Middle Island Investment Pty Ltd v Tauni [2016] SBHC 60; HCSI-CC 355 of 2013 (12 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTIONS

Civil Case No. 355 of 2013

BETWEEN:

MIDDLE ISLAND INVESTMENT PTY LIMITED
Claimant

AND:

JERRY TAUNI
(Representing Himself, Members of his Family, Relatives,
Servants, Agents and Associates)
Defendant

Date of Hearing: 2nd May 2016.
Date of Ruling: 12th May 2016.

Ms. A. Willy for the Claimant/Applicant.
Mr. G. Fa’aitoa for the Defendant/Respondent.

KENIAPISIA; PJ:

RULING

1. Court convened today (2/5/2016) to hear an application to vary or set aside interim restraining orders made against the claimant on 29/9/2015 and perfected on the 12/10/2015, by Faukona J. The said restraining orders were made by Faukona J after an Inter parte hearing, conducted on 3/8/2015. Same Counsels who appeared before me today also appeared before Faukona J on 3/8/2015. Claimant filed the application to set aside or vary on 23/11/2015, with a supporting sworn statement (ss) by Henry Hagavusia.
   
2. Parties through their respective counsels came ready to make submissions on the said application. However, as a preliminary issue, Court raised a point on “whether or not the application to vary current interim restraining orders is an abuse of Court process”? This is because the application is seeking to vary or set aside current interim orders granted after inter-parte’s hearing.
   
3. What transpired was that, the claimants after 12/10/2015 perfected Ruling by Faukona J, had gone and obtained a letter from Clerk to Makira/Ulawa Local Court, a letter which they assert, had clearly pointed out that the defendant has no pending appeal before Makira/Ulawa Local Court (“MULC”). Accordingly, claimant believes it is entitled to make a subsequent/fresh application to set aside the current interim orders of this Court.
   
4. Is this not an abuse of Court process, the Court was concerned. And so the Court heard submissions from both Counsels. After hearing submissions, I reserved Ruling till 9.00 am on 12 May, 2016.
   

Court’s Concern or Issue?

5. This application is seeking to set aside current interim orders made after Inter – parte hearing. The issue is whether the subsequent application to vary an earlier restraining order is not an abuse of Court process, in view of the Ruling sought to be set aside, being made after Inter – parte hearing. I reserve hearing of the claimant’s substantive application to set aside; subject to my ruling on abuse of court process.
   
   6. I heard submission from both Counsels. I read the Rule cited by Counsel Willy for the applicant/claimant. I also read a persuasive authority from neighbouring Papua New Guinea, which I already applied in the case of Kelekau and Alu^[1]. I am satisfied that the subsequent application is an abuse of Court process. I reached this conclusion for the reasons discussed below.
      
7. Firstly, the applicant say that based on new fact, the claimant/applicant can come back and ask for the current interim restraining orders to be set aside. Claimant believes that the Court can entertain the subsequent application, in view of the “change in circumstances” or “new facts”. The new fact is that, there is a letter from MULC, saying that the defendant; do not have any pending appeal before MULC. That purported letter from MULC is at Exhibit HH- 1E to the ss by Henry Hagavusia filed 23/11/2015. According to the applicant, that letter in effect is saying that the defendant’s appeal to MULC dated 29/4/2014 is no longer on foot. In other words, the applicant is saying that the defendant no longer has any appeal before the MULC in relation to Arohane land. The letter can be best described as an opinion by the Principal Magistrate having reviewed the defendant’s appeal file pending before MULC. The opinion is already making a conclusion on Arohane land boundary, without a hearing. I think the Clerk or Principal Magistrate has over-stepped his/her boundary. The letter has no effect on the appeal by the defendant until the MULC has convened a fair hearing into the defendant’s appeal lodged dated 29/4/2014. Appeal point No. 1 of the defendant’s Appeal says that Arohane and Hinuapuna area is within Rakena Land.
   
8. This Court cannot therefore entertain the subsequent application because there is no “change in circumstance” or “there is no new facts”. Faukona J already ruled to grant interim orders on 12/10/2015, in aid of the MULC, discharging its responsibility to determine Arohane land boundary, as per appeal lodged by the defendant to MULC dated 29/4/2014. That appeal is still pending determination. Court can only entertain a subsequent application, if there was significant change in circumstance^[2].
   
9. I also consider Rule 17.55 (c) that Counsel Willy referred me to in submission. I agree with Counsel’s submission that the Court can set aside an order for injunction. However, the Court can only do so, in justified cases. Justified cases may entail significant change in circumstances. On the basis of the boundaries discussed above, I have not seen any valid reason to set aside the current interim injunction orders, under R.17.55 (c).
   
10. In the final analysis, the subsequent application filed 23/11/2015, is an abuse of Court process. This Court cannot conduct a subsequent hearing, without the applicant showing that there was significant change in circumstance. There are no new facts. This means, I cannot hear claimant’s substantive application to vary the current interim restraining orders by Faukona J dated 12/10/2015.
    
11. The Orders of the Court are:
    
    • 11.1 Application to vary or set aside filed 23/11/2015 is hereby dismissed with costs on standard basis against the claimant.
      

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Kelekau and Alu & others –v- Pou Senior & Others – cc 357/2015; 4^th December 2015.
^[2] See Medang –v- Ramu Nico Management Limited PNG SC 45, SC1157