Axiom KB LB Ltd v Minister of Mines, Energy and Rural Electrification [2020] SBHC 53; HCSI-CC 336 of 2019 (18 June 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Axiom KB LB Ltd v Minister of Mines, Energy and Rural Electrification
Citation:
Date of decision:	18 June 2020
Parties:	Axiom KB LB Limited v Minister of Mines, Energy and Rural Electrification, Attorney General, Kolosori Nickel (SI) Limited, Solomon Islands Resource Company Limited
Date of hearing:	30 April 2020
Court file number(s):	336 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona J
On appeal from:
Order:	Claim for judicial review filed by the Claimant on 3rd of June 2019 is hereby strike out Costs incidental to this application be paid by the Claimant to the 4th Defendant
Representation:	No one for the Claimant (Mr. Gary Fa’atoa Absent) Mr. S Banuve for First and Second Defendant No one for the Third Defendant Mr. W. Rano for Fourth Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Court Civil Procedure Rule, R 15.3.8, 15.3.97
Cases cited:	Harry v Attorney General [2017] SBCA 13 R v Herrod [1976] QB at ss7, Sina v Matupiko [2001] SBHC 78, Tran v Sikua [2014] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 336 of 2019

BETWEEN

AXIOM KB LB LIMITED
Claimant

AND:

MINISTER OF MINES, ENERGY AND RURAL ELECTRIFICATION
First Defendant

AND:

ATTORNEY GENERAL
(Representing Director of Mines and Minerals Board)
Second Defendant

AND:

KOLOSORI NICKEL (SI) LIMITED
Third Defendant

AND:

SOLOMON ISLANDS RESOURCE COMPANY LIMITED
Fourth Defendant

Date of Hearing: 30 April 2020
Date of Ruling: 18 June 2020

No one for the Claimant (Mr. Gary Fa’atoa, Absent)
Mr. S Banuve for First and Second Defendant
No one for the Third Defendant
Mr. W. Rano for Fourth Defendant

RULING ON APPLICATION TO STRIKE OUT

Faukona PJ: This is an application by the 4^th Defendant to strike out the claim based on Rules 15.3.8 and 15.3.97 Solomon Islands Courts (Civil Procedure) Rules 2007. Noted the claim was filed on 3^rd June 2019.

1. The thrust of this application is whether it is a proper issue to decide, that leave was necessary to commence a claim for judicial review.
2. The Applicant (4^th Defendant) contends that the Claimant’s proper course of action available was to consider whether leave was necessary, as a prerequisite before filing a claim for judicial review.
3. Whether leave is granted or not requires a separate application. Generally the Applicant contends that the Claimant was late to file the claim for judicial review, hence a delay within the period, see Rule 15.3-9.
4. The facts were that on 29^th November 2018, the Mines and Minerals Board (MMB) considered Axioms’s application for further extension of time to obtain surface access rights under a letter of intent issued on 24^th May 2018, in respect of an application for Prospecting licence over land in Kolosori, Isabel Province.
5. On 29^th November 2018 the MMB considered the application and on 3^rd December 2018 the MMB delivered its decision refusing any further extension of time. One 13^th December 2018, the Minister by letter informed Axiom of the decision which was received by Axiom. In expressing its grievances Axiom informed the Attorney General to commence judicial review claim. One 3^rd June 2019 Axiom filed this claim to review the decision of the MMB.
6. The Applicant argues that if 3^rd December 2018 was a starting point, then Axiom’s claim was filed on the last day of the 6 months period. Therefore contends that the delay was within the period. If 15^th December 2018 was the starting point then 15th June 2018 would have been the last day to file a claim. Therefore the claim was filed within six months but delay within the period.
7. However, what may seem absurd is that the rule provides for filing of judicial review claim within six month. If 3^rd June was the last date for six months then the claim was still filed on time.
8. The argument that the Court may extend time within prescribe period for filing a claim, is based on requirement for substantial justice, rule 15.3.9. In the current case it is argued that leave is necessary to commence a judicial review claim given the circumstances.
9. The 4^th Defendant proposes that the Claimant requires leave to file this case. If there is no leave granted, then there is yet a justifiable case before the Court. The reason is that because there was considerable delay within time, leave is required.
10. In my opinion R15.3.8 has general application which provide guidance as to when the claim for judicial review be filed. At the same time draw a line by prescribing maximum period a claim of this nature is filed. Leave is only necessary where the maximum period prescribed was breached. Having said that, I noted that a claim for judicial review must be filed promptly.
11. It may be, events could have occurred and prompted change of circumstances. That should be the substantial justices. And of course this concerns the fact that the Claimant had notice that MMB and the Minister have considered the 4^th Defendants application and had approved it on 19^th December 2018. The Claimant then wrote to the Attorney General on 21^st December 2018 protesting that the award to the 4^th Defendant was unlawful yet taken no steps until last date of six months when this cause of action was filed.
12. The question, is rule 15.3.9 extending time within the period applied in this case? In normal circumstances the claim for judicial review was filed in time, and may be no need to apply for leave, or need to apply to extend of time
13. However, in the case of Harry V Attorney-General^[1] it was a case brought for breach of time limit, and the extend of time depending on Courts decision based on substantial justice. In this case there is no breach of time limit so that leave must first be sought before filing of an application to extend time.
14. In another case of R V Herrod^[2] where the Court considered delay in applying for leave to seek an order for certiorari, should have been brought within 6 months, but the overriding rule is that remedy is discretionary. Generally that is a normal accepted rule of thumb. In any event the Court continued and stated;
    • “If a person comes to the High Court seeking certiorari to squash the decision of a Crown Court – or any other tribunal for that matter, he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him remedy. If he has been guilty of any delay at all, it is for him to get over it if not for the other side”.
15. This principle was considered by Kabui PJ (as he was then) in the case of Sina V Matupiko^[3].
16. In paragraph 12 above I have outlined that the Claimant was aware of MMB’s decision, and the Minister was considering the 4^th Defendant’s application and had approved its letter of intent on 19^th December 2018, 15 days after the MMB had refused the Claimants application for extension of time to obtain surface access rights. The Claimant had immediately expressed its concern that the grant of letter of intent to the 4^th Defendant was unlawful yet failed to take steps until last date of 6 month period.
17. On 25^th January 2019, the 4^th Defendant was granted with a Prospecting Licence. I think with the prevailing circumstances though the claim was filed within 6 months, as I find the Claimant is guilty of delay. It had allowed 6 months to elapse before filing the claim. What had transpired after rejecting the application for extension cannot now untie the web; steps had been taken by the 4^th Defendant on the faith of the decision.
18. In the case of Tran V Sikua^[4], the Court of Appeal stated “...sometimes the need for certainty outweighs the need for review of decisions”.
19. I absolutely reject the Claimants reliance on Rule 26.6, Court vacation period. The period does not preclude a person wishing to commence a proceeding from filing. The Court opens every day except for 25^th December and 1^st January, inclusion of Saturday and Sundays. The Claimant can file its claim during vacation period and served at the end of the vacation period. Judicial review proceedings require some urgency as there is need for certainty to avoid prejudice.
20. There is no reasonable explanation from Axiom. Its lawyer also failed to attend to explain its delay by way of submissions. Therefore I must strike out the claim with costs.

Orders:

1. Claim for judicial review filed by the Claimant on 3^rd of June 2019 is hereby strike out.
2. Costs incidental to this application be paid by the Claimant to the 4^th Defendant.

The Court.

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^[1] [2017] SBCA 13; SICOA. CAC 28 of 2016 (13 October 2017)
^[2] [1976] QB at SS 7, Lord Denning MR.
^[3] [2001] SBHC 78; HC-CC No. 82 of 2001 (6 November 2001).
^[4] [2014] SBCA 5: SICOA – CAC 15 of 2013 (9 May 2014)