Solomon Islands National Union of Workers v ABA Corporation [2001] SBHC 171; HCSI-CC 32 of 2001 (1 June 2001)

CC No 32, 01, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 32 of 2001

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

-v-

ABA CORPORATION & OTHERS

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 32 of 2001

Hearing: 31st May 2001
Ruling: 1st June 2001

A.N Tongarutu for the Appellant
A. Radclyffe for the respondent

PALMER J.: This is an application by the Respondent for orders to strike out a number of grounds of appeal on the basis that they do not raise issues of law. Section 13 of the Trade Disputes Act (Cap. 75) (hereinafter referred to as the “Act”) provides that:

“An appeal shall lie to the High Court on any question of law arising from any decision of, or arising in any inquiry before, the Trade Dispute Panel under this Act.”

Rule 11 of the Trade Disputes Panel Rules in turn provide that:

“Order 60 of the High Court (Civil Procedure) Rules 1964 shall apply with the necessary modifications to appeals under section 13 of the Act as it applies to civil appeals against an interlocutory decision of a Magistrates’ Court.”

Order 60 Rule 1(4) of the High Court (Civil Procedure) Rules 1964 [“the Rules”] gives power to this Court to strike out any grounds that is “ ... vague or general in terms or which discloses no reasonable ground of appeal ...”. An appeal not on grounds of law can be regarded as disclosing no reasonable ground of appeal.

Five of the appeal grounds listed are objected to:

1. The Trade Dispute Panel erred in deciding that the Union agreed to the Employer party’s application for directions sought except for the issue of witness orders.

2. The Trade Dispute Panel erred in deciding that the dispute is not likely to be settled by negotiations.

3. The Trade Dispute Panel erred in failing to consider the Appellant’s submissions made pursuant to Section 5 of the Trade Disputes Act 1981 for a secret ballot to be conducted in the determination of the issue of recognition and in so doing deprived the employees of their rights to participate in the process of secret ballot voting.

4. The Trade Dispute Panel erred in law in directing the case to proceed to a full hearing prior to determining whether the Appellant has a substantial proportion of the employees as its members (not objected to).

5. The Panel’s directive orders are misdirections in law in that the directions adopted by the Panel in determining the recognition issue are irregular (not objected to).

6. The conduct of the employer representative on the Panel was not impartial.

7. The Trade Disputes Panel acted improperly in consolidating the employers notice of referral.

Appeal Point (1)

Respondent submits this does not raise a question of law. That is correct. Appeal ground (1) merely raises a procedural matter, which is not crucial to the Appellant’s case. If there are matters not agreed to then those can simply be addressed by the Trade Disputes Panel (“the Panel”) during the substantive hearing itself or at a later stage. Even if there is an error it is more a factual error based on the facts presented to the Panel than any question of law.

Appeal Point (2)

This also does not raise a ground of law. It is an expression of opinion of the Panel in the preliminary stages and does not prevent the Appellant from raising the matter at a later stage. Even if the Panel had committed error in making such decision, it does not stop parties from later pointing out to the Panel that negotiations had not been exhausted. Panel made this point clear at paragraph 5 of its Ruling dated 1st March 2001. It is simply a finding of fact based on what was presented to the Panel at that point of time.

Appeal Point (3)

The question whether a ballot of the employees may be taken is but part of the consultative process, which the Panel may embark upon where it thinks fit. It is a discretionary matter and not a question of law. The Panel mayor may not decide to consult the employees. The Panel may consult for purposes of assisting the parties reach a settlement by negotiation or to assist it in making an award. The decision not to, does not raise any question of law.

Appeal Point (6)

Does allegations of partiality constitute a question of law? Commissioner Freeman in Manedetea v. Kulagoe (1984) SILR 20 at page 21 paragraph (2) thinks so, referred to by learned Counsel for the Respondent. I quote:

“Counsel for Manedetea argued bias is a point of law. This might possibly be so, but whether bias can make a decision “erroneous in point of law” is quite another matter. In my judgment it cannot: those words mean “wrong in its answer to some question of law”. That answer (unlike the answer to a question of fact) must in the appeal court’s view be either right or wrong: the way it was reached cannot change it from one to the other.”

Allegations of bias in themselves are not questions of law. They raise questions of fact. Their impact however if proven on evidence directly affects the validity of any decision. To that extent I would have allowed this ground but for the fact that it is so vague and general that it cannot be allowed to stand as an appeal point. What conduct is complained of and what are the allegations of bias?

Appeal Point 7

The Decision to consolidate is a procedural matter more on convenience for the Panel than anything else. If inappropriate there is no impediment to having the matter corrected. Rule 2 of the Trade Disputes Panel Rules provides that the Panel may determine its own procedure.

Conclusion

I am satisfied the objections raised by Counsel for the Respondent against grounds 1 - 3 and 6 - 7 that they do not raise any question of law must be sustained. Those grounds should be struck out. The remaining grounds of Appeal can now be listed for hearing, by the Registrar of High Court.

ORDERS OF THE COURT

1. Strike out grounds 1- 3 and 6 - 7 of the Notice of Appeal filed 13th March 2001 as not disclosing any question of law.

2. Direct that the remaining grounds (Appeal points 4 and 5) be listed for hearing by the Registrar of High Court.

3. Costs in the cause.

The Court