Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Cable & Wireless v Commissioner of Inland Revenue [2004] SBCA 12; CA-CAC 017 & 019 of 2004 (10 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Civil Appeal No 17 of 2004
Civil Appeal No 19 of 2004
Civil Cases Nos 141-146 of 2003

PARTIES:

CABLE & WIRELESS PLC
(appellant)

V

COMMISSIONER OF INLAND REVENUE
(respondent)

CITATION: Cable & Wireless PLC v Commissioner of Inland Revenue

DIVISION: Court of Appeal
PROCEEDING: Civil Appeal
ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 10 November 2004
DELIVERED AT: Honiara
HEARING DATE: 4 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

JUDGMENT OF THE COURT

1. ORDERS: Both appeals allowed
   
2. Order made below set aside
   
3. The matter is remitted to the High Court to hear and determine each appellant’s application
   
4. Costs in both appeals shall be costs in the cause
   

COUNSEL: J Sullivan QC, with R Kingmele, for the appellant
N Moshinsky QC, with F Walenesia, for the respondent

[1] THE COURT: By notice of appeal dated 12 October 2004 Cable and Wireless PLC (hereinafter referred to as “the company”) appealed against a decision of the High Court of 24 August 2004. That same decision is also appealed by the Commissioner of Inland Revenue (“the commissioner”) in a notice of appeal dated 26 October 2004.
[2] The two appeals can conveniently be disposed of together, as proposed by the parties; the substance of each appeal concerns the same matter, that is to say the applicability of the High Court Civil Procedure Rules (“the Rules”) to appeals brought under section 79 of the Income Tax Act (cap 123) (“the Act”).
[3] As a matter considered by the parties to be a preliminary matter to the substantive appeal brought under the Act existed, both parties made respective applications to the Court. In the case of the Commissioner that the appeal be struck out having disclosed no reasonable cause of action and in the case of the Company that a preliminary determination on a matter of law would substantially dispose of the appeal.
[4] In both applications reliance was placed, indeed assumed, on the applicability of the Rules, in particular Order 27 rules 2 and 4. In the case of the Commissioner reliance was also placed on the Court’s inherent jurisdiction.
[5] When the matter came before the court, the court was addressed by both counsel on the substantive issues. No reference was made, or required, to the question of applicability of the Rules or the procedure adopted by either party.
[6] Neither counsel was aware that in the learned judge’s mind, the question of applicability was of overriding concern. This only became apparent to counsel when the decision of the court was delivered one week later.
[7] That the court determined the issue on a point not raised in argument by counsel, and on which the court did not require and permit submissions itself warrants the intervention of this court, and is naturally a separate ground of appeal. When the point so demonstrably was to determine both applications, it would have been wise for the court to have elicited the views of counsel on the matter. To have failed to do so amounts to a serious error – an error that can at least be rectified by this court.
[8] The Rules written, as substantially they were, in 1964 did not envisage statutory appeals under this or many other Acts that have recently emerged. It is understandable therefore that a court may question their applicability. A simple device may well assist in future were the draftsman to expressly provide for the Rules to be extended to apply. The Rules Committee may also consider the applicability of the Rules to pre-existing situations.
[9] Hence this court finds itself substantially in agreement with the decision of the learned judge below. Counsel have attempted to persuade this court to widen the accepted meaning of various words defined in the Rules such as “cause” “pleading” “party” and “plaintiff”, to an extent that we are not prepared to accept.
[10] However it may well not be necessary to analyze in great detail why this court is not prepared to accept each individual wider meaning, since a determination that these Rules do not extend to the Act will dispose of further argument.
[11] Section 2 of the Rules provides that “These Rules shall apply in all causes and matters to which they extend in the High Court.” Logic dictates that at the time of writing they did not extend to matters then not in existence. A useful starting point thereafter may be to look for an extension either express or by necessary implication. Hence the suggestion of this court contained in para 8 of this judgment.
[12] This is in no means fatal to either appeal. Whilst it suggests that the Rules do not automatically apply in every instance, this does no preclude a decision of the court to apply the same Rules in the exercise of its inherent jurisdiction.
[13] The Act in section 79(3) makes brief reference to how an appeal may be handled. That reference may serve to displace the applicability of the Rules, but it falls well short of providing a comprehensive framework within which a court can dispose of such an appeal.
[14] The notion of a court’s inherent jurisdiction to control its proceedings has been sufficiently well established over many years so as not to require restatement here. It was a notion referred to by the Commissioner in his application, and no doubt given the opportunity it would have been raised by counsel in the court below had it become apparent that the applicability of the rules was an issue.
[15] In exercising its inherent jurisdiction to control its own procedure, the court may well, and for good reason, decide to apply the Rules where appropriate and with necessary modifications.
[16] This indeed may have appealed to the learned judge dealing with the application, since in his ruling it is clear that he agreed that the proposed procedure had its attraction in terms of tending to save costs.
[17] The learned judge was also correct to refer to the danger of too readily agreeing to accept a matter as a preliminary issue and we endorse the caveat to be found in Tilling and Another v Whiteman [1979] UKHL 10; [1979] 1 All ER 737 at p 744. But in this case there is clearly great merit in allowing these particular preliminary matters to be determined prior to the substantive appeal.
[18] These two appeals are therefore allowed. The order made below is set aside. The matter is remitted to the High Court to hear and determine each appellant’s application.
[19] Costs in both appeals shall be costs in the cause.