Russell Islands Plantations Ltd v Kagovai [2005] SBHC 71; HCSI-CC 197 of 2005 (6 June 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 197 of 2005

RUSSELL ISLANDS PLANTATIONS LIMITED

-v-

TONY KAGOVAI, WILLIAM TAKASI AND OTHERS AND BARRY SAMSON

Industrial law - Trade Disputes Act (Cap. 75) - orders made under s. 10(6) following court finding of contravention of s. 10(1) ("continuing industrial action where dispute before Panel") - available remedies.

Contempt - disobedience to a judgment or order to abstain from doing an act- availability of remedy to commit to prison in course of a trade dispute - civil or criminal contempt - whether course of action appropriate in the circumstances.

Practice and procedure - parties to an action - "representative party" - Workers Union representing Solomon Island workers at this copra estate - substitution of parties after judgment or order - matters for consideration.

This notice of motion seeks the committal of various workers of the aggrieved applicant copra providing company at Yandina, Russell Islands, to prison together with the other two separately named respondents who are officers of the SI Union of Workers. It is alleged they have breached earlier orders in separate proceedings, cc. 247 0f 2004 where this applicant successfully obtained orders against the S.I. National Union of Workers, the first respondent and William Takasi and many others named as second respondent. These orders were made on the 7 October last, under ss. 10(1) & (2) of the Trade Disputes Act (cap 75), found continuing strike action illegal, restrained the respondents from acts in furtherance of the dispute and ordered the respondents to compensate the applicant for its losses occasioned by the strike to that time. Since then the strike has continued and escalated so that the applicant has now by motion, sought to commit to prison particular individuals for contempt of those orders. During the course of these proceedings, since the 7 October, the applicant company sought and substituted two particular individuals with the named Workers Union and the suit continued with these different parties and a different suit number. These changes were done by consent of Mr. Charles Ashley, counsel for respondents.

The applicant plaintiff, having obtained leave to proceed against these two particular individuals and the original 20 second respondents, for alleged contempt of the earlier orders of the court, now seeks their committal to prison for such contempt. Through- out this time, the Trade Disputes Panel has had carriage of the resolution of the dispute under the Act although no award has been made. As well, the earlier respondents have appealed the decision of the 7 October; although those orders stand unless the Court of Appeal in its considered reason sets such orders aside. Those orders then, remain of full force and effect at this time.

In the circumstances, where the proceedings for determination of the applicants claim to benefit from the High Court powers of contempt, of its orders relate more to the discretionary extent of those powers and the effect of changing particular parties in this fashion, findings on facts alleged by the applicant have not been made, for here such issues of discretion go to questions of law, practice and procedure.

Held:- (1) The issues raised in the material relied upon by the applicant company are of a "national interest" relating as they do to the impact on overseas private investment in the primary production sphere of the country’s economy.

(2) The extent of the power of the court to punish for contempt of its orders should not be seen as going to assist particular parties in furtherance of an industrial dispute not yet resolved and still before the Panel for hearing.

(3) Section 10 of the Trade Disputes Act includes a penal provision, s. 10 (3) so that contempt proceedings relying on breach of orders made under other parts of that section should be categorised as "criminal contempt" ejusdem generis with that subsection.

(4) In cases of criminal contempt, "perceived interference with the administration of justice" should be a determinant where alleged breaches of court orders are involved, differentiating as best as possible that issue from one which may be said to be in a particular parties interest.

(5) (obiter) There may be implied such a power to punish for contempt of the award, order or direction of the Trade Dispute Panel but only at the behest of such Panel and in circumstances suggested.

(6) In the absence of a clear legislative provision for proceedings by way of contempt for breaches of orders made under s. 9 (2) & (3) of the Trade Disputes Act, this court should be chary of entertaining contempt proceedings at the instigation of an aggrieved party during arbitration still before the Panel.

(7) (obiter) On the face of affidavit material filed by the company in support of its motion, evidence is there to pursue summons proceedings against parties originally named as respondents in the original proceedings pursuant to s. 10 (3) of the Act. (offence provision).

(8) Reconstituting proceedings by the expedient of having a fresh cause number allocated and by substituting individuals as parties is not proper since the cause of action has materially changed from one for relief under the Act to one for committal for contempt after the date of the orders the subject of the earlier relief under the Act affected different persons to those sought to be made subject to the original orders.

(9) Naming fresh individuals in substitution for an earlier "representative party", the Workers Union, in circumstances where fresh proceedings against the particular individuals should be commenced after judgment, is not available to the applicant company, even at the consent of the various respondents for it is contrary to the practice and procedure of the court.

Since no proper grounds for the exercise of the courts discretion to punish for contempt have been shown, the motion to commit should be dismissed.

Cases referred to:

Attorney General- v- Times Newspaper Ltd (1991), WLR 994
Gandly Simbe’s case: (Court of Appeal unreported decision in Court of Appeal 8/97)
(Attorney General -v- Clough (1963) 1 QB 773; (1963) 1 ALL ER. 420 and Attorney General -v- Mullholland & Foster (1963) 2 QB 477; (1963) 1 ALL ER 767, CA)
Barker - v- A Clauson (1937) 1 KB at 475

Date of Hearing: 9th May 2005
Date of Judgment: 6 June 2005

G. Suri for the Applicant Company
C. Ashley for the Respondents

Motion for committal

Brown PJ: These proceedings come by way of motion for committal of Mr. Tony Kagovai, the General Secretary of the SI National Union of Workers, the 20 named various second respondent workers and Mr. Barry Sampson to prison for contempt for failing to comply with earlier orders of this court made in October last year declaring continued strike action by named company workers and the Workers Union illegal.

Both the Union and a second respondent in earlier proceedings, (suit no. cc 247 of 2004) brought by the applicant company were made subject to those orders of the 7 October 2004 which are still in effect. Those orders are:

1. The continuation of the industrial strike action by the Second Respondents and other RIPEL Employees at Yandina in Russell Islands taken on 17th June 2004 or the days thereafter is an action called, organised and procured by the First and Second Respondents contrary to s. 10 (1) as read with s. 10(2) of the Trade Disputes Act Cap. 75) and is, therefore illegal;

2. That, until the Trade Disputes Panel has made an award, the First Respondent, by its officers and agents, be restrained from calling, organising, procuring or financing a strike or other industrial action short of strike or in furtherance of the dispute already referred to the Trade Disputes Panel.

3. That until the Trades Dispute Panel has made an award, the Second Respondents and all other employees of RIPEL be restrained from calling, organising procuring etc.

4. That the First and Second Respondents do compensate the applicant for its losses suffered, to be assessed, as a result of their contravention of sections 10(1) and (2)(of the Act).

5. The first and second respondents pay the applicants costs.

It must be realised these proceedings before me now have been differently constituted and the manner and extent of that change has proved fatal to any possibility of orders for committal for contempt in these fresh proceedings for the reasons I later give. The second respondent in both sets of proceedings is a named group of plantation workers, some 20 in all. The fact they have been named in this fashion by the applicant is a matter for the company. Definition sections in the Trade Disputes Act would appear to include these employees or past employees when considering provisions about enforcement of awards or restriction on industrial action. I mention this here, for the course of the proceedings is confusing, including as it does, a case of "changing horses in mid- stream". The choice of naming particular parties in court proceedings is for an applicant, but rules of court constrain who may be named as necessary and proper parties to an action although the practice of the court does not require the court, itself to enquire into the correctness or otherwise of the choice of the applicant in choosing his respondents at the commencement of proceedings. For only when a court is obliged to consider, in this case for instance the power to commit for contempt, must a court ask the question whether it is proper to jail a particular person sought to be caught by the courts order. Normally persons incorrectly joined would seek to be struck from the record but in these proceedings the various respondents have allowed matters to proceed at the applicant’s behest, without serious argument. It still behoves a court, when asked to exercise coercive powers, to be sure any such obligations sought to be enforced, actually affect those individuals. This is a classic case where serious injustice could result when in fact, a previously obligated party; the Union has been substituted with named individuals not original parties to the earlier proceedings. I shall deal with this issue in more detail later.

To give an indication of the sorry current state of affairs affecting the commercial interests of the workers, company and reputation of the country in its copra producing industry and the background to this application, I touch on the material parts of one of the affidavits read in support of the motion. This affidavit by the general manager of the company, Russell Islands Plantation Estates, Mr. John Whiteside, deals with a number of issues;

When Mr. Charles Ashley took over from Ms. Maelyn Bird as the legal representative of the various then respondents, on his application for an adjournment of these proceedings, earlier this year, Mr. Ashley informed the court he sought time to properly advise his client since the matter was of "national interest".

Mr. Whiteside was of opinion the adjournment illustrated another opportunity for delay, so as to disadvantage the company, "strangle the overseas investor" and oust the general manager.

The various demands and actions of the respondents refusing to discontinue the strike and threats preventing other workers of the company from working amounts to evidence of continuing breach of this court’s orders of the 16 October last.

Criminal acts complained of include theft of company property, threats to personnel of the company, and damage to assets carried out by the striking workers.

The inability to load a copra ship at Yandina by virtue of the actions and threatening behaviour of the striking workers had resulted in a liability in the company of some USD$147,256.40 for alleged breach of contract to supply copra to Cross Pacific Trading Pty Ltd.

The Trades Disputes Panel last heard the argument between the parties on the 28 January 2005.

The respondents appeal to the Court of Appeal against the findings and orders of this court made in October last has not yet been heard or determined.

NATIONAL INTEREST.

Clearly the geo-politics of this case have far reaching consequences to all stakeholders in the industry, involving as it does, foreign investors and buyers; a basic commodity, copra produced by the Solomon Islands; (a commodity which previously underlined its economy), a labour dispute; stop- work and strike action; apparent delay in dealing with the “dispute” under the Industrial Disputes legislation; the possibility of criminal prosecutions against various people involved and unanswered questions over the ability of the body tasked to handle such disputes within the legislative regime.

The state of affairs in the Russell Islands reflects a commercial and business environment recognised as weak. In his paper, “Law Reform Potential in the Pacific Area” H.E. Tuiloma Neroni Slade, at the Australasian Law Reform Agencies Conference at Wellington, New Zealand in April last year, said:

"...There has also been recognition that weak private sector development and a declining level of private investments are among the major challenges for many Pacific island States. While recent reform effected in some Pacific countries have directly or indirectly attempted to address these problems to various degrees, much remains to be done to achieve progress in developing the private sector in island countries.

To help attract foreign investment the Pacific Islands Forum Economic Ministers Meetings (FEMM) since 1999 have progressively taken steps to bring the commercial legal environment in Pacific countries in line with modern international practices. At the 2003 FEMM, Pacific Ministers endorsed in principle a programme of technical assistance from the Asian Development Bank (ADB) that will tackle the task. The programme illustrates importance of careful planning and the value of regional effort.

The programme aims to improve the business environment in the Pacific islands to support the development of a strong dynamic private sector, including improved corporate and public governance, and increased productivity and investment...."

I quote from this paper for the very problems apparent in the failure by the parties to reach agreement are those described above, the apparent wish by particular workers to oust this foreign company from the country, the intimidation and lawlessness apparent on the face of the various affidavits and the particular ethnicity of the recalcitrant workers (who are perhaps using this issue for their own political ends), which all go to show reasons for weak private sector development and investment in the country. It is, as Mr. Ashley says, a matter of national importance. Perhaps the Forum Secretariat as coordinator of the technical assistance program would do well to follow the diminutive `attempts to facilitate resolution of this problem.

These issues however are not matters which normally affect court process since they relate to the political environment. I touch on them to show that the frustration of the parties here, especially the applicant company may perhaps arise more from the geo- political environment (touched on by Slade) with its consequent embedded difficulties to easily resolution than from a real wish to damage the national interest. But that obviously must be the effect, with the passage of time. For settlement isn’t facilitated by wielding aggrieved rage like a broadsword and seeking commitment to prison of these persons, some 22 all told. It stands to reason that pursuing these proceedings to imprison persons in an industrial dispute, not in accordance with some clear legislative power, but though a supposed discretion in the court, will adversely affect the dignity and autonomy of these litigants. Disputation cannot reasonably be expected to cease if these many persons are incarcerated whilst the Panel is hearing the dispute.

There is a penalty provision in the Act, s. 10 (3), apparent to the parties. Reason would suggest a party at fault of breach is entitled to act with that penalty in mind but to seek to impose the additional threat of discretionary contempt penalty, imprisonment would seem draconian. In this case the approach for discretionary penalties for contempt is circumscribed by common law historical restraint.

DISCRETIONARY POWERS OF THE COURT.

The company comes to court by motion seeking to punish particular recalcitrant workers for what it says, are breaches of my original orders made in October last. It presumes to rely on a court’s inherent jurisdiction to deal with contempt of its orders.

Order 55 Rule 4 states:

"Every notice of motion ...for attachment or for committal shall state in general terms the grounds of the application; and where any such motion is founded on evidence by affidavit, a copy ...shall be served with the notice of motion."

that when read with O. 47, (referring to Appendix G- form 8- directing the Sheriff "to attach such person touching a contempt which he has alleged to have committed and have him before the court to answer such contempt"); leaves this courts’ practice and procedure in dealing with its own contemnors to follow the earlier English rules and practice. For our Rules presume the power to commit inherent in the United Kingdom (U.K.) Rules. What commonly is called "The White Book" or The Supreme Court Practice, UK", has been and may continue to be, used as a guide in this country for our Rules, based as they are on UK Rules, may shortly be said to follow UK common law, adopted here by our Constitution, subject to certain exceptions. Of course this court may develop the law of the Solomon Islands by departing from more recent decisions of the UK courts where those decisions are seen as now inappropriate.

Power to punish for contempt is a discretionary remedy which the court must exercise with exceeding care and responsibility for the remedy deals, not with issues between subjects but perceived interference with the administration of justice. When I read section 10 of the Trade Disputes Act which has, in subsec. (3), a penalty provision for breach, I am left with the clear impression any contempt proceedings founded upon that section must be ejusdem generis with the penal provision and criminal in form, consequently the underlying law.

Attorney General- v- Times Newspaper Ltd (1991), WLR 994. (see the White Book - Vol 1 - Order 52 - Committal; dealing with the historical origins and powers of the courts in the United Kingdom)

CRIMINAL CONTEMPT.

Contempt of court, to use the phraseology of the White Book, it is an ancient right, vigorously defended by the courts, for to allow the right to languish would weaken the judicial institution, the bulwark against arbitrary rule. It is not, as has been suggested “an exaggerated notion of the dignity of individuals, be they judges” but the manner in which the courts preserve the independence of the judiciary and its administrative organs from improper interference likely to derogate its status, effectiveness and independence from Wall Street, contemporary “peoples issue groups” and political interference. It must be remembered Courts are part of the body politic, enshrined in the Constitution, tasked to uphold the rights of all, balancing as it will, those often competing and sometimes conflicting rights, in an attempt to reach a just outcome, without fear or favour. So the right to seek this courts exercise of its, (not a party’s right) right to commit for contempt is jealously guarded, for freely exercising the right at the behest of aggrieved parties cannot be countenanced by the courts, rather only exercised in restricted cases clearly related to interference with the administration of justice, not merely disputation between the parties.

PERCEIVED INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE.

For this case needs to be distinguished from cases where contempt is alleged, directed towards the court itself, whether judges staff or witnesses, for while the contempt is claimed to be that breach of my earlier order, underlying those order is the basis of the claim to the orders in the first place; the legislative imperative in s. 10 (1) & (2) of the Act. That section also provides a penalty for non- compliance. The court should, then, confine itself to that penalty unless it can be shown to have other powers, and that is the proposition of the applicant, here. It argues a power in the court to deal with these alleged contemnors by way of imprisonment.

It must be said that the workers have omitted to make any answer in court to the apparent failure to follow the legislative imperative; to return to work pending negotiation and prohibits interference with the workforce. But is that omission grounds for this court to consider the exercise of a supposed discretion in these circumstances?

The legislation under which Trade Disputes are to be resolved is found in Chapter 75 of the Laws;

TRADE DISPUTES

AN ACT TO ESTABLISH A PANEL TO ENCOURAGE SETTLEMENT OF TRADE DISPUTES AND TO MAKE BINDING AWARDS WHERE NEGOTIATION FAILS: TO RESTRICT INDUSTRIAL ACTION WHILE THE PANEL CONSIDER THE DISPUTE; TO PROVIDE FOR THE ENFORCEMENT OF AWARDS AND COLLECTIVE AGREEMENTS AND FOR THE RECOVERY OF EXPENSES OF PROVIDING THE PANEL; TO REPEAL THE TRADE DISPUTES ACT 1976; AND FOR CONNECTED PURPOSES.

The Trade Disputes Panel may be seen then, to be the principal authority whose directives and orders (“the award”) may be supported by this court.

Section 9 of the Act provides;

"9 - (1) Where the Trade Disputes Panel make an award, the award shall be enforceable in accordance with this section as between the parties to the award."

9 - (4) Any party to the award may apply to the High Court for an order under this section on the ground that another person ("the respondent") is in breach of the duty referred to in subsection (3).

9 - (5) If the High Court finds that the ground on which the application is made is well founded, the Court may, if it considers it would be just and equitable to do so, grant relief to the applicant in one or more of the following forms.

9 - (6)...

There is clear evidence a reference has been made to the Panel in terms of section 4. (Conciliation provision). I am not satisfied it is a "recognition issue" in terms of section 5. But the Panel has embarked on “arbitration” for the Panel is not of the opinion that the dispute is likely to be settled by negotiation; the Panel has clearly inquired into the dispute and hence, "shall make an award". (Section 6 - (1). No award has yet been made. The hearing of the dispute is still before the Panel.

Pending the outcome of the arbitration and an award, this court should be chary in assisting a party by way of criminal contempt proceedings when the “just and equitable relief” available in s. 9 - (6) does not include a power to punish for contempt.

The United Kingdom specifically acknowledges the possibility of other legislation suggesting the use of the High Court power to punish;

UK Supreme Court Rules- ORDER 52

Committal for contempt of court. (O. 52, r.1)

(4) "Where by virtue of any enactment the High Court has power to punish or take steps for the punishment of any person charged with having done any thing in relation to a court, tribunal or person which would, if it had been done in relation to the High Court, have been a contempt of that court, an order for committal may be made by a single judge of the Queens Bench Division"

There is nothing in the Trade Disputes Act giving such a power in terms similar to the Tribunals of Inquiry (Evidence) Act, 1921, for instance, considered by the Court of Appeal of the United Kingdom in the Mulholland and Fosters case touched on later. Our High Court Rules do not include a rule in similar terms to O. 52 r. 1 (UK) above.

But that absence in the Trade Dispute Act is not fatal to this court’s ability to help, but short of an award I am of the view the Panel must clearly be seen to seek such support. To act unilaterally, by proceeding to make a finding of contempt on the basis of my initial declaration of an illegal strike, in the absence of any obvious wish in the Panel for assistance in relation to its proceedings or process but rather on the importuning of this interested party, does raise the possibility of unfair advantage for contempt has not been related to a need shown or in support of the Panel, but solely to advantage a party in the process of dispute resolution by the Panel.

I am not satisfied the Panel in any way can be said to be in need of this courts support in carrying on its process of arbitrating or determining this dispute. The letters from the Panel are reproduced for they clearly do not reflect the urgency or importance of the alleged breaches relied upon by the applicant company.

TRADE DISPUTES PANEL

Gabriel Suri Our Ref: L9/14/04

Suri’s Legal Practice

Barristers & Solicitors

PO Box 1999

Honiara Date: 21.4.2005

Dear Sir,

RE: RIPEL - V- SINUW

I refer to your letter of 12/4/05 on the above matter.

Whether or not Counsel for the Respondent is expected to get back to the panel to request re-listing of this matter, we cannot leave matters hanging on like this. Apparently the two weeks period lapsed and we have to relist the matter for hearing.

In any case, the panel secretary has consulted both counsels in relisting the matter for 3/5/05 at 09.00am. We assume you have already received a copy of that notice.

As the case is a part heard matter, Ms. M. Bird had assured us that she would continue to represent the union to the end.

May I ask both parties to ensure that the trial proceeds on the date aforementioned by making available all relevant witnesses.

Yours faithfully

Francis C. Luza

Chairman/Trade Disputes Panel

Cc: M. Bird, Crystal Lawyers

Cc: Hon. Minister of Commerce, Employment & Trade

TRADE DISPUTES PANEL

Crystal Lawyers Our Ref: L9/11/04

PO Box 477

Honiara Date: 28.4.2005

Attn: M. Bird,

Dear Bird,

RE: RIPEL - V- SINUW (L9/11/04)

This matter has been listed for 3/5/05 at 09.00 am for continuation of the trial.

However, we have just learnt today that one of the panel members involved in this matter, David Bale is currently away at Santa Ysabel and will not be available until after 13/5/05.

Could the parties therefore indicate whether or not they will object to a panel of only members sitting if the matter is going to proceed on 3/5/05?

If the answer is yes, then we are proposing to relist the matter for 25/5/05 at 09.00am if convenient to both parties.

Yours faithfully

Francis C. Luza

Chairman/Trade Disputes Panel

Cc: Gabriel Suri, Barrister & Solicitor

Cc: Minister of Commerce, Foreign Affairs & Trade

While a dispassionate observer may see the Panel’s attitude in allowing a party the time and opportunity to call witnesses at that party’s convenience in the face of such apparent anarchy at the work site as perhaps forgiving, I am loath to interfere in the process of dispute resolution currently with the Panel by committing to prison some 22 persons, parties, obviously, to a dispute. The Panel may carry on hearing the dispute over an extended period without any apparent attempt to coerce the workers party to earliest talks and so, whilst the Panel proceeds in this fashion, a contempt committal cannot be seen to be acting in the Panel’s interest.

The Panel has proceeded with the dispute despite this apparent failing of the Workers Union to direct its workers to return to work (for continued strike action is illegal and entitles the employer to dismiss) nor would it seem has the Panel imposed any such conditions or made determinations in relation to the supposed breach of the obligation imposed by the Act to return to work once this courts declaration about the illegality of the strike was made.

In those circumstances I am not minded to find facts on the application of one party (giving rise to the exercise of any supposed discretion to commit people to prison) when the Panel has not made any findings which justify this courts further assistance in terms of an award, any breach of which has been proven, on facts found, to be contumacious.

The assertion of contempt was made, in relation to orders given on the 7 October last where I found continuing strike action illegal, once a dispute was before the tribunal or Panel. Without anything further on the tribunals part by way of direction or determination in relation to that finding, it must be presumed the Panel is prepared to allow the Union leniency by continuing to hear the dispute, and with the passage of time, the efficacy of my earlier finding, sufficient to support the Panel by assisting the carrying into effect of its rulings, must lessen.

For those reasons again I am not minded to find this court has any such implied discretion to act unilaterally in the present circumstances, unfortunate that they be, for no such perceived interference with the administration of justice can be said to have arisen whilst the Panel has embarked upon and still has carriage of the arbitration. Industrial disputes should however, be dealt with swiftly and decisively, not allowed to fester as it were, and worsen already bad relations between these disputing factions. Of course with such a plethora of court related proceedings, the Panel may be unwilling to act, especially if as I suspect, legal counsel prevaricate.

By virtue of the apparent indifference to the need to act incisively in the circumstances of this very serious trade dispute (since it involves one of the Solomon Islands most important products, copra and one of its larger exporters, RIPEL) the Panel has perhaps, a right to seek the assistance of this court. But to criticise the Panel at this juncture would be unfair for this court must permit the Panel to carry out its functions in its own manner without seeking to interfere with its process. A committal for contempt now must surely be seen as interference.

I am of the opinion that the tribunal may proceed on the premise that this court will act in support of the Panel where any person does anything which, were a tribunal invested with this courts powers, would amount to a contempt, so that the Panel may, for instance, approach this court for its assistance in treating contumacious acts of a party contemptuous of the Panels proper directions towards resolving the dispute (directing a party apparently in breach of the illegal strike provisions back to work, or restraining continued threatening acts preventing workers reaching the site, for instance pending hearing and determination) but in the absence of such an approach, this court should be reticent to proceed and act at the instigation of a party to the dispute.

IMPLIED POWERS OF THE COURT TO ASSIST THE TRADE DISPUTE PANEL.

I am minded of the Court of Appeal’s observation in Gandly Simbe’s case: (Court of Appeal unreported decision no. 8/97)

Function of Court injunction. The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal court specifically invested by Parliament with the power to decide it. Pending decision of that dispute in the local or customary land court, proceedings in the High Court would ordinarily be stayed on appropriate terms. Whether or not the Court would be prepared, pending the decision of the local court, also to grant an interlocutory injunction to restrain entry on, and felling and removal of timber from, the land in question depends on the circumstances, including in part the Court’s assessment of the plausibility of the plaintiff’s claim to ownership of that customary land and the prospects of its succeeding in the local court. Making such an assessment for the purpose of deciding whether to grant or withhold such relief involves no usurpation by the High Court of the exclusive jurisdiction of a local court under. S .23 (1) of the Land and Titles Act. Jurisdiction means the power to hear and determine a matter or proceeding, which is not the function that the High Court would be performing in deciding whether or not to grant an interlocutory injunction according to general principles of law and equity. Section 231(2) of the Land and Titles Act, it may be noticed, contains an express power to refer a matter direct to a local court; but, standing on its own, the provision has been said to be a doubtful efficacy. See Teteha –v- Registrar of Titles [1980/81] SILR 209 at 216. It is improbable that its imperfections can be cured by resorting to 0.38, rr. 14- 21 of the High Court (Civil Procedure) Rules 1964, unless it is possible to regard a local court as capable of being a “referee” under those provisions.

For clearly the Panel is vested with jurisdiction to hear trade disputes. Injunctive orders are similarly discretionary remedies as is the remedy of contempt, although perhaps more cursory (and allowing the necessity to find a perceived interference with the administration of justice) to that of contempt, a finding of contempt having such serious consequences. (In the circumstances of the restraining order of the 16 October last, directed to the Workers union and those 20 named workers, the Panel may be minded to seek this courts help in terms dealt with later in this judgment.)

I am not supported however, in my reasoning in favour to assist the Panel in the restricted circumstances dealt with in Gandly Simbe, since the judgment in (Attorney General -v- Clough (1963) 1 QB 773; (1963) 1 ALL ER. 420 and Attorney General -v- Mullholland & Foster (1963) 2 QB 477; (1963) 1 ALL ER 767, CA) specifically rested on other supporting legislation enabling the High Court (U.K.) to commit for contempt. No- where in our High Court Rules is there specific provision for the court to inquire into industrial disputes.

In these UK cases, the High Court had been faced with orders of a Tribunal of Inquiry directing a witness to disclose his source of information, an order which the witness declined to obey. The respondent was found to have committed the offence of refusing the Tribunal’s order and he was referred to the High Court to be dealt with as if the refusal to obey was a refusal before the High Court, so that its contempt powers may be invoked. The Court of Appeal (Lord Denning, MR Donovan and Danckwerts, LJJ.) held the trial judge had power to sentence for contempt having regard to the specific provision in the Evidence legislation. No such power exists in the Trade Disputes Act.

The Trade Disputes Panel must be seen then as the legislative body invested with this most important aspect of industrial and commercial affairs power. This court has not been shown to have any express power vested in it to commit for contempt, of its own volution by the terms of the Act. But on the obiter comments of Macpherson AJ quoted above, I am of the view this court may exercise an implied power at the request of the Panel, pending the time of an award and subsequently, but not at the instigation of an aggrieved party. The party aggrieved may fall back on the offence penalties provided for under s. 10 (3) of the Act. No such application has been made here. The material relied upon by the aggrieved applicant company, unanswered allegations as they are, certainly show grounds to seek a summons contemplated by the Act;

s. 10- (3) A person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of $1000, or six months imprisonment or both.

That material has been shortly listed below, including the counsel’s comments on the nature and relevance of particular parts, to show the extent of the behaviour and acts suffered by the company.

Orders of the 7 October were in following terms

1.- The continuation of the industrial strike action by the Second Respondents and other RIPEL Employees at Yandina in Russell Islands taken on 17^th June 2004 or the days thereafter is an action called, organised and procured by the First and Second Respondents contrary to s. 10 (1) as read with s. 10(2) of the Trade Disputes Act Cap. 75) and is, therefore illegal;

2- That, until the Trade Disputes Panel has made an award, the First Respondent, by its officers and agents, be restrained from calling, organising, procuring or financing a strike or other industrial action short of strike or in furtherance of the dispute already referred to the Trade Disputes Panel.

3.- ...

4.- ....

The effect of the 7 October Orders

The first order in those earlier proceedings relates to a formal finding in terms of ss. 10(1), (2) of the Trade Disputes Act that the continuation of the industrial strike action by the 1^st and 2^nd respondents (the named workers) is illegal. As a consequence the fourth order to compensate the company was directed to the 1^st and 2^nd respondents, then the Workers Union and the named 20 workers. An assessment of damages may be made in terms of that order but obviously if the Trade Disputes Panel is to resolve this dispute, that order for damages may, by consent be discharged or varied on terms, if resolution of this dispute (with this order in mind) is to be achieved.

The finding of “illegal strike” affects both the Workers Union and particular workers named as the 2^nd Respondent and is based on my finding on the facts at that time supporting the applicant company’s complaint of continued strike contrary to s. 10 (1) of the Act.

The Panel may take such steps as it considers fit to manage the resolution of the dispute up until it makes its award including I venture to suggest, a request for assistance to this court in terms envisaged by MacPherson AJ in Gandly Simbe’s case, where continued obstructive tactics and acts by a party or parties are likely to prejudice the fair hearing of the dispute. There are certainly grounds which detail such acts by the recalcitrant workers in the affidavits that I have read.

EX PARTE APPLICATION TO ISSUE WRIT OF ATTACHMENT.

No notice to the respondents in those earlier proceedings was given. The applicant company came to court in December when my brother judge Mwanesalua PJ granted an Ex parte Summons for leave to apply for a Writ of Attachment to commit to prison the earlier respondents for their continuing breach of those orders granted on the 7 October last.

On the 6^th May this year Mr. Suri sought by motion that the Writ of Attachment for contempt of that earlier order of the 7 October 2004 be issued (pursuant to that order for leave granted by my brother judge on the 16^th December last).

Leave was given, ex parte, in the following terms:

1. Further to the Order Granting Leave to the Applicant to apply for Writ of Attachment, and perfected on 8^th December 2004, the Applicant is hereby given liberty to apply for the following further order:

(a) Mr. Tony Kagovai, the General Secretary of the First Respondent and the named Second Respondents do stand committed to Prison for their several contempts of this Honourable Court, jointly and severally, in failing to comply with Orders of this Honourable Court, namely, Order delivered on 6^th October and perfected on 7^th October 2004. The said order was affirmed by the Ruling of this Honourable Court on 18^th November 2004, which was perfected on 19^th November 2004.

(b) Accordingly, the Applicant shall be at liberty to apply by Notice of Motion for Committal Order.

(c) The Commissioner of Police, the Deputy Commissioner and all Assistant Commissioners of Police, do direct their subordinates to serve the said Notice of Motion and other documents issued out of this Court in this matter on the named Second Respondents.

A costs order was made in terms "costs of the application be in the cause".

Leave then clearly related to the breaches as detailed in the affidavits which I have recounted earlier. But leave when given ex parte, does not ipso facto, presume a power in the court to make the orders sought. Before making any such order, this court must be satisfied it has the right to attach these individuals.

PRACTICE AND PROCEDURE FOR COMMITTAL.

The form to be used for the Writ of Attachment for contempt should state the contempt. There is unfortunately no detailed contempt in the Motion for Writ before me nor has a Writ including the detailed contempt been handed up. The detail of the contempt must be elicited from the affidavit material to be found in these various read by Mr. Suri. In his written submission he summarised the contempt in his fashion and directed the courts attention to the evidence relied upon in support. I do not propose to relate the evidence relied upon for I do not need to make findings of fact on this material. But the evidence is voluminous, cogent and relevant in summons proceedings, for instance, under s. 10.- (3) of the Act.

Mr. Suri said;

E.3.1 Withdrawal of Labour

The workers at the directive and instructions of the First and Second Defendants withdrew their labour, refusing to work for the Applicant.

(i) Affidavit by J Whiteside filed 4^th November 2004:

Para 18:- (Solomon Star report on 2^nd November 2004): announcement in the Solomon Star to continue with the strike.

(ii) Affidavit of J Whiteside filed 24^th November 2004: Paragraphs 6(f)

Para. 13, 15 and 16:- Mr. Tony Kagovai had given specific instructions to workers to continue strike and he has not withdrawn those specific

Para. 14: - a strategy to prolong the strike is that the strike is continuing to remove the present investor and bring in a new investor.

(iii) Affidavit by J Whiteside filed 27 January 2005 Para. 14: - (a)- (g): the leading strikers are that the Company unfairly forced people to resign. This message has been used to procure sympathetic strike and to perpetuate the strike.

E.3.2 Meetings/Public Announcements

(i) Affidavit by J Whiteside filed 4^th November 2004:

In paragraph 12: Claudius Kabasi and Isaac Talo organised meetings of workers at Yandina and encouraged them to defy Court orders and to continue with their strike.

(ii) Affidavit by J Whiteside filed 24th November 2004

Para 6(c), (e)- (iv): Mr. Kagovai’s expressed statements made to SIBC and Solomon Star. In these statements, Mr. Kagovai stated emphatically that the Court’s decision made on 17^th November 2004 would not deter the Union’s fight against the company until the investor; ICSL leaves the shores of Solomon Islands.

Para 8(b)- (e): On Saturday 20^th November 2004 convened by workers. In this meeting, the workers resolved to: take over Company’s Central Mill, take over the General Manager’s residence and kicked out General Manager’s wife residence and to stop the General Manager from returning to Yandina.

Para 17, 18, 19 & 20: - On Monday 22^nd November 2004. Instead the workers, led by Second Respondents, demonstrated at Yandina Town in a direct protest against the High Court order read on SIBC.

(iv) Affidavit of Liman Gravis filed 27^th January 2005- 05- 19

Paragraphs 3, 4, 5, 6 and 8: That Union Official, Barry Samson, conducted a public meeting at Yandina on 22^nd December 2004. He told workers not to worry about the High Court case. He gave specific instructions to workers to stop cutting copra and to chase away anyone cutting copra.

Barry Samson also gave specific instructions to stop loading of copra on any ship. Barry Samson also gave specific instruction to workers to take over security and General Manager’s residence.

The specific instructions given by Barry Samson were implemented.

Barry Samson also made plot to kill the General Manager. This plot was carried out but, fortunately, it failed.

E.3.3 Picketing & Stopping Works

(i) Affidavit of J Whiteside filed 4^th November 2004

The workers in their picketing have interfered and stopped the Company from collecting rentals due to it form a Co- op store.

(ii) Affidavit of J Whiteside filed 24^th November 2004

The workers stopping Company from collecting rental dues from Co- op

(iii) Affidavit by J Whiteside filed 27^th January 2005- 05- 19

Laying false allegation against Albert Akau which resulted in SSEC disciplining him and accusing him falsely.

Meeting organised by Isaac Talo to campaign against non- striking employees.

Claudius Kabasi and Bauesi entered Company’s Central Mill and threatened Ben Otea who was drying copra.

Mobs roamed plantations on 15^th and 16^th December 2004 to threaten and stop non- striking workers who were working.

Jimmy Sanga falsely told Silas Selo that contracting of copra- cutting would end.

(iv) Affidavit of Liman Gravis filed 27 January 2005

Liman Gravis explains how they were intimidated, threatened, forced and assaulted merely because they were cutting copra to earn money to feed their own families.

E.3.4 Blockade of Shipments

(i) Stopping shipment of copra at Yandina on MV Baruku on 23^rd October 2004. The workers organised themselves into a threatening mob which caused the police to advise the Company against loading of the copra. Many of the Second Respondents were in that mob.

(vi) Evidences of second blockade of shipment of copra on MV Neptune Gale. In these paragraphs, it is deposed that the striking workers attacked the police. The loading of copra was eventually abandoned.

E.3.5 Aggression and Commission of Criminal Offences

(i) Strikers threatened Directors of Co- op not to deal with the Company

(ii) Brawl to stop copra cutting by non striking workers

Threat by Buga Aenasi against Whiteside’s wife made on 21.11.04

A mob of demonstrators took over Company Central Mill and Engineering Compound and Headquarters

(iii) Plot planned by Barry Samson to kill John Whiteside. One of the Second Respondents,

Abel Haka, was identified armed with machete.

(iv) Liman Gravis explains how they were intimidated, threatened, forced and assaulted merely because they were cutting copra to earn money to feed their families.

Liman confirm the plot to kill J. Whiteside. This plot was planned by Barry Samson.

E.3.6 Assaulting Police Officers

(i) These paragraphs show riot mob threw rocks at Police officers during loading of copra onto MV Neptune Gale.

E.3.7 Accusing Court and its Officers

(i) Aenasi Buga and strikers spread contemptuous allegations against Court that the Court was paid to make decision in favour of the Company.

(ii) Barry Samson advised the workers not to worry about the High Court case as the Trade Disputes Panel was more important.

E.3.8 Theft of copra, cocoa and tractors

(i) As recently as 18^th April 2005, the striking workers have strengthened their strike by stealing company coconuts and tractor to produce copra.

The striking workers who steal the company tractor store their fuel at the Yandina Police Station.

(ii) Philemon Kesaka corroborates theft of company tractor and coconuts to make copra.

Significant to show that the striking workers have also displayed disrespect to the authority of Local Managers; and not just the investor ICSL and the General Manager.

(iii) Willie Tefoi filed 29^th April 2005. He deposes that the company has not been operating ever since commencement of the industrial strike on 17^th June 2004.

Striking workers are also stopping poor local worker from making money which they desperately needed to support their own families. Hence, it is not only a strike for getting rid of the foreign investor and the General Manager, but also against local employees.

The striking employees who steal company tractor and coconuts store their fuel (diesel) at the Yandina Police Station.

Corroborates theft of coconuts and that this theft is co- ordinated by Workers Central Committee led by Isaac Talo.

(iv) Teresio Takea confirms stoopage of work by striking workers.

Theft of company coconut and copra

[F.O] INACTION BY POLICE

F.1 J Whiteside – complaints made to police yet they could not act

Request to direct the police to act

Refusal by Inspector Melu to make a proclamation that their assembly was unlawful.

Reports and complaints sent to RAMSI Special Coordinator and Assistant Commissioner of Police

The affidavit material supports these allegations in Mr. Suri’s headnotes and references which I have reproduced. Where criminal acts are alleged; especially that of the attempted murder of the manager John Whiteside, that call for proper investigation, it is incumbent to refer the material comprised in those affidavits detailing such criminal behaviour to the Director of Public Prosecutions, the appropriate authority in the Solomon Islands to consider this court reference.

The Director may seek the assistance of the Police in his investigations and where appropriate, recommend that criminal charges be laid. But that is his prerogative and is not in the province of this court.

THE PROCEDURE TO CHARGE FOR CONTEMPT.

The particulars have, as I say been touched on in Mr. Suri’s submissions in court but they have not been put to the respondents in terms of a charge for contempt. A pertinent question of any one accused of a breach of a court order, or a law in the Penal Code for instance or any charge; how is it alleged to have been breached; what are the particulars of the breach? The contempt must be stated on the committal order or application for writ so that the accused may see and answer if possible, the allegation against them. As I say Mr. Suri has made the allegation in his argument in court, relying on the affidavits, but those allegations were not reduced to writing to explain how these particular persons individually breached the injunctive orders given on 7 October last.

The White Book speaks thus about O.52 r 1, (in similar terms to our High Court Rules 0.62 Division 3) at 52/1/3;

It is an essential prerequisite to a finding of contempt that the factual basis shall be proved beyond all reasonable doubt and that there shall have been mens rea on the part of the alleged contemnor (Re Supply of Ready Mixed Concrete [1991] 3 W.I.R. 708, C.A.).

A committal order based on contempts proved by the judge which is not set out in the committal notice is invalid. Javadi-Babreh, The Independent, November 16, 1992 (Stuart- Smith, Simon Brown L.JJ.).

It can be seen, then that the original proceedings in suit cc. 247 of 2004 were directed against the SI National Union of Workers as 1^st Respondent and various named persons as 2^nd Respondent, and that the substitution of Mr. Tony Kagovai for the Union and the addition of Mr. Barry Samson as a 3^rd Respondent by the simple expedient of changing the cause number and parties names, is hardly fair, following as it did after the order of the 7 October was made. For how can this court commit to prison persons not named as respondents and so affected at the time of the orders of the 7 October.

SUBSTITUTION OF PARTIES.

Substitution of parties, or the addition of a party in quasi- criminal proceedings after a funding has been made and orders given in October last year is quite wrong for it presupposes guilt without the particular substituted persons having had an opportunity to defend, or argue any lawful justification for acts supposedly carried out before the date of the court orders sought to be enforced. Whether or not Mr. Tony Kagovai or Mr. Barry Samson responds to the charge is a matter for them, but here they have been convicted by virtue of the substitution without ever having been charged or heard on such materially altered cause.

Mr. Suri argues they are both agents of the Workers Union (and somehow liable for the acts of the Union) but they cannot be named and substituted for the Workers Union, a properly constituted body able to sue and be sued, after the judgment of the 7 October. (It stands to reason, when proceedings in the nature of criminal proceedings threaten an award against an individual or a body responsible for damages (the Workers Union) others cannot be substituted, in lieu of those originally bound by the order). Counsel cannot purport to propose or consent to such a course, it is not proper.

Mr Suri speaks in terms of "representation orders" for that the Workers Union first named as a defendant includes "its servants and its agents". Therefore I take him to say, he may substitute the SI Workers Union, with that "servant or agent"; that individual who has been shown to have "represented" the Union and is thus severally responsible for his actions. That argument misapprehends the nature of "representative orders".

"There are two issues before representative actions may be commenced:

(a) what is the cause of action; and

(b) what is the precise class of potential defendants who are to be represented by the defendant on record for the purpose of imposing liability on them if judgment is given for the plaintiff".

(In Barker - v- A Clauson (1937) 1 KB at 475 per Scotts LJ.)

In these original proceedings the cause was pleaded to name the Workers Union, an appropriate "representative" of the defendant class; and some 20 others with whom the plaintiff has never been particularly concerned. Yet the applicant has by purported "consent" of the earlier respondents, substituted the "representative of the class", the Union, with two individuals now named separately as defendants after the time of earlier order.

So the 1^st defendant, the SI Union of Workers would prima facie appear a proper "representative body" in such cause. But now the cause has changed from one couched under the Trade Disputes Act to one for committal and particular individuals substituted for the "representative body"; such a material change and a case of "changing horses in mid – stream".

As I say the basis for such committal proceedings has not been shown, (the right must surely rest with the Panel if it considers the Workers Union has acted with intent to continuously flout the Panel’s attempts to determine the dispute) so that there is no order of this court directed to these particular individuals which can, in any way be said to be breached, for they were not parties in the original proceedings.

For consenting to a change of parties in this fashion, does not invest the court with jurisdiction to treat these fresh proceedings against these new individuals as properly constituted.

It follows then that I am neither satisfied that discretion exists in the absence of a Panel’s particular request nor before an award, nor where the Workers Union has been dropped from the proceedings and others substituted after the event, should this court entertain committal proceedings against individuals never made the subject of those orders of the 7 October.

The criminal offences alleged will be referred to the Director of Public Prosecutions who will enquire into them and take steps to have any miscreants brought to court on criminal charges.

I regret this court cannot be more accommodating for the resolution of disputes but it is not the forum. The problem of the dispute must lie with the authority designated to resolve them, the Panel.

Once this Court has made a finding in relation to illegality of strike action, the Panel may (not necessarily must) direct such party in breach to comply with the terms of the court order whilst proceedings are on foot, and may order for instance, parties back to work as a corollary to any concession by the other side, or where in the Panel’s opinion the fairness of the case dictates and cease interfering with other workers or continuing the strike. The questions for this court before entertaining any request for assistance by the Panel I suggest should be:

Whether the orders or directions of the Panel made in its deliberative process to resolve or as a step in such process, was relevant in the context of the dispute before it;

If so was the party or parties alleged to be in breach wilfully, without just cause or excuse and if so;

Was such conduct contumelious for that it was carried out with intent to frustrate the Panel’s purpose to resolve the dispute;

which if answered in the affirmative necessarily call into play the powers of the High Court to assist the tribunal in terms of order of like nature as these calling for punishment of a person for contempt of this Courts’ own orders.

For no- where is this Court vested with power under the legislation to stand in place of the Panel of Trade Disputes.

POWER TO ASSIST THE PANEL

s. 9 (4) Any party to the award may apply to the High Court for an order under this section on the ground that another person (“the respondent”) is in breach of the duty referred to in subsection (3).

(6) Those forms are-

(c) an order directing the respondent to take such steps for implementing the award as may be specified in the order.

s. 10 (4) Any person may apply to the High Court for an order under this section on the ground that-

(a) another person (“the respondent”) has contravened subsection (1), and

(b) the applicant has suffered loss by reason of the contravention.

(4) If the court finds that the ground on which the application is made is well founded, the Court may, if it considers that it would be just and equitable to do so, grant relief to the applicant in either or both of the following forms.

(5) (b) an order directing the respondent not to continue with the contravention and where the contravention involves the termination ...

While section 9 specifically deals with enforcement of awards and the forms of relief are prescribed, and section 10, restrictions on industrial action where dispute is before the Panel; both s.9(6)(c) and s.10 (6)(b) allow the court to direct the respondent to take such steps for implementing the award as may be specified in the order; or not to continue with the contravention, so that as a corollary, the court may further deal with a breach of its particular order by exercising its inherent powers of contempt. But such powers are circumscribed as I have sought to show.

This court made orders on the 7 October on application after notice given in terms of s. 9 (4) of the Act. Whether the Panel may be seen to be dilatory or perhaps favourably inclined by reason of its manifest wish to accommodate a particular party’s convenience or not, is not for this court to decide, rather if the effect of the Panel’s deliberations give rise to serious acts of criminality as is suggested here, then perhaps the Panel should address the effect of that issue for it obviously goes beyond the interest of the particular disputing parties and impinges upon the public interest in having this dispute expeditiously resolved and possible criminal acts prosecuted. For the Panel has not made an award after some 12 months.

An efficient timely dispute resolution process must be part of the countries commercial and industrial law and the Panel should recognise that also as public policy. Nevertheless I do not conceive the duty of this court is to presume to know the mind of the Panel so as to punish by contempt, a party currently before the Panel when the Panel has not sought this court’s assistance.

There is no parallel process in this court; the dispute resolution rests with the Panel. The motion must fail. The orders are refused.

Orders. The motion is dismissed. I make no order as to costs.

THE COURT