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Lilo v Kennedy [2014] SBCA 7; SICOA-CAC 19 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

On 25 June 2012 Kennedy and Others (""respondents"") filed an application pursuant to rule 11.23 of the Solomon Islands Courts (Civil Procedure) Rules seeking an order for disclosure before proceedings start against Gordon Darcy Lilo (""the applicant""). The principal relief sought was stated as follows:

""1. An order that the defendant disclose records including statement of

accounts, financial records and other documentary evidence showing how the defendant spent, used, managed or administered, the Rural constituency Development Funds, Millennium Funds, Micro Project Livelihood, Tsunami Funds and any other public funds and herein referred to as ""public funds"" as Parliament Member for Gizo Kolobagara Constituency from year 2002 to 2012 and thereafter.

3. Costs in the cause.""

On 25 July 2012 the appellant filed an application seeking to have the respondent''s application dismissed on the following grounds:

1. It is frivolous and vexatious;
2. It has no reasonable chance to succeed;
3. It is an abuse of the court process.
   

All Parties agree that on 13 November 2012 the application to strike out came before Mwanesalua J. The original application was not then listed before him.

On 15 July 2013 reasons for judgment were handed down. The learned judge concluded that the respondents'' application could not be regarded as, ""frivolous, vexatious and an abuse of the court process."" He then went on to order that ""orders 1 and 3"" in the application of 25 June 2012 be granted.

The appellant appeals against ""the whole of the Ruling and Order of the Court."" As both counsel agree no submissions were made to the judge on the substantive application the order made thereon must be set aside, that is, in so for as it was ordered in terms of paragraphs 1 and 3 of the substantive application those orders must be set aside.

On the appeal there was no serious challenge to the finding that the substantive application was not ""frivolous, vexatious or an abuse of the court process."" The critical issue was whether there were any reasonable prospects of success on the substantive application in its present form.

Disclosure before proceedings start is intended to be used only in exceptional cases. As the rule provides, there must be a sworn statement setting out why documents should be disclosed at that time. It is a discretionary remedy which ought not be provided readily or unnecessarily. The remedy will not be available when the documents can be obtained by other means. Further the court should not exercise its discretion in a way which would put an unreasonable burden on the person against whom discovery is sought.

Here the order sought could not be readily complied with. It seeks discovery of documents relating to ""any other public funds."" How is the person to whom the order is directed to know what documents are involved?

Then the relevant period is said to be ""2002 to 2012 and thereafter."" There is nothing in the supporting material to justify the order operating over a 13 year period. There are four funds named in paragraph 1 but it is not clear whether each of the funds operated through out that 13 year period.

The respondents assert in the application and in the supporting sworn statement of Moffat Maeta and Saba Jilla Prasa, that the respondents ""represent the constituents, voters and electorates of Gizo Kolobangara constituency."" The materials does not support that assertion. It would appear many constituents have indicated they do not support the application. Whether the named claimants in the substantive application have standing in their own right as voters to bring such an application is a matter which may ultimately have to be decided. But it is clear they have not established a proper basis for alleging they bring the application on behalf of all the constituents.

The sworn statement alleges the appellant ""held in trust public funds as trustee in trust for the claimants as beneficiaries."" Were these one trust or a trust for each fund? In any event what were the terms of the trust, who were the trustees and who were the beneficiaries?

Paragraph 8 of the sworn statement introduces more ""Public funds"" not mentioned in paragraph 1 of the application. There is reference to ""SIG Rural Livelihood, SIG contributions to RCDF, and SIG church tithe,"" What is said to be the applicant''s relationship to these funds? If that is not confusing enough to the appellant the paragraph finishes with ""and others."" That suggests this is no more than a fishing exercise.

It can be inferred from the material, and this was confirmed in oral submissions, that some at least of the documents being sought are public documents. Nothing is said by the respondents about attempts to obtain relevant information from public documents, and it was conceded no request had been made of the appellant to supply any documents before the application was brought.

When these matters were draw to the attention of Mr. Tagini, counsel for the respondents, he stated that the substantive application would need amendment before a judge could be asked to make order on it.

In the view of this court any such amendments would make the application an entirely different one to that now being made.

The only conclusion open is that there is no reasonable prospect of the respondents succeeding on the application in its present from. The present application should be struck out.

Whether the respondents, or some of them, have a viable claim against the appellant for discovery of documents before proceedings could only be determined on material placed before the court establishing a clear basis for the claim.

The appeal should be allowed, the orders made on 15 July 2013 set aside, and it should be ordered that the application of 25 June 2012 be struck out. The respondents should pay the appellant''s costs of the hearing on 15 July 2013 and this appeal.

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Goldsbrough JA
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Sir Ward JA
Member of the Court of Appeal