HIGH COURT OF SOLOMON ISLANDS

Consolidated Civil Appeal Case No. 78 and 79 of 2007

PATRICK DEFENCE LOGISTIC

V

MARGARET AND TIMOTHY IRO

FAUKONA, J.

Date of Hearing: 04 August 2008
Date of Judgment: 27 August 2008

J. Sullivan and Katahanas for the Appellant
M. Bird for the Respondents

JUDGMENT

Faukona, J.

Consolidation of the two appeals were necessary because the two Respondents said they were the former employees of the Appellant and who had filed complaints with the Trade Dispute Panel for unfair dismissal, and the issues raised are similar.

The Appeal is against the decision of the Trade Dispute Panel delivered on the 20th February 2007, setting aside its own previous ruling dismissing the complaints of the respondents, on 21st November 2006.

1.	Background Facts

The respondents allegedly claimed that they were unfairly dismissed from their employment by the appellant, a fact which the Appellant never conceded to. On 20th January 2006, the Respondents filed a complaint form TDPI with the Trade Dispute Panel, claiming unfair dismissal by the Appellant. On 14th March 2006, the Appellant filed form TDP2 in response to each complaint denying that it ever employed the Respondents.

On 15th November the Panel issued notice of pre-hearing to the parties for a returnable date 21st November 2006. On that date the Panel dismissed both complaints due to non appearance of the Respondents or their Counsel. The Dismissal Order was pronounced and perfected by the Panel Chairman.

On 30th November 2006, the Respondents applied to the Panel by way of Summons to vary, revoke or set aside the dismissal order. On 20th February 2007, the Panel upholds the Respondent’s application and set aside its own default dismissal order made on 21st November 2006. On 13th March 2007, the Appellant filed a Notice of Appeal in the High Court against the ruling of the Panel.

2.	The Issues

1.	Was the Panel, functus officio, and thus without jurisdiction to set aside its own order dismissing the complaints in default of appearance.

2.	Do the Trade Dispute Panel Rules, especially Rule 2 confer such jurisdiction to set aside a perfected order of 21st November, 2006?

3.	Can the Panel rely upon the procedure applicable in the Superior Courts in respect of setting aside of default judgment to invoke such jurisdiction.

3.	Was the Trade Dispute Panel Functus Officio

On the 21st November 2006, the Trade Dispute Panel exercising its powers under Rule 11(3) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules dismissed the Respondents complaints in default of appearance at the hearing. Upon dismissing the complaints, the question to ask, is the dismissal order final and what effect it has so that the Panel becomes functus officio. Mr. Sullivans argued that the dismissal order is final, Ms, Bird argued otherwise.

The principle of functus officio has often been raised in this Court, and they were raised in both criminal and civil litigations.

The Blacks Law Dictionary defines the words as:-

…"having performed his or her duty; without further authority or legal competence because the duties or functions of the original commission have been fully accomplished…"

To determine whether a court or a tribunal is functus officio depend on the decision the Court or a tribunal deliver at the end of the day. If it is intended to be a final determination then the determinant authority becomes functus officio. Next, the effect it will have on the rights of the parties.

Mr. Sullivan refers me to three criminal cases which discuss the principle of functus officio:-

1.	S (an infant) v. Recorder of Manchester.

2.	R v. Norfolk Justices, ex parte Director of Public Prosecutions.

3.	Solo v. R.

In the 1st case a juvenile appeared in Court for attempted rape. He consent to be tried summarily and pleaded guilty and a finding of guilt was entered. The hearing was adjourned for the purposed of inquiry into the appellant’s physical and mental condition. On the adjourned hearing the appellant was legally represented and his solicitor inform the court of the appellants mental condition and what were said to be instances of previous confession, asked that he be allowed to withdraw his plea of guilty and to plead not guilty instead.

After argument the court held that it was functus officio and had not such authority. The ruling was upheld by the Divisional Court. The appellant then appealed to their Lordships House.

Lord Mac Dermott on page 499 refer to Lord Goddord in the second case, page 569, after examining what a judgment means, summarised as thus:-

"…there must have been something which puts as end to the case: there must be a final adjudication; and there been no final adjudication in the present case. Therefore in my opinion the justices were not functi officio"….

In the second case the accused appeared in Court of summary for seven bankruptcy offences. He was convicted and the Justices committed him to quarter session for sentence. The Attorney General argued that as the committal was a nullity the proceedings before the justices had not concluded and they were not functi officio. Counsel for the accused argued that the case could not be sent back for sentence, as the justices had given judgment and were functi officio. The Divisional Court unanimously decided that the justices were not functi officio.

The third case is a situation where an unrepresented accused pleaded guilty to a charge of store-breaking. He admitted the facts and the Magistrates Court convicted him and imposed a twelve months imprisonment. The accused then appealed against both conviction and sentence. Kabui, J. stated on page 5 paragraph 1, I quote the last four sentences;

…"The argument therefore is that in this case, the Magistrate after having sentence the Appellant to 12 months imprisonment can do no more. There was nothing more to be done. The Magistrate was clearly fanctus officio. The case is closed"…

In the three classical case scenarios, case 1 and case 2 demonstrated that the sentencing part has yet to be done by the Courts, it has yet to accomplish its duties. Therefore the Courts are not functus officio. The third case is a situation where the court has entered a conviction and a sentence imposed. The Magistrate becomes functus officio, there is nothing more to be done. The case is closed. 

4.	Was the Default Order of Dismissal Final?

Mr. Sullivans argued that a Court or tribunal is functus officio because the judgment or order it gives is final. Therefore it has no jurisdiction to entertain the matter again unless specific jurisdiction is conferred. Where there is no such jurisdiction conferred, the only recourse open to an aggrieved party is to appeal the decision complained of.

Ms. Bird argued that the default order of dismissal made by the Panel on 21st November, 2006 was not final. Although she did not systematically refer me to a particular case authority on this point, I could pick from her book of authorities the case of Chan Wing Limited v. Wing Sun Company Limited, in which she also argued that the judgment in default was not a final judgment, and therefore could be set aside. Kabui, J. ruled on page 2 paragraph 2 and he said,

"…There is no doubt, in my view that the judgment in default of appearance in this case was a final judgment in that sum of $24,500 was a debt or a liquidated demand. It was not for pecuniary damages…"

This is a case where a default judgment was entered by the High Court, and of course this court has the discretionary power to set aside its own default judgment on merit. The SI Courts (Civil Procedure) Rules 2007, R 9.52 has provided for. I	n addition to that Muria CJ, said in Queen v. TDP, that the court has inherent power to set aside any order other than the final one. Clearly the above case does not assist the Respondents case. 

So what is a final order or judgment then? Palmer CJ said on Page 9 paragraph 2 in the Mega Corporation v. Lotinta;

…"A final order of judgment generally speaking is one over, which a previously existing liability of the defendant to the Plaintiff is ascertained or established".

Whether a default judgment can be a final judgment or not, the test is that the finality of an order or judgment depended on the effect of the order and whether it disposes of the rights of the parties. The test was set down in Bozon v. Atrinchan U.D.C.

…"It means to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order…".

This test was approved and adopted by this Court in a number of cases. For instance Taniana v. QBE Insurance International Ltd, Mega Corporation Ltd v Lotinta Suva’ahu v. Omex Ltd.

As to what is a final order, the application of the test must necessarily involve the examination of the Panel’s ruling. The ruling on 21st November 2006 was in the terms, "the matter is dismissed". The words speak for themselves. What effect does the order had on the rights of the parties? Mr Sullivan’s submission is clear on this point, that the dismissal order is final, especially as there was no possibility that the respondents would bring a fresh complaint again. Palmer CJ in Lotinta's case made it clear that a final order or judgment is one over. Which means any previous existing liability of the defendant to the plaintiff ascertained or established, is completely finish? Was there any other issue remain on the files so that the Panel would re-entertain it again. There was non left, the case was dismissed. In S v. Recorder of Manchester above Lord Morris at page 501 said, if magistrates are trying a case summarily they would not have completed their duty in regard to the case until they either [a] dismiss the case or [b] find the accused guilty and deal with him on that basis. Where a case is dismissed, be it a criminal or civil it is finality. In civil the effect of such an order is one that disposes off the rights of the parties, see Lotinta's case above. In this case the respondents cannot return to re open the dispute by using the default procedure to set aside the Panel’s order under R 9.52 of Solomon Islands Court (Civil Procedure) Rules 2007 which give the Courts jurisdiction to set aside their own default judgment, and not the Panel.

In my view, the Panel’s ruling and order of dismissal on 21st November 2006, is a final order, especially as there was no possibility that the respondents would bring a fresh complaint again, as their complaints are one that was over. Having said that, of course the Panel must be functus officio, when it made it’s ruling on 21st November 2007. However, should there be statutory rules which give the panel jurisdiction to set aside its own default judgment it may rightly exercise so, otherwise the only option is to appeal the ruling of dismissal to the High Court pursuant to Section 13 of the Trade Dispute Act.

5.	Does Applicable Statute or Rule confer Jurisdiction on the Panel to set 	aside its own final order?

There are two Acts and two Rules which govern the function of the Trade Dispute Panel. They are Trade Disputes Act (Cap. 75), Unfair Dismissal Act (Cap. 77) Trade Disputes Panel Rules and the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules. Rule 11(3) of the TDP (Unfair Dismissal and Redundancy) Procedure Rules confers power to dismiss a complaint in default of appearance at hearing, including preliminary hearing Rule 11(2). Rule 2 of the Trade Dispute Panel Rules provides that Panel may determine their own procedure subject to the Rules and to the requirement of natural justices. Section 3(3) (d) of the Trade Dispute Act, the Rules Committee may make rules prescribing the procedure to be followed before the Panel.

Apart from those provisions neither the Acts nor the Rules confer any express power on the Panel to set aside its own final orders.

In this Court Ms. Bird argued that upon reading of S. 3(3) (d) of the Trade Disputes Act, together with Rule 2 of the Trade Disputes Panel Rules, the Panel has the power to set aside (revoke) and review its own decision in the interest of justice and that the Respondents be given chance to be heard. However S. 3(3)[d] does confer a rule making power on the Rules Committee and not the Panel. The only such rule is Rule 10 of the TDP Rules which allow review of any award.

Ms. Bird refers to Coral Seas Ltd v. Gilmore where the decision given was based on the interest of justice. In this case an award was made in the absence of the appellant by the Arbitrators. On motion by the Appellant in the High Court which Cooke Acting CJ remitted the award to the arbitrators to hear further evidence. The Appellant appealed seeking an order setting aside the award.

The Court found among other things that the evidence to be given in relation to damages was directly prejudicial to Coral Seas; and also found Mr. Scholz action was unbusiness like they do not think it should have been allowed to deprive him of a basic right. In its final judgment the Court adjudge that the interest of justice will be served by striking out the order of remission by the Chief Justice and ordered that the award be set aside.

Another case of which the decision was based on the interest of natural justice is Gaugela v. TDP. In this cased the TDP convened and dealt with the Applicant’s Case on 5th December 2000. The TDP dismissed the Applicant’s claim for non-attendance and want of prosecution. The issue is whether due notice of the hearing had been given to the Applicant. The facts reveal there was no service. Mr. Averre had left the Country because of the events of 5th June 2000. His Office in Auki was closed. The Court decided as a result of non-service of notice of hearing the TDP had no right to dismiss the claim of the Applicant. As a result, an error of law on the face of the record had been committed resulting in a decision being made which is wrong in law and ultra vires. But this error can also be viewed as giving rise to breach of the audi alteram partem rule. As a result of that mistake the Applicant was not given opportunity to be heard before his claim was dismissed. The Court therefore grant order of certiorari and the order of TDP dated 5th December 2000 dismissing the Applicant’s claim be brought up to the High Court forthwith and quashed, and direct the matter be restored to the TDP cause list for hearing.

In both cases, the Applicants file notices of motion in the High Court from the orders by the Arbitrators and the TDP; contemplating that the court exercises its discretionary power to grant orders sought considering the merits of their case. Eventually the Courts did so, and grant the orders sought based on the interest of justice. In this case the Respondents did not bother to utilise appeal provision against the default orders, instead convinced the TDP to apply r. 2 to set aside its own default order. Had this option been taken the court would have looked into the merit of their case.

The question to ask is, has the Panel jurisdiction under r. 2 to set aside its own default order in the best interest of justice? Mr. Sullivan argued that r. 2 confers a power by the Panel to regulate its own procedure in matters in which it is seized of jurisdiction. It cannot confer such a power on itself a jurisdiction which is at an end and it no long had. Mr. Sullivan refer me to Mobil Oil Australia Ltd v. Kwaria where Palmer CJ said,

…"In my respectful view, subsection 6(3) is in clear mandatory terms. Contrary to what was submitted by learned Counsel for the Respondent, it does not give any discretion to the Panel to consider or entertain any complaint after the time limit had expired. Subsection 6(3) is directed to the person making complaint not the Panel. In very plain and simple terms it says that such person is not permitted to lodge a complaint after the three months period had expired. The Panel has no discretion about that. If someone is not permitted to do something by statute, then there is nothing any Panel can do. Obviously the Panel can only consider complaints permitted under section 6(3). In my respectful view, a complaint lodged out of time is not one such complaint. If it does, then it is exercising power which had never been conferred…".

What the Court was saying is that the Panel has no jurisdiction to extend statutory time period. If it does, then it is exercising power which had never been conferred. I accepted Mr. Sullivan version that r. 2 confers power on the Panel to regulate its own procedure in matters in which it has jurisdiction to deal with. Once it has dealt with a matter and a final decision made, which it had done in this case, r. 2 cannot confer such a power on the Panel a jurisdiction which it no longer had.

To rehear the same matter again the Panel do not require natural justice. It requires provision from the applicable statutes or rules. The above case has drawn a clear demarcation boundary. If there is no provision conferred by the statutes or rules then there is nothing the Panel can do. If it does, then it is exercising power which had never been conferred. No one would deny that natural justice is a goal to achieve in the courts and even in any tribunal. However, it cannot be achieved by assumption, or by imitation. There has to be statutes or rules which paved the way to achieve natural justice.

Mrs. Bird further argued that it was the intention of the Parliament by enacting the Acts and Rules to provide a procedure to deal with disputes arising out of employment and the power to deal with such disputes. However the same sentiments were echoed by Muria CJ in Queen v. Trade Dispute Panel (Ibid) on page 3, paragraphs 3, 4, 6 and 7. In my respectful view those are general comments to give effect to the spirit of the law regarding employment related disputes in Solomon Islands. But there is no specific provision found in the applicable Acts and Rules giving jurisdiction to the Panel to set aside its own default order.

6.	Has the Panel Inherent Power in the Absence of applicable Statutes and Rules

Mr. Sullivan submitted that the Panel is not a superior court of record and has no jurisdiction whether inherent, statutory or otherwise that which is expressly conferred on it by statute or the applicable rules. There must be an express statutory provision or rule giving the Panel power to set aside its own perfected default judgment.

In the absence of the applicable rules conferring jurisdiction, even a superior court judge has no power to set aside and rehear its own order, or an order of other judges, the power of rehearing being an appellate function. In the case of DBSI v. Melanesian Communication Ltd, Kabui, J. stated,

"…In addition to slip rule, I pointed out that the court does have the inherent jurisdiction to vary its own decision so as to clarify its meaning or if necessary to supplement it. Apart from those exceptions, the appropriate remedy is an appeal for court cannot alter its own decision in substance. The Orders of High Court will stand until set aside or reversed an appeal…".

And on paragraph 2 His Lordship continue,

…"The rule that the court cannot vary its decision in substance, apart from the exceptions mentioned above, is based upon the notion of finality in the exercise of the court’s jurisdiction in matters that come before it. The Court cannot sit to hear an appeal from its own decision. On the other hand, the decision of the court may be set aside without an appeal being necessary. This can be done by setting aside of judgment in default of appearance Rule 9.51. A judgment or order may also be set aside on the ground of fraud. A judgment or order obtained in default of appearance or defence is final until it is set aside within reasonable time". (See also Hessions v. Jones and In re St. Nazire) 

In Solomon Islands Ports Authority v. Tarofimana, one of the grounds was the question of awarding of interest to the Respondent. Ms. Jennifer Corrin argued that the Statutory Panel are not courts therefore do not have common law or equitable powers. Unless there is express statutory provision giving such tribunal power to award interest. The Court has accepted that submission that there is no express statutory provision giving the panel power to award interest.

Having said that, it would appear that since the Panel is an inferior tribunal which has no inherent jurisdiction it cannot vary or alter its own default order – which in substance is final. There is no provision conferred upon it to do so. There must be an express statutory provision or rule giving the Panel power to set aside its own perfected default judgment. Meantime there is no provision in the applicable statutes and rules. In the absence of such, the Panel cannot assume to utilise inherent power, a power that is reserved to the superior courts alone. Therefore the Panel in doing what it did is acting outside of applicable laws and rules which govern its function. 

7.	Can the Panel Adopt Procedure Available to the Courts?

The Panel’s ruling on 28th February 2007, on page 2, paragraph 6, first two sentence said, 

"legal procedures available to the Courts to set aside their own judgment, in the Panel’s view, were based on the principle of natural justice. That where a person whose case had been dismissed (or heard in his/her absence) must be given the chance to explain the reasons for his/her absence on the day his/her case was dismissed".

Mr. Sullivan submitted that the rules of court governing setting aside default judgments have nothing to do with natural justice but are aimed at avoiding the delay and cost of appeals in certain circumstances, that is, they avoid consequences of time barred (St Nazaire case Ibid) and consequences of non appearance resulted in dismissal (Hession v. Jones, Ibid).

It would appear to be real that there is no express statutory provision in the applicable statutes and rules conferring upon the Panel, power to set aside its own default judgment. In the absence of that the Panel cannot adopt the procedures available to the courts. It would be wrong to assume so. The Panel do not have inherent power as the courts, Tarofimana’s case.

If Panel should adopt court procedures it need to consider certain factors as, circumstances giving rise to default judgment being entered, the delay in taking steps to prosecute, the hardships and the injustices of the parties and etc. In the case of Ross Mining (SI) Ltd –v- Slater and Gordon Sir John Muria CJ said, 

…"There remains, of course, the question of discretion of the court, a discretion which is unfetted by any binding principle. The only true and compelling guide in the exercise of the courts discretion is the attainment of justice, which is justice according to laws. In case such as the present one, there are factors which the court takes into consideration in the exercising of its discretion, as to whether or not to grant the remedy sought. The factors which the court takes into account when exercising its discretion include, the circumstances giving rise to default judgment being entered, the nature of the suggested defence (if any) disclosed in the affidavit materials placed before the court, the delay in taking steps to prosecute the defence, the hardship or injustices to the parties, and the history of the litigation from the time the cause of action arose. These factors are not exhaustive"….

This case is where the court reiterated the usual requirement and the factors the court has to look for before exercising its discretion. The main function of the law is to attain justice, and the process whereby which justice is achieved is through the discretionary power of the courts. In this case the Panel attempted to make things work the opposite direction which is incorrect.

Even if the Panel had such jurisdiction, it could only exercise it on the same basis as the courts. An application to set aside regular default judgment required to show case. There must be affidavit, and factors prescribed in the above case ought to be considered on merit. Again it’s a question of discretion whether to grant or not. If the respondent’s supporting affidavit is completely silent on the merit the remedy sought could not have been granted.

Mrs. Bird submitted in the alternative that the time period in Rule 9 of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules was breached. She received a notice for a fix date less than fourteen days. Mr. Sullivans submitted that 14 days notice in R 9 only apply to hearing of complaint or trial of a matter and not to preliminary hearings. I would agree with Mr. Sullivan. 14 days notice was for hearing of a complaint, and there was nothing regards to time period for notice to be served in pre-hearings. However, this may be a ground to be considered on appeal. Theoretically an appeal is still open in which the respondents may need time enlargement, which might be difficult to obtain now. It is now more than 20 months since the Panel gave the default order. The proper way of going about undoing the default order would have been by appeal which may not be possible now.

8.	Decision of the court

Being clear from the case authorities that the default dismissal order pronounced and perfected on 21st November, 2006, was finality. There being no other outstanding issues left for the Panel to further deliberate on. The case has been completely ended. That dismissal order has two fundamental effects on the parties, in particular the respondents. One, that there being no possibility that the respondents bringing fresh complaints, and secondly that any previous existing liability of the respondents to the appellant ascertain or establish is all over. With that it renders the Panel functus officio. 

Very obvious from the two Acts and the two Rules which guided the function of the Panel, indeed there is no express provision conferring jurisdiction upon the Panel to rehear its own final dismissal order. To assume that it has jurisdiction by virtue of r.2 base on natural justice is a wrong interpretation. There has to be provision in the statutes or rules which will pave a way to achieve natural justice, and that’s how the courts operate.

In the absence of any conferred provision, the Panel as an inferior tribunal cannot adopt the procedures available to the courts. It has no inherent power to do so. An attempt to do so is based on wrong premise.

It would have been the right course, and a better option, if the respondents utilise the appeal provision and have their grievances heard in the High Court. Its now more than twenty months and an appeal may not be possible.

9.	The court therefore makes the following orders:-

1.	The appeal be allowed.

2.	The ruling of the Panel of 28th February 2007 is set aside.

3.	The respondents’ summons is dismissed.

4.	That Panels Order of 21st November 2006 is re-instated.

5.	That the respondent pay the appellant’s costs of incidental to this appeal and in the Panel to be taxed if not agreed.

6.	Order Certification for QC costs.

THE COURT