Vasati v Solomon Airlines [2016] SBHC 121; HCSI-CC 540 of 2015 (26 July 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: SOSENE VASATI Claimant

-V-

SOLOMON AIRLINES Defendant

Mr. Lidimani for the Claimant
Mr. Hapa for the Defendant

Date of Hearing: 26 July 2016
Date of Decision: 26 July 2016

Application for default judgment in Category “A” proceedings claiming declarations of right.

Brown J.

The application for default judgment is the matter before the court this morning. Mr Hapa, who has appeared previously for the defendants has not appeared. Mr Lidimani for the claimant says that he rang from Gizo. I propose to deal with the application in the absence of the defendants, since to adjourn the proceedings would unnecessarily delay justice.

Mr. Lidimani, in support of his claim for default judgment, reads the sworn statements in support by his client, and relies on the statement of case in support of his claim. I am satisfied of service of the claim on the defendants, for Mr. Hapa has previously appeared.

Before addressing the facts, it is necessary to look at the Rules of Court for these proceedings are wrongly commenced.

Category A proceedings are, by R 2.14 those complex claims needing case management and would include a claim concerned with the interpretation of complex contractual terms, the factual circumstances surrounding the claim would need to be looked at carefully and facts found by the court before the court could proceed to determine the effect of the contractual terms on the found facts.

In this case the contract provides for termination, with or without notice. When notice is given, the contract provides for the payout of the notice period so cessation of employment occurs immediately; a common employment contractual clause. While these proceedings relying on the contract of employment (for the claimant claims in effect a breach of the employment agreement, an agreement reduced to writing and signed by the parties; a “contract”) and may consequently be categorized as an “A” claim, the relief sought by way of declarations may only be commenced by way of category “C” claims.

Declarations relate to rights to relief originally heard in the English Court of Chancery, for common law actions to recover money, damages, goods or land did not include the right to make declarations, which were equitable remedies. Hence, whether or not to grant a declaration is still a discretionary matter for the court.

In these proceedings, the declarations sought in fact, plead claims for monetary relief, claims more properly pleaded in contract. For a declaration of right cannot be substituted for the common law claims for damages for breach of a contract for instance. A declaration relates particularly to the determination of a point of law or to attack the order or decision of an inferior court or tribunal when the time limited to appeal has expired. The declaration cannot be used in the circumstances of this case.

Since these proceedings are concerned with the contractual relationships of the parties and the claim depends on its terms, declarations of right are not the avenue available, rather the claimant need rely on the common law remedies for breach of contract, the underlying basis of his claim here. It certainly is not valid to claim a default judgment, which relates to liquidation claims in category B.

By contract dated 26 June 2009 between Solomon Airlines Limited and the claimant, Disputes may be mediated in accordance with the provisions of clause 13. The company has not sought to avail itself of the dispute resolution process, rather has gone directly to the Termination provisions contained in clause 21:-

21.1 The Agreement may be terminated at any time by either of the parties hereto giving to the other not less than three (3) months’ prior written notice of termination, provided always that the Company:

(a) May tender to the Pilot an amount, in lieu of notice, equivalent to three (3) month’s salary;

(b) Shall pay, subject to Clause 21.3 of this Agreement, all entitlements due and owing to the Pilot to the date of expiry of the 3 month’s notice;

(c) Shall, subject to Clause 21.3 of this Agreement, reimburse the Pilot of all expenses reasonably incurred on behalf of the Company.

By letter dated 6 August, the company terminated the claimants employment with immediately effect and named the pilots final entitlement as

1. Normal salary up to close of business on 6 August 2010.
2. All outstanding recreation leave accrued up to close of business 06 August.
3. Three (3) months salary in lieu of notice.

The contributions to the National Provident Fund were also dealt with.

The provisions of clause 21.1 do not allow for argument. The payment of the 3 months salary in lieu of notice is the common provision (albiet the notice period may vary) in contracts of employment and normally bind both parties.

While mala fides are alleged, the question does not arise where the contract provides for payment in lieu of notice period and payment is done. The pilot, having agreed, is bound by his contract.

The allegations in paragraph 19 of the claimant’s statement that the company acted deceitfully, dishonestly and or maliciously in withholding the reasons for his termination have no basis in law when the termination has been made accordingly to the provisions of clause 21.1 of the pilot’s contract. Those issues do not arise.

The mala fides issue may arise in the circumstances of a termination by the company without notice or payment in lieu, when the facts upon which the company relies as affording the company the right to terminate pursuant to clause 21.2, may give rise to a right of review. But such is not the case in these proceedings where termination has been effected under clause 21.1.

These claims are brought by way of Category A proceedings seeking declarations to the effect that the defendants acted with impropriety in deceitfully, dishonestly or maliciously concealing the reasons for termination of the claimant.

The statement of case pleads that the claimant was employed as a pilot by Solomon Airlines Ltd and his employment was terminated by notice on the 6 August 2010. The proceedings were commenced on the 20 October 2015.

As well, in the statement of case the claimant sets out facts describing his chartered flight on the 6 August, when though bad weather he was forced to divert from his original destination and return to Henderson airport, and detailed other flight changes, all of which, he pleads, goes to show the mala fides of the airline. The 2^nd defendant was the Chief Executive Officer at the time, the authority who signed the letter of termination. These facts are irrelevant for the court’s consideration when the basis of the termination is wholly unrelated to the matters detailed by the claimant. He has not been dismissed.

In my discretion, for these reasons, I refuse the declarations sought. Since the proceedings disclose no cause of action, they are dismissed.

The claimant shall pay the defendants costs.

BROWN J