IN THE HIGH COURTOF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

ATTORNEY GENERAL
Claimant

AND

JAMES FANG
First Defendant

AND:

FANGS COMPANY LIMITED
Second Defendant

Date of Hearing: 6 April 2009
Date of Decision: 19 May 2009

Mr. S. Woods for Attorney General 
Mr. C. Ashley for First and Second Defendants

DECISION ON APPLICATION FOR SUMMARY DISMISSAL
AND/OR STRIKING OUT OF COUNTERCLAIM

Cameron PJ

1 The Attorney General applies for a dismissal or striking out of the first and second defendants’ counterclaim on the grounds that no reasonable cause of action is disclosed.

2 The first and second defendants own a wholesaling and retailing business in Chinatown. It is common ground that the defendants’ buildings, from which that business operated, were substantially damaged or destroyed by fire in the Chinatown riots of 18 April 2006.

3 The defendants have two disputes arising from those circumstances. The first is with the Honiara City Council and Town and Country Planning Board relating to dealings between those parties when the defendants attempted to rebuild their premises following the fire.

4 The second dispute is with the police, the claim essentially being that the police did nothing to prevent the rioters setting fire to Chinatown including the defendants’ buildings. The Attorney General in this proceeding represents both the Town and Country Planning Board (including the Honiara City Council) and the Police.
 
5 The defendants’ counterclaim is contained in paras 6 to 8 of the statement of defence and counterclaim dated 8 June 2006.
 
6 Paragraphs 6 and 7 address the dispute between the defendants and the Honiara City Council and the Town and Country Planning Board. I set out below those paragraphs:

"6. The reconstruction of the three buildings on Lot 286 was for a temporary period. The Defendants had applied to the Town & Country Planning Board but the application was refused by the Board. The Defendants have since appealed to the Minister under section 19 of the Act. Since the enforcement notice was suspended by operation of section 23 of the Act, the Defendants are entitled to continue on with their activities on their land.

7. The Plaintiff’s commencement of action in the High Court instead of the Magistrates Court was calculated to cause further financial losses on the Defendants. By obtaining injunctive relief on an ex parte hearing without the filing of originating process, the Plaintiff has caused the Defendants to continue to suffer losses the full particulars of which will be itemized at the trial of this action."

7 The relief sought in relation to paras 6 and 7 of the counterclaim is simply:

"(b) Losses arising from injunction to operate business to be assessed".

8 It is immediately apparent that there is a marked insufficiency of pleading in paras 6 and 7, so much so that it is difficult to discern the essence of the complaints against the Honiara City Council and Town and Country Planning Appeal Board. It is clear that Rule 5.3 of the Solomon Islands Courts (Civil Procedure) Rules 2007, specifying the particulars to be contained in a statement of case, has not been complied with.

9 Reading paras 6 and 7 together with other material before the Court, the main complaints seem to be that in June 2006 the Honiara City Council was wrong to seek an injunction in the High Court preventing his defendants from reconstructing their premises and hence resuming trading, that it was wrong to seek that injunction ex parte and without the filing of writ of summons and statement of claim (the old Rules then applied), and that there was non disclosure of material facts to the Court at the time the Council applied for the ex parte injunction.

10 A perusal of the material before the Court shows that the Council did indeed apply for an ex parte interim injunction on 2 June 2006 to stop rebuilding of the premises by the defendants on the grounds that the defendants had failed to comply with a previous enforcement notice by the Town and Country Planning Board dated 10 May 2006 requiring them to stop reconstruction work on the property. It is apparent from the affidavit in support of the application that the concern of the Council was that the proposed building, not having been approved as to design, would be unsafe.

11 On 2 June 2006 the High Court granted the ex parte injunction and made orders preventing rebuilding and prohibiting occupation of the buildings.

12 An extract from the notes of the judge who granted the orders states "I direct that the affidavit stand by way of pleading on your undertaking to file a summons".

13 Pursuant to that undertaking on 6 June 2006 a writ of summons and statement of claim were filed. On 7 June 2006 the defendants’ lawyers filed an inter-partes application for orders setting aside the ex parte orders. The matter next came before the High Court on 6 July 2006 on an inter-partes basis, at which time the ex parte orders were continued with the variation that the defendants could use the buildings as storage for goods already in stock. The matter was then adjourned with liberty given to the parties to apply on two days’ notice.

14 By a decision of the High Court on 17 August 2006 the first defendant was found guilty of contempt for disobeying the orders of the Court, and on 6 September 2006 he was fined $10,000 for that contempt.

15 Following an inter-partes hearing in the High Court on 3 October 2006, in a decision dated 2 March 2007 the High Court discharged the previous orders of the Court preventing reconstruction. 

16 To complete the picture, in October 2006 the second defendant applied to build a shopping centre on the land, and following modifications and a letter of undertaking from the first defendant as to the safeness of the buildings, this has now been approved by the Council subject to conditions.

17 To return to the criticisms of the defendants, it was always open to the Honiara City Council and the Board to apply to the High Court for restraining orders based on public safety. The fact that the orders were made ex parte was no doubt a reflection of the urgency of the matter as perceived by them. The absence of a writ of summons and statement of claim was not fatal to the application, and was dealt with by the judge treating the affidavit as an originating document and ensuring by way of an undertaking from Council that a writ and statement of claim would be filed promptly thereafter.

18 As stated, the matter then came back before the Court on an inter partes basis on 6 July 2006, which was the appropriate time for any complaints about what had previously occurred to be raised. Not only does it seem that no complaints were raised on behalf of the defendants, but there was no objection to the continuation of the prohibition on reconstruction subject to the variation as to storage. The parties were given leave to apply further on two days notice, which provided a further opportunity for the defendants to raise any matters of concern, should they have wished to do so, but that opportunity was not taken.

19 The fact that the orders were properly made is further reflected in the fact that the first defendant was found guilty of contempt and fined heavily in relation to a breach of those orders.

20 As to the assertion that there was non-disclosure by the Council of material facts to the Court on 2 June 2006, this appears to relate to the fact that the Court may not have been informed at the time that the defendant had previously applied for a temporary permit to reconstruct, and had appealed the refusal to allow them to do so to the relevant Minister, as well as appealing to the Magistrate’s Court against the enforcement notice. However, the time to raise any objections of this nature was at the time of the inter partes hearing on 6 July 2006 when there was the opportunity to have the matter re-heard, or subsequently by application.

21 In my view no reasonable cause of action arises in relation to paras 6 and 7 of the counterclaim. The Council and Board were entitled to apply to the High Court for the orders sought. In addition, the pleading that the obtaining of the orders caused the defendants to continue to suffer losses cannot succeed for lack of causation. The cause of the losses was in fact the fire, and not the actions of the Council and Board.

Participating Police Force (PPF)

22 I now turn to the dispute the defendants have with the police, which is encapsulated in para 8 of the counterclaim of the defendants. Paragraphs 8 states:

"8. The Plaintiff as representing the Royal Solomon Islands Police (RSIP) and the Regional Assistance Mission to Solomon Islands (RAMSI) failed to perform statutory duties placed upon them by the Police Act and the Facilitation Act respectively. The failure of the Plaintiff (through RSIP and RAMSI) to perform their statutory duties had resulted in the destruction of the Defendants properties valued at around $10,000,000-00".

23 By virtue of the allegation made in para 8, the defendants claim by way of relief:

"Losses from destruction of properties up to the value of $10,000,000."

24 Further particulars of para 8 of the counterclaim were provided in an affidavit by the first defendant dated 21 May 2008. That statement contains the following:

"Particulars of Defence to Counter-Claim 

8.	Throughout the day of Tuesday 18th April 2006, I was in the Defendants’ Chinatown shop until about 6 pm. When the rioters arrived and started on their looting, destruction and burning at our shops, I did not see a single RSIP or RAMSI officer anywhere within 100 metres of our shop.

9.	Nearly all the Defendants’ employees are Solomon Islanders and some of them assisted my family escape the mob that destroyed our properties. I am informed by our employees and verily believe that the RSIP and RAMSI did not cross the bridge leading into Chinatown until late next day when nearly all properties have been looted, burnt or destroyed.

10.	Since 18th April 2006, neither I nor any of the Defendants’ employees have been approached by RSIP and RAMSI officers about the identity of the individuals who actually looted, burnt and destroyed properties in Chinatown."

25 These complaints against the police amount to a criticism of them for not intervening and preventing the rioters from burning the defendants’ buildings.

26 Although the particulars provided are clearly inadequate and insufficient to satisfy Rule 5.3, the real issue is whether such facts if properly pleaded are capable of disclosing a reasonable cause of action against the police.

27 I deal first with the allegations against "RAMSI officers", which I assume is a reference to the participating Police Force (PPF).

28 The PPF are, of course, part of the visiting contingent to Solomon Islands, which contingent is present by virtue of a notice published by the Governor General under section 3 of the Facilitation of International Assistance Act (2003). Section 19 of that Act states:

"19. While respecting the laws of Solomon Islands, the visiting contingent shall have the sole responsibility for the internal command, control, discipline and administration of the personnel of the visiting contingent."

29 Section 17 provides an immunity from legal proceedings to members of the visiting contingent. It states:

"17. (1) Members of the visiting contingent, and any other country whose personnel are members of the visiting contingent, shall have immunity from legal proceedings in Solomon Island courts and tribunals in relation to actions of the visiting contingent or its members that are in the course of, or are incidental to, official duties."

Legal proceedings include civil proceedings (section 17(4) of the Act).

30 There is no duty or statutory obligation on the visiting contingent. Section 7(1) provides that armed forces and police members of the visiting contingent "may exercise any powers that may be exercised by police officers appointed under the Police Act", but this merely confers a discretionary power to do so, and not an obligation at duty.

31 Even had there been a cause of action against the PPF, the immunity under section 17(1) would apply.

32 It is accepted that the head of the PPF is appointed a Deputy Commissioner of the Royal Solomon Islands Police Force (RSIP). Although not pleaded, in this way it could be suggested that the Commissioner of Police (the Government) is vicariously liable for the acts of the PPF. However, the head of the PPF is solely responsible for the command and control of the PPF, and hence there can no vicarious liability or negligence by the Commissioner of Police for any decision made by the head of the PPF. In any event, the head of the PPF as Deputy Commissioner of the RSIP is an officer of the Crown, and under section 4(4) of the Crown Proceedings Act the written law (i.e. the Facilitation of International Assistance Act) applies to limit the liability of the Crown in the same manner as the liability of the head of the PPF is limited under the Facilitation of International Assistance Act.

33 For all these reasons no cause of action is disclosed against "RAMSI officers" or the PPF, or the Commissioner of Police in relation to actions of the PPF. The discussion below as to potential liability of the RSIP is also equally applicable to the PPF, and provides a further reason as to why no liability can attach to them.

Royal Solomon Islands Police

34 The pleading against the RSIP is that they failed to perform statutory duties under the Police Act. There is no allegation of careless performance.

35 Section 4(2) of the Crown Proceeding Act provides:

"(2) When the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity."

36 Therefore, even if the Police Act imposed statutory duties which could give rise to tortious liability, the Crown could not be liable for a failure of that duty because any such duty is not "binding also on persons other than the Crown". That is, the Police Act binds only the police.

37 While that reason is sufficient to dispose of the matter in favour of the Attorney General, I go on to consider the more fundamental question as to whether the Police Act gives rise to statutory duties sufficient to create a liability in tort.

38 In X (Minors) v. Bedfordshire County Council [1995] AC 633, Lord Browne-Wilkinson identified various categories of private law claims for damages for breach of statutory duty. The first was breach of statutory duty simpliciter, of which he stated, p. 731:

"The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action".

The learned judge went on to state a private law cause of action would arise if on the construction of the statute it could be shown that the statutory duty was for a limited class of the public and that Parliament intended to confer a private right of action for breach of duty on members of that class.

39 In this case any duty imposed by the Police Act is for the protection of the public as a whole, and is not intended to protect a limited class. The pleadings in this case simply allege a breach of statutory duty, and hence on the authority of this case, which I hold to be equally applicable to the Solomon Islands, no cause of action exists.

40 I next consider whether any potential cause of action may exist on the facts. In X (Minors) v. Bedfordshire County Council (supra), Lord Browne-Wilkinson stated:

"In my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such a common law duty of care will be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties".

41 In Hill v. Chief Constable of West Yorkshire [1989] AC 53, the mother of one of the murdered victims of Peter Sutcliffe (the ‘Yorkshire Ripper’) brought proceedings on behalf of her daughter’s estate against the Chief Constable of West Yorkshire, in which the police were criticised for not apprehending Peter Sutcliffe earlier. The House of Lords unanimously found there was no duty owed by the police. This finding is what has been referred to in subsequent cases as the "core principle" in Hill’s case. The policy reasons behind such a finding included that the existence of such a duty of care would negatively impact upon the police, would be inconsistent with and discourage the due performance by the police of their statutory duties, and that it would be inappropriate to require courts to analyse certain matters involving a variety of decisions relating to the most appropriate way to deploy available resources.

42 That "core principle" was confirmed in the subsequent House of Lords case of Brooks v. Commissioner of Police for the Metropolis [2005] 2 All ER 489, a case in which a key witness to a killing sued for the police for the way he was treated in a subsequent inquiry. The House of Lords rejected the contention that the police owed Mr. Brooks a duty of care in relation to how they conducted the inquiry. Lord Steyn in that case confirmed the core principle in Hill’s case.

43 In the two cases of Chief Constable of the Hertfordshire Police v. Van Colle; Smith v. Chief Constable of Sussex Police [2008] 3 All ER 977; [2008] UKHL 50, Lord Hope expressly approved the comments of Lord Steyn in the Brooks case (supra) confirming the core principle in Hill’s case. Lord Hope confirmed that the allocation of resources must be left to the judgment of the police, and rejected the desirability of having judges determine complex balancing questions. He stated, para. 78, that any alternative approach would lead to:

"Defensive policing focused on preventing, or at least minimising, the risk of civil claims in negligence. It could deny the police the freedom they need to act as the occasion requires in the public interest. In my opinion the balance of advantage in this difficult area lies in preserving the Hill principles."

45 In my view the principles enunciated Hill’s case, Brooks case and Van Colle and Smith’s case are equally applicable to and part of the law of Solomon Islands.

46 In a similar vein the High Court of Australia in Tame v. New South Wales (2000) 211 CLR 317 stated, per Collinson J at para 335:

"In Sullivan [(2001) 207 CLR 562, 581], the Court referred to Hill v. Chief Constable of West Yorkshire (389) in this way (388):

"In Hill v. Chief Constables of West Yorkshire (389), the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out (390) that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate."

47 Mr. Ashley for the defendants accepts the principles those cases enunciate, but seeks to distinguish them from the facts of the present case. He argues that in the present case the allegation is not that the police negligently performed their duties, but that they did not carry out their duties at all. He says that accordingly they are in breach of their statutory duties and can be sued by those adversely affected, including his clients.

48 With respect, that contention does not withstand scrutiny. The decision to deploy police officers or not at any particular time to any particular location during the riots was entirely within the discretion of those in command of the police operation, having regard to the resources available, the perceived desirability or otherwise of doing so, and no doubt a number of other considerations. It would have been only one aspect of the response by the police to the situation which developed. Based on the stated principles, the police owed no duty of care to the public in this situation.

49 Further, as previously stated, the claim for breach of statutory duty (simpliciter) must fail – section 4(2) of the Crown Proceedings Act and X (Minors) v. Bedfordshire County Council (supra).

50 Finally, at the hearing Mr. Ashley referred to the fact that the Commission of Inquiry into the April 2006 riots had recently released its findings, that they were potentially relevant to this case, and that this Court should take judicial notice of them. However, I was not referred to any particular finding and asked to assess its potential relevance to this case.

51 For the reasons expressed the counterclaim discloses no reasonable cause of action against the RSIP (or the PPF).

52 The entire counterclaim is now dismissed as failing to disclose any reasonable cause of action.

53 The Attorney General is entitled to costs. Failing agreement, the parties are at liberty to submit memoranda within 28 days.

_________________________

THE COURT