AUSTRALIAN COUPLE CRY FOUL OVER FAILURE OF OUR JUSTICE SYSTEM - Solomon Star News

AUSTRALIAN COUPLE CRY FOUL OVER FAILURE OF OUR JUSTICE SYSTEM
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18 January 2021
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AS the 2021 Legal Year opens in Honiara this week, an Australian couple is crying foul.

William Frederick Olsson and his wife, Gloria Elizabeth Olsson claim our court system has blocked their every move to execute a multi-million dollar Enforcement Order for judgement granted in their favour by both the High Court and the Court of Appeal – the highest court in the land – against Solomon Time Ltd (in liquidation) and its owner, businesswoman Pamela Kimberly. 

The Olssons may not be the only people complaining about the administration of our justice system. They believe no one is or should be above the law.

Their case dates back to 2006.

Court papers show the judgement stemmed from breach of employment contracts. Solomon Time Ltd employed the Olssons on separate contracts as alluvial gold consultants whilst acting as agents for the gold operations of the company, Solomon Time.

The two-year contracts – signed on 18th November 2005 – stipulated that the Olssons were to be paid $20, 000 in salary a fortnight. They were also entitled to four weeks’ annual leave. Solomon Times Ltd failed to honor the contracts.

The Olssons sued for breach of contracts in late 2006 and won. 

In November 2009, they obtained the initial judgement order against Solomon Time Ltd for breach of contract. But they were unable to enforce it because Solomon Time Ltd was placed into liquidation in 2010. They struggled on.

On 15 April 2016 – some seven years later – the High Court made an order (described as a Perfected Order) that:

  1. Leave be granted to the Enforcement Creditors, (the Olssons) pursuant to clauses 4 and 6 of Schedule 5 of the Companies (Insolvency and Receivership) Act 2009, for the Enforcement Creditors to continue to exercise or enforce the right to recover the judgement debt, interest and costs from the Enforcement Debtor (Solomon Time Ltd and Pamela Kimberly), notwithstanding the appointment of a Liquidator, the court documents show

The High Court also granted the Olssons 12 months to pursue the matter. As well, the Court ordered that: 

“The Sheriff be authorised to seize and/or sell and pay to the Liquidator any real and personal property in which the Enforcement Debtor or Respondent [Pamela Kimberly] may have a legal or beneficial interest.”

The Court sets out the amount recoverable under the Order as:

  • $995, 000.00 for each Enforcement Creditor (the Olssons) together with interest at $32, 030.00 for the period 6th November 2009 to 29th June 2010 and thereafter at the rate of $136.30 per day until full payment.”
  • Costs of the trial and appeals.
  • Costs of Enforcement

The accumulated value of the judgement debt, daily interests and enforcement is now estimated at about $5 million. They said the longer the interim order against enforcement remains, the higher the cost of the settlement.

An application by the Olssons later in April 2016 to join two other companies to the proceedings was denied by the High Court. It was feared that given the demise of Solomon Time Ltd, assets including money and properties could be transferred out to two other entities in which Ms Kimberly has a legal, financial or beneficial interest.

Today, 14 years since litigation began the Olssons are still fighting for justice. 

An enforcement order dated 25 July 2018 authorised the Sheriff of the High Court to seize and sell Pamela Kimberly’s property(ies). These properties comprised four Land Parcels – Parcel Nos. – 192-004-829, 192-004-830, 192-004-831 and 192-004-832 are located at Lungga in east Honiara.

According to a valuation report dated on 21st September 2018, these properties were valued at $6.4 million at the time.

The multi-million dollar enforcement order was issued in accordance with a Court of Appeal decision in May 2018. The case to which it applied was initiated in 2006, according to court papers.

In its deliberations, the Court of Appeal – the highest court in the land – upheld the Olssons’ application giving them the right to pursue the enforcement Order. They did.

The issue the Olssons has and continues to face over the last 27 months in their fight for justice is to do with Justice John Keniapisia’s intervention in allowing an 11th-hour application lodged by Sol-Law’s John Sullivan QC on behalf of Pamela Kimberly.

Ms Kimberly was John Sullivan QC’s one-time business partner in a $15 million loan deal involving the management of Tavanipupu Island Resort, Marau in east Guadalcanal. The Solomon Islands National Provident Fund (SINPF) provided the loan money in February 2012. 

SINPF has since terminated the Tavanipupu Island Resort management deal.

Judge Keniapisia’s decision to hear Ms Kimberly’s application at such short notice has raised questions. Many say a judge of a lower court that the High Court is in this case, does not have the power to rehear a matter the Court of Appeal – the highest court in the land – has already determined as it did in the Olssons’ enforcement order.

Pamela Kimberly’s application to the High Court after the Court of Appeal has determined the matter was to stop the sale of her properties.

The application was lodged at the High Court on 8th October 2018. A day later [9th October 2018] Judge Keniapisia granted the stay of the sale ‘until further order.’

When one considers the number of years the Olssons have and continues to endure in pursuing justice, the Judge’s whirlwind action begs questions. What makes Pamela Kimberly’s case so special that the High Court had to rehear a matter already settled by the Court of Appeal,? one observer asked.

In his written judgement, Justice Keniapisia said: 

“Upon hearing Mr. Sullivan of Queen’s Counsel of Counsel for the Applicant, Lawrence N Kwana of Counsel for the first and second Enforcement Creditors (Mr. & Mrs. Olsson); and 

“Upon reading the Application, Sworn Statement of Pamela Lorraine Kimberly and the Certificate of Urgency all filed on 8th October 2018, IT IS ORDERED AND DECLARED THAT:

 

  1. “The Enforcement Order dated 25th July 2018 be stayed until further Order;
  2. The proposed sale by public auction (by) the Sheriff of Land Parcel Nos. 192-004-829, 192-004-830, 192-004-831, 192-004-832 advertised to be held at the High Court on Friday 12 October 2018 at 10 am be stayed until further Order, provided that the applicant shall not transfer or otherwise deal with the said lands until further Order;
  3. Inter-Parties hearing relating to the Application be listed for hearing on a date to be fixed at short notice.

The Orders, “Perfected, signed and sealed this 9th day of October 2018,” was signed by Justice Keniapisia, court papers show.

His interim Orders have effectively blocked the Sheriff from executing or carrying out the judgement Order granted by the Court of Appeal on 25th July 2018, which authorised the sale of four parcels of lands in which Ms Kimberly is said to have a beneficial interest, the court papers show. 

Justice Keniapisia’s action may have broken High Court Rule 12:31, which said interim orders are only effective for three months after a trial had ended. Thereafter, the judge must deal with the case.

There is no record to show Judge Keniapisia has dealt with the matter since his interim order of 9th October 2018, if there was, the Registrar of the High Court had failed to convey the decision to the Olssons.

In the case of the Olssons, it is now 27 months since Judge Keniapisia issued the interim order to stay (stop) the sale of the properties – an obvious breach of High Court rule.

The Registrar of the High Court, Myonnie Ann Tutuo, could also be a party to the breach of Rule 12:31. This rule stipulates that:

“If judgment has not been delivered within 3 months of the date when the trial finished, the registrar must list the proceedings for mention before the judge who conducted the trial and the judge must report on the finalisation of the proceedings.” 

“The judge had no jurisdiction to make this interim order as it is in direct conflict with the final orders of the Court of Appeal,” the angry Queensland couple said.  

“After 27 months, this interim order remains in place. The tardiness of the Judge has meant a decision on an Application to dismiss Pamela’s proceedings filed at the High Court for abuse of process has not been made.

“A renewed enforcement order was issued on 25 February 2020 but it still cannot be enforced.  Almost 11 months have elapsed and everyone waits,” they said.

“Why is the High Court interfering in a case where the enforcement order has already been determined and decided by the Court of Appeal?” they asked in frustration.  

In their desperation, the Olssons have reached out to the most powerful in the land. They have written letters after letters and emails to all the powers that be – from the Governor-General, the Chief Justice of the High Court and to the Minister of Justice and Legal Affairs.

They have also written many emails to the Registrar of the High Court, Myonnie Tutuo, as well as other High Court officials asking when the interim orders would be lifted. 

The Olssons’ latest email seeking an answer from to the Registrar was dated 14th January 2021. It said: 

“Dear Myonnie, 

“Another year starts.  Would you kindly update and facilitate to ensure the decision made by the Court of Appeal in May 2018 to uphold the enforcement order is complied with? 

“As you are well aware, the Court has impeded the Sheriff in complying with his obligation under the Enforcement Order renewed by the High Court on 25 February 2020.

“Note we were only informed of this renewal by you on 29 May 2020. 

“The inability to enforce by the Sheriff is solely due to the position taken by you and the Judge in regard to the nugatory interim order. The matter cannot continue to drift unresolved in conflict with the overriding objectives of your Court. 

“Please advise your position and the action you will take to ensure the enforcement by the Sheriff can proceed immediately regardless of a stale interim order (well past 3 months old). 

“We are being forced into a position due to the failure of the Court to apply for renewal of the enforcement order.  Please advise in writing whether you will automatically renew and extend this enforcement order dated 25 February 2020 for another year or if we once again have to apply for renewal (a ridiculous scenario and total nonsense). The case has finished, the Court of Appeal has had its say – it is time to bring an end to the matter and stop it clogging up the Court’s valuable time. 

“Please address this issue as a matter of urgency and advise.”

There has been no real response or action, according to the Olssons. 

By Alfred Sasako
Newsroom, Honiara.

 

 

 

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