Mereki v Attorney General [2016] SBHC 158; HCSI-CC 59 of 2014 (29 September 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

CIVIL CASE NO. 59 OF 2014

BETWEEN: TEBUKEWA MEREKI, JOHN TEBIRIA Claimant
RABAUA, HENRY TEBTARA, ABARAM
ABERA, and ARESI KIATOA

AND: THE ATTORNEY-GENERAL First Defendant

AND: SOLOMON BAUXITE LIMITED Second Defendant

Date of Hearing: 29^th September 2016
Date of Ruling: 29^th September 2016

Mrs M. Manaka for the Claimants
Mr D. Damilea for the First Defendant
Mr A. Radclyffe for the Second Defendant

RULING ON APPLICATIN FOR LEAVE

Faukona PJ: This is an application for leave to allow the Claimant to file an amended claim for judicial review. The application for leave was filed on 24^th October 2014.

2.	In respond to the original claim, the second Defendant filed an application to strike out. That application was heard and a ruling delivered on 30th June 2014. After the Ruling the parties have indicated that the Claimants were intended to seek leave to file an amendment to the claim. Justice Apaniai J, as he was then, amended order (2) to read, “The Applicant and first Defendant to file their statement of defences within 14 days from a date of being served with an amended claim”.
3.	Following the orders the Claimants then filed an amended claim on 6th August 2014. The Counsel for the Claimant was of the view that Order 2 of the ruling had granted leave. Therefore, it was not necessary to seek leave to file the amended claim.
4.	Both Counsels for the first and second Defendants concertedly argue that Order 2 of the ruling on 30th June 2014 did not grant leave for the Claimants to file their amended claim. It only stated that defences be filed within 14 days after amended claim being filed and served. Leave is still required to be sought.
5.	I have read the order of the Court thoroughly and I agree with both Mr Radclyffe and Mr Damilea that leave to file amended claim was never granted by the Court. Hence, must sought and after being granted then an amended claim for judicial review be filed.
6.	Having recognized the error in interpretation, the Counsel for the Claimant then read the application for leave paragraph by paragraph.
7.	Another issue raised by Mr Radclyffe is that before the Court can determine a claim for judicial review it has to be satisfied, inter alia, that there is no other remedy to resolve the matter fully. Mr Radclyffe argues that if leave is granted he will argue the same issue at Chapter 15 pre trail conference.
8.	The validity of Mr Radclyffe’s argument is based on the initial judicial review claim which the Claimants sought declaration to invalidate the Director of Environment and conservation’s decision in granting development consent to the second Defendant and to quash that decision.
9.	Against that decision the Claimants had filed an appeal to the Environment Advisory Committee on 3rd October 2013 pursuant to Section 32 of the Environment Act. Since then that appeal is still pending and yet to be heard.
10.	At that time of filing of the appeal the members of the Environment Advisory Committed was yet to be appointed. However, by Solomon Islands Gazette dated 29th February 2016 the Minister for Environment, Climate Change, Disaster Management and Meteorology had appointed the members of the Environment Advisory Committee, whose appointment will take effect as of 4th February 2015.
11.	As both Counsels for the Defendants have submitted that since the establishment of the Committee, the Claimants should choose to take that route, have their appeal heard. The second Defendant, as a respondent to the appeal, has a right to be heard in opposition to the appeal.
12.	I noted, by abandoning the appeal, instead file a claim for judicial review in this Court would mean the Claimants are asking the Court to hear the appeal, which should be dealt with in a forum conferred with the jurisdiction to hear it.
13.	To venture into granting leave and hearing of the claim, in the alternative reflect surprising the powers of the Advisory Committee which has jurisdiction to hear an appeal. In yielding to the judicial review proceedings is seeking this court to substitute the decision of the Director of Environment to its own. I think that is not proper and is invalid.
14.	Meantime, I do not intend to deal with the substantive review of the claim and whether there is merit in it or not. All I do now is pointing out the appeal process from the decision of the Director is a course or a remedy that is available to resolve the matter fully and directly. The judicial review process in all manner of claims against executive or administrative decisions should be the last resort. The most available and immediate process ought to be exhausted first before turning a mind to the review process.
15.	The strong basis upon which the Counsels for the Defendants rely on is, there is a course of remedy available to resolve the matters fully and directly. The Claimants should utilize that process as a priority. If the members of the Environment Advisory Committee were not appointed then the Claimants ought to seek order from the Court to direct the Minister to appoint the members of the Committee to hear their appeal. The Counsels further reiterate that should the Court grant leave this same issue will be raised at Chapter 15 pre- trial conference.
16.	To raise a point in law twice in one particular incident or case is a repetitive process as a miscarriage of justice. To avoid such I took the suggestion made by Mr Radclyffe, which in my view is most appropriate. That is to refuse leave, stay this proceeding and allow the Claimants to pursue their appeal, which is still pending to be heard by the Environment Advisory Committee.
	Orders:
	1.	Refuse to grant leave to file amended claim.
	2.	Stay this proceedings
	3.	Cost in the cause.
	The Court.