Yung Huang Fishery Company Ltd v Attorney General [2013] SBHC 204; HCSI-CC 460 of 2005 (27 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 460 of 2005
Civil Case No. 101 of 2009

BETWEEN:

YUNG HUANG FISHERY COMPANY LTD
1st Claimant

AND:

HWANG SHU FEN
2nd Claimant

AND:

KAZUO NAGASAWA
3rd Claimant

AND:

ATTORNEY GENERAL (Representing the Commissioner of Inland Revenue)
Defendant

___________________________________________________________________________

AND

___________________________________________________________________________

BETWEEN:

KAZUO NAGASAWA
1st Claimant

AND:

HWANG SHU FEN
2nd Claimant

AND:

YUNG HUANG FISHERY CO. LTD
3rd Claimant

AND:

DAIWA MARINE INTERNATIONAL
4th Claimant

AND:

SOLCO COMPANY LTD
5th Claimant

AND:

DAIWA MARINE WORLD
6th Claimant

AND:

YUNG HUNG MARINE
7th Claimant

AND:

SOLGREEN ENTERPRISES LTD
8th Claimant

AND:

YUNG HUNG FISHERY CO (SI) LTD
9th Claimant

AND:

SOLCO COMPANY LTD (JAPAN)
10th Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Inland Revenue)
Defendant

Hearing : 18 March 2013
Ruling : 27 May 2013

Mr. Banuve for Defendant
Ms. Bird for Claimants

RULING

1. This is an application filed by the Attorney General on 4 June 2013 to strike out these two proceedings for abuse of the court process.
   
2. Civil Case No. 460 of 2005 was filed under the old civil Rules, the High Court (Civil Procedure Rules) 1964. The case was commenced as an application for certiorari. But under the Solomon Islands Civil Procedure 2007 ("the Rules"), now in use, that proceeding would have been in the form of a judicial Review for quashing orders against the decision of the Commissioner of Inland Revenue against the Defendant. On the other hand, Civil Case No. 101 of 2009, is a claim filed under the Solomon Islands Civil Procedure Rules referred to herein.
   
3. The issues in both cases are similar in nature, in that the Claimants say that: (1) both cases relate to the distraining order issued made by the Defendant on 24 August 2005; (2) the distraining order by the Defendant was ultra vires his powers; (3) the distraining order by the Defendant caused economic damage to the Claimants and (4) that the alleged damage was the link for the consolidation of the cases on 27 March 2011. There were amendments to the claims and defences during the pleadings. These issues will be determined upon evidence at the trial.
   
4. The case for the Applicant is that the proceedings in these two cases be struck out for abuse of the court process. He submits that the way to proceed against the Defendant was through a judicial review proceeding to challenge the decisions and actions of the Defendant.
   
5. This court agrees with those submissions of the Defendant that the Claimants proceedings should be based on judicial review. However, the decision to have the cases consolidated is part of the Defendant's agreement with the Claimants. Further, there appears to be acquiescence by the Defendant with the current mode in which the cases have been initiated in court. The sudden twist by the Defendant in advancing that the cases should have been proceeded by way of judicial review proceedings when the case is about ready for trial seems unfair to the Defendant. The mode of action advanced by the Defendant should have been raised earlier on before the Defendant filed defences. The Claimants have since the cases have been filed lost assets and business through actions of the Defendant. In that view the Claimants' proceedings be maintained in their present form. In any event, noncompliance with the Rules does not render the proceedings nullity. The claims would be tried in their present forms. The application to strike out the claims is accordingly refused. The Defendant is to pay the Claimant's costs of this application.
   

Order:

1. The consolidated claims are to be heard in their present form.

2. The application to strike out the claims is refused.

3. The Defendant is to pay the Claimants' costs of this application.

4. The case is to be mentioned on 11 July 2013 at 9:30am.

HIGH COURT