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Asia Pacific Investment Development Ltd v PT Mega Bintang Borneo Ltd [2015] SBHC 87; HCSI-CC 199 of 2015 (15 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 199 of 2015

BETWEEN:

ASIA PACIFIC INVESTMENT DEVELOPMENT LIMITED
First Claimant

AND:

BINTAN MINING (SI) LIMITED
Second Claimant

AND:

PT MEGA BINTANG BORNEO LIMITED
First Defendant

AND:

THE SHIP "MV CHANG HANG JIN HAI"
Second Defendant

AND:

ATTORNEY-GENERAL (Representing the Minister of Mines, Energy and Rural Electrification)
Third Defendant

AND:

ATTORNEY-GENERAL (Representing the Director of Mines)
Fourth Defendant

Date of Hearing: 14th August 2015
Date of Ruling: 15th October 2015

Mr J. Ivanisevic with Mr M. Klapper for the First and Second Claimants
Mr T. Thawley and Mr J. Carter for the first and Second Defendant

RULING ON APPLICATION FOR ADJOURNMENT

Faukona PJ: This application was filed by the first and second Defendants on 12th August 2015 pursuant to Rule 12.10 of SI Courts (Civil Procedure) Rules 2007. The application purposely seeks to formally adjourn the hearing of the application for contempt of court which was listed for hearing on 14th August 2015.

2.
The first Defendant was granted prospecting licence PL 3/2014 on 12th June 2014 and Mining Lease ML 2/2014 on 9th September 2014. Having legally acquired the mining lease, gives rights under S.43 of Mines and Minerals Act to extract or mined bauxite ore from Central and East Rennell bauxite mines in Renbell Province. The prospecting licence and the mining lease were subsequently cancelled or revoked on or about 23rd March 2015. A further reaffirmation or cancellation or revocation of the prospecting licence and the mining lease was issued by the Minister per his letter dated 7th May 2015.

3. On 5th September the first Claimant was granted a mining lease ML 1/2014 by the Minister of Mines, Energy and Rural Electrification.

4. The issue of over-lapping of mining tenement areas was raised because the area of commonality is subject to challenge and litigation. Consequently, it was dealt with by the authority of S.36 of the Mines and Minerals Act.

5. Being the only Company with a valid Mining lease left, the Claimants therefore file a claim in category A on 20th May 2015 seeking declaration inter alia, for an order to reinforce and extinction of the first Defendant.

6. Being secured by a claim on foot, the Claimants therefore filed application for interim orders on ex parte basis which was granted on 26th May 2015, and varied with a new regime and set of orders on 11th June 2015. Variation was done because the court was misled about the non-disclosure of material facts by the Claimant when the orders were applied for and granted.

7. After the final set of orders, the Claimants alleged that the first Defendant was still engaged in extracting and mining activities in the former mining tenement areas.

8. The first Defendant by its submissions outline its reasons for seeking an adjournment of the trial of the application for contempt orders dated 24th July 2015, which was listed for hearing on 14th August 2015. I will come to those reasons in latter course.

9. There is common knowledge and trite law in Solomon Islands that the High Court has inherent jurisdiction entrenched in the Constitution, and by virtue of Rule 12.10 of the Civil Procedure Rules 2007, to grant adjournment by exercising its discretionary power. Exercise of such power covers a wide scope of spectrum guided by human reasonableness which accord with interest of justice in the circumstances. This practical principle of law has been adopted in almost all jurisdictions. Affirmed to that is the case of Commonwealth Bank of Australia V Slavats (No 2)[1], Garling J of Supreme Court stated.

"the Court is required to act in considering any application for adjournment on a basis which accords with the interest of justice. Even in that case, where the Defendant had previously not been diligent in defending his case, the Court concluded he should have an adequate but not open ended or luxurious opportunity, to prepare the matter for hearing."

10. I noted that authorities maintained (refer to paragraph 7 & 8 of written submission by the first Defendant) that adjournment should be refused only if that is the only way that justice can be done to the other party. Otherwise refusal of an adjournment would result in a serious injustice to the party requesting it

Issue of service of documents:

11. Counsel advocate for the first and second Defendants submits that the application which was filed on 24th July 2015 was not served until 30th July 2015. The first Defendant therefore has not had sufficient time to prepare its evidence in response and the listing for 14th August 2015 for hearing will not be sufficient to enable the Court to conclude the matter.

12. Rule 6.24 of the Rules 2007 states that all other documents must be served within times required by rule 5.37 which set out times for service of claim, defence reply to counter claim, answers to counter claim and reply to answers. In this case Rule5.37 (9) is more appropriate.

13. Effecting service six days after filing is normal in this jurisdiction. It is not a short listing date which now gives rise to allowing insufficient time to prepare evidence in response. What have been transpired recently in cases involving mining investment on Rennell Island is that they are all urgent matters. This case was listed for two (2) hours hearing per notice issued on 11th August 2015 a time may not be agreed upon by Counsels.

14. I have presumed Counsels had assessed their work, the relevant material they will rely on, their submissions and the duration that will take. It is quite amazing that Counsels prior to hearing date engaged on issue as giving notices for cross examinations, production of witness and so on. Those are matters to be considered before agreeing on date and two (2) hours hearing. Otherwise the nature of course of action is not urgent as it now appears.

15. I noted that contempt proceeding is in the nature of criminal prosecution.[2] It is a serious quasi criminal matter which seeks serious orders including imprisonment or fine for being found guilty. The issue boils down to Counsels who manages and administers their own files. They are expected to assess their own case and how long will it take to prosecute on a trial date.

16. So often at this time of the year, Counsels in this jurisdiction gives false impression to Court to obtain a quick fix hearing date, by suggesting less duration of hearing time, which in reality misleading the Court to achieve their own end. Now there is material fact that this case will take three days to hear than two hours, and not urgent anymore.

Service of this application upon the Claimants:

17. The application for adjournment was filed on 12th August 2015. It was not served until 13th August 2015, a day before the hearing of the application. Rule 7.7 of SI Civil Procedure Rules states; the application must be served at least three days before the time set for hearing unless the Court Orders otherwise. This Court has never made any order otherwise. Apparently the adjournment of application has not been served in accordance with the mandatory requirement of R 7.7. It was served a day before it was heard.

18. The Counsel for the Claimants points out that there is no dispensation of R7.7 or an abridgement of time of service sought in the application. With the present of such anomaly I would have refused to hear the application for adjournment, should the Counsel for the Claimant insisted not to. However, I noted the Counsel do not oppose an amendment to the adjournment application to bridge time for its service but reserve rights in respect of costs.

19. Whilst I accept the Counsel's assistance, application for adjournment should relevantly be on the date of hearing, with the expectation the applicant complies with the rules and the law in filing and service. In this case the first Defendant did not. In spite of that failure, the Counsel for the Claimant did not oppose being heard, or insisted it be heard on 21st August 2015 at 2:30pm, the date and time recorded on the adjournment application. But prefer it being addressed to the satisfaction of the Court. Furthermore, the Counsel for the Claimants stated in submissions that the Claimants would not oppose an amendment to the adjournment application to bridge time for its service, that finally paves the way for the hearing of the application.

Overseas Counsels deposing sworn statements:

20. Counsel for the Claimants opposes the sworn statements filed in support of the application for adjournment by two Solicitors from Australia, Ms Justice and Ms Small, as being inadmissible. He submits that both Counsels are not admitted for these proceedings but for other proceedings. They may have applied to extend the scope of their admissions and their practicing certificates to appear as overseas Counsels in these proceedings, they do not have the immediate right to act the way they did. Counsel refers to S.7 of Legal Practitioners Act (Cap 16) that a person shall not be qualified to act as legal practitioner unless he has in force a current practising certificate. Counsel further submits that practicing certificate issued to both Solicitors will entitled them to assisting the Solicitor on record, they therefore breaching S.18 of legal Practitioners Act.

21. The issue of admissions of Ms Justice and Ms Small of having no practicing certificate to appear, or even to assist the Solicitor on record, now becomes water under the bridge. During the Course of the hearing of the application, Counsel for the first Defendant tender to Court two practicing certificates of both Solicitors to appear in this case. Therefore, render this issue a non-issue.

Reasons for adjournment:

22. The Counsel for the first Defendant enumerated a number of serious injustices that will affect the first Defendant if adjournment is refused. Notably, the contempt proceeding is in the nature of criminal prosecution which would result in a fine or imprisonment against the directors if they are found guilty. Secondly, the photographs the Claimants rely on as identifying location of illegal activity are of poor quality and cannot be understood or extremely difficult to see.

23. Thirdly, the evidence of expert opinion by Mr Tohahenua and Mr Sese who gave evidence on opinion as to age of stockpiles, requires time to identify and obtain appropriate expert evidence to response.

24. Fourthly, witness conferencing needs the assistance of an interpreter which will slow the process down. They need to make enquiries and possibly obtain evidence from Mr. Tagini from Global Lawyers who is based in Honiara.

25. In reply to those grounds the Counsel for the Claimants submits that the statement of Ms Justice which the first Defendant rely on is a vain attempt to lay blame elsewhere to obtain additional time to defend a clear breach of orders, and whether information and belief deposed derived from a credential source or not, is critical and is not an issue that the court will deal with now.

26. I agree with Mr Ivanisevic that it need not require a Solicitor to travel from Australia to Solomon Islands then to Rennell Island to improve the images and to conduct and prepare sworn statements. Instructing Counsel is a Solomon Islander based in Honiara and he does not need an interpreter at all and cost less to travel to Rennell Island.

27. Nevertheless, no one should interfere with the administration and management of case file of other law firms, and preference as to which staff should engage in a particular case. But when relying on an option that will for sure prolong the process, then a better an effective management of case files is called for so that other parties are not prejudiced by any undue delay.

28. In respect of expert opinion evidence, I have the privilege to read the sworn statement deposed by Mr Sese filed on 30/7/2015 and the sworn statement deposed by Mr Tohahanua filed on 24th July 2015.

29. In my personal perception Mr Sese's evidence is partly expert opinion and partly not. I say this because in paragraph 3 of his sworn statement, he said, "the opinion stated by me in this sworn statement is based on my training and experience both living and working in Solomon Islands". Almost in similar description as said by Mr Tahahanua in paragraph 24 of his sworn statement where he stated, "in my experience living on Rennell Island, vegetation starts to grow on exposed earth within two (2) week or so. I can easily tell what has been recently up and what has not been." Therefore Mr Sese's evidence is a combination of expert opinion of what he achieved from his training and experience which is almost equivalent to what Mr Tahahanua said.

30. Shopping for an expert opinion to rebut that evidence may not be easy and may be time consuming. Service of the expert opinion may have contravened S. 133 (2) of the Evidence Act, which now become a ground to justify adjournment. However, mining and stock piling of bauxite ore is an activity that attracts public attention. It was not an activity done in secret without sound of machines. There is no doubt there are real evidence of people who actually witness what was done, they are the best evidence.

31. It is submitted that should adjournment be granted undertaking must be imposed including costs payable to APID and BMIS. I take cognisance of those submissions.

32. In all manner of good sense and reason, application for adjournment should be heard on the listed day for hearing. In this case the application was not served within the meaning of the rules, but the parties are present and well prepared to argue their case. It is proper the application is proceeded with. It may not be appropriate to conduct the hearing on 21st of August as shown on the application notice, seven days after the date listed for hearing of the application for contempt. To vacate from 14th August to 21 August 2015 requires adjournment in which the Claimants prepared to oppose. Therefore, it is proper and appropriate the application for adjournment is heard on 14th August 2015.

33. I noted contempt application seeks serious order and parties ought to be well prepared. A decision whether to grant adjournment or not should derive from the interests of justice as paramount.

34. The whole case pivoted on the instructing Counsels who decided after the application for contempt was served, had agreed to come to Court in two weeks. There was no request for directions so that sworn statements are responsive to. All that was, is urgent hearing, to punish someone which now become un-necessary and an extra burden to the Court. If Counsels are diligent and committed enough in their duties the hearing of application should not be rushed. There is a hint that will now take three days to hear because witnesses will be cross-examined. It is no longer urgent. The court has to find three days, and where does that three days come from, we'll wait and see. All these occur because Counsels failed to manage their case and reason out whether a case is urgent or not. Often they were driven off by pressure from circumstances.

35. Furthermore, the submissions related to the application for adjournment has taken two and half (2½) hours; the proceedings concluded at 4.40 pm, beyond two hours listed for contempt application. Logically the case has been adjourned. The Court cannot start beyond that time if it rules against application for adjournment. So time has been accomplished. What is left is the issue of costs. There is no point even to consider the conditions. Submissions have stated very clearly, if the Court decided to adjourn the hearing then conditions must be imposed. The Court proceedings on 14th August has gone beyond listed time so the process, therefore, has adjourned itself. There is no need to impose the conditions. I am merely to formalise the orders.

36. As to cost, this normally awarded to a party which the decision is in favour of. It is now imminent that the case be adjourned. Despite of that, can cost be awarded to the Claimants who the decision is contrary to their submissions? Is it because they are prepared to prosecute the application and was distorted by sloppy reasons to adjourn. I think preparation to defend Directors of incorporation needs more time than two weeks, especially in a quashi criminal suit.

37. In all that I perceive, it is the failure of the instructing Counsels, not properly assessing and managing their cases properly. This application would not have interfered, if they diligently study their case, do what ought to be done, when will be the first hearing be, how long it will take to hear the case, and what orders are necessary to progress the case forward in preparation for hearing. Any short-fall is at the mercy of Court.

Summary:

Orders:

1. Application for adjournment granted without any undertaking or condition.

2. Cost in the cause.

The Court.

^[1] (2003) NSWSC 319 at p.24
^[2] Maneniaru V AG (2013) SBHC 118 at 7and 8.