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Attorney General v Jui Hui Chan [2017] SBCA 5; SICOA-CAC 36 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against orders made on the determination of a preliminary question of law.
   

Valuers Act 2009

2. A statutory scheme for the regulation of professional valuers working in this country came into operation upon the commencement of the Valuers Act 2009.
   
3. The Valuers Board, chaired by the Valuer General, was established with responsibility for the registration of valuers, and the Valuers Association of Solomon Islands was established with responsibility for issuing annual practising licences.
   
4. Section 8 of that legislation prohibited anyone other than a “valuer” from engaging in the practice of valuation. That term was defined in s 2 as follows –

In this Act, unless the context otherwise requires –

“valuer” means a person who is registered and a holder of a valid registration certificate and a licence under this Act.

5. Section 10(1) provided –

The Board may approve an application for registration with or without condition, if it is satisfied that –

(a) the individual applicant possesses the prescribed academic or professional qualifications for registration as a valuer;
(b) the individual applicant is of good character; and
(c) the individual applicant is not disqualified for registration under section 12.

6. Section 11 dealt with the effect of registration, and s 12 provided that a person was not eligible for registration if of unsound mind, under the age of 18 years or an undischarged bankrupt.
   
7. Section 13 provided that the Board might issue temporary registration for up to 3 months to a non-citizen required to undertake valuation here. By s 13(2) –

No person shall be issued a temporary registration unless the Board is satisfied that the person-

(a) is qualified for registration under this Act;
(b) has been practising as a valuer for a period of at least 5 years immediately before the application for temporary registration under this Act; and
(c) where applicable, is registered as a valuer in another country for a period of not less than 5 years.

8. Section 14 provided –
   • (1) A person who desires to be registered as a valuer may, in the prescribed form accompanied by the prescribed fee, apply to the Board to be registered as a valuer.
   • (2) An application for registration may contain prescribed particulars and documents.
     

Commencement of the Valuers Act 2009

9. The Valuers Act 2009 was assented to on 8 May 2009, but it did not commence until 27 September 2012. The commencement was effected by a Commencement Notice signed by the Minister for Lands, Housing & Survey on 26 September 2012 and published in a Supplement to the Solomon Islands Gazette on 8 October 2012.
   
10. Section 39 is a transitional provision which provides –
    • (1) At the commencement of this Act, any person who is a valuer and undertaking valuation practice is deemed to have been registered and licensed under this Act.
    • (2) A person who is mentioned in subsection (1) shall, within 12 months of the commencement of this Act, apply to the Board for registration and (if the Council is not in operation) for a licence.
    • (3) A person who fails to comply with subsection (2) shall be deemed not to be a registered or licensed person under this Act at the end of the 12 month period specified under subsection (2).
      
11. The respondent to this appeal (Jui Hui Chan, also known as Jared Chan) is a Malaysian national. He was admitted to the degree of Bachelor of Business (Property) by Royal Melbourne Institute of Technology in 1995, and practised as a valuer from that time. For some years before the commencement of the legislation, he lived in this country and practised as a valuer here.
    
12. JC Professional Limited (“the company”) was incorporated in Solomon Islands in 2009, with the respondent as its only shareholder and director. The respondent became its employee on or about 8 November 2011. From about March 2012 the company carried on the business of property valuation services under the trading name JC Valuer.
    
13. In anticipation of the Act’s commencement, the respondent kept in touch with the Valuer General. He has deposed that on two occasions in 2012 the Valuer General told him that the Act “had been gazetted”, and that he was informed by a business associate that on 3 August 2012 she had met the Valuer General who had insisted that the Act had been gazetted. The respondent made inquiries of officers in the Prime Minister’s office, the Attorney General’s chambers and the Ministry of Commerce, none of whom could find a copy of a Gazette containing a relevant notice. On 20 August 2012, he was informed by a business associate that she had heard from the Inland Revenue Division that there was a list of valuers who had been registered.
    
14. On 29 August 2012, the Valuer General‘s office received a letter from the company, signed on its behalf by the respondent, and dated the previous day. After referring to previous communications, it continued –
    

We are hereby submitting our application to be registered as one of the valuers with Ministry of Lands, Housing and Surveys, Solomon Islands.

Twelve supporting documents relating to the respondent and the company were attached. In conclusion, the letter said –

We hope you would approve our application and register our company with your Ministry. If you need further information or clarifications, kindly contact the undersigned. We hope to hear a favourable reply from you soon.

15. There was no written response to that letter. The respondent made inquiries about it between 28 August and 18 September 2012, and was consistently told that the application was “pending advice from the Attorney General.” On 17 October 2012 he met with the Valuer General who told him once more that the application was pending advice from the Attorney General.
    
16. On 17 November 2012 the respondent received a copy of the Gazette containing the Commencement Notice. Only then did he discover that the Act had commenced on 27 September 2012.
    
17. On a number of occasions between August 2012 and August 2013 the respondent followed up the application with the Valuer General and the Board, but throughout the 12 months following the commencement of the Act he did not receive any official response other than verbal advice that the application was pending the advice of the Attorney General.
    
18. On or about 29 September 2013 (two days after the end of the 12 month period specified in s 39), the Valuer General provided the respondent with a form headed “Valuers Board of Solomon Islands (VBSI) Registration Form 1”. He filled in the form and submitted it together with various supporting documents to the Board on 30 September 2013.
    
19. The Board considered the application at a meeting on 22 October 2013. It deferred further consideration of it until certain inquiries were made and more information was supplied.
    
20. In August 2014 the Board invited the respondent to apply for temporary registration, but he replied that he was not interested in doing so.
    

Claim for judicial review

21. The respondent alleges that the Board wrongfully failed and or refused to deal with his application made in accordance with s 39(1) and (2). On 11 July 2014, he and the company commenced a judicial review proceeding in the High Court claiming various forms of relief including –
    1. a mandatory order directing the Board to deal with the application in accordance with s 39(1) and (2);
    2. a mandatory order directing the Board to register the respondent as a registered valuer in accordance with s 39(2); and
    3. a mandatory order directing the Board to license the respondent as a licensed valuer in accordance with s 39(2).
       
22. On 24 September 2014 the respondent and the company filed an application seeking leave to enter default judgment against the Board. That application was dismissed on 18 February 2015. Subsequently, the appellants filed a defence.
    

Valuers (Amendment) Act 2016

23. On 1 June 2016 the Valuers (Amendment) Act 2016 commenced. Section 10(1) was amended by the insertion of the following –
    • (d) the individual applicant is a citizen of Solomon Islands.

There were various other amendments, including an amendment to s 13(2) by insertion of the following –

(d) holds a work permit that allows the person to work as a valuer in Solomon Islands; and
(e) is a member of a body equivalent to the Association in another country.

Preliminary issue

24. An application for determination of a point of law as a preliminary issue came before a Judge of the High Court on 29 July 2016. His Lordship noted that no formal application had been filed, but written submissions had been prepared by counsel and filed on behalf of the parties. His Lordship recorded the issue for determination as being –

... whether at the commencement of the Act, the first Claimant [the respondent to the appeal] is a person who is deemed as registered and licensed valuer undertaking valuation practice under section 39 of the Valuers Act 2009.

25. Counsel for the respondent and the company submitted to his Lordship that the respondent was qualified to be permanently registered to practise as a valuer under s 39.
    
26. Counsel for the appellant told his Lordship that the Board had chosen to deal with the application dated 28 August 2012 under the 2009 Act. Her submissions to his Lordship were premised on ss 10, 11, 12 and 13 all being applicable to an application for permanent registration. She submitted that the amendments made by the 2016 Act were applicable to the still undecided application. On the proper construction of the Act as amended, she submitted, only temporary registration could be given to a non-citizen.
    
27. His Lordship described the dispute in these terms –
    

..... the dispute does not circulate around a prescribed form for application, neither did it concern that the Claimant did not meet the requirements under the Valuers Act. The dispute concerns whether a non-citizen as the first Claimant can apply under section 39 for permanent registration or under section 13 for temporary registration.

28. His Lordship said –

Proper approach as I would interpret is that, any non-citizen of Solomon Islands, who had practised valuation profession before the 2009 Valuation Act, can apply under section 39 to be permanently registered. Any new non-citizen who may wish to apply to be registered as a valuer must comply with section 13 of 2009 Valuation Act and apply for a temporary registration.

..... I will lean against the Valuers (Amendment) Act 2016 as depriving the first claimant [the respondent to the appeal] of his accrued rights. Hence the preliminary issue is determined in favour of the Claimants, with costs to be paid by the Defendants and I do order accordingly.

29. The formal judgment signed by his Lordship and issued under the seal of the High Court on 12 October 2016 is in these terms –

.... on application to determine preliminary issue of point of law:

IT IS ORDERED THAT:

1. The Claimants [sic] is to be registered as a Permanent Practice Valuer under the Valuers Act 2009.
2. Costs to be paid by the Defendants to the Claimants.
   

Discussion

30. Rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provides –
    

The court may hear legal argument on preliminary issues of fact or law between the parties if it appears likely that, if the issues are resolved, the proceeding or part of the proceeding will be resolved without a trial, or the costs of the proceedings or the issues in dispute are likely to be substantially reduced.

31. This can be a useful mechanism for early resolution of proceedings without incurring the financial and other costs of a full trial. However, the question for determination must be carefully framed and recorded. If it is a question of law, it may not be possible for it to be determined in advance of the determination of relevant facts. If it is a mixed question of fact and law, it may not be possible for it to be determined as a preliminary question.
    
32. Usually an application for the determination of a preliminary question should be filed and decided before argument on that preliminary question proceeds. Once an order for the determination of the preliminary question has been obtained, and, in the usual case, a date for the hearing of that preliminary question has been set, the parties can make their submissions on it. Those submissions should be strictly confined to the point in issue. The hearing of the preliminary question should not go beyond the preliminary question, and the court’s decision should be confined to answering that preliminary question.
    
33. In the present case, the scope of the preliminary question was narrow. It really asked no more than whether the respondent was “a valuer ...undertaking valuation practice” within the meaning of s 39(1) on 27 September 2012. The answer to that question was never in dispute; it was always accepted that he was such a person.
    
34. Unfortunately, the parties’ submissions went far beyond the preliminary question, and his Lordship purported to determine issues which were not properly before him. Further, the formal judgment issued on 12 October 2016 was not responsive to the preliminary question before his Lordship.
    
35. The order perfected on 12 October 2016 must be set aside. Because of the unsatisfactory nature of the preliminary question, there would be no point in that preliminary question being reheard. The claim should progress to trial in the usual way, unless the High Court can be persuaded to bring it to an early resolution in some other way.
    
36. On one view, the effect of s 39 was to provide some protection to a person who had been practising as a valuer prior to the commencement of the 2009 Act. At the commencement of the legislation, that person was deemed to be registered and licensed. He or she had then to make an application for registration and licensing within the first 12 months of the Act’s commencement; in default of doing so, he or she would no longer be deemed to be a registered or licensed person under the Act.
    
37. Before the claim for judicial review could be finally determined, there were various issues to be determined, including questions of law and mixed questions of fact and law, such as whether there was ever a valid application in terms of s 39(2) or otherwise before the Board, whether the criteria for determining an application under s 39(2) differed from the criteria for determining an application under s 10, whether before the 2016 amendments a non-citizen was eligible for permanent registration or only temporary registration, and whether the 2016 amendments applied to the respondent’s application.
    

Disposition

38. This court orders –
    1. that the appeal be allowed;
    2. that the order perfected on 12 October 2016 be set aside;
    3. that the proceeding be remitted to the High Court; and
    4. that the respondent pay the appellants’ costs of the appeal to be agreed or assessed, and in any event within 28 days of today
       

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Goldsbrough P

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Ward JA

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Wilson JA