Kera v Pan Pacific Parts Ltd [2006] SBHC 24; HCSI-CC 221 of 2006 (5 July 2006)

HIGH COURT OF SOLOMON ISLANDS

NATHAN KERA

–v-

PAN PACIFIC PARTS LIMITED,
RUPASI MARE AND ATTORNEY-GENERAL

High Court of Solomon Islands
(Brown, P.J)

Civil Case No. 221 of 2006

Date of Hearing: 30th June 200

Date of Ruling: 5th July 2006

Mr. Patrick Lavery for the Plaintiff
Mr. Nathan Moshinsky QC with Rawcliffe Ziza for the Attorney-General
Mrs. Angelina N. Tongarutu for the Defendant

RULING

ON MOTION TO STRIKE BY 1ST AND 2ND DEFENDANTS

Brown, J: On the 9th June 2006 by ex parte motion the plaintiff sought and obtained an interim injunctive order restraining the 1st, and 2nd defendants and particular named respondents to Appeal Case No. 11 of 2006 from entering land know as Bilobilo Island until hearing of the suit or further order. The proceedings were stood over to Friday 23rd June to enable service of the material in the cause, when it was again adjourned to today for hearing of the motion.

When the proceedings came back before me today Mrs. Tongarutu for the 1st and 2nd defendants had filed a motion seeking dismissal of the interim injunctive order relying on an affidavit in support and Mr. Moshinky QC the Solicitor-General also appeared to seek an order that, on the face of the originating summons, there was neither basis for injunctive relief nor any cause disclosed in the claim.

Mr. Lavery sought time to consider at least the affidavit of the 3rd defendant (by way of affidavit of the Acting Commissioner of Forests filed 30 June 2006) for that the Rules would be breached were the affidavit to be read today. Mr Moshinsky does not seek to rely on the affidavit, rather relies on his argument on the summons itself, opposes the adjournment and asks the court to strike the proceedings under O. 27(4) of the HC Rules (Power to strike where no reasonable cause of action shown) or by virtue of the Courts inherent power to prevent an abuse of its process. Mrs. Tongarutu, since her motion seeks to strike the continuation of the injunctive order supported Mr. Moshinsky’s argument.

The motion to strike was listed for hearing today, and in any event the interim order was made returnable today. Since no reliance is placed on more recent affidavits filed by the defendants, nothing turns on Mr. Lavery’s claim to adjourn to avoid an obvious breach of the rules prejudicial to his client, the plaintiff. The argument to strike must relate only to that originating statement of claim.

This is an extreme remedy for Lindly MR delivery the judgment of the court said in Hubbuck v. Wilkinson (1899) 1 Q B at 97 that the "procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks."

In Australia Barwick CJ, when faced with the claim by way of appeal to the High Court said, "The plaintiff rightly points out that the jurisdiction summarily to terminate ....... is to be sparingly employed and is not to be used except in a clear case". (General Steel Industries Inc v. Comm. of Railways (NSW) (1964) 112 CLR at 128-9).

Mr. Moshinky argues this is such a "clear case". He says the plaintiff was a party to an appeal to the CLAC following a timber rights hearing affecting the subject land "Mbelombelo Island" (Belo belo). He lost before that Court. The plaintiff’s right of appeal is found in statute. By virtue of S. 10(2) of the Forest Resource Timber Utilisation Act, (the Forestry Act) the order of the CLAC shall be "final and conclusive" so that no appeal lies to the HC in relation to proceedings under the Forestry Act. (Consequently the HC in the circumstances of this case was in error in granting the ex parte interim injunction). The judgment of the Court of Appeal give by Connolly P in Akuila Talasasa Anors v. Rex Biku Anors (unreported Civil Appeal 2 of 1987 dated 22 November 1988) deals with that ouster provision of the Forestry Act where the President said, (when dealing with S. 5D(2) of the earlier Act which subsection is reproduced as S. 10 (2) in the amending Act) at 9; "we are of the opinion therefore that S. 5D(2) is to be regarded as a no-certiorari provision. It follows that it is effective to oust certiorari for errors of law not going to jurisdiction ".

I am bound by that finding for clearly Mr. Lavery’s client relies on the jurisdictional powers of the CLAC when he seeks leave to appeal against the CLAC’s finding given on the 16 January 2006.

Order 61A of the H.C. Rules cannot avail the plaintiff in the face of the judgment of the Customary Land Appeal Court dismissing this plaintiff’s earlier appeal against the findings of the Provincial Executive (Form II) granting timber right to particular seven named persons excluding the plaintiff but including Rupasi Mare, the 2nd defendant here named.

Mr. Moshinsky says on a reading of the statement of claim in these proceedings, the plaintiff recites the steps required by the Forestry Act which correspond with the factual situation to the extent that the CLAC dismissed the plaintiffs appeal so that this High Court, bound as it is by S. 10(2), has no jurisdiction to further entertain the plaintiffs argument. Certainly the plaintiff points to the fact that he has exercised his statutory rights of appeal (under the Forestry Act) throughout, and now seeks orders by way of certiorari. The crux of the plaintiffs claim may be found in para. 13 of the statement, where it is pleaded; 13 "further if and in so far as the Commissioner has or has purported to issue a Felling Licence over the island he has done so without lawful authority and has aided and abetted the said trespass".

For it is the 1st defendant the logging contractor of the 2nd defendant who is alleged to have "trespassed", an assertion which presumes ownership rights. Whether ownership or not, the Forestry Act is concerned with a statutory regime for logging customary land, and the assertion of ownership cannot displace the regime which has clothed the 1st and 2nd defendants with legitimacy under the Act. The 2nd defendant is one named in the Form II entitled to grant timber rights over this customary land, and that is pleaded in the statement of claim. Form that finding of the Provincial Executive, the plaintiff appealed to the CLAC which dismissed the appeal. The Commissioner’s authority to issue a felling licence is to be found in the Forestry Act and the plaintiff’s assertion, in the statement of claim that the Commissioner acted "without lawful authority" must be presumed to relate to the matters taken on appeal to the CLAC (which dismissed the appeal) for no other matters were pleaded which may be seen as "unlawful" acts of the Commissioner. On the face of the statement of claim, then, no unlawful acts of the Commissioner independent of the Form II are pleaded.

Mrs. Tongarutu supports Mr. Moshinsky’s argument but goes beyond the vexatious and says the proceedings are an abuse of process.

Now abuse of process whilst encompassing the accepted no reasonable cause of action argument proposed by Mr. Moshinsky, actually may be seem to go beyond that, and may be said to suggest a collateral advantage to the plaintiff himself, and process not for the purpose for which such proceedings are designed. For clearly if the plaintiff claiming rights as a landowner, causes these two defendants pause in their commercial enterprise carried on for all landowners (and others if appropriate) by these named representatives in the Form II as trustees (for want of a better word) the representatives may feel obliged to treat more favourably with the plaintiff to escape the onerous penalties when log shipment operations are disrupted, penalties commonly known in the community where logging is carried out. There is then, an ancillary benefit to be gained by delay flowing from an interim injunction in these circumstances, although I need make no finding on that meaning sometimes extended to "abuse of process" in this case. This case turns on the point of law argued by Mr. Moshinsky.

Mr. Lavery argued that Talasasa’s case may be distinguished from the facts here for he says the CLAC has refused to exercise its duty to afford the plaintiff justice. That presupposes the CLAC is bound by rules of practice and procedure which may conveniently fit within a western concept but that court must be guided by custom; whether custom corresponds with "administrative acts" which attract this courts powers of judicial review in terms of Anisminic or Ridge v. Baldwin cannot arise for the self same reasons that certiorari will not lie.

Mr. Moshinsky point to S. 11 of the Forestry Act which allows a licence to log to issue once any appeal is concluded so that the CLAC decision dismissing the plaintiffs appeal involves that right in the 2nd defendant.

The court while cautious of the need to be sure the claim to strike is clear, should not shirk from the course, for it is incumbent on the court to bring finality to proceedings.

As I say the plaintiff is not without recourse for he may still seek a share or increased share of the benefits, if any from logging, relying on his status in custom. But his rights under the Forestry Act are exhausted.

This case illustrates, yet again the dangers of interim ex parte injunctive orders, when parties do not have the opportunity to be heard.

I strike out the originating process of the plaintiff filed on the 8 June 2006 as disclosing no reasonable cause of action. Consequently my earlier, injunctive order lacks a basis and is discharged. The associated summons for an order in the nature of certiorari is also dismissed for the plaintiff lacks standing.

The plaintiff shall pay all defendants costs in the various proceedings.

The plaintiffs undertaking as to damages should remain a live issue.

THE COURT