HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 284 of 1999

KEITH EDWARD GARLAND DOUGLAS

–V-

THE ATTORNEY GENERAL

High Court of Solomon Islands
(CHETWYND, Registrar)

Date of Hearing: 9 February 2000
Date of Judgment: 29 February 2000	

Mr J Katahanas for the plaintiff
Mr G Samuels for the Defendant

JUDGMENT

(Chetwynd, Registrar): This hearing is consequential upon the Order of Honourable Justice Palmer dated 12/10/99. Following clause 3 of that Order I have to decide which scale the costs should be taxed on.

I have read the order itself, the affidavits lodged in the case, the written submissions of the Plaintiff and the cases referred to therein.

As a starting point I feel it is highly appropriate to look at Mr Justice Kabui’s judgment in the Reef Pacific case. (Unreported decision in case No. 16494 dated 12/11/99). That judgment succinctly and clearly sets out the principles to be considered when, as in the present case, an application is made for costs on an indemnity basis.

This case, to my mind, highlights the apparent ease with which the Courts adopt two different approaches to decide different issues within the same case. In the present case those two issues can be loosely viewed as the substantive issue and the issue of the consequences.

Palmer J was asked to decide the substantive issue, that is, whether or not the Prime Minister acted unlawfully in ordering the deportation of the Plaintiff. His Lordship found that the answer to that question was yes, the Prime Minister had acted unlawfully and his (the Prime Minister’s) order was quashed. I am now being asked to decide on the consequences of that decision. In simple terms, should the Prime Minister be “penalised” in costs for having been found to have acted unlawfully.

Now the dichotomy I mentioned earlier appears. In making his decision His Lordship said the Prime Minister’s actions had to be judged objectively, in old legal parlance, against the standards of the man on the Clapham omnibus. (Perhaps in the Solomon Islands this should be adapted to “the person aboard the mini-bus destined for Naha”). However it is clear from Kabui J’s judgment that I should adopt a subjective approach in deciding upon the consequences. In short then, a man’s actions can be judged objectively but the consequences of his action are judged subjectively. Of course, in criminal law this dichotomy is well recognised when often the question of quilt or innocence is put to an objective test but the sentencing exercise is a subjective one by the Court. Some people find this quite bewildering because it looks like the Court affords itself something it refuses to afford to the Parties, that is the luxury of subjective analysis, or a deliberate consideration of all the salient points.

I am not uncomfortable with the concept of the two different approaches. If it were any different it would result in law being an unyielding edifice, a harsh or unfair arbitrator of human nature. I find no difficulty in deciding whether a man has acted unlawfully or illegally according to a recognised standard or code and then deciding his fate according to my subjective view of his actions. A man may act in any given manner for many different reasons. He may have acted with all the best will in the world, from the very best of motives or out of naked hatred and malice. It is right therefore if a man’s actions are judged objectively but the consequences of those actions judged subjectively.

If I look at this case subjectively I have to say that the Plaintiff should be not be awarded costs on indemnity basis. I will consider the principles set out in Kabui J’s judgment.

The Prime Minister is the leader of a nation which is modelled on the democratic Westminster system. He has advisers be they Cabinet colleagues or civil servants. He has a duty to listen to his advisers and act on their advice. The Prime Minister’s affidavit (of 16/9/99) clearly shows he received advice. He says, at paragraph 8, “I have no reason to doubt the genuineness of this information”. His Lordship Palmer J says at Page 8 of his judgment of 1st October 1999, “………..and as long as it is shown he had acted in good faith (which is not challenged in this instance)……….”. It follows then that the evidence I have shows that the Prime Minister acted after information or advice had been given to him. There is then no evidence of bad faith on the part of the Prime Minister. 

Is that an end to that matter? No. It could be argued that “high handed presumption” is something less than bad faith. If that is the case I would respectfully suggest that the Prime Minister, by acting on what he believed to be genuine information, would not be said to have acted with high handed presumption.

Turning now to the question of ulterior motive, there does not seem to me to be any argument raised by the Plaintiff on this issue. In any event I cannot see in any of the papers before the Court any evidence of an ulterior motive on the part of the Defendant.

That then leaves the question of whether there is anything special or unusual in the case. The only unusual element in this case was the fact that the Prime Minister declined to produce further evidence when invited to do so. I can only speculate as to why he acted in that manner. It is clear from His Lordship’s notes that the Attorney Generals Chambers had discussed the matter with the Defendant and that there had been a conscious decision not to proceed with the filing of an affidavit. It may have been that the Prime Minister felt that politically it would be wrong to proceed further, it may have for reasons of security. I just do not know. What I do feel however is that this decision not to proceed is not reason enough to “penalise” the Defendant in costs.

We then turn the allegations of fraud. I respectfully suggest the allegations of “treason” by the Defendant are, in this particular case, the equivalent of allegations of fraud. However, there is no evidence to suggest that the Prime Minister knew the allegations were false or irrelevant. As I have indicated earlier, the Defendant acted on advice or information which he believed to be genuine.

We are left then with the issue of whether the Defendant should have known that the deportation order would not stand up to legal scrutiny. There is nothing in His Lordship’s judgment of 1st October 1999 which roundly condemns the Prime Minister. His Lordship merely says (at page 13) that there were insufficient facts to satisfy the objective test and that unless further evidence were introduced then the Court would have little option but to find that the Prime Minister “had little or no reason…….”, to make the deportation order.

In all the circumstances of the case I will decline to award the Plaintiff costs on an indemnity basis.

David Chetwynd
Registrar