Afeau v Judicial and Legal Service Commission [2007] SBHC 1; HCSI-CC 012 of 2007 (22 February 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 012 of 2007

PRIMO AFEAU

-v-

JUDICIAL AND LEGAL SERVICE COMMISSION
AND ATTORNEY-GENERAL

Date of Hearing: 22nd February 2007

Date of Ruling: 22nd February 2007

Andrew Radclyffe for the 1st Plaintiff
No appearance of Attorney-General
Ken Averre for the Defendant

RULING
on interlocutory summons to have particular annexures to the plaintiff’s affidavit in support removed from the "court file".

Brown, J: The Application seeks an order that material forming part of the plaintiff’s affidavit in support of his application for redress, should be removed from "the court file" on the grounds of privilege to which public immunity attaches and that the letters are irrelevant to the facts in issue. The exhibits are letters passing to and from the Prime Minister and the Judicial and Legal Services Commission affecting the plaintiff’s appointment as Attorney-General and notices by way of letters to the plaintiff from the JLSC.

The plaintiff’s claim by way of originating summons under S. 83(1) of the Constitution seeks this court’s order by way of determination and consequent declaration that the plaintiff’s revocation of appointment as Attorney-General contravened S. 42(2).

In matters involving constitution interpretation of particular sections it behoves this court to carefully consider factual matters which reflect on the question. This is a case where the plaintiff says particular letters, (which are no longer claimed to be privileged for they have been widely disseminated) are relevant to that inquiry. This court is the forum for determination of such questions and as a superior court of record has inherent power to conduct its process and take steps to properly hear the question.

It is said there are no Rules of the HC which directly bear on the issue but "relevance", in the conduct of proceedings; of any particular evidentiary material is to be decided in the context of the hearing.

This preliminary point resting as it does, on the argument that the particular letters are irrelevant to the facts in issue is rather a non sequitur. It must surely be relevant to determine the facts which may give rise to a consideration of Constitutional rights under enquiry.

The matter has not come on for substantive argument on the question raised by the plaintiff.

I am loath to pre-emptively decide particular documents’ relevance in these circumstances on an interlocutory application.

It is not a matter of discretion. The court should allow the material to be placed before the court in the usual way on the substantive hearing when objection may then be taken if appropriate.

To allow the application may well be seen as precluding the plaintiff from a fair trial for facts on which he seeks to rely will have been excluded from the courts consideration were the court to remove the letters of the plaintiff forming part of the factual matrix which the plaintiff says affords him redress under the Constitution. (Before making orders, I should say that in spite of there being no appearance of the Attorney-General (said to be acting) I earlier gave reasons why I was satisfied it was appropriate to proceed since I was satisfied the Attorney had notice of the application.)

The application is refused. The summons is struck out.

I award costs to the plaintiff.

THE COURT