The highest court in the Solomon Islands, the Court of Appeal on Friday last week (Nov 25), delivered the last blow to SINUW.
SINUW lost as their appeal was dismissed.
Leading lawyers who were in court described the decision as the end of the legal road for SINUW.
SINUW had made several appeals in the past against the judgement that SINUW compensate RIPEL $7.3 million for damages the Union caused in the strike in Yandina eight years ago that was declared illegal.
On April 20 this year, SINUW lodged an appeal against the March 2011 High Court judgment, which awarded RIPEL the $7.3 million compensation.
In the Court of Appeal judgement last Friday, the unanimous ruling of its three Judges, the President of Court of Appeal – Sir Robin Auld, Judge Gordon Ward and Judge Francis Mwanesalua, dismissed SINUW’s appeal and also disallowed RIPEL to claim more compensation.
In their scathing ruling against SINUW, the three Judges said “the Appeal before the Court (of Appeal) concerns an order of Goldsbrough J (Judge) on 22nd March 2011 assessing and awarding compensation …..to RIPEL against the SINUW for an unlawful strike action in contravention of the Act (Law) and in continuing with the strike following referral to the Trade Disputes Panel”.
The Court of Appeal noted that on November 19, 2004, the High Court Judge had dismissed the Union’s appeal of the original October 7, 2004 Orders declaring the strike illegal and awarding RIPEL compensation for damages caused by SINUW and striking workers.
The Court stated “in the meantime, the Union (SINUW) and its members, in breach of Judge Brown orders of 7th October 2004, had continued their unlawful strike action.”
The Court made special stating that during and since that period the Union progressively took control of RIPEL property in the Russell Islands, causing serious damage and much financial loss by looting, destruction, arson and other criminal acts.
“They (SINUW) also prevented – and continue to this day to do so – RIPEL’s management from access to its premises and, more generally from operating its business in the Russell Islands.”
SINUW filed three grounds of appeal, which were:
- Its application to set aside Judge Brown’s
illegal strike orders in October 2004 remained alive, after the Court of Appeal
in July 2005 remitted it back to the High Court.
- If March 2011 judgement effectively
dismissed the set aside application, it did so, not in conformity with the rules.
- The High Court erred or made an error in its assessment of compensation.
On grounds 1 & 2, the Court said “SINUW did nothing for over four years……. there is no substance or merit in any of those challenges……. it was unlawful for want of compliance with the Civil Procedure Rules or otherwise and for want of reasons”.
“There is no substance or merit in any of those challenges. As Mr John Sullivan QC, for RIPEL pointed out, the Union (SINUW) has never challenged Brown J (Judge) ruling on 7th October 2004 order that the strike was unlawful, that it had been properly referred to the TDP or that the order for compensation…..
The Court of Appeal then said “and, as we have indicated in this judgement, SINUW which had carriage of its November 2004 application to set aside Brown J 7th October 2004 order, did nothing to put the matter before the High Court either to re-open its set-aside application or for its variation”.
The Court of Appeal pointed out that this was acknowledged by the Union before Judge Goldsbrough, and went on to state further “even when, four years later in September 2009, RIPEL coupled its application for assessment of compensation with an application to strike out the SINUW set-aside application …….…., SINUW still did not reinstate its application for consideration of the High Court”.
As it handed down its ruling, the Court of Appeal stated “by any standard that long-standing inaction was a failure to satisfy the second limb, if not the first, of the well-known principles of culpable delay laid down by the English Court of Appeal in ……Birkett v James…… If the Union had sought to challenge the strike out part of RIPEL application of September 2009 – which it did not – the only proper exercise by Goldsbrough J in the exercise of his discretion would have been to so find. Although SINUW sought to rely on the intervening Trade Disputes Panel proceedings, the issues in play in those proceedings had no bearing on the issue of compensation for unlawful strike action, at the heart of these proceedings.
As for SINUW third ground, the Court said “…..as is plain from Goldsbrough J’s judgement and confirmed by ……..to this court, that there was no such objection at the hearing to the Judge nor any dispute by SINUW of (RIPEL’s) evidence as to the amount claimed”.
“It is plain that, in absence of any such objection, the SINUW and he were at one in proceeding on the basis that it is was no longer effectively before him as an issue.
“It already stood dismissed by Brown J in his order of 19th October 2004, an order that the SINUW had done nothing to disturb following the remission of the matter back to the High Court in July 2005.”
“As to third ground of appeal that the Judge erred in his assessment of damages, his complaint…… to this court was of the Judges acceptance that all the asserted loss flowed from the industrial action, rather than some other form of action. No such issue was raised by SINUW before Goldsbrough J in relation to the only damages before him with which he was properly concerned, namely the damages incurred by unlawful industrial action of SINUW and its members …. As we have stated, there was no dispute before him as to classification or quantum of that compensation.
In view of the above, the Court of Appeal dismissed SINUW’s appeal.
RIPEL also lost its cross appeal to seek to increase the amount by a further $ 179,000,000.
The Court of Appeal rules “we read Brown J’s meaning in his order as plainly referring only to the statutory losses that RIPEL suffered from the SINUW unlawful industrial action to the date of his order...”
“Whilst theoretically, if RIPEL’s claim had been sufficiently widely pleaded and proved, he could, in October 2004 have endeavoured to identify all future losses of whatever nature sounding in damages caught by the TDP Act and the general law, he did not do so……
Solomon Star noticed Mr Patrick Wong, Chairman of RIPEL in court on Friday for the judgment and later caught up with him for his comments.
Asked what the final judgement means for RIPEL, Mr Wong said the Highest Court of the Solomon Islands, the Court of Appeal, has spoken and delivered a strong message.
“If any matter is referred to the TDP, then all strike action must stop and all must return back to work.
“If strike does not stop, then the employer will be awarded compensation. This is now crystal clear.”
He said RIPEL has now set a legal precedent and all employers can now take comfort that last Friday judgement has now become a legal authority and a legal basis.
Mr Wong calls upon SINUW to be held accountable and act responsibly.
The Chairman of RIPEL said he takes comfort in Joses Tuhanuku’s comments at SINUW last AGM, held on Sunday 31st July 2011.
“Mr Tuhanuku said whatever the problem they (RIPEL) want to raise they have to understand that they will do it according to the Laws of Solomon Islands….” “These comments were reported in the Solomon Star on the 1st August 2011,” he recalled.
“…..well Mr Tuhanuku, the Court of Appeal has spoken. Now please practise what you preach. Please obey the Laws of Solomon Islands. Unlike your recent Magistrate court rulings, which may be appealed, in this RIPEL case, there is no further possibility of appealing against a Court of Appeal judgement.”
Mr Wong also re-echoed the Court of Appeal’s ruling, when it made observation of the facts that “SINUW progressively took control of RIPEL property in the Russell Islands, causing serious damage and much financial loss by looting, destruction, arson and other criminal acts. Till today, the Union also prevented RIPEL’s management from access to its premises and, more generally from operating its business in the Russell Islands…..”.
“The message to enforcement arm of RSIPF and RAMSI, you have failed, failed to stop the looting, arson, destruction of property and other criminal acts.”
He also mentioned to the Solomon Star that on the November 2, 2011, the High Court has issued Enforcement Orders for SINUW to pay the $ 7.3m.
“The High Court also issued a Charging Order, against SINUW’s building, located just behind the Magistrate Court.
“The Charging Orders requires that no action is taken in 3 months, and failing SINUW not paying RIPEL, RIPEL is able to sell the land and building to recover its judgement debt.”
Mr Wong also said, that in the same enforcement hearing, during cross examination of Tony Kagovai under oath, SINUW President said that SINUW could only afford $ 100,000 per year, which will translate to payment over seventy three (73) years.
“The Registrar also asked if a special levy to repay the Judgement Debt could be imposed.
“Mr Kagovai did not reply.”
Mr Wong said, in order for the debt to be repaid over a reasonable time, say 3 years, with say 3,500 members, each member would need to pay an extra $ 700 per year, over 3 years, for the privilege for being a SINUW member.
However as SINUW did not lodge an application for payment in installments, the High Court did not need to make a ruling.
Mr Wong further said, if one looks into this in commercial terms, assuming if the interest rate was charged at commercial rate i.e. 15%, the interest alone will be $ 1.1m or $ 300 per member, per year, for the next 73 years.
When asked anything else he wants to say, Mr Wong said “it is sad to see it has taken eight long years to arrive at this simple conclusion that what has been going on all this time is unlawful and criminal.
“Any pikinini (child) would take less than 8 days, to work this out, that it is just plain wrong.”
Attempts to talk with General Secretary of SINUW Tony Kangovai were unsuccessful.
By EDNAL PALMER
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