in the Applicant's notice of motion anyway; that the Second Respondent lacks such power under section 91 of the Constitution and that it would have been considered during the hearing of the notice of motion at any rate. In my respectful view that is the rightful place for determination of the issues raised in paragraph 1 of the Second Respondent's Summons. Accordingly I decline to deal with those issues here.

PARAGRAPH 2 OF THE SUMMONS OF THE SECOND RESPO - SECTION 18(2) OF THE CROE CROWN PROCEEDINGS ACT (CAP. 8):

Paragraph 2 of the Second Respo's Summons seeks to submit that the Court had no power to m to make orders against the Second Respondent in his capacity as an officer of the Crown by virtue of section 18(2) of the Crown Proceedings Act (Cap. 8). The question however whether this provision would provide a shield of immunity to the Second Respondent in the circumstances of this case is immaterial to the issue of leave to commence an action for redress under section 18(1) of the Constitution. It is more appropriately a matter for determination at the hearing of the notice of motion than by way of a Summons seeking an order that the Court had no power to make the orders it seeks in its notice of motion. What it seeks to challenge is the power of this Court to issue the kind of relief sought, not the jurisdictional base of this Court, which is not denied in this particular instance. To that extent, not only is it inappropriate and unnecessary, but amounts to an abuse of process and therefore ought not to be dealt with in this application.

ALTERNATIVE REDRESS:/p>

class=lass="MsoNormal" style="margin-top: 0; margin-bottom: 0"> The issue raised under this ground with respect is also a matter which quite properly ought also to be dealt with at the hearing of the notice of motion and cannot be a basis for having leave set aside once leave had been obtained. If it transpires at the hearing of the notice of motion that leave ought not to have been given under this ground, that is no impediment because the Court can simply refuse to make the orders sought in the notice of motion (see proviso to subsection 18(2)).

STAY OF PROCEEDINGS PENDING PRELIMINARY INQUIRY:

On the issue of whether these proceedings should be stayed pending completion of the preliminary inquiry at the Magistrates Court and the High Court trial, it should be pointed out this action for redress is a separate and distinct matter raised under the Constitutional provisions and that I fail to see any good reason why this should be unnecessarily stayed when the issues raised are capable of determination on their own quite apart from that inquiry. Mr Moti has made it abundantly clear his client does not seek a stay of those preliminary proceedings in the Magistrates' Court. He also points out the orders sought against the Second Respondent have no connection with his role in instituting and participating in the conduct of criminal proceedings. I am not satisfied these proceedings should be stayed pending determination of the preliminary inquiry.

CONCLUSION:

I find with respect the Summons of the Second Respondent to inter alia, striketrike out the proceedings pertaining to the issue of leave, to be without basis, unnecessary and an abuse of process. I also find it tends to prejudice, embarrass or delay the fair trial of this action. That in my respectful view is sufficient to order the said Summons to be dismissed with costs. On the issue of costs ordered by this Court on 30th April 1999, I have had opportunity to read the affidavit evidence of Loa Damena-Tepai filed on 12th May 1999. I am satisfied that order for costs should be set aside and replaced with an order for costs in the cause.

ORDERS OF THE COURT:

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1. &nbbsp; ORDER THAT THE SUMMOSUMMONS OF THE SECOND RESPONDENT BE STRUCK OUT AS UNNECESSARY, AN ABUSE OF THE PROCESS OF THE COURT AND THAT IT TENDSREJUDEMBAROR DE AIR TRIAL OF THE ACHE ACTION.TION.

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pan lang="EN-GB" style="font-size: 12.0pt">2.  p; &nSsp; SEp; SET ASIDE THE THE ORDER FOR COSTS MADE AGAINST THE APPLICANTS ON 30TH APRIL 1999 AND REPLACE WITH AN ORDER FOR COSTS IN THE CAUSE.

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3. &nbbsp;& &nsp; Csp; COSTS OF THIS ICPPLICATION TO BE BORNE BY THE SECOND RESPONDENT.

THE COURTn>

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