SMM Solomon Ltd v Attorney General (Ruling on contempt to Court Assertion) [2013] SBHC 187; HCSI-CC 258 of 2011 (2 December 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 ElectrificationAND 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: 28, 29 November 2013

Date of Ruling: 2 December 2013

1st - 7thClaimant –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

CATCHWORDS.

Courts and Judges – counsels conduct – claim by other counsel that conduct amounts to contempt – whether approach by e-mail after submissions closed in the circumstances amounts to contempt – judge entitled to manage his court – the facts appear from the ruling

RULING ON CONTEMPT OF COURT ASSERTION

Brown, J sitting as the Commissioner:

Mr Lilley QC has had cause to complain about Mr Sullivan QC's attitude towards him previously in these proceedings, and I attempted to curb any continuation. It is frankly unnecessary, for it is an unacceptable expression of loss of self-control, which in a Court situation, reflects on the individual and the dignity of the Court.

On Thursday, the 28th of November, after both Queen's Counsel had made submissions, I found it necessary to address Mr Sullivan QC. I said, "I think, Mr Sullivan, I have an understanding of your application, and I've heard from Mr Lilley. There's probably no need to go on".

I am satisfied that it was plain to Counsel that I would not accept further addresses on the issue. Later that day, by email forwarded by my Associate, a further submission was made. The submission was in an attachment which I had opened before realising its import.

Mr Lilly had objected most strongly to this action on the part of Mr Sullivan, for it ignored my directive. I had reserved on the point. I have regrettably seen, and as I said, read the page of the submission, and told Counsel on the Friday.

Mr Lilly says this approach by e-mail in this fashion is, "A high contempt of Court," and the claimants should purge their contempt before being heard further in the proceedings.

Mr Sullivan, when asked by Mr Lilley to apologise before proceeding at all, stated that he was entitled to reply to an allegation of contempt. He then went on to say that I had mistakenly treated his courtesy by informing his opponents in this hearing, of his proposal to proceed in a particular way, as an application.

In my earlier ruling I made plain that it was an application and it could not have been treated in any other way. Frankly, that is dissembling on Mr Sullivan's part anis whollyholly irrelevant to the complaint. What he treats as my mistake may be seen as compounding any contempt. His notice of his proposal to put a fresh document to his witness couched as atesy to counsel, [when plai plainly it was an application to reopen on matters the subject of Mr. Lilley's cross-examination], also misses the obvious point that by approaching me in that fashion, after the event, was a clear breach of convention. It rather matters not in this case, what was written in the e-mail; the breach was the approach.

Mr Lilley points to Lord Cham's statement in re Dyce Dyce Sombre, which in the time allowed I haven't read but which is referred to in the old United Kingupreme Court Practice, the White Book [in my 1995 edition at page 832] – Order 52/1/82/1/8, where there it states, "Communications by letter to a Judge or Officer of the Court intended to influence a decision are a contempt." The cases therein stated include Lechmere Charlton's case and Martin's case. Martin's case has a 1747 reference.

Our rules deal with the procedure but not the substance of contempt. This assertion by Mr Lilley is most serious. Both are Queen's Counsel, a status conferred by the Crown, as recognition of their rank amongst their peers, learned in the law. I take note of this and give them due respect for they are Officers of this Court and aware of both their standing and commensurate obligations.

I am concerned by Mr Sullivan's attitude in the face of my clear direction that enough had been said. Argument was closed and I reserved on the point, yet he saw fit to approach me by e-mail with fresh submissions and notwithstanding his invitation in the e-mail to Mr Lilley to respond, it was plainly wrong. I am disappointed that Mr Sul again on Friday dissembssembled over an obvious matter which was irrelevant to Mr Lilley's criticism.

It is my Court to manage. I determine whetheral behaviour constitutes contempt. I appreciate that Mr&#16r Lilas every right to point oint out the acts giving rise to his charge. I've not read the case, re Dyce Sombre, nor those referred to in the White Book. While I am sure they deal exhaustively wit facts of those particular ular cases, the facts here are very straightforward.

I am not please by Mr Sullivan's pption in approapproaching me in that fashion, nor his behaviour on occasions towards the other side, nor his interruptions when ther side is addressing me. That attitude is embarrassing to the Court. I am satisfied that that what I call the convention, and certainly, the propriety of Court conduct has been breached by approaching me, while not amounting to contempt. In such circumstances, an apology is called for.
[An apology was given to the Court and to those other members of the Bar table and accepted by the Court]

THE COURT