Russel Islands Plantations Estates Ltd v Solomon Islands National Union of Workers [2011] SBHC 10; HCSI-CC 247 of 2004 (21 March 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

CC NO: 247 OF 2004

BETWEEN:

RUSSEL ISLANDS PLANTATIONS ESTATES LIMITED
Claimant

AND:

SOLOMON ISLANDS NATIONAL UNION OF WORKERS
First Defendants

AND:

WILLIAM TOKASI
JOHN JULY
SOLO KOSU
CLAUDIUS KABASI
JOHN MAE
ABEL HAKA
JOHN PUENIOLA
STEPHEN NAGWA
BADDLEY KONARI
JOHN WEO
ISAAC TALO
ASHLEY MAEDANI
JACK AKWASIBAE
JOHNMARK MANI
ERICK HOU
JOHN UINIU
JEWS ASINAMO
CHARLES PETER
HENERY APATO
NELSON RIKI
(As leading striking Employees)
Second Defendants

Date of Hearing: 8 November 2010
Date of Judgment: 21 March 2011

Nori A for Claimant
Bird M for First and Second Defendants

JUDGMENT

1. By order made 6 October 2004 the 1st and 2nd defendants were required to compensate this Claimant for its losses suffered, to be assessed, as a result of contraventions of section 10(1) and 10(2) of the Trade Disputes Act [Cap 75].
   
2. The same order contained provisions declaring industrial action unlawful and restrained it. It made further orders pending a determination of the Trade Dispute Panel. Although taken on appeal, these orders have not been quashed. The Trade Dispute Panel has made a determination and that determination itself has been the subject of an appeal. Although not material to this assessment, that appeal was dismissed.
   
3. This hearing is to assess damages due under the order described above. There are said to be several distinct categories of damages which have arisen at various times and I shall deal with them separately. Whether or not damages are payable in respect of each or any category is dependent upon the interpretation of the original order.
   
4. For the defendants the only submission on quantum of damages was that the applicant had a duty to mitigate their own losses. There is no issue raised as to the amounts claimed within the various categories. The issue of mitigating their own losses seems to turn around the continued employment of the General Manager against the wishes of the defendants and, it seems, in direct conflict with the Trade Dispute Panel decision and the appeal against that decision. The view of the TDP with regard to the continued employment of the General Manager is adequately summarised at paragraph 16 of the appeal against that decision. Given that the applicant decided to continue in the employment of the General Manager, the defendants now submit that the applicants did not attempt to mitigate their losses by trying to find a modus operandi to re start work on their plantations in the Russell Islands.
   
5. The first tranche of damages claimed relates to the period 17 June 2004 to 7 October 2004. The first date is the date of referral to the Trade Dispute Panel and the second the date on which this present order was perfected. Those damages are $7,304,480.00 and the evidence on which that figure is arrived at is not disputed by counsel for the defendants.
   
6. The second and subsequent amounts of damages were incurred after the date of this present order, and whether those amounts are payable under this order in these proceedings is dependent upon the interpretation of the order itself.
   
7. The order provided for payment of damages incurred whilst at the same time order the strike action to cease. The strike action did not cease and the damages continued to accrue. Since the presiding judicial officer made the assumption that his order would be complied with, he ordered damages in the past tense. He did not, nor was he asked, to make further provision for future losses, as it seems the then counsel for the claimant and the Court proceeded on the basis that the order would be complied with. When it became clear that the order was not complied with, no application to vary its terms was made.
   
8. When the order speaks of damages in the past tense, that order is limited to damages that had occurred up to and including the date it was made. It did not include damages or losses that were incurred after 7 October 2004. For that to be included a different form of words would be necessary. It is doubtful whether in the circumstances such an order could have been made unless it was very clear that it was to be effective only in the case of disobedience of the no strike clauses.
   
9. The same judicial officer who made the order subsequently heard an application for its enforcement. That judgment is contained in the assessment materials. In that judgment dealing with the terms of this order the judge says (page 228 of trial book):-
   

"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 defendants from acts in furtherance of the dispute and ordered the defendants to compensate the applicant for its losses occasioned by the strike to that time."

10. From that which the judge then said, it is clear that his own interpretation of the order he made concurs with my interpretation, that the order covered losses to date, not future losses. I do not rely solely on his interpretation, for he may have been in error, but his interpretation and my interpretation of his words arrive at the same result.
    
11. In those circumstances it is not necessary to consider the further amounts claimed by the Claimant in these proceedings. That means that the submissions on mitigation of damages do not fall to be considered, for they relate to the later periods.
    
12. It is regrettable that the defendants did not take up the offer made to them by the Court of Appeal. That offer for review of the order by the High Court was acknowledged in this assessment hearing by counsel for the Defendants and it was noted that they had indeed taken no action upon it. Having taken no action and not seeking further time to do so, the defendants leave themselves open to this assessment.
    
13. In the event the 1st and 2nd Defendants are ordered, jointly and severally, to pay damages in the sum of $7,304,480.00 and the costs of this assessment hearing to be agreed or taxed.
    

Dated this 21st day of March 2011.

GOLDSBROUGH J