Ingram v Ingram [2010] CKHC 8; CA 2 of 2010 (17 June 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)

CA: 2/10

IN THE MATTER BETWEEN

PAMELA INGRAM
(Applicant/intended Appellant)

AND

EVELYN INGRAM & OTHERS
(Intended Respondents)

Hearing Date: 17 June 2010
Coram: Barker, P Smellie, JA Fisher, JA
Appearances: No appearance for intended appellant
Mrs Browne & Miss Inder for the respondents
Judgment: 17 June 2010

Oral Judgment of the Court delivered by Barker, P.

[1] When this application for leave to appeal was called this morning there was no appearance on behalf of the intended appellant.

[2] Mrs Browne and Miss Inder appeared as counsel for the Respondents. Mrs Browne had previously filed submissions. There was nothing from the intended appellant except a statement that she did not intend to appear today despite a intimation from the Chief Justice in a Minute dated 13th May 2010 that she should appear today and present her argument.

[3] There was no suggestion in the communication received from the intended appellant of any particular reason for her non attendance other than advice that one of the respondents Mr Vincent Ingram died in New Zealand last week. However, the intended appellant does not put that as a rel4son for her non-attendance, except that she said she was unable to travel to appear before the Court of Appeal and will not be represented. One would have thought that if she had been genuinely unable to attend, that she would have instructed counsel to at least appear and ask for an adjournment.

[4] The application for leave to appeal is against a decision given by Hingston J in the High Court on 26 February 2010 where the Judge struck out an application brought by the intended appellant for a Declaratory Order concerning occupation rights.

At the hearing in the High Court, Mr Charles Little of counsel appeared before the Judge to ask for an adjournment on the basis that the intended appellant was unable to appear before the High Court. Counsel made it very clear to the Judge that his instructions were merely to apply for an adjournment and that, if the application for adjournment were refused he was to withdraw and not offer any argument to the Court.

[6] Mr Little told the Judge that he had explained to her that her attendance was not necessary because it was a legal issue but that he had been expressly instructed not to present any argument on legal issues. Consequently Mr Little withdrew from the hearing when the Judge referred the adjournment. The Judge heard from Mrs Browne on behalf of the Respondents. The Judge noted Mr Little's situation and granted Mrs Browne's request to strike out the application. The Judge said he had read the papers and there was no possibility of Mr Little's client achieving an occupation order and if that were the object of the proceeding, it would achieve nothing. The appellant was struck-out with costs reserved.

[7] The application for leave to appeal was filed on 19 March 2010 in time. The grounds of the application were inter alia that the Judge had struck out the proceedings on the ground that the intended appellant had not been present. There were other grounds mentioned but it seems to the Court that it does not need to go into details because the intended appellant did not put up any case in the Court below. Even though her counsel had been in a position to do so, he had been expressly forbidden by the intending appellant to make any submissions of the merits of the case.

[8] Mrs Browne acknowledges that it is still possible for the intended appellant to make another application to the High Court or to seek a re hearing in the High Court. Dismissing this current appeal is not a bar to her so doing.

[9] In the circumstances of the intended appellant not having prepared to ask for an adjournment or to present argument in support of the application the Court decides to dismiss the application for leave to appeal and orders costs in favour of the Respondents of $500.00 together with disbursements, if any, as fixed by the Registrar.

Barker, P.

Solicitors of the Respondents, Browne Harvey & Associates (Rarotonga)