Korenaia v Solomon Islands Postal Corporation [2017] SBHC 88; HCSI-CC 354 of 2016 (10 July 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 354 of 2016

BETWEEN: JOYCELYN KORENAIA - Claimant

AND: SOLOMON ISLAND POSTAL CORPORATION - Defendant

Date of Hearing: 30^th June 2017.
Date of Ruling: 10^th July 2017.

Mr. M. Tagini for the Claimant - No Appearance.
Mr. C. Hapa for the Defendant.

KENIAPISIA; PJ:
RULING ON AN APPLICATION TO STRIKE OUT A CLAIM

Introduction

1. Court convened at 9:30 am. Parties or their legal representatives were not in Court. Court was about to dismiss the strike out application at 9:45 am, when Counsel Hapa, who filed the said application walked into Court. In my practice life, I never recall a time, I came late to Court.
   
2. Court proceeded to hear the pending application to strike out the claim, which the defendant filed on 19/5/2017. Court record showed that Counsel Makario, for the claimant, was in Court, when the hearing was listed for this morning, on 23/5/2017, a motions day. Notice of Hearing was issued on 25/5/2017. Cause list for this week was distributed to Legal Practitioners. It shows the hearing this morning, even though this is a court vacation week. As a practice, Court can still sit even during court vacations. There is no prior explanation on Counsel Makario’s absence. Court is satisfied about prior notice to Counsels. Therefore hearing proceeded in Mr. Makario’s absence. I have taken the stand that all interlocutory applications must be disposed quickly because they stand in the way of a trial. Court gave further time until 6/7/2017, through Listing Coordinator for Counsel Makario to file written submissions. Counsel did not make use of this extended time.
   

Application to strike out the claim pursuant to Rule 9.75 (b)

3. This is an application to strike out the claim under Rule 9.75 (b), because the defendant belief, the claim does not disclose a reasonable cause of action. For claims not disclosing a reasonable cause of action, the case of Tikani and numerous other cases, this Court has pronounced considerations or bench marks against which to judge a claim not disclosing a reasonable cause of action.
   
4. The benchmarks are: that the claim does not disclose a cause of action with some chances of success; or whether the claim has disclosed a tenable cause of action for the relief sought. Tikani says that if the statement of case disclosed some issues or questions fit to be tried, the mere fact that it is weak and not likely to succeed is no ground for striking. Only if the cause of action is certain to fall, then the claim should be strike out.
   
5. Applying these considerations or benchmarks to this case, looking at the reliefs sought against the statement of case, Court is satisfied that the claim must be struck out under Rule 9.75 (b). The claim does not disclose a tenable cause of action for the reliefs sought. The reliefs sought are “trade disputes” in nature, especially Reliefs 1, 2 and 3 (“reliefs”). And the appropriate forum to adjudicate these “trade disputes reliefs or matters/issues” is at the Trade Disputes Panel, utilizing the Trade Disputes Act (Cap 75).
   
6. A dispute between an employee and employer connected to termination or suspension of employment amounts to a “trade dispute^[1]”. Pleadings disclosed that the claimant is complaining about the defendant suspending her from work. Suspension was in relation to a missing cheque belonging to the defendant. Trade disputes under the said Act are given a venue for conciliation and arbitration called, the Trade Disputes Panel (“the Panel”). Its head-quarter is sandwiched between the High Court and Post Office; in Honiara. The case of The Queen^[2] Chief Justice Muria; says that parliament purposely enacted the Trade Disputes Act, 1981 to provide a procedure to deal with disputes arising out of employment and the power to deal with such disputes has been conferred on the Panel.
   
7. At paragraphs 5 and 6, Chief Justice Muria continued:
   

“Whilst it can be said that the company is entitled to come to the High Court and seek orders sought in CC 244/97 and CC 287/97, I feel bound to give effect to the spirit of the law regarding employment related disputes in Solomon Islands as contained in the Trade Disputes Act of 1981. For I do not think it is the intention of legislature to create the Trade Disputes Panel, clothe it with powers to determine trade disputes, but cannot exercise those powers simply because the parties or any one of the parties have insisted on invoking the unlimited jurisdiction of the High Court, if it were so, it would make the Panel a dead statutory creature”.

“The Trade Disputes Act has established the Panel, conferred on it the jurisdiction to deal with all employment related disputes within the meaning of the word “trade disputes,” laid down the procedure to be used by the Panel to deal with such disputes, empowered it to make awards and conferred on the parties the right to challenge the panel’s decision by way of an appeal to the High Court. In respect of those matters, there is no restriction imposed upon the Panel. It is therefore right to assume that parliament had not intended the Panel’s jurisdiction to be interfered with save on appeal”.

Conclusion

8. To the extent that the reliefs sought, are available in the Panel under statutory enactments in the first instance and may only come to this Court via appeals^[3], this Court accordingly lacks power or jurisdiction to adjudicate this claim. Court is satisfied that this claim does not disclose a tenable cause of action for the reliefs sought, because this Court does not have power to enquire into or arbitrate on or make awards in the first instance on “trade disputes” between claimant (employee) and defendant (employer). The cause of action is certain to fall because this Court lacked jurisdiction. If the action is one which the Court has no power to grant, then the claim disclosed no reasonable cause of action^[4].
   
9. Accordingly; Court dismiss the claim with costs.
   

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See Glossary in the Schedule to the Trade Disputes Act (Cap 75).
^[2] The Queen –v- Trade Disputes Panel and Earth Movers (Solomons) Limited SBHC 117; HCSI-CC 287 of 1997 (22^nd December).

^[3] Section 13 of the Trade Disputes Act (Cap 75).
^[4] Dreyfus –v- Peruvian Guano Company [1889] UKLawRpCh 36; (1892) 41 Ch.D 151 (2).