Makasi v Comander of Participating Police Force (RAMSI) [2005] SBHC 52; HCSI-CC 059 of 2005 (23 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 059 of 2005

JOHN KWAKWALA MAKASI

-V-

COMMANDER OF PARTICIPATING POLICE FORCE
UNDER REGIONAL ASSISTANCE MISSION TO SOLOMON ISLANDS (“RAMSI”)
AND COMMISSIONER OF ROYAL SOLOMON ISLANDS POLICE

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Hearing: 23^rd March 2005
Judgment: 23^rd March 2005

Charles Ashley for the Plaintiff
John Sullivan for the 1^st Defendant
Nathan Moshinsky for the 2^nd Defendant

JUDGMENT

Mwanesalua, J. This is an application by summons filed by the 1^st Respondent for the following orders –

1. Paragraphs 2, 3, 4 and 5 of the Order of the Honourable Mr. Justice Mwanesalua made on 1 March 2005 (perfected on 2 March 2005) be stayed.

2. Service of the originating summons be set aside on the grounds the First Respondent is immune from Suit and the High Court has no jurisdiction.

3. The hearing of paragraph 2 of this summons be adjourned to a date to be fixed.

4. The First Respondent, on or before 20^th April 2005, file and serve a notice indicating whether she wishes to pursue a claim of immunity from suit and proceed with the application to set aside service of the Originating Summons.

5. If the First Respondent, Claims immunity from suit, the summons to set aside service of the Originating Summons shall thereafter be listed for hearing on a date to be fixed.

6. If the First Respondent submits to the jurisdiction, the matter be set down for further directions on a date to be fixed.

7. The costs of the application be reserved.

8. Liberty of either party to apply on not less than seven(7) days notice.

The orders being sought arise from the Orders perfected, signed and sealed by this court on 2^nd March, 2005. Those Orders were –

1. That leave is given to the Applicant to seek redress under Section 18 of the Solomon Islands Constitution against the First and Second Respondents.

2. That the matter is set down for full hearing between all parties on Wednesday 30^th March 2005 at 9.30am.

3. That the Applicant shall file and serve all court documents (including the Notice of Motion for the hearing of the application) in the proceedings on the First and Second Respondents on or before 4pm. on Wednesday 9^th March, 2005.

4. That the First and Second Respondents shall file and serve any Affidavits they wish to rely upon on or before 4pm. on Wednesday 23^rd March 2005.

5. That any Affidavit in response by the Applicant may be filed and served on the First and Second Respondents on or before 4pm. on Friday 25^th March 2005.

6. That costs of these proceedings are reserved until further order of this Court.

The First Respondent relies on Kerin Louise Leonard’s affidavit filed on 22^nd March 2005 in support of the application. These facts are derived from that affidavit. The order of this court of 2^nd March 2005 was served on the First Respondent on 9^th March 2005. The First Respondent claims immunity from suit under the Facilitation of International Assistance Act 2003. The First Respondent needs some more time to have consultation and consideration on the issues of immunity and submission to jurisdiction. The Witnesses for the First Respondent are yet to be interviewed and file affidavits on the allegations made by the Applicant. That some of the witnesses are in Australia and New Zealand who will be unable to attend the full hearing on this case on 30^th March 2005.

The Applicant opposed the application on a number of grounds. One of those grounds is that the Applicant would be prejudiced by a stay of the order.

The First Respondent had been served with the order on 9^th March 2005. The issue of immunity had been raised by the First Respondent under the Facilitation of International Assistance Act 2003. Time is needed to decide whether to wave or not to wave immunity. A number of the witnesses which the First Respondent would call are located in Australia and New Zealand and would not be able to be in Honiara for the full hearing on this case on 30^th March 2005. The claim by the Applicant against the First Respondent is on foot. I do not think that a stay of paragraphs 2, 3, 4 and 5 would prejudice the Applicant. I will therefore grant the Orders sought in terms of the summons by the First Respondent. Costs of this application are reserved.

F. Mwanesalua
Puisne Judge