Zobule v Attorney General [2010] SBHC 39; HCSI-CC 297 of 2008 (5 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 297 of 2008

BETWEEN:

ALPHEAUS ZOBULE and OTHERS
First Claimants

And:

DAVID GARUNU and OTHERS
Second Claimants

And:

LIVA REJI
Third Claimants

And:

JOHN PAVUKERA and Another
Fourth Claimants

And:

ATTORNEY GENERAL
(Representing Commissioner of Forests)
First Defendant

And:

EZEKIEL DAVEKA and OTHERS
Second Defendants

And:

NASON BEIKERA
Third Defendant

And:

GLENGROW (SI) Co Ltd
GLENGROW SAWMILLING INDUSTRIES Ltd
Fourth Defendants

Mr Ashley for the Claimants
Ms Ziru for First Defendants
Mr Tegavota for Second, Third and Fourth Defendants

Date of Hearing: 26th July 2010
Date of Judgment: 5th August 2010

JUDGMENT

1. The Claimants are seeking a striking out order against the Second, Third and Fourth Defendants on the basis they have not complied with an order dated 17th May 2010. That order was a consent order which was lodged and signed following a hearing before me on 12th May. It related to an application by the Defendants to strike out the claim.
   
2. In accordance with the order the Defendants were to file and serve submissions by 26th May. Any responses were to be filed 14 days after that. The case was supposed to be listed for a hearing before me on 17th June 2010 where those submissions were going to be heard but because of my absence in Australia, the hearing was vacated and a new date was fixed.
   
3. I should mention at this stage this case is closely involved with another, Civil Case 288 of 2009. The status of the parties in that case were reversed (the Claimants were Defendants and vice versa). The claim in that matter was for a quashing order and was therefore subject to Rule 15.3.18 [1]. I heard argument on 12th April and on 15th April gave a ruling striking out the claim. Part of the consent order involved the costs incurred in that case and the Second, Third and Fourth Defendants were required to pay SBD24, 200.00 agreed costs within 14 days.
   
4. The first question to ask is simply this, have the Second, Third and Fourth Defendants complied with the order? The answer to that is, in effect, yes and no. Submissions were filed on 27th July. The costs have not been paid. In reality the answer is no, the order was not complied with.
   
5. Part of the explanation as to why we are at this stage is seen from the letters dated 24th and 30th May from the Claimants' lawyer to Mr Tegavota copied to the Registrar High Court. What I will politely call an administrative hiccough in Mr Tegavota's office meant the order was not served and submissions not filed in accordance with the timetable set out in the consent order. Delay in the filing of the Defendant's submissions has had a knock on effect and the Claimants have not filed theirs.
   
6. As to the costs, by way of explanation Mr Tegavota simply says he has asked for the funds from his clients but nothing has been paid.
   
7. It is clear to me that the court has every right to strike out the defence of the Second, Third and Fourth Defendants. They have had over 3 months to comply with the order. They have only partially complied. Parties (and their legal advisers) must grasp the fact the court will not treat breaches of court orders lightly. The breach of an order by consent has to be considered even more serious. When consenting to an order the parties must be taken as being fully aware of the terms of the order, what they are required to do, as they agreed to it. They must also be taken as accepting the consequences if they do not do what they have agreed to do. They will need to put forward cogent and compelling reasons why there should not be punitive consequences imposed by the court if the order has not been fully complied with.
   
8. In this case there is an added complication. As rightly pointed out by Counsel, striking out the Second, Third and Fourth Defendants defence will not end this case. The First Defendant will still be involved. There will still be serious issues to be dealt with. I also agree with what Faukona J said in an earlier ruling in this case [2] that the issue of the propriety of the logging licence cannot be separated from the issues of ownership of customary land. The Second Defendants in particular, should be heard in this case in order that those issues of customary land ownership are properly dealt with.
   
9. In all the circumstances I will exercise my discretion and decline to make an order striking out the defence of the Second, Third and Fourth Defendants. However, they cannot simply walk away from this application without suffering the consequences of their failure to do what they agreed to do in the Order dated 17th May 2010. The Second, Third and Fourth Defendants will pay the costs of the Claimants and the First Defendants of the hearings dated 29th April 2010, 12th May 2010 and 27th July 2010. Those costs are to be taxed if not agreed. The Second, Third and Fourth Defendants will also pay the costs of today and again those costs are to be taxed if not agreed. I also order there be a stay against the Second, Third and Fourth Defendants until the costs set out in the consent order are paid in full.
   
10. It seems to me that neither side is very interested in dealing with the fundamental issues this case has highlighted. There has been a superfluity of legal manoeuvring so as to avoid confronting the very real need to address those issues. I quite accept the right of any one to use whatever legal means they can to protect themselves and their property. However, if the parties continue to avoid actually settling the differences between themselves the ill will that presently exists will only fester and eventually will become so acute as to make it impossible to reconcile.
    
11. In view of my comments above I will not encourage the parties to avoid a conclusion to this case. I am not prepared to simply stay the defence indefinitely. I will adjourn this case to Friday 24th September 2010 at 09:30 am. If the costs have not been paid by then I will re-consider the order I have made today with a view to striking out the defence of the Second, Third and Fourth Defendants.
    
12. Whilst I have heard submissions to the effect that the Fourth Defendants have "left the scene", I am today also going to re-instate the injunctive order made by Goldsbrough J on 12th September 2008. The injunction will be extended to cover the Second Defendants as well. A penal notice will attach to the interim injunction. Anyone who breaches the injunction will be arrested and brought before the court for contempt.
    
13. Mr Tegavota told me on 29th April that his clients had returned to Ranongga Island so I would suggest he might like to consider using an SIBC service message to tell them to get in touch urgently. He can then tell them what a serious situation they are in.
    
14. I will also allow the parties the option of returning to court for further orders or directions after giving 5 days notice.
    

ORDER:-

1. The Claimants application to strike out the Second, Third and Fourth Defendants defence is refused

2. The defence and all applications lodged by the Second, Third and Fourth Defendants shall be stayed until the costs set out in paragraph 3 of the order dated 17th May 2010 are paid in full.

3. The interim injunction issued on 12th September 2008 and discharged on 22nd October 2008 shall be re-instated until judgment or further order. The injunction shall be extended to include the Second, Third and Fourth Defendants and a penal notice shall attach to such interim injunction.

4. The Second, Third and Fourth Defendants shall pay the costs of the Claimants and the First Defendant of the hearings on 29th April 2010, 12th May 2010 and 27th July 2010, such costs to be taxed if not agreed. The costs are to be paid within 14 days of such agreement or taxation and if they have become due and have not been paid before or at the same time as those set out in paragraph 3 of the order dated 17th May 2010 they shall be subject to paraph 2 set out above.

5. The proceedings shall be adjourned to Friday 24th September 2010 at 09:30 am with a time estimate of 30 minutes for mention or further directions.

6. Liberty to apply on 5 days written notice.

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Ruling by Faukona J dated 22^nd October 2008 at page 5