Wale v Sogavare [2019] SBHC 70; HCSI-CC 238 of 2019 (5 August 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Wale v Sogavare
Citation:
Date of decision:	5 August 2019
Parties:	Mather Copper Wale v Manasseh Sogavare, Our Party
Date of hearing:	27 May 2019
Court file number(s):	CC 238 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Sir Albert R Palmer CBE
On appeal from:
Order:	Grant application for costs on indemnity with certification for Queen’s Counsel to be taxed if not agreed
Representation:	Mr. Timothy Matthews QC, and Mr. Wilson Rano for the 1st and 2nd Applicants / 1st and 2nd Defendants; Mr. Gabriel Suri for the Respondent / Claimant. Mr. Savenaca Banuve, Solicitor General as amicus curiae.
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007, 9.75
Cases cited:	Wale v Governor General [2019] SBCH 43

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 238 of 2019

MATHEW COOPER WALE
Claimant

V

MANASSEH SOGAVARE
First Defendant

OUR PARTY
Second Defendant

Date of Hearing: 27 May 2019
Date of Judgment: 5 August 2019

Mr. Timothy Matthews QC, and Mr. Wilson Rano for the First and Second Applicants / First and Second Defendants;
Mr. Gabriel Suri for the Respondent / Claimant.
Mr. Savenaca Banuve, Solicitor General as amicus curiae.

JUDGMENT

1. This is an application for payment of costs on indemnity basis by the 1^st and 2^nd Applicants, pursuant to an application for strike out filed on or about 29 April 2019 on the grounds that the proceeding is frivolous, vexatious and an abuse of the courts process. The application is made under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the CP Rules”) and the inherent jurisdiction of this Court.
2. I do not need to reiterate the findings of this court in civil case 244 of 2019^[1], (see paragraphs 94-100) that the application was fundamentally flawed, defective and doomed to fail from the start; it contained no cause of action known to law.
3. This has been conceded by Mr. Suri, of Counsel for the Respondent but argues that costs should not be on indemnity basis. He initially submitted that costs should be borne by Government as issues raised were important issues.
4. This was raised in his submissions on the 2^nd May 2019, arguing that this case should be linked as a continuation to the judicial review claim pursued under civil case 244 of 2019. He submitted that having filed a notice of discontinuance, any costs arising should be reserved to the new application.
5. He submits that the civil action in cc 238 of 2019 related to matters arising prior to the Governor-General’s exercise of his powers to determine the election of a new prime minister pursuant to Schedule 2 of the Constitution. He submitted that those matters had been recaptured in the new case arguing that there is a link or nexus between them so much so that costs should be reserved.
6. The submissions were objected by Mr. Matthews, of Counsel for the 1^st and 2^nd Respondents with Mr. Banuve, Solicitor General as amicus curiae, consenting and agreeing that the question of costs as they relate to civil case 238 of 2019 should be treated separately and not passed on or piggybacked onto the new case - the substantive action in civil case 244 of 2019 being one of judicial review, a new claim altogether and not related to the earlier case. This was accepted by me and resulting in directions being issued for hearing of this application.
7. At the hearing of this application, Mr. Suri conceded costs but then argued it should only be up to the time the application for discontinuance of proceedings was filed on 1^st May 2019.
8. I have considered his submissions but do not accept the reasons given. I concur with submission of Mr. Matthews that if that were the case he should have conceded the application then on 2^nd May 2019, but did not, resulting in the court having to issue directions for hearing of the application, which was eventually done on 27^th May 2019. The hearing on 27 May 2019 was necessitated by his refusal to accept application of costs on indemnity basis.
9. I am satisfied the Applicants are entitled to have their costs and accordingly grant costs on indemnity basis with certification for Queen’s Counsel, to be taxed if not agreed.

ORDERS OF THE COURT:

(1) Grant application for costs on indemnity basis with certification for Queen’s Counsel to be taxed if not agreed.

The Court.
Sir Albert R Palmer CBE

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^[1] Mathew Cooper Wale v. The Governor-General and Others CC 244 of 2019 (24 May 2019)