Fa'abasua v Attorney General [2021] SBHC 144; HCSI-CC 119 of 2021 (27 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Fa’abasua v Attorney General
Citation:
Date of decision:	27 September 2021
Parties:	Frederick Fa’abasua v Attorney General
Date of hearing:	27 September 2021
Court file number(s):	119 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Leave to amend the Claim as sought is granted. 2. The costs of the Application are to be costs in the Cause.
Representation:	Mr D Marahare for the Claimant Mr A S Poa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Island Courts (Civil Procedure) Rules 2007 r7.41, r5.34, r5.36, Public Service Commission Regulation 1998 r45 to 48
Cases cited:	Turner v Pickering [1976] 1 NZLR 129, Mellstrom v Garner [1970] 1 WLR 603, Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25; [2006] 2 AC 674,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 119 of 2021

BETWEEN

FREDERICK FA’ABASUA
Claimant

AND:

ATTORNEY GENERAL
(Representing the Permanent Secretary of the Ministry of Public Service Commission)

Date of Hearing: 27 September 2021
Date of Decision: 27 September 2021

Mr D Marahare for the Claimant
Mr A S Poa for the Defendant

Lawry; PJ

Ruling on application to amend claim

Introduction

1. On 19 March 2021 the Claimant filed a Claim in this Court, seeking urgent declarations pursuant to Rule 7.41 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [the Rules]. The parties agree that the Claim is for judicial review under the Rules. The Claim arises from disciplinary steps taken by the Defendant against the Claimant.
2. The Defendant filed a Defence on 28 April 2021. The Claimant had not filed a Reply to the Defence but on 18 June 2021 applied for leave to amend the Claim. The Application is opposed by the Defendant. This ruling deals with that Application. It specifically does not deal with issues raised in the Defence that has been filed. The proposed amended Claim is annexed to the Application.
3. Mr Poa of counsel for the Defendant appropriately does not oppose the amendments to paragraphs 1, 2, 3, 6 or 7 of the Claim. Nor does he oppose the abandonment of paragraphs 6, 8 and 9 of the Claim. Paragraphs 4, 5 and 10 remain unchanged in the Application. The Application therefore relates to an additional paragraph 3 added to the Claim. The orders sought in paragraphs 3 and following in the Claim then have their numbering altered to accommodate the addition of the new paragraph 3. The Statement of Case is sought to be amended to address the proposed changes to the orders sought.

Submissions in support of the Application

4. The Claimant submits that Rule 5.34 permits a party to amend a claim to better identify the issues between the parties, or to correct a mistake or to provide better facts about each issue. Rule 5.36 required the Court to have regard to whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending time for anything to be done.
5. The Claimant submits correctly that the amendments sought do not cause prejudice to the Defendant nor do they impede the disciplinary action taken by the Defendant against the Claimant. The amendments reduce the issues to be determined should the matter proceed to trial. The Claimant says that the amendments sought would provide guidance in the application of regulations 45 to 48 of the Public Service Commission Regulations 1998.

Submissions Opposing the Application

6. The Defendant opposes the Application on the basis that declaratory orders must have some utility or consequential effect and should not seek answers to hypothetical questions or questions that constitute advisory opinions. He relied on the New Zealand decision of Turner v Pickering [1976] 1 NZLR 129 where Casey J followed the reasoning in Mellstrom v Garner [1970] 1 WLR 603. It was held by Casey J at page 141 line 49: “that the power of the Court to make a declaratory order is discretionary and the discretion will not be exercised in the plaintiff’s favour unless the declaration may be of some utility”.
7. The amendment sought to the Claim however does have a useful purpose. It deals directly with the issue whether the Defendant has properly followed the prescribed process for disciplinary action. Whether it is appropriate for the court to determine that issue prior to the completion of the Public service inquiry is another matter altogether.
8. Regarding the second issue, whether the declarations are sought to answer hypothetical questions, the defendant relied on the House of Lords decision Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25; [2006] 2 AC 674 where the Court said: “courts do not decide legal issues in a vacuum. They know that, while hard cases may indeed make bad law, the particular facts before them do cast a particularly bright light upon the legal issues and may throw up important questions which no rehearsal of legal arguments in the abstract can ever do.”
9. The Court agrees that the law in Solomon Islands generally do not entertain hypothetical questions. This issue has arisen because of the explanation provided in the sworn statement of Melville Titiulu filed in support of the application. The proposed new paragraph 3 however is not seeking an answer to a hypothetical question. It seeks a declaration concerning the effect of a purported report. Either the document relied on was a report or it was not. That is not a hypothetical question. There are consequences whatever the decision of the Court.
10. The Defendant raises the question as to whether the Court should make the orders sought prior to the findings at the disciplinary proceedings. There is merit in that argument. However, that must relate to whether the judicial hearing should proceed rather than there be an appeal after the proceedings and not to whether the amendment should be made to the pleadings.

Conclusions

11. The amendment to the Claim has a useful purpose. It is not seeking answers to hypothetical questions. It does not cause prejudice to the Defendant and does not prevent the disciplinary proceedings from being heard.
12. It follows that the application for leave to amend the Claim filed on 19 march 2021 is granted.

Orders

1. Leave to amend the Claim as sought is granted.
2. The costs of the Application are to be costs in the Cause.

By the Court
Justice Lawry
Puisne Judge