HIGH COURT OF SOLOMON ISLANDS

Case name: 	Aopuru v Chan Wing Motors Ltd 	
		
Citation:		
		
Date of decision: 	19 June 2024	
		
Parties: 	Moses Aopuru v Chan Wing Motors 	
		
Date of hearing: 	12 June 2024	
		
Court file number(s): 	387 of 2023	
		
Jurisdiction: 	Civil	
		
Place of delivery: 		
		
Judge(s): 	Aulanga; PJ	
		
On appeal from:		
		
Order:	1) 	The application to strike the claim filed on 8th August 2023 pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted.
2) 	Consequently, the claim is entirely dismissed under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for it is an abuse of the Court’s process. 
3) 	Costs of and incidental to this hearing is to be paid by the Claimant to the Defendant on standard basis, to be taxed if not agreed.	
		
Representation: 	Mr. M. Pitakaka for the Claimant 
Ms. J. Soaika for the Defendant 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.75, r 9.75 (c)
Trade Disputes Act 1981 S 10 (4)	
		
Cases cited:	Aopuru v Honiara Hotel [2022] SBTDP 1, Queen v Trade Disputes Panel [1997] SBHC 117	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 387 of 2023

BETWEEN:

MOSES AOPURU
 Claimant

AND:

CHAN WING MOTORS LIMITED
(Trading as Honiara Hotel)
Defendant

Date of Hearing: 12 June 2024
Date of Ruling: 19 June 2024

Mr. M. Pitakaka for the Claimant 
Ms. Soaika for the Defendant 
RULING ON STRIKE OUT CLAIM APPLICATION 
Aulanga PJ
1. 	The purpose of rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is to dismiss a proceeding that is frivolous and vexatious, or there is no disclosure of reasonable cause of action, or is considered as an abuse of the Court’s process.
2. 	Frelovous means a proceeding which is not worth any serious attention by the Court or that, which is manifestly futile. A vexatious proceeding means a proceeding that constitutes or is clothed with harassment of the defendant. A proceeding that does not disclose a reasonable course of action is when a proceeding generally does not, or the particular claim for relief in the proceeding does not, disclose a reasonable cause of action. A proceeding can be an abuse of the Court’s process if it seeks to employ the Court’s process for an improper purpose or in an improper way. Any existence of any of these grounds will render dismissal of the proceeding either in part or whole.
3. 	The Claimant is a former employee of the Defendant. His employment was without a written contract since 1997. His employment however was ceased in 2020. Thereafter, he lodged an employment dispute case with Trade Dispute Panel over his cessation of work. The Panel decided in his favour and made pecuniary awards for the Defendant to make payment of salaries, NPF contributions, payment in lieu of notice and repatriation costs, for loss of employment. The Defendant appealed that finding in another High Court proceeding. That proceeding is still pending determination in the High Court. Despite that pending proceeding, the Claimant commenced this proceeding, seeking similar reliefs to those that had been adjudicated and decided by the Panel and still pending decision on appeal at the High Court.
4. 	The Defendant applies to strike out the proceeding, raising denial of the purported wrongful and unlawful termination of the Claimant’s employment. The Defendant however asserts that he was made redundant under the Employment Act. And because of the failure to plead any breach of any contractual clause of the employment, and considering that the issue of redundancy and the reliefs awarded by the Panel arising from the same employment dispute between the Claimant and the Defendant are still pending determination at the High Court, this entire proceeding should be struck out or dismissed.
5. 	The Claimant admits that this same employment dispute was lodged at the Trade Dispute Panel. The Panel in fact found in his favour by making pecuniary awards described in paragraph 3 above. The awards have been challenged by the Defendant on appeal to the High Court and the decision is still pending. The Claimant, however, asserts that the proceeding at the Panel is on unfair dismissal of his employment while this proceeding involves wrongful dismissal which only the High Court has the jurisdiction to hear. This differentiates the nature of the case. The Claimant asserts that the application should be refused with cost on indemnity basis since the claim is not one that falls under Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 and for delaying of the proceeding.
Court’s Analysis and Decision
6. 	For this application, peripheral issues had been raised. I think the main overarching question that needs to be considered is; whether the filing of this proceeding for the reliefs that are in fact the same or identical reliefs that had been adjudicated at the Trade Dispute Panel and are still pending decision on appeal at the High Court, is amounting to duplicity of proceeding.
7. 	It is important to appreciate the facts of this case and the issues raised at the Trade Dispute Panel that are still pending determination of the appeal in another High Court proceeding.
8. 	The Claimant was employed by the Defendant on 18th September 1997. There was no written contract signed by the parties to provide for the terms of the employment. All along, the salaries and other employment benefits and allowances received by the Claimant were given at the Defendant’s own will and calculation without a contractual term.
9. 	Their relationship deteriorated. On 24th June 2020, the Defendant wrote to the Commissioner of Labour to have the Claimant on 3 months unpaid leave and eventually, for redundancy.  On 8th September 2020, the Claimant lodged a trade dispute complaint at the Trade Dispute Panel. While the matter was still at the Panel, the Defendant wrote to the Commissioner of Labour to have the Claimant made redundancy and did received approval for redundancy from the Commissioner of Labour in the same month, effective as of 1st October 2020.
10. 	The Panel heard the complaint and found in favour of the Claimant and made awards for salaries, NPF contributions, payment in lieu of notice and repatriation costs, to be paid to the Claimant for the loss of his employment. The Defendant aggrieved with the Panel’s findings and appealed the matter to the High Court in HCSI CC 279/2022 and is still pending the High Court determination.
11. 	While the case is still pending at the High Court, the Claimant commenced the present proceeding. In the claim, the reliefs sought are for declarations that the Defendant unlawfully terminated the Claimant, a declaration that the Claimant is entitled to his salary and allowances and other benefits to his retirement age of 55, award of aggravated and exemplary damages on the grounds of the Defendant’s unlawful and arbitrary actions, damages for wrongful dismissal, interests on those awards and for costs.
12. 	It is worth noting that the complaint pending at the High Court is the same employment dispute in the present proceeding. That is, it involves the same parties, the same employment complaint and more or less the same pecuniary reliefs that are still pending at the High Court.
13. 	The Claimant decided to lodge the complaint at the Trade Dispute Panel for unfair dismissal and the Panel had decided on the issue of his salary and other financial benefits and allowances that should be paid to him as a result of his loss of employment. If the appeal is to be decided in his favour, the Claimant will be entitled to the awards that are more or less the same reliefs he is seeking in the present proceeding. If the converse occurs, the Claimant may still want to exercise his right to the Court of Appeal.
14. 	I have noted the emphatic submissions of the Claimant that there is a cause of action disclosed by the claim and the issues raised by the Defendant are matters for trial.  Further, I have also noted that this case involves wrongful dismissal of employment while the case at the Panel involves unfair dismissal to distinguish these two matters.
15. 	Despite the difference in terminology and jurisdiction, the flaw in that argument is that the reliefs sought and the issues for the Court to consider are basically the same.  That is, the termination of employment of the Claimant and the pecuniary reliefs to be awarded to him as a result of his loss of employment. In the “Award” section of the Panel’s decision cited as Aopuru v Honiara Hotel [2022] SBTDP 1, I have noted the Panel has deliberated and made pecuniary awards for various entitlements of the Claimant totalling $35,146. Despite that, the Claimant commenced this proceeding seeking the jurisdiction of this Court to grant salaries and other allowances under the cover of wrongful termination or dismissal of employment. That cannot be so.
16. 	 The Claimant cannot commence the same employment dispute at two different Courts for the same or alike reliefs. Once the jurisdiction of the Panel is triggered and except for cases filed pursuant to section 10 (4) of the Trade Disputes Act, the law is clear that for employment dispute cases, the law confers power on the Trade Disputes Panel to deal with disputes between employees and employers in connection with terms and conditions of employment, terminations of employment or membership of a trade union and other matters set out under the definition of “trade dispute” in the Trade Disputes Act 1981. Even if the claim is brought under section 10 of the Trade Disputes Act, that issue is still pending determination on appeal in the other High Court matter which makes it inappropriate for this Court to hear this matter.
17. 	In Queen v Trade Disputes Panel [1997] SBHC 117, CJ Muria (as he then was) dealt with the same issue when one of the parties decided to commence proceedings at the High Court when the matter was still before the Trade Dispute Panel, made these comments [at 3]:
	“The question of fairness or unfairness of the dismissal of the employees in this dispute is one of the matters referred to the High Court in CC244/97.  But as it is clearly observed, the dismissal of the employees and whole problem in this case were a consequence of the trade dispute which had already since been referred to the Panel.  It is therefore proper that the Panel must first deal with the trade dispute in the exercise of its powers under the Trade Disputes Act.  This is the scheme envisaged by the Act and there is nothing to limit that save for the right of appeal against the Panel’s decision to the High Court.”
18. 	Whilst it can be said that the company is entitled to come to the High Court and seek the orders sought in CC244/97 and CC287/97, I feel bound to give effect to the spirit of the law regarding employment related disputes in Solomon Islands as contained in the Trade Disputes Act 1981. For I do not think it is the intention of the legislature to create the Trade Disputes Panel, clothe it with powers to determine trade disputes but cannot exercise those powers simply because the parties or one of the parties have insisted on invoking the unlimited jurisdiction of the High Court. If it were so, it would make the Panel a dead statutory creature.” 
19. 	More relevantly, the Court then continued to make these comments on the issue of duplicity of proceeding [at 4]:
	“...it should be noted that as the matters before the High Court in CC244 of 1997 are essentially the same issues before the Panel, the High Court may well decide against duplication of proceedings and halt all related proceedings before it (High Court). So that the Panel which has the jurisdiction to deal with the issues under dispute, properly consider and deal with all the issues under dispute and makes its decision. I feel this is the more appropriate way of dealing with a dispute of the kind we are concerned with here. Of course there is the right of recourse to the High Court under the Act.”
20. 	In this case, there is no issue that this same complaint has been referred and dealt with at the Trade Dispute Panel and is still pending at the High Court in HCSI CC 279/2022. If this present proceeding, on the pretext of wrongful dismissal or termination of employment, is to be continued at this Court, I can see that there is a risk of having or maintaining two proceedings concurrently together. One, at the Trade Dispute Panel and the other, at the High Court, seeking more or less the same or similar pecuniary reliefs based on the same employment dispute between the same parties. This, in my view, will amount to duplicity of the proceedings which is an abuse of the Court’s process, a ground for dismissal of proceeding. The Claimant cannot use or litigate the same employment dispute at two different Courts or forums for his own pecuniary benefits. Going by the authority of Queen v Trade Disputes Panel [1997] SBHC 117 referred to earlier, I do not think this is the appropriate way of dealing with this dispute and so I must decide against the Claimant in this proceeding.
21. 	For this application, the issue of whether the Claimant was terminated or made redundancy together with all the financial benefits and allowances, are the live issues that are still before the other High Court proceeding. Yet, the Claimant decided to file this proceeding which somehow runs afoul with the law.  Hence, I do not think it is legally appropriate or justice can be served for this Court to make a concurrent determination on this dispute by allowing the continuity of this proceeding.
22. 	The application to strike out this proceeding is granted and this proceeding must be dismissed entirely under Rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. Costs of and incidental to this hearing is to be paid by the Claimant to the Defendant on standard basis, to be taxed if not agreed.
Orders of the Court
1) 	The application to strike the claim filed on 8th August 2023 pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted.
2) 	Consequently, the claim is entirely dismissed under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for it is an abuse of the Court’s process.
3) 	Costs of and incidental to this hearing is to be paid by the Claimant to the Defendant on standard basis, to be taxed if not agreed.
THE COURT
Augustine Sylver Aulanga
PUISNE JUDGE