Pacific Everest Lumber Ltd v Agro LBS Ltd [2024] SBHC 42; HCSI-CC 135 of 2021 (13 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pacific Everest Lumber Ltd v Agro LBS Ltd
Citation:
Date of decision:	13 May 2024
Parties:	Pacific Everest Lumber Limited, Susan Salahiga, Marion Riapago, Annette Ilu, Mary Nau and Hugo Hebala v Agro LBS Limited, Fairtrade Company Limited, Attorney General
Date of hearing:	13 May 2024
Court file number(s):	135 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1. Claim is struck out as required by the Unless Order dated 15th April 2024. 2. First and Second Claimants to pay costs on standard basis to the First, Second and Third Defendant.
Representation:	Mrs N. Tongarutu for the First Claimant (No Appearance) Mr R Dive for the Second Claimant (No Appearance) Mr B Kaehuna for the First and Second Defendant Mr B Pitry for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r1.3, r1.8, r23.4
Cases cited:	Kuriti v Dovele Landowners Board of Trustees [2014] SBHC 95

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 135 of 2021

BETWEEN

PACIFIC EVEREST LUMBER LIMITED
(Representing the Mizongo Tribal Group)
First Claimant

AND:

SUSAN SALAHIGA, MARION RIAPAGO, ANNETTE ILU, MARY NAU AND HUGO HEBALA
(Representing the Mizongo tribal group)
Second Claimant

AND:

AGRO LBS LIMITED
First Defendant

AND:

FAIRTRADE COMPANY LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Third Defendant

Date of Hearing: 13 May 2024
Date of Ruling: 13 May

Mrs N Tongarutu for the First Claimant (No Appearance)
Mr R Dive for the Second Claimants (No Appearance)
Mr B Kaehuna for the First and Second Defendants
Mr B Pitry for the Third Defendant

RULING ON UNLESS ORDER

1. Upon filing of the claim, Court issued an Unless Order dated 15^th April 2024 directing that unless counsels for the First and Second Claimants appear in Court on 13^th May 2024 at 1:30pm, the entire proceeding will be struck out.
2. A copy of the Order was placed in respective First and Second Claimants counsels’ pigeon hole on 8^th May 2024 at 10:30am at the High Court Registry as evidenced in a sworn statement of proof of service of George Leamana filed on 13^th May 2024.
3. It clearly appears to the Court that on two occasions on 5^th February 2024 and 15^th April 2024, no counsel for both the Claimants ever turned up in Court. Hence, the Unless Order was issued purposely to progress this matter that was unfortunately been dragged on without trial since 2021.
4. On 13^th May, only counsels Mr. Kaehuna and Harara for all the Defendant turned up. There were no appearances for counsels for both Claimants. There was a letter in the Court’s file from counsel Tongarutu, seeking a week adjournment of the matter because she had a hearing before another judge. However, the letter did not state how long that hearing would take so that the adjournment for at least 7 seven as sought for in the letter is warranted. I decided to mention the matter towards the end of the Court’s list to allow in case counsel Tongarutu might turn up in Court after attending to that other Court hearing. When the matter was mentioned, she did not appear.
5. In fact, the Unless Order was issued in order to progress the matter forward with minimal delay as required by rules 1.3 and 1.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007. That is, for the parties to progress the matter by minimising or avoiding undue delays that would hamper or derail the swift progression of the matter to finality. All lawyers in this proceeding must know that this is an order of the Court that must be fully complied with as there will be consequences that will follow suit if the order is not complied with.
6. Now, should the order, which is a self-executing order, be enforced? Rule 23.4^[1] provides that where a party to a proceeding has deliberately or sustainedly failed to comply with an order made in the proceeding, the Court can exercise its power to either strike out the pleadings of the non-complying party, or extend the time for complying with the order, or give further directions, or make another order.
7. The power provided for under this Rule includes the power to make self-executing orders referred to an “Unless Order” in the event of non-compliance within a specified time (see: Kuriti v Dovele Landowners Board of Trustees^[2]). In this case, I do not have any evidence from Mr. Dive regarding any explanation about his nonattendance in Court. For counsel Tongarutu, the letter was unsatisfactory.
8. I am satisfied that the order was served on counsels’ receptive pigeon holes at the High Court Registry. The purpose of having that pigeon hole is for counsels to regularly check and collect Court documents as and when the documents are available and placed in the pigeon holes.
9. Since this is a self-executing order, the noncompliance of it must be enforced accordingly. That is, this entire proceeding is now being struck out. First and Second Claimants to pay costs on standard basis to the First, Second and Third Defendant.

Orders of the Court

1. Claim is struck out as required by the Unless Order dated 15^th April 2024.
2. First and Second Claimants to pay costs on standard basis to the First, Second and Third Defendant.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] [2014] SBHC 95.