Moti v Registrar of High Court of Solomon Islands [2007] SBHC 36; HCSI-CC 473 of 2006 (23 January 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case (Constitutional) Number: 473 of 2006

Julian Ronald Moti

v.

Registrar of High Court of Solomon Islands and
Justice John Brown and Attorney-General.

Date of Hearing: 5th December 2006
Date of Judgement: 23rd January 2007

Julian R. Moti QC in person, ex parte.

Palmer CJ.: This is an application for leave to apply for redress, pursuant to Section 18(1) of the Constitution and Order 61A, rule 1 of the High Court (Civil Procedure) Rules 1964 (as amended).

The application stems from the grievance of the Applicant, Mr. Moti of the refusal by his Lordship Justice Brown in another matter, The Queen v. Public Service Commission; Ex Parte Julian Ronald Moti QC HCSI 452/06 ("the Application") in which Brown J in a short hearing on 15th November 2006 refused to hear the application for leave to commence action against the Public Service Commission’s decision to suspend him as Attorney-General on the grounds that the Writ was improperly intituled.

His Lordship ruled that the Queen was improperly joined as the Applicant. The person that is aggrieved by the decision of the Public Service Commission ("PSC") was Mr. Moti and is the person that should be properly listed as the Applicant rather than the Queen. His Lordship held there was simply no basis for that and refused to hear the application. He however gave leave for the Writ to be amended and the matter to be placed before him for hearing on an urgent basis.

Section 18(1) of the Constitution reads as follows:

"18.—(1) Subject to the provisions of subsection (6) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction—

(a) to hear and determine any application made by any person in pursuance of the preceding subsection;

(b) to determine any question arising in the case of any person which is referred to it in pursuance of the next following subsection,

and may make such orders, issue such writs and give such directions, including the payment of compensation, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution:

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law."

The Issues

1. Were Mr. Moti’s rights under Sections 10, 3 and 7 of the Constitution contravened by the Second Respondent when he refused to hear his Application?
   
2. Were Mr. Moti’s rights under Sections 10, 3 and 7 of the Constitution contravened by the First and or the Second Respondent publicizing the reason for the Second Respondent’s refusal to hear the Application at the appointed time and date?
   
3. Are there any adequate alternative means of redress available to Mr. Moti?
   

1. Were Mr. Moti’s rights under Sections 10, 3 and 7 of the Constitution contravened by the Second Respondent when he refused to hear his Application?

Section 10(8) of the Constitution, being the sub-section which Mr. Moti relies on provides as follows:

"Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognised by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, that person shall be given a fair hearing within a reasonable time."

Mr. Moti says that his case was urgent as it directly affected him and that he wanted it to be heard expeditiously.

It is not in dispute his Application was given priority listing by the Court, which convened timely and a decision taken. Brown J. accepted that his application was urgent and so even after ruling that the application was wrongly intituled and declining to hear it, nevertheless granted leave to amend and to have the matter re-listed as urgent before him.

There is nothing in the conduct of the Judge to suggest he was exercising anything other than a judicial function. He may have been mistaken and the case authorities cited[1] and texts[2] relied on by Mr. Moti seem to support his claim.

The orders of certiorari, prohibition and mandamus are non-statutory remedies in administrative law. They were designed for the control of governmental duties[3] and powers and evolved by the courts of common law. Their hallmark is that they are granted at the suit of the Crown, as the title in every case in England indicates. They are referred to as ‘prerogative orders’ because they were originally available only to the Crown and not to the subject. Through these orders, the Crown could ensure that public authorities carried out their duties and that inferior tribunals kept within their proper jurisdiction[4]. These were principally remedies for ensuring efficiency and maintaining order in the hierarchy of courts, commissions and statutory authorities of all kinds[5]. Later these became generally available to ordinary litigants and an applicant could begin proceedings in the Crown’s name without seeking any permission or authority[6].

"The Crown lent its legal prerogatives to its subjects in order that they might collaborate to ensure good and lawful government.

...Certiorari and prohibition were designed for controlling the machinery of justice, and were in constant use in order to enforce the performance of public duties, judicial and administrative alike.

... By a process of evolution characteristic of our legal history, the Crown’s prerogative powers have been converted into machinery for the protection of the subject."[7]

In 1938, the prerogative writs were changed to be called prerogative orders[8]. Under the Supreme Court Act 1981, these became known as applications for judicial review. Under this legislation the law was harmonised regarding relief which may be obtained for prerogative orders and declarations, injunctions and orders. They became available as alternative or additional remedies. The procedure remained the same where applications for judicial review involving a prerogative order is usually entitled in the name of the Queen.

In Papua New Guinea the process is set out clearly in their rules in Order 16 of the National Court Rules of Papua New Guinea. Rule 3(2) of Order 16 provides that the application for leave must be instituted by way of originating summons (in Form 6) ex parte to the National Court but on notice to the Secretary for Justice[9]. The form for such is entitled in the name of the Applicant and Respondent on the other part.

In Solomon Islands, the High Court (Civil Procedure) Rules, 1964 ("the Rules") do not make express directions as to how the leave application is to be instituted. Order 61 is still headed as "Procedure for Prerogative Writs" but then refers to the issue of prerogative orders for certiorari etc. Order 71 of the Rules is a saving provision. It provides that where no provision is made by these Rules, the procedure, practice and forms in force for the time being in the High Court of Justice in England are to apply as is convenient. The case authorities referred to by Mr. Moti in "Note 1" above do support his claims that the courts in this country have continued with the procedure in England for such applications commenced in the name of the Queen.

I have carefully considered the question whether the order made by his Lordship was done intentionally, maliciously or out of spite so as to deny Mr. Moti his rights to a fair hearing within a reasonable time but unable to come to such conclusion. If his rights to a fair hearing at that time were denied it was merely because his Lordship honestly believed the order issued was right. If it was wrong, the most that can be said is that it was erroneously made or mistaken.

It is also important to appreciate that the learned Judge did point out that the matter can be re-listed on urgent basis once the amendment was done and so it cannot be argued that Mr. Moti was denied his rights to be heard within a reasonable time. He was still accorded priority time for the hearing of his application on the orders of the Judge.

I am not satisfied accordingly that Mr. Moti had demonstrated that his rights in section 10(8) of the Constitution had been contravened as alleged.

The same would apply to his claim that his rights to the protection of the law under section 3 of the Constitution had been contravened. The order made by the Judge was an exercise of his judicial discretion in refusing to hear the application on what the learned Judge held was a defect in form and nothing to indicate it was intentionally done to deprive him a hearing at that time. I am not satisfied his rights to the protection of the law had been pierced.

I am unable to find any inhuman, degrading punishment or other treatment in the order made by the presiding judge that would bring Mr. Moti’s claim within section 7 of the Constitution either. There is nothing to suggest the order was made intentionally to subject Mr. Moti to inhuman or degrading treatment or any other treatment. Whilst Mr. Moti may have felt humiliated by the effect of the order, there is nothing to show it was done deliberately other than an order made at the time based on what the presiding Judge’s view was. As I have pointed out, he may have been mistaken or wrong but that is the most that can gleaned from the proceedings.

2. Were Mr. Moti’s rights under Sections 10, 3 and 7 of the Constitution contravened by the First and or the Second Respondent publicizing the reason for the Second Respondent’s refusal to hear the Application at the appointed time and date?

The press release which the Registrar of High Court released shortly after the court hearing cannot be described as amounting to any breaches of sections 10(8), 3 or 7 of the Constitution. Press releases by the Registrar of High Court of any orders or judgements of the court are the run of the mill thing in judicial proceedings. They are part of the normal activities of the courts to inform and disseminate information for the public. I am not satisfied there is evidence to suggest that it was done with any malice or spite to humiliate or impose any degrading punishment on Mr. Moti.

3. Are there any adequate alternative means of redress available to Mr. Moti?

It would appear that Counsel had four alternatives to consider:

(i) To amend and have his application re-listed.
(ii) To appeal the order of the learned Judge.
(iii) To do both, that is, amend the application but also to lodge the appeal against the order of the Court. By doing this, his application would still be heard urgently and his grievance addressed by the Court of Appeal when it next meets later this year.
(iv) To have the matter re-listed before the presiding judge for his re-consideration in the light of the authorities cited and which were not raised before his Lordship at the ex parte hearing.

The proviso in section 18 of the Constitution provides that the Court may decline to exercise its powers if it is satisfied adequate means of redress have been available. For that reason also I would decline in any event to exercise my powers to grant leave in this application. It is my respectful view that there are adequate means of redress in this matter.

I note as well that Order 17 rule 11 of the High Court (Civil Procedure) Rules, 1964 ("the Rules") may have applied to cure the defect or irregularity in the joinder of parties in the Application but this also was not brought to the attention of his Lordship at the time of the hearing.

Order 17 Rule 11 of the Rules provides:

"No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added."

It would seem that the appropriate course of action in this matter would be for the Applicant to consider having the matter re-listed before his Lordship Brown J. or a different judge and to have the issue of proper or correct form for such application to be argued as a preliminary matter. This point was not traversed at the hearing before Brown J. on 15th November 2006.

ORDERS OF THE COURT:

1. Refuse application for leave to apply to the High Court for redress under section 18(1) of the Constitution.
   
2. The Applicant to bear his own costs.
   

THE COURT

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^[1] R. v. Public Service Commission ex parte Tiare [1984] SILR 80; Regina v. Customary Land Appeal Court, Western Province, Ex parte Talasasa (unreported, HCSI-CC NO. 135 of 1986); Regina v. Customary Land Appeal Court ((Western) Ex parte Ulekesa [1990] SILR 197; The Queen v. Trade Disputes Panel, Ex parte Earthmovers (Solomons) Limited (unreported, HCSI-CC No. 287 of 1997, 22/12/87); Regina v. Hon. Manasseh Sogavare, ex parte The Attorney General (unreported, HCSI-CC No. 311/312 of 2006, 04/08/06 and 30/08/06
^[2] Chitty and Jacob’s Queen’s Bench Forms (21^st edition, London, Sweet & Maxwell, 1986) pp 1939-1949; Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (2^nd edition, London, Butterworths, 1991) Volume 14, pp 6-18, 19-21, 58-86;
^[3] Administrative Law H.W.R. Wade Sixth Edition, page 616.
^[4] (ibid)
^[5] (ibid)
^[6] (ibid)
^[7] Administrative Law H.W.R. Wade Sixth Edition, page 616
^[8] Administration of Justice (Miscellaneous Provisions) Act 1938, s. 7 replaced by the Supreme Court Act 1981, s. 29.
^[9] Administrative Law of Papua New Guinea 2^nd Edition Michael A. Ntumy at page 251.