HIGH COURT OFMON
ISLANDS
Civil Case No. 294 of 1997
ROSS MINING (SI) LIMITED &
GOLD RIDGE MINING LIMITED
v
WILLIE RONI & DAVID
THUGUVODA
ass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In the High Court of Solomon
Islands
Before: Frank Kubui, J
Civil Case No. 294 of 1997
th
January 1999
Judgement: 5th
February 1999
Andrew Radclyffe for th Plaintiffs
Akuila Talasasa for Defendants
JUDGEMENT
J)
The First and Second Plaintiffs (the Plaintiffs) are two compacompanies currently
involved in the mining industry in
Solomon Islands. They filed a Writ of
Summons against Messrs Roni and Thuguvoda, the First and Second Defendants,
(the
Defendants), of the Guadalcanal Plains on the Island of Guadalcanal.
The Writ was dated 9th December, 1997. The Writ bears the
following indorsement:-
INDORSEMENT
�1. & Damagesmages (including
exemplary and/or aggravated damages) for libels contained in documents
purporting to
be affidavits sworn by each of the Defendants on 2
p>
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3. Damages
for b ch ea conf contract, namely a Deed of Release dated 2nd October
1997.
4. p;&nssp; Damages ages ages for
breach of the duties of confidence owed by the Defendants to each of the
Plaintiffs.
5. &nnbsp;; An injuncnjunction to
restrain the Defendants and each of them, whether by themselves, their
servants,
agen othe hows, from divulging or
communicating in any way to any othy other peer person rson any oany of the contents of
terms of
the said contract.
6. ;&nbssp; &nsp;&nbnterenterest on such
damagdamages
&nt">
7. ;&nbssp; &nsp;&nbosts.osts.�
The Defendants entered
appearance to the Writ on 17th December, 1997. The Plaintiffs
filed their Statement of Claim on 5th January, 1998. The
Defendants filed their Defence on 15th January, 1998. The
Plaintiffs joined issue in their reply on 9th February, 1998.
They also filed a request for further and better particulars that same day.
The Defendants also filed
a request for further and better particulars of
the Statement of Claim on 17th February, 1998. The Plaintiffs�
response to the Defendants� request for further and better particulars was
later filed
on 26th March, 1998. There does not however seem to
be any response by the Defendants to the Plaintiffs request for further and
better particulars of the Defence filed by the Defendants. The Defendants
later filed an amended Defence on 9th June, 1998. Apparently, the
Defendants had changed lawyers during the course of pleading. As a result of
the Defendants�
amended Defence, the Plaintiffs filed a Notice of Motion
dated 18th June, 1998 seeking the following orders:-
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2. Such further or other
order as this Honourable Court shall deem appropriate.�
As I understand the position,
the Plaintiffs� other action for libel against the Defendants is not the
subject of this
Notice of Motion. It is still on foot.
This Notice of Motion was filed
under Order 14 of the High Courtil Procedure) Rules, 1964 (964 (the High
Court Rules).
It was set down for hearing on 25th June, 1998 at 9
am by the High Court. That hearing did not take place due to third party
proceeding�s first taking place
under Order 18 of the High Court Rules. The
Motion was therefore relisted for hearing on 25th January, 1999.
At the hearing this morning before me, the Defendants were not present nor
their counsel, Mr. Talasasa.
However, I was told by Mr. Radclyffe, the
Plaintiffs� counsel, that Mr. Talasasa had been aware of the date and time
of the hearing and it should proceed in the absence of the Defendants and
their counsel, Mr. Talasasa. I agreed and Mr. Radclyffe
presented
Plaintiffs� case.
The Facts
lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The relevant facts are these.
The Plaintiffs are two Companies associatth the discovery of and
d
extraction of gold
at Gold Ridge on the Island of Guadalcanal. They
undertook to negotiate with the land holding groups of the Gold Ridge Area
for setting up of a major gold mining venture. On the 2nd
October, 1997, the First Defendant Mr. Roni, entered into a written Deed of
Release Agreement (�the Roni Deed�) with
the Plaintiffs. The Roni Deed was
in relation to the settlement of disputes then existing between the First
Defendant
and the Plaintiffs. It also included the dispute maintained and
commenced by Writ No. 60 of 1997. Clause 3 of the Roni Deed
prohibits the
First Defendant from disclosing any information in respect of that Deed
including the existence of it.
Such information can only be disclosed with
prior written consent of the First Plaintiff or for the purpose of enforcing
the Deed or as required by law. Clause 3 of the Roni Deed is necessary
because the Deed�s existence and its terms are confidential
to the
Plaintiffs and such were known to the First Defendant. The Second Defendant,
Mr. Thuguvoda, also entered into
another Deed of Release Agreement (�the
Thuguvoda Deed�) with the Plaintiffs on the same day. Clause 3 of the
Thuguvoda
Deed is exactly in the same terms as the Roni Deed and was made
for the same reason as in the case of the Roni Deed. That is
to say, it is
identical to clause 3 in the Roni Deed.
The Statement of Claim
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For the purpose of this
application, it is necessary to set out the relevant paragraphs of the
statement of claim. These
paragraphs are as follows:-
�15.
n style="font-size: 12.0pt".0pt">
Further, on 2 October 1997, the
First Defendant entered into a written Deed of Release with, inter alia, the
Plaintiffs
(�the Roni Deed�)an>
p classclass="Mso="MsoNormaNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
/p>
16. p;&nbhe Rone Roni Deed Deed was
entered into in settlement of disputes then existing between the Plaintiffs
and the First Defendant, including the de thentained in
proceedings commenced by Writ Noit No. 60 . 60 of 1997.
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17. &nby clause 3 of the
Roni Deed, the First Defe Defendant covenanted as
&nbssp;&nnsp;&&nsp; &nsp;
follows:
&nb"> span><
�Roni must not, without the
prior written consent of Ross Mining, disclose any information in respect of
this deed (including
the existence of this deed), other than for the purpose
of enforcing this deed or as required by law�.
PARTIS
(a) The fact of the
existof the Roni Deed and the tehe terms of the Roni Deed were matters of
information which.
(i) were not known publicly;
and
(ii) were highly
confidential to the Plaintiffs.
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(b) At the time of entering
nto the Roni Deed, the Firs First Defendant well knew that the said information
was highly confidential
to the plaintiffs.
19. In ) eachrof
cla of t of the Roni Deed; and/or
nbsp;
>
>
(b) In breach of the said
duty of confidence, the First Defendant did in about early December 1997,
and without the prior
written consent of the Plaintiffs, publish or cause to
be published the terms of the Roni Deed, including by publishing the
fact of
the existence of the Roni Deed and its terms to international media
organisations in Australia.
/p>
pan lang="EN-GB" style="font-size: 12.0pt">20. &nbssp; Frrthe 2 on 2 on 2 on 2
October 1997, the Second Defendant
entered into a written Deed of Release
with, inter alia, the Plaintiffs (�the Thuguvoda Deed�).
lass=ormalle="mar="margin-lgin-left: eft: 36.0pt; margin-top: 1; margin-bottom: 1">
21. &nnbsp; The Thue Thuguvoda
eed w was entered into in settlement of disputes then existing between the
Plaintiffs
and the Second Defendant, including the dispute then maint
proces commecommenced by Writ No. 60 of 1997.
<
22. &nby clause 3 of thef the
the
Thuguvoda Deed, the Second Defendant covenanted as follows:
�Thuguvoda must not, without
the prior written consent of Ross Mining, disclose any information in
respect of this deed
(including the existence of this deed) other than for
the purpose of enforcing this deed or as required by law.�
23sp; Further, at all
t mal rial rial times after executing the Thuguvoda Deed, the Second Defendant owed
the Plaintiffs
a duty to keep the terms of the Thuguvoda Deed confidential.
(a) The fact of the
xistence of the Thuguvoda Doda Deed and the terms� of the Thuguvoda Deed were
matters of
information which:
<
(i)were not known publicly;
and
/p>
(ii) were highly
confidential to the Plaintiffs
(b) At the of entering
into theo the Thuguvoda Deed, the Second Defendant well knew that the said
information was highly
confidential to the Plaintiffs.
24. n breach of
clause 3 se 3 of the Thuguvoda Deed; and/or
(b) In breach of the said duty of confidence, the Sthe Second Defendant did in about early December 1997,
and without the prior
written consent of the Plaintiffs, publish or cause to
be published the terms of the Thuguvoda Deed, including by publishing
the
fact of the existence of the Thuguvoda Deed and its terms to international
media organisations in Australia.
25. &nbnless restrained
b by this Honourable Court, the Defendants and each of them respectively will
again divulge
the contents of the Roni Deed and thguvodd to persther than those entitled to r to receiveceive suce such infh information.
26 &nnbsp; By reason oson of t of the
First Defendant's breach of the Roni Deed and/or breach of the aforesaid
duty
of confidence, the Plaintiffs have suffered loss and damage.
27. &nBy reason of the the
e
Second Defendant�s breach of the Thuguvoda Deed and/or breach of the
aforesaid duty
of confidence, the Plaintiffs have suffered loss and damage.�
The Defence
b>
The ce was filed on 15th
January, 1997 by Mr. Ashley of A & A Legal Servicervices then the Advocate for
the Defendants. The relevant parts
of the Defence are paragraphs 19 - 24.
They are as follows:-
�19. &nnbsp; (a) The First
Defendant admits that hhat he executed a document which purported to be all
agreement
to settle Civil Case 60 of 1997 in the High Court Solomon Islands
and was purportedly entered into between the Plaintiffs and
the First
Defendant but otherwise denies the allegations in paragraph 15 thereof.
Further, the First Defendant did not
at the time of the execution of the
purported agreement receive a copy of the purported agreement.
(b)
Further, the First
Defendant denies the purported agreement was or took effect as a Deed of
Release.
(c) Further, the purported
agreement is vnd/or voidable (and has bees been avoided by the First
Defendant) on the grounds
of unconscionability, duress and equitable fraud,
and accordingly does not amount to a Deed of Release and/or is not binding
on the First Defendant.
20. &nbssp;&nThe Fire First
t
Defendant refers to and repeats paragraph 19 hereof and otherwise denies the
allegations
in paragraph 16 thereof.
21. p; The Fir t
Def Defendant refers to and repeats paragraph 19 hereof and otherwise denies the
allegations
in paragraph 17 thereof.
22. The First
Deftndaniedenies the allegations in paragraph 18 thereof. Further, he says
that the material facts
pleaded do not in law give rise to the dutyged. classNormal" style="marg"margin-lein-left: 3ft: 36.0pt6.0pt; mar; margin-top: 1; margin-bottom: 1">
23. &nbbsp; The Fire First
Defe dant denies the allegations in paragraph 19
&nbbsp; &nsp; &nbbp;&n&nsp; pan>0pt">thereof.
0pt"> 
24. &nnbsp;; (a)Seco Second cond cond
Defendant admits that he executed a document which purported to be an
agreement
to settlel Casof 1997 in the High Court Solomon Islands
and was purportedly entered into into betwebetween the Plaintiffs and
the Second
Defendant but otherwise denies the allegations in paragraph 20 thereof.
Further, the Second Defendant did
not at the time of the execution of the
purported agreement receive a copy of the purported agreement.
(b) Further, the Second
Defendant denies that the purported agreement wast was or took effect as a Deed
of Release.
p class=lass="MsoNormal" style="margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(c) Further, the purported
agreement is voidor avoidable (and has been been avoided by the Second
Defendant) on the grounds
of unconscionability, duress, and equitable fraud,
and accordingly does not amount to a Deed of Release and/or is not binding
on the Second Defendant.�
<
The Amended Defence
The Amended Defence was filed
on 9th J1998 by Mr. Talasasa of Talise Haus, the new
Advocateocate for the Defendants. I must say I find the Amended Defence most
confusing and badly drafted. It does not seem to have been sanctioned by the
Court under Order 30 of the High Court Rules.
That is to say, either party
may amend pleadings with the leave of the Court.
However, whatever the posit is, one thing seems to be very clear from the Amended Defence. The
Defendants hats have clearly
changed their position to the point of making
certain admissions of facts alleged in the Statement of Claim. Such
admissions
of facts may entitle the Plaintiffs to apply for summary order or
judgement under Order 34 of the High Court Rules. Rule 6
of Order 34 states
�Any party may at any stage
of a cause or matter, where admissions of facts have been made, either on
the pleadings, or
otherwise, apply to the Court for such judgment or order
as upon such admissions he may be entitled to, without waiting for
the
determination of any other question between the parties; and the Court may
upon such application make such order,
or give such judgment, as the Court
may think just.�
As I understand it, the Amended
Defence seeks to amend paragraphs 3, 5, 6, 7, 8, 9, 18, 19, 20, 22, 23, 30
and 32 of the
Defence filed on 15th January, 1998 by Mr. Ashley
of A & A Legal,. Services. I will take each amendment one by one and examine
it to see
the extent of each amendment.
The Amendments
Paragraph 19(a) of the Defence
is amended by paragraph R of the Amended Defence to the extent that the
First Defendant,
Mr. Roni, admits the particulars set out in paragraph 15 of
the Statement of Claim. He also admits the allegations set out
in paragraph
16 of the Statement of Claim. However, the matter of significance here is
that paragraph 19(b) and (c) in
the Defence remain intact as part of the
Defence. Both (b) and (c) above are a denial of the validity or lawfulness
of
the Roni Deed. In my view, this is a good defence.
Paragraph 20 of the Defence is
amended bygraph T of the Amended Defence to the extent that the FirstFirst
Defendant admits
the allegations in paragraph 19 of the Statement of Claim.
<
Paragraph 21 of the Defence is
amended by paragraph U of the Amended Defence to the extent that the First
Defendant admits
the allegations in paragraphs 17 and 19 of the Statement of
Claim.
Paragraphf the Defence is
amended by paragraph V of the Amended Defence to the extent that thet the First
Defendant admits
the allegations in paragraph 18 of the Statement of Claim.
Paragraph 23 of the Defence is
amended by paragraph W o Amended Defence to the exte extent that the First
Defendant admits
the allegations in 18 above. However, paragraph 23 of the
Defence refers to paragraph 19 and not 18 of the Statement of Claim.
Paragraph 30 of the Defence is
am by paragraph DD of the Amended Defence to the extent that that the First
Defendant admits
the Plaintiffs may have suffered loss and damage.
<
Paragraph 32 of the Defence is
amended by paragraph FF of the Amended Defence to the extent that the First
Defendant repeats
paragraph 32 of the Defence.
However, it is obvious that
paragraph 3 of thnded Defence omits paragraphs 24, 25, 26, 27, 28 and
29 of the Defence.
These paragraphs are relevant to the Second Defendant,
Mr. Thuguvoda, and the Thuguvoda Deed. They are however included in
the
Amended Defence at pages 5 - 6 thereof.
Paragraph 24(a) of the Defence
is amended by paragraph X of the Amended Defence to the extent that the
Second Defendant
admits the allegations in paragraphs 21, 22 and 23 of the
Statement of claim. Again, the, matter of significance here is that
paragraph 24(b) and (c) remain intact as part of the Defence. Again, both
(b) and (c) above are a denial of the validity
or lawfulness of the
Thuguvoda Deed. Again, in my view, it is a good defence.
Parag25 of the Defence is
amended by paragraph Y of the Amended Defence to the extent that that the Second
Defendant admits
the allegations in paragraph 24 of the Statement of Claim.
Paragraph 26 of the Defence is
amended by paragrapf the Amended Defence to the extent that the Second
D Defendant admits
the allegations in paragraph 24. This amendment is
confusing as to its intent.
Paragraph 27 of the Defence is
amended by paragraph AA of the Amended Defen the extent that the Secondecond
Defendant
admits the allegations in paragraph 23 of the Statement of Claim.
<
Parh 28 of the Defence is
amended by paragraph BB of the Amended Defence to the extent tent that the Second
Defendant
admits the allegations in paragraph 24 of the Statement of Claim.
Paragraph 29 of the Defence is
amended by paragCC of the Amended Defence to the extent that the Second
d
Defendant
admits the allegations in paragraph 25 of the Statement of Claim.
The Plaintiffs� Case
The Plaintiffs� case is that
the Defendants do not have a de for breach of contract anct and of duty of
confidence. Mr.
Radclyffe argues that the Plaintiffs are entitled for leave
to enter final judgement under order 14, rule 1 of the High Court
Rules
having satisfied all the requirements of Order 14, rule I above. I do not
dispute the practice that the Plaintiffs
are entitled to apply the short-cut
procedure under Order 14 or Order 34 of the High Court rules whenever
necessary.
That is to say, summary order or judgement may be entered in
favour of the Plaintiffs, if appropriate. As is stated by Bernard
C. Cairns
in his work Australian Civil Procedure, Third Edition, 1992, at
309-310:
�If a defendant, makes
admissionficient to support the plai plaintiff�s claim, the plaintiff may
apply for judgment based
on the admissions. This application may be made at
any stage of the proceedings, and it may be based on either formal
admissions in the pleadings, or on informal admissions. Like the other rules
giving summary remedies, it is designed to prevent
delay and avoid expense
where the defence is clearly not maintainable.
For a jud to be entered
under this rule the defendant�s admissdmission must be strong and unambiguous. As
in the case
of summary judgement where the defendant has entered an
appearance, or in the case of an application to strike out a claim
or
defence because for lack of substance, judgement is not entered on
admissions where a serious question of fact or
law requires consideration.�
In this case, I find that the
Defendants do have a good defence against the claim foach of contract
and dand duty of confidence
alleged by the Plaintiffs in their Statement of
Claim. The defence is that the Roni Deed and the Thuguvoda Deed are
unenforceable
for reasons set out in paragraphs 19(b) and (c) and paragraph
24(b) and (c) of the Defence as amended. That is to say, on the
grounds of
unconscionability, duress and equitable fraud. The Roni Deed and Thuguvoda
Deed do not therefore amount to
Deeds of Release or are binding on the
Defendants. In other words, whilst the Defendants are not disputing the
facts
admitted, they are nevertheless saying the Deeds are unenforceable in
law for the reasons stated in paragraphs 19(b) and (c)
and 24(b) and (c) of
the Defence. There is a serious question of law for consideration. This
being the case, I refuse
leave to enter final judgement against the
Defendants. The application is dismissed with costs.
Dated this 5th day
of February 1999
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F. O. Kabui
Judge
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