HIGH COURT OF SOLOMON
ISLANDS
Civil Case No. 169 of 1997
SAMUEL SAKI (AND OTHERS)
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ROSS MINING (SOLOMON
ISLANDS) LIMITED AND ANOTHER
High Court of Solomon Islands
Before: Palmer J.
Civil Case No: 169 of 1997
Hearing: 2nd March 1999
Ruling: 1st June
1999
G. Nash, Foley and C. Ashley
for the Plaintiffs
J.Griffith and A. Radclyffe for
the Defendants
PALMER J.:
INTRODUCTION. There aere are two summons for determination by this Court. The
first summons filed by the First and Second Defendants (hereinafter
referred
to as �the Defendants�) on 15th February 1999 seeks orders inter
alia, for the separate determination of a number of questions of law which
the Defendants
view will dispose of the whole case if answered in the
affirmative. The second summons filed by the Plaintiffs on 25th
February 1999, seeks orders inter alia, for leave to file and serve the
Amended Statement of Claim �Exhibit A� annexed
to the summons.
1. SUMMONS OF THE FIRST AND
SECOND DEFENDANT - DETERMINATION OF A PRELIMINARY POINT OF LAW
<
This Court has jurisdiction
both inherently and under Order 27 Rules 2 and 3 of the High Court (Civil
Procedure) Rules
1964, to set down for hearing at any time before trial, any
points of law raised by the pleadings which in the opinion of this
Court
would either dispose of the whole action substantially or dispose of any
distinct cause of action raised. I quote
Rules 2 and 3:
�2.
& Any >arty arty shall hall be entitled to raise by pleading any point of law,
and any points so raised shall
be disposed of by the Court at or after the
trial, provided that byent o partor by o by order rder of thof the Court on
the application of either party, the same may be set down for hearing and
disposed of at any time before the trial.
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Two questione been
submitted for consideration by this court whether they fall within the above
ove
category. The first
question reads:
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�Given that at all material
times:
lang="EN-GB" style="font-size: 12.0pt">(a) & The First irs
DefenDefendant was the holder of the Gold Ridge Special Prospecting
Licence
issued under Part IV of the Mines and Minerals Act, 1990 as amended; and
(b) The Second
Defendan has held and has continued to hold the Gold Ridge Mining Lease
issued under Part VI of
the Mines and Minerals Act, 1990 as amen/span
whether on their proper
construction the provisions rts IV and V of the Mines anes and Minerals Act,
1990 as amended and
Part V of the Mines and Minerals Regulations, 1996
provide the First and Second Defendants with a complete defence of statutory
authority to the claims made by the Plaintiffs and represented persons in
the Amended Statement of Claim in respect of
the causes of action pleaded
in:
(c) ;&nbssp; nsp; nuisancisance and
trespass (paragraphs 14 and 21 inclusively); and
(d) & strict liat liability
(paragraphs 28 to 29 inclusively).
The Defendants submit the
separate determination of that question will have the clear potential of
reducing subg substantially,
if not entirely, the field of controversy between
the parties and thereby either substantially shorten or entirely obviate,
the need for a trial and saving the parties and the Court substantial
resources. They rely as support on a similar fact
situation contained in the
case Allen v. Gulf Oil Refining Ltd [1980] UKHL 9; [1981] AC 1001.
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The Plaintobject the
application essentially on two grounds. First, the question will depend onnd on
facts to be determined
at trial after discovery, interrogatories and
evidence, and secondly, the question was not raised on the pleadings.
(i) p; whether the
diterminermination of this question will �obviate the necessity of litigation
altogether
or substantially narrow the field of controversy� (see CBS
Productions Pty Ltd -v- O�Neill (1985) 1 NSWLR 601 at 606 paras.
C-D); and
(ii) ;&nbsetheh the
q q question depends on facts to be determined at trial after discovery,
interrogatories
and evidencpan>
Bosues however are
directly related to each other and therefore will be addressed togettogether. It
is relevant to identify
at the outset what in essence is the claim of the
Plaintiffs.
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The Plaintiffs claim they are
landowne the area of Land (referred to in the Amended Statement ment of
Claim as �the said Land�) marked on the map annexed to the Amended
Statement of Claim as Schedule A, and that they live adjacent to the
Matepona
River (paragraph 7 of the Amended Statement of Claim).
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In paragraphs 14 to 21
inclusively, they raise claims of nuisance and trs. They state they
li live on the banks of the
Matepono River adjacent to, or in the vicinity of,
the said Land downstream of the Gold Ridge Mine. By virtue of their location
and use of the said Land, they allege the actions of the Defendants as
spelled out in paragraphs 14 to 21, and the inherently
dangerous and harmful
nature of the materials that will be used as spelled out in paragraphs
28-29, will constitute nuisance
and trespass and strict liability.
<
Thee this Court has to
consider is whether the questions proposed in the summons filed oled on 15
February 1999, will
address substantively the issues of nuisance and
trespass, and strict liability, raised in the Amended Statement of Claim.
That is, are they relevant, and will they dispose of the issues of nuisance,
trespass and strict liability wholly, or
�substantially narrow the field of
controversy�.
The Defendants rely on the case
of Allen -v- Gulf Oiining Ltd [1981] AC 100C 1000 (House of Lords
decision) in support of their application for the preliminary points of law
to be addressed before
trial. That case involved the construction and
operation of an oil refinery and related works at Waterston, Milford Haven
in the county of Dyfed by operation of an Act of Parliament, the Gulf Oil
Refining Act 1965. Some of the inhabitants of
the small village of Waterston
brought actions against the oil refinery alleging inter alia, that the
Appellants (Gulf
Oil Refining Ltd) were committing nuisance in the
construction and operation of the oil refinery. The Respondent commenced
this action as a test case alleging nuisance by noxious odours emanating
from the refinery, vibrations and offensive
noise levels. The respondent
alleged she and members of her family had sustained personal injury,
suffered damage and
expense, and lived in fear of explosion from the
refinery. The Appellants relied on the defence of statutory authority.
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The House of Lords held that
the legislation (section 5(1)) gave the Cy authority to construct anct and
operate on the
land a refinery commensurate with facilities for unloading,
and that statutory authority conferred immunity on the appellants
from
proceedings for any nuisance which might be the inevitable result of such
construction and operation, however careful
the Company was in construction
and operation. The learned Law Lords however recognised that issue in law
alone would
not have addressed the issues raised fully as there were complex
issues of fact which were yet to be addressed. Lord Wilberforce
put the case
in this manner:
�The respondent alleges a
nuisance, by smell, noise, vibration, etc. The fThe facts regarding these matters
are for her
to prove. It is then for the appellants to show, if they can,
that it was impossible to construct and operate a refinery upon
the site,
conforming with Parliament�s intention, without creating the nuisance
alleged, or at least a nuisance.�
Lord Diplock also identified
the issue as follows:
�At thterlocutory stage
it is exceedingly difficult and, ind, indeed, impossible to give a categorical
and final answer
to that question. For an effective plea of �statutory
authority� presupposes the absence of any relevant negligence by the
defendant company. As yet there has been no trial to determine whether the
working of the refinery, which began operation
in 1967, does constitute any
nuisance (inevitable or avoidable), or whether Gulf has been guilty of
negligence. Those
issues are in themselves capable of having considerable
legal and factual complexity. The burden will be upon the plaintiff
to prove
nuisance or negligence, arising from the construction or operation of the
refinery. On the other hand, it would
be for the defendant to establish that
any proved nuisance was wholly unavoidable, and this quite regardless of the
expense
which might necessarily be involved in its avoidance, whereas he
will clear himself of negligence if at the end of the day
it emerges that
any discomfort suffered by the plaintiff arose despite his exercise of
reasonable care. It follows that
an affirmative answer to the prescribed
question of law could only be tentative, for it might emerge from the facts
that
the only possible conclusion was that the plea of �statutory authority�
was not, after all, available to the defendant. But,
despite the ultimate
uncertainty, this House is nevertheless called upon to consider and answer
the question as best
it can.�
What was noted by the learned
Law Lords in Allens� Case ) equally apply in this cass case. The
question whether the relevant provisions of the Mines and Minerals Act 1990
and
the Mines and Minerals Regulations 1996, provide the Defendants with a
complete defence of statutory authority cannot be isolated
from the facts of
the case. Mr. Nash is correct in pointing out that the provisions which
apply to this case, are general
mining provisions which apply to any mine
established in the country. On their own, they are incomplete; like standing
on one feet. The facts need to be ascertained and established before the
question of statutory immunity could be meaningfully
determined. The reason
being that even if it is determined that those provisions could provide the
Defendants with the
defence of statutory immunity, the facts of the case
will still have to be ascertained, to determine whether the construction
and
operations of the mine do in fact comply with the requirements of the Act
and Regulations. That essentially is a
question of fact.
For instance, if we are to
consider paragraph 44(1)(c) which r
�A mining company shall �
(b)�
(c) carry out the mining
plan specified in the mining lease, using the appropriate technology and
effective equipment,
machinery, methods and materials, with due diligence,
efficiency and economy, in accordance with sound conservation, technical
and
engineering practices generally used in the mining industry;��
The only way that paragraph can
be meaningfully addressed and determined, is e mining plan specified in d in
the lease
is examined at trial and determined, whether �the appropriate
technology and effective equipment, machinery, methods and materials�
have been used and are being used �with due diligence, efficiency and
economy, in accordance with sound conservation, technical and engineering
practices
generally used in the mining industry�. That with respect, can
only be done as correctly submitted by learned Counsel Mr. Nash, at trial
after discovery, interrogatories
and evidence.
Or take for instance,
Regulation 18, which reads:
�In the exercise of mineral
rights, holders shall carry out oput operations with due diligence, efficiency
and economy
and in accordance with good technical and engineering practises
generally used in the mining industry so as to �
(a) conserve and avoid the
waste of theral deposits of Solomon Isln Islands;
(b) result in minimum
cological damage or destruction;
(c) control the flow an prevent the escape of contaminants, tailings and other mher matters produced in
the course of such
operations;
(d) prevent avoidable damage
to trees, crops, buildings and other structures;
(e) avoid any action which
could endange health or safety of personersons; and
(f) avoid harm to
hwater, marine and animal life.�
The matters spelled out in
Regulation 18 above st in plain terms what a holder of inter alia, a
mininmining lease is required
to do. Those matters however are general
requirements which apply across the board to any mining operation set up
under
the Act. They do not stand alone. They have to be applied to the facts
and circumstances of each mine. The question whether
compliance has been
made in accordance with the requirements of the Regulations are questions of
fact. And where questions
of fact are involved, the determination of a
preliminary point of law would prove futile (see cases referred to by
Counsel for the Plaintiffs Allen v. Gulf Oil Refining Ltd [1981] AC
1000; Allen v. Gulf Oil Refining Ltd [1980] 1 QB 156; Manchester
Corporation v. Farnworth [1930] AC 171; and Jacobsen v. Ross
[1955] 1 VR at 342-345, 359-361).
The second argumented by
the Plaintiffs that the question of law on statutory immunity had not been
raised in the
pleadings is not correct. Whilst it is correct paragraphs 11
to 21 of the Defence filed on 29th January 1999 do not make
specific reference to the defence of statutory authority, it doesn�t take
much to work out that
indirectly, that was what was being pleaded. It is
simply like two sides of the same coin.
The first question proposed
accordingly wave to be answered in the negative.
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2. WHETHER THE PLAINTIFFS
AND REPRESENTATIVE PERSONS MUST FAIL IN THLAIM FOR QUIA TIMET
I INJUNCTIVE RELIEF IN RELATION
TO THEIR CLAIMS IN NEGLIGENCE (PARAGRAPHS 22
TO 27 INCLUSIVELY OF THE AMENDED STATEMENT OF CLAM).
The second question proposed in
the summons filed by the Defendaelates directly to the reli relief sought in
this action;
that of permanent injunctions sought against the First and
Second Defendants.
Whilst I appreciate on the
surface, the question proposed appears to be one based solely on law, on
closer analysis it
will entail mixed questions of fact and the law. In the
circumstances it would not be appropriate to have that question heard
separately.
Secondly, in view of how this
Court had ruled with regardthe first question, it will will only protract
proceedings if
this question is to be set down for separate hearing. It too
should be answered in the negative.
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RETAINER
The second part to the summons
filed on 15 February 1999 pertains to the issue of retainer. Itr. It
appears there had been some confusion as to whether the Plaintiffs�
Solicitor should be required to produce his authority and retainer to act on
behalf of the Plaintiffs only or inclusive
of the persons represented and
listed in Schedule �B� to the Amended Statement of Claim. The summons of the
Defendants
filed 15th February 1999 included the names of the
persons represented and listed in Schedule �B� as persons from whom
retainers
should also be obtained. Unfortunately no authority had been cited
in support of this proposition. The cases relied on by the
Defendants
pertain only to clients or the plaintiffs.
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The Plaintif the other
hand rely on the cases of De Hart v. Stevenson [1876] 1 OBD 313;
Market & Co. Ltd. v. Knight Steamship Co. Ltd [1910] UKLawRpKQB 126; [1910] 2 KB 1021; Irish
Shipping Ltd. v. Commercial Union Insurance Co. PLC [1991] 2 QB 206; and
Prudential Assurance Co. Ltd v. Newman Industries Ltd [1981] Ch 229
in support of their proposition that if any retainer is to be made, it
should be confined only to the plaintiffs in this
representative action. I
am satisfied that is the correct position in law that retainers need only be
produced in respect
of the six Plaintiffs. I make an order to that effect to
be filed and served on the Defendants within 14 days.
REPRESENTATIVE PROCEED/span>.
An alternative order sought in
paragraph 4 of the dant�s Summons relate to the representative
proceedineedings taken out
by the Plaintiffs. The Defendants argue the Court
should make directions in the representative proceedings as there are
individuals within some of the tribes who are strongly opposed to such
alleged representation. The Defendants submit this
Court should direct that
copies of a Notice marked Annexure "B" and copies of an Opt-Out Notice
marked Annexure
"C", attached to the Summons should be delivered to all
represented persons giving them an opportunity to opt out
if they so wish.
Unfortunately, I consider this to be unnecessary and irrelevant in the
circumstances of this case. There
is no requirement under Order 17 Rules 8
and 9 of the High Court (Civil Procedure) Rules, 1964 for an opt out notice
to be issued. The represented groups, by tribe, community, line and even by
name have been identified. That is sufficient.
If there are any groups, or
persons who do not wish to be part of the actions instituted by the
Plaintiffs there is no
impediment for them to opt out as some have done.
Even if any decision should be given which would have a binding effect in
law, there is no impediment in them instituting any action to show why they
should not be so bound. The purpose of representative
action to be taken
under Rule 8 is unique to Solomon Islands in that it enables a person by
virtue of his/her membership
of a tribe, community, line or group to take up
legal action as has been done here on behalf of his tribe, community, line
or group. As is usual in such cases, there will always be a dissenting group
or sometimes referred to as the "group
of objectors or the opposition group"
within the community, tribe, line or group. That is normal. There is nothing
wrong with that. If the plaintiffs win their case, the objecting group will
either have to join in or take out a suit against
the plaintiffs if they so
wish. The dissenting group also may if they wish join up with the Defendants
in this case,
as Co-Defendants. That is always open to them to do.
The case of Carnie v. Esanda
Finance Corporation/i> (1996) 38 NSWLR 465, relied on by the Defendants
can be easily distinguished from this case. That case involved a
representative action
in which the plaintiffs sought to represent themselves
and all other persons (�the represented debtors�) who had:
(a) p; oa or 2ter 28
FebruFebruary 1985 entered into loan or credit sale contracts with the defendant
which
were regulated contracts within the mg of term e Cre Act 1984;
>
<
(b) &nbbsp;& h oach of whof whof which
contracts has been varied by an agreement (�variation agreement�) which did
not dischthe oal contract and �.�
Schedule �B� to the Writ of
Summons and/or the Amended Statement of Claim is alleg belong.
The Summons filed 15th
February 1999 accordingly must be dismissed save the matters identified
above.
THE SUMMONS OF THE PLAINTIFFS
FILED 25TH FEBRUARY 1999.
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Two orders ought, (1) that
the Plaintiffs be granted leave to file and serve the Amended Statemeatement of
Claim Exhibit
�A� to the Summons; (2) that the Defendants file and serve
Answers to the Further and Better Particulars filed 24 February
1999 by 12
March 1999.
1. That the Plaintiffs be
granted leave to file and serve the Amended Statement of Claim Exhibit �A�
to the Summons.
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The Plaintiffs rely on the
affidavit of Nicholas John Styant-Browne fist March 1999. I99. In
paragraph 7 of the written submissions of the Plaintiffs, the reason given
for the amendment was
that it was necessary for the purpose of determining
the real questions in controversy between the parties.
Respectfully I disagree. The
Plaintiffs have had all the opportunity to make the necessary amendments and
to get the real
questions in controversy identified. That has already been
done. It is now time to get this case on to the next stage of proceedings.
This court simply cannot allow them to keep coming back for amendments
merely because they have not been able to make
up their minds or are
uncertain about their claim. They were given opportunity to make all the
necessary amendments when
a Summons was filed on 4 November 1998 seeking
leave to file and serve an Amended Statement of Claim (see paragraph 2 of
the affidavit of Nicholas John Styant-Browne). The Court of Appeal had
just ruled in their favour in respect of their appeal in Civil Appeal Case
No. 1 of 1998 on 7th October 1998. That should have settled their
minds and enabled them to focus on their claim. In my respectful view they
have done that.
The matters deposed to in
paragraphs 3 and 4 of the said affidavit of Nicholas John Styant-Browne do
not raise any new
grounds or matters that would better identify the claim of
the Plaintiffs and therefore justify a further leave for amendment.
They
relate to isolated incidents which occurred well after this claim had been
filed. If they are of any relevance to
this case, they can be raised at
trial and the deponent be made available for cross-examination. For purposes
of justifying
whether leave should be granted for further amendment, I find
them with respect to be insufficient. On the question of objection
raised
therefore as to their admissibility, with respect I find that unnecessary to
answer at this stage.
Further those matters also
occurred prior to the said Summons for leave to file an Ad Statement of
Claim laim was made.
If they were necessary for the purpose of determining the
real questions in controversy between the parties why were they not
raised
before the Registrar of High Court on 16 December 1998. No satisfactory
explanation has been given for the delay.
It took the Plaintiffs a further
two months to make up their mind about what further amendments should be
made. This
cannot be allowed to go on. The case was commenced twenty two
months ago in July of 1997. Learned Counsel for the Plaintiffs
had submitted
that the Court take a firm line in this case as little progress had been
made and there had been much delay.
I think that can start right here with
the application for leave for yet another amendment of the statement of
claim
in circumstances I find to be unjustified, unnecessary and tantamount
to an abuse of process. That application must be denied.
2. That the Defendants file and
serve Ansto the Further and Better Particulars filed 24 February 199y 1999
by 12 March
1999.
The second order sought t
yet complied with must be complied within fourteen days. A reply is to be
fil filed fourteen
days thereafter and the Plaintiff to take out a summons for
directions as required by Order 32 Rule 1 of the High Court (Civil
Procedure) Rules, 1964, within fourteen days thereafter.
Costs.
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The issue of costs should be
split as fo. The Defendants should be responsible for the costs of thef the
Plaintiffs in
the Summons filed 15th February 1999 whilst the
Plaintiffs the costs of the Defendants in the Summons filed 25th
February 1999.
1. &nbssp;&nnbsp;&nsp; esp; e paragraph 1
of thef the the Summons of the Defendants filed 15
& p;&nbbsp; p&nbssp;
Febr Febr February 1999.
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2. &nbssp; Order tder that the
Solicitor on the record for the Plaintiffs produce to the Court and for
inspection
by the Defendants his authority to act and any retainer in the prongs ipect of each of t of the Sihe Six Plax Plaintiffs named in
this action
within fourteen days.
3. &nnbsp; Refuse order sought
in paragrapagraph 3 of the said Summons.
4. & p;&nssp; Rsp; Refuse fuse order sought
in p in paragraph 4.
5. &nnsp;& Osp;r tdet that witt within
fourteen days here from the Plaintiffs file and serve a document which
identifies
the particular community, line or group which the Plaintiffs
aim tresenwhich each of thef the pers persons lons listed in Schedule
"B" to
the Writ of Summons and/or the Amended Statement of Claim is alleged to
belong.
6. &nnbsp;; Refuse orse order sought
ght
by the Plaintiffs in paragraph 1 of the Summons filed 25 February 1999.
an lang="EN-GB" style="font-size: 12.0pt">7. ; Dir; D tect thet the
Defendants file and serve Answers to the
Further and Better Particulars
filed 24 February 1999 within fourteen days.
9. & p; &nsp; Tsp; The Plaintiff to t t take out a summons for directions after close of pleadings within thirty
five days.
10. & p; Cof thef the
the
the
Plaintiffs in the Summons filed 15th February 1999 are to be
borne by the Defen.
11. &nbbsp; ostshe the
Defendants in the Summons filed 25th February 1999 to be borne by
the Plaintiffs.
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