Bartlett v Government of Australia [2012] SBHC 78; HCSI-CC 414 of 2011 (1 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 414 of 2011

BETWEEN

ALEX BARTLETT, CHARLES DAUSABEA
And NELSON NE'E
Claimants

And

GOVERNMENT OF AUSTRALIA
First Defendant

And

SPECIAL CO-ORDINATOR OF REGIONAL
ASSISTANCE MISSION TO SOLOMON
ISLANDS
Second Defendant

Mr Bartlett as representative for the Claimants
Mr Leopold SC, Mr Berger and Mr Radclyffe for the First and Second Defendants

Date of Hearing: 18th July 2012
Date of Judgment: 1 August 2012 (Delivered by the Registrar)

Ruling on Application

1. This is an application by the defendants to have the claim filed on 14th October 2011 struck out or dismissed. As can be seen from the title of the action the claim is against the Government of Australia and the RAMSI Special Co-ordinator. Much of the claim is premised on the assertion that the Royal Solomon Islands Police Force was under the control of the Australian Government. As a result the Claimants say their constitutional rights have been abrogated in some way and the defendants are liable to pay damages. If the claimants are right Solomon Islands has suffered two coups in the past 12 years, one in 2000 involving the MEF and one on some date in 2004 and 2005 by the Australian Government. That is the only logical conclusion to be drawn from much of what is said in the Claimants' statement of case with its theme of control and direction, refusal to obey Prime Ministerial orders and by what is put forward in submissions about the usurpation of "the executive power of the sovereign State of Solomon Islands".

2. There is no doubt in my mind the claim should be struck out. Some of it is absurd. For example the court is being asked to make an order that the findings and recommendations of the Commission of Inquiry into the April 2006 riots be accepted. On what basis and under what authority the court can do so is not elaborated on. There is no explanation as to what findings are being "accepted" because the Claimants go on to say the defendants caused the final report to be suppressed and have prevented its release to the public. If no report has been published how is the court to accept its findings and recommendations?

3. However, the main reason the claim must be struck out is because of the fundamental flaw in the proposition that the claimants can seek compensation for contravention of their constitutional rights from the named defendants. It is well established in this jurisdiction the provisions of the Constitution relied on by the claimants relate to the relationship between the State and private persons. The claimants argue the Townsville Agreement and the Facilitation of International Assistance Act 2003 must mean the Australian Government has taken on an executive or administrative role of the State. They argue the restoration of law and order is a function of the State. This function they say was being carried out by persons who were under the authority and control of the defendants. I do not accept that the provisions of the Townsville Agreement or the Facilitation of International Assistance Act 2003 mean the Australian Government has taken on the mantle of the Crown in right in Solomon Islands. Both the agreement and the act recognise the authority of the state apparatus of Solomon Islands. Both leave that authority intact. It is entirely wrong to suggest the defendants have assumed the executive and administrative roles of the Solomon Islands state authorities by rendering assistance to those state authorities as they carry out their roles. That being so there is no relationship of private citizen and state as between the Claimants and the defendants.

4. In the Ulufa'alu [1] case in this court and in the Court of Appeal it was held that the majority decision in Loumia v. DPP [1985/1986] SILR 158 set out the correct position in this jurisdiction. In Loumia the majority accepted the Chapter II provisions relied on by the Claimants in this case were, "principally concerned with the relations between the citizen and the state". That was the position set out in earlier cases in other jurisdictions. Two Privy Council cases from Trinidad and Tobago were cited with approval [2]. As Palmer ACJ said in the High Court in Ulufa'alu:

"Apart from the majority view in Loumia's Case, which this Court is obliged anyway to follow, this Court would be taking a giant leap against the tide of judicial view and thought in other jurisdictions if it were to extend the application of the rights protected under Chapter II to private actions between private citizens."

5. The Claimants are also unable to overcome the hurdle of sovereign immunity. The law in that regard is so entrenched not only in International law but in Solomon Islands law; it is difficult to see any basis on which the Claimants could say they should have a right to seek legal redress, in particular against the First Defendant, in the courts in this country.

6. The Claimants are also seeking in this case that which was refused in another case. They challenge the right of the defendants to claim the immunity from legal proceedings afforded by section 17 of the Facilitation of International Assistance Act 2003. This is the same provision which was raised in the other case. The Claimants say that by making this a Constitutional question the right of the defendants to claim immunity should not be available because the right is contrary to the provisions of the Constitution. In submissions it is said that, "whilst the Defendants members are in the country under the FIA Act, citizens of Solomon Islands are not guaranteed their protection of rights and freedoms and compensation for breaches thereof where such breaches were on the part of members of the Defendants". The assumption is once again the defendants are the same as "the State". They clearly are not, as is indicated earlier.

7. There are no amendments, major or minor, which can rectify the patent defects in this claim. There is no legitimate question that can be put to this court. There is no alternative but to strike out the entire claim. I had considered ordering costs on an indemnity basis against the Claimants but will refrain from doing so on the rather insubstantial reasoning that the Claimants were prevented (through no fault of their own) from instructing their chosen legal representative in this matter. They could, of course, have found another lawyer but did not do so. Had they been able to maintain full contact with the lawyer of their choice it is possible (although not probable) they might have been correctly advised on the folly of this claim. I will therefore order that, if the costs are not agreed, they be assessed on a standard basis by the Registrar of the High Court.

Chetwynd J

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^[1] Ulufa’alu v Attorney General and Others[2001] SBHC 178 ; HCSI-CC 195 of 2000 and Solomon Islands Court of Appeal case 15 of 2001
^[2] Maharaj v. Attorney General for Trinidad and Tobago [1978] UKPC 3; [1979] A.C. 385; [1978] 2 W.L.R.902 and Thornhill v. Attorney General for Trinidad and Tobago [1981] A.C. 61; [1980] 2 W.L.R. 510