SMM Solomon Ltd v Attorney General [2013] SBHC 151; HCSI-CC 258 of 2011 (18 October 2013)

HIGH COURT OF SOLOMON ISLANDS
(Brown J)

Civil Case No. 258 of 2011

SMM SOLOMON LIMITED AND ALFRED JOLO (Representing the trustees and members of the Anika Thai Clan) AND WILLIE DENIMANA AND HUGO BUGORO (representing the trustees and members of the Thavia clan) AND HENRY VASULA RAOGA (representing the trustees and members of the Vihuvanagi tribe) AND BEN SALUSU (representing the trustees and members of the Vihuvunagi tribe in respect of the Chogea and Beajong land areas within Takata) AND MAFA PAGU (representing the trustees and members of the Thogokama tribe) AND PAUL FOTAMANA (representing the trustees and members of the Veronica Lona Clan)

–V-

THE ATTORNEY GENERAL (representing The Minerals Board AND THE ATTORNEY GENERAL (representing the Minister for Mines, Energy and Rural Electrification AND THE COMMISSIONER OF LANDS AND THE REGISTRAR OF TITLES AND PACIFIC INVESTMENT AND DEVELOPMENT LIMITED AND AXIOM KB LIMITED AND ROBERT MALO, FRANCIS SELO, LEONARD BAVA, REV. WILSON MAPURU AND ELLIOT CORTEZ AND THE ATTORNEY GENERAL AND BY ORIGINAL ACTION AND BUGOTU MINERALS LIMITED AND THE ATTORNEY GENERAL (representing the Director of Mines) AND THE ATTORNEY GENERAL

Date of Hearing: 17 October 2013
Date of Ruling: 18 October 2013

1st - 7th Claimant – Mr J Sullivan QC

- Mr R Kingmele

1st – 4th & 8th Defendant – Mr S. Banuve
-The Solicitor General

5th Defendant – No Appearance

6th Defendant – Mr R. Lilley QC

- Mr J. Carter
- Mr D. Keane
- Mr M. Pitakaka

7th Defendant – Mr F. Waleilia

- Mr D. Nimepo

For the Cross Claimants, Bugotu Minerals Ltd – Mr T. Matthews
- Mr W. Togamae

APPLICATION FOR SUMMARY JUDGMENT BY 5th DEFENDANT/APPLICANT WITH RESPECT TO PART OF THE CLAIMANT/RESPONDENTS CLAIM

PRACTICE AND PROCEDURE-SUMMARY JUDGMENT APPLICATION- OBJECTION TO PART ONLY OF CLAIM AND POWER TO HEAR

CIVIL PROCEDURE RULES OF THE HIGH COURT 2007-RULES 9.57; 9.58 AND 9.61 ON SUMMARY JUDGMENT APPLICATION- THE RIGHT TO A JUDGMENT ON THE APPLICATION OF A DEFENDANT IN RESPECT OF PART OF THE CLAIM IS NOT AFFECTED ON A PROPER READING OF THE RULES

RULING

Brown, J sitting as the Commissioner: Mr Sullivan QC, acting for the first claimant, SMM Solomon Limited has today, after the sixth defendant Axiom KB Ltd had brought its summary judgment application, objected to me dealing with it, since, he says I have no jurisdiction to make the orders sought. Mr Lilley QC for Axiom KB sought summary judgment in respect of paragraphs 5A, 6, 7, 7A, 8, 8A, 9 and 10 of the further amended, further amended claim of SMMS. I need not go into any detail about the relief claimed in those paragraphs of the claim by SMMS.

The basis of Mr Sullivan QC's argument is that on the proper construction of the Civil Procedure Rules 2007 of the High Court I am precluded from considering an application for judgment which would affect only part of the claimant's claim since the rules do not allow for the splitting, as it were, into parts but rather specifically require such summary judgment application by a defendant to encompass the whole of a claim. In support, Mr Sullivan relied on paragraphs 5, 6 and 7 of Mr Waleansia's sworn statement of the 10th of October 2013, which had been read by Mr. Lilley, earlier, on his summary judgment application.

Mr Francis Waleansia is the community affairs manager and in-house counsel for Axiom KB and says, paragraph 5,

"Axiom KB verifies the matters pleaded in its defence filed on the 7th of October 2013 (Axiom KBs defence) to the further amended, further amended claim (FAFA Claim) filed on the 25th of September 2013. 6. Axiom KB believes there is no real prospect of the second to seventh claimants succeeding with respect to the relief sought in paragraphs 7A, 7B, 8, 8A, 9 and 10 of the FAFA Claim. 7. No specific orders are sought by Axiom KB save for the dismissal of paragraphs 7A, 7B, 8, 8A, 9 and 10 of the relief sought in the FAFA Claim and an indemnity costs order."

These statements are couched to address the terms of the rule 9.61:

A defendant's application for summary judgment must have with it a sworn statement – (a) Verifies the facts stated in the defence – and (b) States that the defendant believes there is no real prospect of any part of the claim succeeding – and (c) States the specific orders that are sought by the defendant in addition to dismissal of the claim.

Mr Sullivan is at pains to point out the language used in the rule is mandatory, the use of the word "must" in the first part. He says the deposition deals with some part of the claim for implicit in paragraph 7 is the implication that the balance of the claim may go to trial. Mr Sullivan says that when a defendant seeks summary judgment, he must seek dismissal of the whole claim, there being no logical point in a defendant making an application for dismissal of a part which is interconnected with the rest.

The rules, properly constructed, require an application for summary judgment by a defendant to be supported by a sworn statement, that in effect, no part of the claim has a real prospect of succeeding. Mr Sullivan says Mr Waleansia's sworn statement does not meet the requirement of the rule 9.61.

That rule follows particular phraseology in the earlier rules. Under heading "Summary Judgment"
Rule 9.57:

The claimant may apply to the Court for a summary judgment where the defendant has filed a response or a defence, but the claimant believes that the defendant does not have any real prospect of defending the claimant's claim. 9.58: A defendant may apply to the Court for a summary judgment against the claimant where the defendant has filed a defence and believes there no real prospect of any part of the claim succeeding.

The rules, it's argued, make a distinction between a claimant and defendant's application for summary judgment since in rule 9.58 a defendant may apply to a Court for an order against the claimant in circumstances where he believes "that there is no real prospect of any part of the claim succeeding." Mr Sullivan says any part can only mean, in the ordinary context of the words used, that no part of the claim can be said to have real prospects.

That reading is contrary to that argued by Mr Lilley QC who contends that it would be a nonsense to read the rule in that way. The rule does not say "None of the claim succeeding." Mr Lilley, while conceding the rules could be more felicitous, argues that "Any part of the claim" means just that. In other words, one can choose a part of the claim to attack with an application for summary judgment. One is not constrained by the rule to only attack the whole claim. In support, he referred me to the earlier rules, 1.3, 1.4 and 1.5(f) and (h) which deal with overriding objectives. They shortly maybe stated to avoid prolix trials, save expense, dealing with the case proportionate to the prolixity, importance, complexity and amount involved and to ensure the case is dealt with speedily and fairly.

These objectives predicate the rules which follow and consequently, where in this case, particular issues are argued to be capable to be excised as it were from the claim of SMMS and made the subject of the summary judgment application, to accept Mr Sullivan's proposition, would on its face, seem to be contrary to the premise contained in the introductory rules.

But nevertheless, there is a dichotomy when reading rule 9.58 taken up by rule 9.61 and it needs to be settled.

If it were left there, I would be minded to be guided by the earlier rules and find that the proper interpretation is that advanced by Mr Lilley QC, "a part of the claim may be attacked." But rule 9.64 does come to the aid of interpretation.
Rule 9.64,

"If the Court is satisfied that: (a) the defendant has no arguable defence to the claim, or part of the claim, or that there is no real prospect of the claim succeeding - and (b) there is no need for a trial of the claim or that part of the claim - the Court may (c) give summary judgment for the applicant - and (d) if the Court gives summary judgment for only part of the claim, give leave to defend the balance of the claim - and (e) make any other orders the Court thinks appropriate."

The rule separates, firstly, the claimant's rights against the defendant, and secondly, the defendant's rights, were it the applicant for relief. It says, so far as the second instance is concerned, in (a), "there is no real prospect of the claim succeeding - and (b) there is no need for a trial of the claim or that part of the claim - the Court may" etcetera.

Sub-para (b), in these circumstances, must be read to apply to both a claimant and/or defendant. Since if a defendant in terms of sub-para (a) has no arguable defence, there would be no purpose for sub-para (b), since the Court may, per sub-para (c), give summary judgment for the claimant/applicant. Sub para(b). picks up, as it were, the words "or that there is no real prospect of the claim succeeding" in sub-para(a) to afford a defendant an opportunity to strike part of a claim.

Rule 9.64 deals with the rights of the parties to relief. I find sub-para (b) affords a defendant/applicant the right to avoid trial of the claim or that part of the claim which it seeks struck out by judgment. Rule 9.64 should not be read down to restrict rights where there may be, as I say, a dichotomy in earlier rules but, rather, be read to afford both parties the right to deal with the claim or any particular part. It would be unfair to do otherwise. Such an interpretation accords with the overriding objective. I appreciate Mr Matthews' help, which accords with Mr Sullivan QC's argument.

The application of the claimants is dismissed. Costs shall be costs in the cause.

THE COURT