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Viuru Forest Enterprise v Kolombangara Biodiversity Conservation [2014] SBCA 28; SICOA-CRAC 20 of 2013 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

1. On 23 August 2014 an order was made in HCSI Civil Proceedings 192 of 2012 restraining the Appellants from logging and for the removal of logging equipment. On 30 August 2014 leave to appeal that decision was filed. Leave pursuant to that application was granted on 8 October 2013. Counsel for the Appellants asserts that she first became aware of the grant of leave when the Registrar wrote to her on 3 March 2014. The same counsel provides no reason as to why inquiries were not made before then to ascertain if leave had been considered and/or granted. Any diligent and competent counsel, in our view, would at least ask of the Registry if the matter had received attention.
   
2. Time for the filing of the notice of appeal following the grant of leave is governed by Rule 10 (3) Court of Appeal Rules. Time starts when the applicant is informed of the grant and that time is prescribed as 30 days. The notice of appeal then was required to be filed by 2 April 2014. That did not happen as the notice of appeal was not actually filed until 26 August 2014. It was by then four months and three weeks late.
   
3. No leave was sought in advance for the late filing. It has been sought today, the day set down for the hearing of the preliminary point and the substantive appeal, in accordance with the Directions Order made 2 September 2014. The only part of that Order complied with was the payment of security for costs. The Appeal Book was not prepared in time, submissions were not filed by the Appellant in time which caused the Respondent's submissions themselves to be filed late.
   
4. By way of explanation counsel for the Appellant submits that she assumed she had been given more than the usual amount of time by the judge who granted leave because it took a long time for her to discover leave had been granted. Whilst there is a curious logic to that suggestion it is to say the least fanciful. If counsel felt entitled to or needed further time it was incumbent on counsel to ask for that time and not to assume, by wishing, to have received the same.
   
5. At one of the many directions hearing that took place in August and September 2014 it became clear that the Respondent sought to agitate the question of the late filing. The single judge in making directions determined not to summarily dismiss the appeal (given that no notice of appeal had yet been served one could easily conclude that such a dismissal would be premature in any event) but that the matter should be dealt with as a preliminary point by the Full Court. At the same time he required the full appeal book and consequent submissions on the appeal to be filed prior to this hearing.
   
6. Counsel for the Appellant chose, for whatever reason, not to comply with that order. It seems that it suited neither her nor her client to do so when there remained the possibility that the preliminary point might not be determined in their favour. That, by result, became a self-fulfilling prophesy. Or, perhaps privately, counsel and the client knew that their position was entirely lacking in merit and concluded there was no point in further preparation for the substantive appeal.
   
7. The position of the Appellant is, indeed, entirely lacking in merit. This appeal is against interlocutory relief ordered more than a year ago. The proceedings within which it was made have been in abeyance for that time and nothing by way of progress has come about. That is a shocking state of affairs even by the standards of a jurisdiction where litigation is often delayed by a wealth of other factors.
   
8. It is quite wrong to attempt to portray an impression that the single judge in dismissing the application for summary dismissal of the appeal condoned the late filing. It is equally wrong to attempt to suggest that by allowing late filing he condoned the same. It is wrong because the single judge made clear to the parties that the matter be dealt with by the full court and indicated the same to the parties. Even counsel for the Appellant concedes that this is the true position. It is not clear, then, why she suggests that counsel for the Respondent has been "harassing" her for compliance with the direction order.
   
9. The application for leave to file the notice of appeal out of time is refused. Costs of this appeal will be paid by the Appellant to the Respondent. We considered whether the costs order should be directed at counsel for the Appellant personally, given that by her erroneous assumptions she contributed to the plight of her client but we note that included in submissions is the submission that what was done was done on the client's instructions. We accept that to be the position therefore the Appellant can bear the costs. Costs are ordered on an indemnity basis and will be agreed or taxed.
   

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Justice Goldsbrough JA, President

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Justice Hansen JA

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Justice Wilson JA,