Mecky v MLW Eastern Timber Co Ltd [2024] SBHC 34; HCSI-CC 560 of 2023 (12 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mecky v MLW Eastern Timber Co. Ltd
Citation:
Date of decision:	12 April 2024
Parties:	Paul Mecky v MLW Eastern Timber Company Limited, Renown Surf & Cargo Limited
Date of hearing:	5 and 26 March 2024 (On Paper)
Court file number(s):	560 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	(1) The application pursuant to rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 to dismiss the claim filed on 16th November 2023 and the entire proceeding is granted. (2) Consequently, the claim filed on 16 November 2023 and the entire proceeding, are dismissed accordingly. (3) Cost of this application is to be paid by the Claimant on standard basis.
Representation:	Mr J S Taupongi for Applicants/First and Second Defendant Mr A Hou for Respondent/ Claimant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r7.5, 9.75, r9.75 (c)
Cases cited:	Goldsmith v Sperrings [1977] 1 WLR 478, Lolo v Kwaiolea [2014] SBHC 25

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No 560 of 2023

BETWEEN

PAUL MECKY
(Representing himself and his Ou’oumatawa tribe of small Malaita, Malaita Province)

AND:

MLW EASTERN TIMBER COMPANY LIMITED
First Defendant

AND:

RENOWN SURF & CARGO LIMITED
Second Defendant

Date of Hearing: 5 and 26 March 2024 (On Paper)
Date of Ruling: 12 April 2024

Mr J S Taupongi for Applicants/ First and Second Defendants
Mr A Hou for Respondent/Claimant

RULING ON APPLICATION FOR DISMISSAL OF PROCEEDING

Commissioner Aulanga

1. An application to dismiss the entire proceeding pursuant to rule 7.5 of the Solomon Islands Courts (Civil Procedure) Rules 2007 was filed on 22^nd December 2023 by the First and Second Defendants (“Applicants”). The application was supported by a sworn statement of Thomas John Crawford, filed on the same date as well.
2. On 26^th March 2024, I issued the following Directions:
   1. Time is further extended for Applicants to serve the Application to strike out claim and supporting sworn statement by 28^th March 2024.
   2. Time is also further extended for Respondent to file and serve Response to Application and supporting sworn statement by 4^th April 2024.
   3. Parties to file respective written submissions with case authorities by 11^th April 2024.
   4. Matter is adjourned for ruling on 12^th April 2024 at 9:30am.
   5. Cost in the cause.
3. Only counsel Hou for the Respondent was present in Court when the Directions were issued.
4. The Directions were then placed in the respective counsel’s pigeon hole at the High Court Registry section on the same day for the parties or counsels to collect. A scanned pdf copy of the Directions was sent by email on the following day by the Court’s Associate to Taupongi for his record and compliance purpose.
5. The Respondent filed and relied on a sworn statement of Paul Mecky and Samuel Balea, both filed on the same day in response to the application.
6. In the Category B, reliefs for royalties from a shipment of logs in October 2021, interest of 5% and costs against the Applicants have been sought. The royalties sought are from logging operation that took place in Asihane customary land in South Malaita.
7. Whether or not to grant this application will essentially be conditional on these facts and evidence, helpfully narrated in the application. It is not disputed that the Claimant, Paul Mecky, is the tribal representative and trustee of the Asihane customary land in the South Malaita region.
8. The history of this case, including previous litigation involving logging operation conducted inside the Asihane customary land under Felling License FL A101808 of the First Defendant, is worthy to note.

HCSI CC No. 523 of 2021 proceeding

9. In April 2021, MLW Eastern Timber Company Ltd contracted or engaged Renown and Cargo Ltd to conduct logging operation inside Asihane customary land. That operation somehow encountered a legal suit in that in September 2021, a High Court Case No. 523/2021 was filed by Wilfred Rakuihau and Robert Arths Tahunipo against Kisten Witomane of Utasusu tribe, MLW Eastern Timber Company Ltd (First Defendant herein), Renown Surf and Cargo Ltd (Second Defendant herein) and the Commissioner of Forest, for damages and conversion of the trees.
10. There was no injunction issued and hence, export of the logs continued unabated.
11. Upon realisation of Paul Mecky’s rightful standing or trusteeship over Asihane, he was then added as a party and became the Fifth Defendant to the proceeding. An amended claim was filed on 28^th October 2021 to reflect his inclusion or joinder in the proceeding.
12. As the case progressed, parties reached a Consent Order to restrain 10% FOB of the proceeds of sale of the logs from Asihane. On 8^th November 2021, the Order was signed by Mr. Upwe for the Claimants, Mr. Taupongi for MLW and Renown, Mr. Lapo for the Crown and Mr. Balea for Paul Mecky.
13. Order 1 of the Consent Order requires the restrained 10% FOB proceeds of sale to be kept in a joint solicitor’s trust account to be created by the parties with any commercial bank in Honiara. That bank account was not created, beset mainly by the inaction of Mr. Upwe.
14. Between 2022 and early 2023, the case was not progressed, attributed by the persistent failure of counsel Mr. Balea for Mecky to attend to Court mentions and hearings. It was of Balea contumelious and protracted absenteeism that on 28^th April 2023, the Court issued an Unless Order (“Order 1”) compelling Kisten Witomane^[1] and Paul Mecky^[2] to attend Court on 18^th May 2023, otherwise the withheld royalties will be released to the Claimants.
15. The 1^st Order was not complied with for reason that Balea and his client (Mecky) failed to appear on the 18^th May 2023. Hence, on the same day during Court mention, the Court issued another Order (“Order 2”) and directed that the royalties in the sum of $336, 128 be paid to the Claimants within 7 days. Due to some monetary advances taken by the Claimants during the logging operation, an agreed reduced amount of $168,252.61 was raised and paid to the Claimants.
16. On 26^th May 2023 and upon receipt of the payment, the Claimants filed a notice of discontinuance and discontinued the entire proceeding. Suffice to say that there was no set aside application or an appeal to the Court of Appeal taken by Paul Mecky against the two Orders.
17. By payment of the royalties under the Orders, there was no royalty held or kept anymore by Renown Surf and Cargo Ltd for the logs felled and extracted from Asihane. The liability (finance and legal) of MLW and Renown to the resource owners of Asihane was discharged and now fully settled.

Present proceeding

18. The Claimant in the present proceeding decided to bring this fresh proceeding to claim the royalties already disbursed in HCSI CC 523/2021. Instead of filing an application to set aside or for vindication of the two Orders through appeal, the Claimant saw it fit to mount this proceeding for the royalties already adjudged in HCSI CC 523/2021. Whether it is the proper course to take or a duplication of the proceedings, is a matter that this Court now encounters in the proceeding.

Applicants’ submissions

19. The Applicants through counsel say the claimed royalties had been paid to the Claimants in HCSI CC 523/2021 as ordered by the Court. And for that reason, any contract entered into by the Claimant and the First and Second Defendants for payment of the royalties has been annulled or invalidated by the two Court Orders. The right course or process is for the Claimant to appeal the two Orders made in HCSI CC 523/2021. As said by the Applicants, the Claimant, however, has failed to do so up to this date.
20. Alternatively, the Claimant should bring a legal action against his former lawyer Mr. Balea for his personal failures in attending to the Court mentions and hearings that resulted in the granting of the Orders. There could be potential litigation against Mr. Balea as well for professional negligence from which the Claimant could recover the amount of the royalties from him.

Respondent’s submission

21. In the sworn statement of Paul Mecky, all he deposed was the non-attendances of his former counsel Balea on the occasions that resulted in the issuance of the Order. However, those explanations were supported by Balea in his sworn statement. Material to the issue, there were no explanations from the Respondent regarding the appropriateness of filing this claim founded on a discontinued matter in HCSI CC 523/2021. All said were self-inflicted excused based on refusal to accept his Notice of Appeal against the orders issued by the Court. In a Response to the application, material explanations should be given and not excuses.

Court’s findings

22. This is a proceeding that I consider and conclude as an abuse of the Court’s process. It can be considered and classified a case that has no cause of action as well. I say this because, as the unchallenged evidence stands, the royalties tied to the logs extracted and felled from Asihane were already paid to the Claimants (Wilfred Rakuihau and Robert Arths Tahunipo) in HCSI CC 523/2021 as a result of the present Claimant and Kisten Witomane noncompliance to the Unless Order of 28^th April 2023. The royalties in the HCSI CC 523/2021 are in fact the monies that will be paid to the Claimant if he is to be successful in the present proceeding. However, that has already been disbursed or paid as a result of the two Orders.
23. The Claimant should know that the Orders issued therein remain valid, effective and enforceable in law for all intended purposes. The filing of this proceeding is to claim the royalties tied to the logs felled from Asihane that have been dealt with under the Orders respectively issued on the 28^th April 2023 and the 18^th May 2023 in the discontinued proceeding. At the end of the day, the royalties claimed as damages in the present proceeding will be the royalties for the logs felled and extracted from the Asihane customary land from the Applicants’ logging operation litigated in the previous proceeding. As the evidence clearly establishes, the royalties have already been disbursed pursuant to the Court Orders to the Claimants. As such, his right and any cause of action to claim those royalties have been extinguished by the Court in the previous proceeding.
24. The Claimant for now cannot be allowed another opportunity to have a second bite of the cherry. He should first initiate a proceeding to set aside or dislodge the Orders in the previous proceeding. Once that is successful, he can commence further proceeding for those royalties. By failing to do so and instead preferred to file the fresh claim in the present proceeding, in my view, it amounts to a duplicity of proceedings which is tantamount to an abuse of the Court’s process. That in itself is a ground for dismissal of the proceeding under the rules^[3].
25. In this case, the Claimant seeks to employ the Court’s process to achieve an improper end. That is, by filing of the new claim with the intention of benefitting from the royalties that had already been disbursed by the Court in the previous litigation. That cannot be so for the obvious reason that the two Court Orders in the previous matter is still valid and enforceable. The claim filed by the Claimant herein is misconceived and flawed, and therefore amounts to an abuse of the Court’s process, so much so that even if leave is granted to amend the claim, it will not cure that inherent legal defectiveness. Shortly put, it is bereft of any merit.
26. Based on the available evidence and the materials, I do not see any chance of the Claimant succeeding even if a comprehensive response in objecting the application is to be provided.
27. When confronted with such predicament, reference is to be made to the law expressed in Lolo v Kwaiolea^[4], where Apaniai J (as he was then) when referring to Goldsmith v Speerings Ltd^[5] echoed:
    • “A claim can also be struck out and dismissed at an early stage if it is shown that the claim is an abuse of the legal process. The legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s right or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end. The process is said to be abused because it had been used to effect an object not within the scope of the process.”^[6]
28. The law espoused in Goldsmith v Speerings Ltd is clear and well recognised in this jurisdiction. Moreover, it is self-explanatory and well settled. In light of the defects narrated above and upon close perusal of the materials, I am satisfied on the balance of probabilities that the application to dismiss the claim and the entire proceeding under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 must be granted.
29. Costs to be awarded against the Claimant on standard basis.

Orders of the court

(1) The application pursuant to rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 to dismiss the claim filed on 16^th November 2023 and the entire proceeding is granted.
(2) Consequently, the claim filed on 16 November 2023 and the entire proceeding, are dismissed accordingly.
(3) Cost of this application is to be paid by the Claimant on standard basis.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] 1^st Defendant in HCSI CC 523/2021.
^[2] 5^th Defendant in HCSI CC 523/2021 and now Claimant in the present proceeding.
^[3] Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[4] [2014] SBHC 25; HCSI-CC 140 of 2013.
^[5] [1977] 1 WLR 478.
^[6] At paragraph 6 in Lolo v Kwaiolea.